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The Problem With Copyright

or: It’s Hard For Me To Copy-Right When All I Want Is Copy-Wrong

So the government here in the UK has just announced that it's going to follow up on all the recommendations of the Hargreaves Report.

Good. This is a step towards a sane solution.

Sane? Well, did you know that under current UK law it is illegal to take a CD, which you have paid for and own, and rip it to MP3? Not for sharing with anyone, mind you; just for your own personal use.

Totally and unequivocally illegal.

Which hasn't stopped anyone from doing it. Not many people even know that they're breaking the law when they do this. And the record companies don't make a fuss because they know there's no way they can even afford to pursue this.

It's an archaic law, and one that rightly needed to change, so it's nice to see that (amongst them attempting to rape every last penny out of the country in all other areas) the government has at least seen sense on this.

Parodies, too; they're fine now. Weird Al Yankovic would have never stood a chance if he'd been born in the UK, up until now.

But it's at this point that I think, as a culture, we need to reconsider copyright law on a deeper, more fundamental level. Obviously some people are not happy about any relaxation in copyright law, and they tend to have deep pockets to lobby law-makers. If we're going to build a copyright law for the future, we need to get to the root of the issue.

Copyright all started with The Statute Of Anne, back in 1710. Yes, Britain invented copyright. But back then it was all done with the noblest and soundest intentions. With the advent of the printing press, copies could be made on a scale never before seen. It was the Napster of the day. Which meant that if you'd put all the toil into writing a book, some other bugger could (relatively) easily copy the thing and sell it without paying you a damn thing. The creator does the work and covers the overheads, and someone else profits.

Clearly, this was unjust, because why should someone put in the graft if they're not going to be suitably compensated? So, to protect creators, and thus incentivise creativity (and this is an important idea that I'm coming back to), the law was passed.

I think this is totally fair, and I think a law like this should exist. But we first start to hit problems when we consider how long copyright should last. Originally it was for fourteen years, and if the creator was still alive (life expectancy was mid-thirties in the UK back then, fuck, just 300 years ago) they could renew it for another fourteen years (by which point, if they still weren't dead, they were hailed as Wolverine, Immortal King Of England (the idea for Wolverine, Immortal King Of England is now copyright to me by the way, arf), and we'd all have to submit offerings to their mutant healing factor). This was all peachy for a while.

But as people have started living longer, they started demanding extensions. I get this. It would suck if you're still alive, seeing people profiting off your hard work, especially if you've fallen on hard times. Fair enough.

But I think the point where it all starts to get screwy is where someone else gets to hold the copyright.

"Well, shouldn't, for example, the widow of a writer inherit the copyright to his works so she can support herself Seej?"

I've thought pretty hard about this. It's perhaps best if I use a physical-goods metaphor. The widow of a farmer would inherit the farm. She would still be able to profit from it. Why shouldn't the widow of a writer be the same?

Well, here's the thing; the widow of the farmer can profit by either a) selling all the physical assets that farming has allowed the farm to acquire, and this includes land, buildings, crops planted and livestock, or b) by continuing the business of farming.

This isn't really the same as writing.

Writing isn't the farm; it's the act of farming.

Writing isn't the asset; it's the effort exerted.

The work enables the acquisition of assets; it is not the asset itself. If a farmer ploughs a field, then he should get paid for the work he's done. But that doesn't mean that his descendants should continue to get paid for that work forever. Likewise with our hypothetical writer; he should get paid for his work, but why should anyone else get anything? They've already inherited whatever is left from the earnings the writer made, so who says they're entitled to anything else?

This is a sensitive subject, I know, and I'm saying that we should take grieving relatives and twist the knife by taking their dearly departed's works and saying "No more profit for you; this shit is Public Domain for any fuckhead to do whatever with, LOL." But where else do we draw the line?

I think there's a pretty good argument for saying there should be a cool-down period, say five years or so, for the sake of simply being decent human beings, because putting the work in the public domain upon confirmation of death feels kind of like robbing a corpse while it's still warm, and so is pretty insensitive. But we need to draw the line somewhere, or it becomes fundamentally irrational.

And then things got really complicated.

Because then people started selling their copyright.

Oh, sure, it's an asset, like mining rights, so why shouldn't someone sell it?

Except it's not like mining rights, because the mine has already been dug.

Again, it comes down to who is actually doing the work, and therefore who deserves to earn the money from it. This should be the focus of our copyright law. This is how to use copyright law to stimulate creators to create. And this is not what copyright law is doing very well at the moment.

Worryingly, corporations can now own copyright. And this stems from the argument that if a corporation is responsible for the work that goes into producing and publishing a product, then shouldn't they own the copyright?

And I can see that argument, I really can. The problem is that corporations might never die.

Disney is the perfect example. Uncle Walt created Mickey Mouse, but he by no means was the only person who made those cartoons. The Disney corporation made the cartoons. So, yeah, the corporation is the creator and so the copyright should belong to the corporation. And here we return to the matter of incentive. Because if a corporation holds copyright, it is incentivised to defend that copyright.

