Wednesday, January 05, 2005

In Defense of Copyright

There is little doubt in the minds of most reasonable people that current copyright safeguards are unnecessarily long and stringent. Even though the Supreme Court has upheld the recent copyright extension acts as strictly constitutional, a few of the justices have expressed opinions to the effect that these extensions cannot continue to be extended indefinitely, even vaguely promising to revisit the matter at some future date if the Constitution’s “limited Times” copyright clause is not eventually satisfied.

Still, by the time anyone gets around to standing up to Disney and their ilk, the main damage will already have been done: characters such as Tarzan, Mickey Mouse and Jay Gatsby will have passed the point of cultural relevancy, and into the annals of historical curiosity. Certainly, this is not to say that there will not be interesting things to be done with these characters and concepts once they do reach public domain, but in terms of any actual impact to the broader spectrum of culture, 100-year-old icons are rarely a going concern.

To wit: when I write the name Heathcliff, how many people’s first thought is of a rowdy orange cat?

But in the shadow of this indefensible and unfortunate turn of events, some people have turned to radical solutions, in some instances calling for the eradication of the very concept of copyright. As deleterious as the perpetual extension of modern copyright is, the eradication of copyright would produce far harsher results. If copyright were abolished, art itself would soon cease to exist in the present tense.

The revolution in digital music downloading that began with the advent of Napster, and which has never really stopped, placed certain of these issues near the center of the political debate. Few could argue convincingly that the mass distribution of copyrighted music was anything but theft, but many also argued persuasively that the thieves acting on a moral imperative, on account of the music industry’s continued condescension towards both artists and costumers. This is not an unattractive argument, but it fairly reeks somewhat speciously of an excuse adopted after the fact.
One strange effect of the digital music debate was the somewhat paradoxical reaffirmation of artists’ rights which followed soon thereafter. If, as the logic went, stealing from major corporations who abused their power over consumers and the marketplace was acceptable, then stealing from the artist themselves was not. This slight shift in consumer attitudes led to a slight shift in moral attitudes. The rights and privileges of the corporations who printed and distributed the music was permanently defaced in the public consciousness, in favor of the artists’ inalienable ability to create his art. This was a welcome development insomuch as any erosion of the music industry’s status quo was long overdue.

But the problems are bigger than that, and certain current laissez faire attitudes towards copyright threaten to send the course of meaningful art down the slippery slope towards extinction.

The abolishment of copyright would effectively place the means of making a living – in fact, receiving any meaningful remuneration – out the grasp of the artist forever. To be fair, copyright laws have not always existed – they were first created at the dawn of the 18th century. But the means to create instantaneous and perfect digital reproductions of any work of art did not exist either. If you wanted to create a bootleg Shakespeare folio at the dawn of the 17th century, there was a considerable amount of work involved in such an endeavor. Not so now, where with two clicks of a keyboard anyone could theoretically erase the name of “William Shakespeare” from across a mass market publication of Hamlet, and replace the Bard’s name with their own.

That may be an absurd example, because everyone knows who wrote Hamlet. But if you write a new novel that promises to be a lucrative and popular piece of fiction, and there are no copyright protections, there is no way to disseminate this book that will enable you to make a profit. No publisher will publish a book that can be instantaneously copied and pawned off anonymously, which is what the abnegation of copyright would result in. No one could profit off their own work when any popular property could merely be copied and sold without any remuneration. Book companies make money off of publishing classic works that have fallen into public domain partly because of the fact that there are no royalties to be paid and there are few up-front costs to be tendered (leastwise, none comparable to the ritual of advances and modern royalties). If all publishing was essentially public domain, no-one could afford to pay any author for anything.

And as much as we all wish that art existed as some pure and shining ideal, the fact is that if there was no possibility of ever making a living, many fewer people would do it. And the fact that any popular works could essentially be rendered anonymous by the vicissitudes of legal bootlegs would probably do in the rest. Oh, there would probably still be people who wrote, but they would only share their work with a few people. Art as a going, public concern would be effectively dead.

There would be no new television or cinema produced. Musicians and actors could probably continue to make a living by performing the vast repertory catalog of extant work in live settings, but the fiscal and moral prohibitions against making and disseminating any new art would be forbidding.

In the absence of copyright laws, and with the existence of instantaneous perfect reproduction of digital properties, there is no way to protect even an author’s basic moral right to the intangible proprietorship of their work. The only alternative to copyright laws are those offered by the Soviet system, in which all notions of private property and copyright are controlled by the state, but the artist’s moral proprietorship of their work is granted through the state’s gratuity. But there has never been a planned economy in the history of the world that has not devolved into abject totalitarianism.

Modern western socialism, as it exists to a limited degree in certain parts of western and northern Europe, does not represent the obliteration of capitalism, so much as merely the establishment of boundaries beyond which capitalism has no dominion. It is based, at least partly, on the notion that there are certain facets of life which are inalienable rights which cannot be left to potentially fail, and must be preserved through governmental fiat, at the risk of incurring greater societal instability.

There are some on the left whom would argue that copyright is not an inalienable right, and it is certainly not. It is a right granted by a government to men. But it does represent a necessary compromise between the untrammeled rights of the masses and the rights of the individual. If said individual has no right to profit from his own work, either fiscally or through recognition, than there is absolutely reason for said individual to do anything at all.

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