Copyright Turned Upside Down
by Neil Turkewitz
Over the course of the past few weeks, I have noticed what seems to be an escalating narrative on social media portraying copyright as the province of the rich and powerful, and intimating that artists will be liberated once freed from the shackles of property. Of course, this has been a theme playing in the background and in large swathes of academia for a long time, but it seems to be seeping into more public discourse of late given battles over copyright in EU and globally, and the massive amount of disinformation being conveyed by YouTube and others in an attempt to preserve the status quo under which they pay little or nothing for the principal resource that they monetize and upon which their fortunes have been made. Given that well-meaning people, both progressives who support the arts and focus on human dignity, and conservatives who would generally understand the importance of property as a foundation of liberty, have been sucked into this vortex of confusion, I thought it might be useful to briefly, and soberly, examine the realities of copyright.
MYTH: Copyright Limits Freedom of Expression
Copyright is the protection of expression. At a minimum, the fact that copyright protects original expression and sustains those that express it should give pause to anyone that hears that it is a form of restriction on expression. But let’s dig a little deeper. Copyright does not protect ideas — in fact, it operates as an incentive to share ideas in public fora without losing the ability to determine the uses of the author’s particular form of expression. This is known as the idea/expression dichotomy. In some instances, even expression will not be protected — for example where the idea which is shared is really incapable of being expressed other than as expressed by the author. This is known as merger doctrine. There is also a doctrine similar to merger, drawn from French law, known as “scènes à faire” which limits the application of copyright protection to expression which is a necessary part of expressing the idea.
And of course, copyright does not extend to facts — an important distinction to bear in mind next time that you hear that copyright is somehow interfering with information.
MYTH: Copyright Only Serves the Interests of the Rich and Powerful
Rich and powerful companies certainly benefit from copyright, and many of the most valuable copyrights are held by corporations. But companies and organizations that campaign for weaker copyright (or the status quo lack of platform accountability) want you to believe that Mickey Mouse and Disney are the only things you should think about when considering copyright. This must be rejected (side note: the incentives provided by copyright have allowed companies like Disney to invest in the production of films and other materials which have entertained and thrilled us, so I actually think the focus on Disney is wildly misplaced, but that’s for another day). The fact that copyrights may sometimes serve the interests of corporations must not obscure the fact that copyright at its core is about the right of the individual to determine the uses of her work — the right to say yes or no to the most powerful interests in the world. Effective copyright protection serves the interests of all creators — from those that want to negotiate a deal with a corporate entity that will pay for, publish, produce, and distribute that work for the market, to DIY artists that want artistic and financial control, to those artists that want to give away their works, to anyone in between.
At a critical philosophical level, copyright is a recognition of the importance of consent in a world rushing towards models of efficient monetization that would erode the ability of the individual to make decisions for herself. It rewards the singular by standing in the way of a dehumanizing Singularity. And if we can create an environment in which it doesn’t take an army to enforce it, copyright expands the choices available to creators about how to determine the contours of their careers.
MYTH: Copyright Defends Legacy Business Practices Against Innovation/Competition
This is a powerful one and oft-cited. But ridiculous. Copyright provides creators with a bundle of rights that may be exercised in a way that is tech neutral. In no way does it protect any particular business practice or model. It is both flexible and adaptable. I implore you dear reader, please pay close attention to the arguments of any party that invokes any form of this myth. They are trying to mislead through this time-tested imagery. Copyright is not about the past — -unless we fail to keep it vibrant and robust, in which case we will all lose. The irony of all ironies is that it is tech companies desperately clinging to internet rules adopted at the dawn of the commercial internet to preserve their legacy practices which permit the acquisition of their principal resource without meaningful negotiations (or wholly without negotiating). Their “future” is rooted in the past and would lead to a culturally bleak landscape. As for competition, copyright only provides that creators are not forced to compete against themselves. They are in a constant struggle to compete for attention and compensation with other creators. They shouldn’t have the additional burden of competing against unauthorized uses of their own creations.
MYTH: The Name of the Game is Promotion
Well, that’s true if you’re in the business of promotion. Not so true for artists trying to sustain themselves through licensing of their works. This myth starts with a grain of truth — promotion/visibility is an important component for any artist. Being unknown makes it hard to compete in a very competitive environment. But because promotion is a feature of artists’ careers must not serve as an invitation to take away the ability to determine for themselves how to engage in promotion. Copyright is not an impediment to promotion, and undermining it (copyright) is not a form of artist-liberation from an unjust ecosystem. This particular myth may be the most frequent and poorly considered — that because artists are sometimes exploited by companies with whom they do business, we are somehow helping artists by eroding copyright. Copyright is not the means by which artists are constrained — it is their only leverage. Eroding the value of copyright further undermines the position of individual creators. To those of you that want to empower creators — give them asset that has more value. A property interest that can be easily enforced by an individual against ANY company or platform. When creators need armies, they will always be at mercy of said armies. Free them. Support copyright reform that brings copyright into the digital age by addressing the limitations of existing rules that have manifested themselves in the 20 years or so since the adoption of first generation rules of internet governance.
Finally, for further myth-busting, please see this excellent piece by John Degen, Executive Director of The Writers’ Union of Canada, and self-proclaimed “believer in the future of the book” entitled: “5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating.”