As long as Disney can sell a lunchbox with a picture of Mickey on the side, it has an incentive to protect its copyright of that image, but it perverts the nature of the original law. If Shakespeare had incorporated himself, would/should the rights to his plays forever be held by Shakespeare Inc, centuries after his death?

Disney fights damn hard to increase the length of time that they can hold the copyrights to things their corporation have created, but you can't blame them. They have ample incentive to do so.

To get some sense here, we need to consider how culture works.

It is simple; everything is a remix. See also the excellent RIP: A Remix Manifesto.

Culture has, for as long as there has been culture, built upon prior culture. My next single steals a line I loved from Romeo And Juliet (not the one you think), and another from Lose Yourself (that, interestingly, overlaps with a little bit of something else that Warren Ellis wrote). And every creator out there is just the same.

To limit or even deny the ability for creators to ever reference other, earlier creators in this way is no less than the slow, drawn-out, crippling death of culture.

Some other creator will always have done something that, consciously or not, any new work references.

If they have the right to control or block the release, or take all the money from any such new release, it does no less than totally remove any incentive for anyone to create anything new.

If our current laws are played out to their logical conclusion, within a few hundred years it will be impossible for any creator to release any work at all, without being then legally hounded by already-wealthy copyright holders, greedy to add a new revenue stream, and with a legitimate claim that the copyright they already hold has been substantially referenced in this new work. Even if the lawsuits of the old-copyright holders are eventually thrown out, they're worth a punt for an already-wealthy individual or corporation, and serve as a substantial intimidation for any new creators.

It's fucked, frankly, and can only get worse unless we adapt. And we have to adapt now.

Because remember, these laws were originally meant to stimulate creativity, not stifle it by allowing the creator of anything new at all to be taken to court.

• tl;dr - copyright laws started with the best intentions, but when people can pass copyrights on, and when corporations can hold them forever, they prevent people making new things.

So, what do copyright laws need?

I've thought very hard about this. I don't have all the answers. But here's what I think is an appropriate set of criteria for copyright law in the early 21st century:

1. Any creator holds the copyright for their entire life, unless they willingly waive it. This will need to be reassessed as human lifespans tend towards immortality. We'll need some sort of cut-off point once people can live indefinitely, though I'm hopeful that sort of cultural change will, after a few generations, make our current desperate mortal struggle to make as much as we can in our short, stupid lives, seem a bit pointless. I'm hoping for a post-Want Down And Out In The Magic Kingdom (read that book - it's free and awesome) style Whuffie society, because little else makes much sense.
2. Upon the death of the original creator, his or her estate holds the copyright for a short period (e.g. five years) to ease the transition and to profit from the post-death mourning-sales. Even Tupac wasn't releasing anything good five years after he died.
3. If a work is created by a corporation (a proper, incorporated, limited liability company), it is held for whatever the average human lifespan is at time of creation in the country of that corporation's headquarters. Downside: human lifespans will almost certainly increase over the duration of the copyright. Upside #1: most creators don't make their profitable works when they're zero years old, so they get more time than an individual would. Upside #2: they have an incentive to move their HQ to a country where people live long, providing an interesting economic exploit analogous to tax-havens. So it's not like they're getting totally screwed or anything.
4. If a work is created by a group of people (e.g. a band), then each individual's share of the copyright is held by them or their estate for the same transition period (5 years) after the death of the last member. Yes, this would give a Yoko Ono a very nice nest-egg. Suck it up. It does give people an incentive to form bands, and I have no problem with that.
5. If the copyright to a work is bought by a corporation, they can only hold it until the end of the transition period (5 years, shit, haven't you been paying attention?) after the death of the last creator of that work. Because why should they have any different rights to a creator's estate?

I think that covers it. This is a really damn long article, and I've tried to be sensible, rather than just "Copy everything, fuck the industry LOL" because that's stupid. I hope I've been fair and equitable.

I'd love your input. What do you think?

Seej 500

Yorkshire, UK, 5/8/2011

UPDATE, 13/9/2011: Oh, well what a surprise; copyright has just been extended again, by the European Comission this time, despite the myriad reasons why this is a terrible idea. I wonder which greedy, self-serving, corrupt little fuck of a talking head the music industry will wheel out to try to justify the argument that ahhh, no, ahhhh, you see, stifling creativity like this is actually a good thing for creativity if you really think about it... OH OF COURSE IT'S U2 MANAGER PAUL MCGUINNESS, A MAN WHO BELIEVES THAT IF BONO IS NOT ALLOWED TO RIDE ROUGHSHOD OVER ALL THE LITTLE ARTISTS THEN SOMETHING SOMETHING SOMETHING AND THAT WILL OBVIOUSLY BE BAD FOR THE LITTLE ARTISTS SOMEHOW AND WHY CAN'T YOU EVIL INTERNET TYPES SEE THAT BONO IS YOUR KING AND SHOULD DICTATE YOUR ENTIRE LIVES AND BE PAID A TITHE EVERY HARVEST-TIME AND BLAH BLAH BLAH BLAH BLAH GIVE ME ALL YOUR MONEY BLAH BLAH BLAH AD INFINITUM.

This article was written by Seej 500 and is licensed under a Creative Commons Attribution - NonCommercial - NoDerivs 2.0 England & Wales License.

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