Like the Force, Copyright Law is About Balance

As an artist and artist advocate, I often find myself conflicted. I am concerned about how our society chooses to treat creators, but I am also supportive of technological progress. In many ways, my personal and professional experiences embody an inescapable tension in intellectual property, innovation and the marketplace.

This tension isn’t inherently good or bad. It’s ultimately a matter of balance.

At this hour, governments do the bidding of corporations first and foremost. And my own American government is increasingly unwilling to invest directly in culture. Everything is left to the market. The current debates about artists rights and technology, which will likely grow more contentious, are the inevitable result of this reluctance.

And yet I still embrace and champion progress and its attendant innovations, because that’s what the US Constitution provides for.

Copyright is hardly essential to creation. But it is an essential moral and economic right. I believe that the moral quotient is what is getting lost in the polemics on both “sides” of this debate. There is foremost the right to have an author’s work respected in terms of what uses are permitted in the period in which that work is protected. In some instances, there is a mutual need to enter collective arrangements to better manage permissions and revenue, but the principle remains: moral and economic benefits proceed from the core right within the time frame in which that right is guaranteed.

There will always be a tension between promoting progress through access to a public domain and securing to authors (for limited times!) exclusive rights over their “discoveries.” But I see no reason to make this into a matter of industrial warfare between corporations, with government as the reluctant and ill-equipped mediator.

Copyright is about authors. It is about the public. It is about the enrichment of our society and an added incentive to create. Anything else is a distortion of constitutional intent and must be deeply questioned.

Conversations around copyright are becoming increasingly polarized and stakeholders radicalized. This benefits no one — not the public, not the technology platform and certainly not the artist, whose livelihood is ultimately dependent on her ability to access and cultivate audiences and patrons.

Certain self-styled artist champions often evince apologist attitudes about how it was better back when corporate rights-holders ran the roost. You know, the good old days, when artists were forced to play a sucker’s lottery in order for the chance to have their creations enter the marketplace. A world defined by bottlenecks and gatekeepers in which the mere promise of reaching audiences necessitated a transfer of rights to an outside entity for no less than a statutory term of 35 years (and then only under highly specific requirements beyond the administrative ken of most authors and heirs).

A truly radical pro-artist agenda would look to the Constitution for guidance on how to structure our creative economies. There is nothing in Article I, Section 8 of the U.S. Constitution that references intermediaries, whether they’re multinational content conglomerates or giant technology concerns.

Let’s look at what the Constitution actually says:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

If we can agree that intellectual property is somewhat distinct from the so-called “natural rights” that govern tangible property — which must be the case, given the “limited times” — then we must also recognize that the transfer of this quasi-property runs counter to constitutional intent. Why? Because of the word “respective.” The rights are conferred to authors to their respective discoveries. To me, this means that the exclusive rights in expression belong to the author, exclusively. As a pragmatist, I understand that this view is unlikely to be supported by the broader copyright industries. But it is certainly worth entertaining, particularly by policymakers whose duty it is to write laws based on this source construction.

And what of works created by non-persons? Does such a distinction even matter in a regulatory environment where corporations are akin to living, breathing people? Corporate authorship and works-for-hire are a likely reality under any copyright framework. But let’s put to rest the lie that caring multinational content aggregators always have the authors’ interests at heart. In actuality, these conglomerates don’t even properly enumerate their holdings for the purpose of accurately compensating the authors from whom rights were transferred. The music industry is notorious in this regard. In fact, the only reason that artists receive anything approaching equitable treatment from owners is due to decades of negotiation with and pushback against those who would exploit works without benefit to the author.

A world where rights are non transferrable would still offer opportunities for intermediaries. But they would not be in a position to dictate the terms of access and compensation for the actual creators. Heck, we could leave statutory damages and term lengths right where they are. It would be far easier to keep platforms, distributors and licensors honest when the essential rights reside permanently with the artist. You want to use my work? License it from me or my designated agent (which may be a collective of my choosing).

But what about the public domain? Wouldn’t giving artists this much control impact what is or isn’t available to everyone else? Keep in mind that a great many works exist that are technically under copyright for which the owners — not necessarily the authors — feel no financial motivation to make publicly available. In fact, infringement damages may actually be a greater economic motivator. This a classic example of a perverse incentive. Perhaps such perversions would be mitigated if the artist was the ultimate decision-maker. Of course, not all artists create because of an economic motivation. What the exclusivities that attach to creative expression really amount to is choice.

As a society, we, too, have a choice. A choice about whether and how to value creativity and ingenuity. This doesn’t even require industry, per se. But it is helpful to have laws that nurture and incentivize creation, and which allow other members of society to be enriched by and build upon what has come before. This is the balance laid out in the social and legal compact that is Article I, Section 8. It is a balance that should be honored.