I. INTRODUCTION
This paper will focus on several different viewpoints concerning the appropriate strength and scope of copyright law within existing intellectual property schemes and their effect on creative industries in the modern world. This topic is a highly controversial area of intellectual property theory and opinions range from militant adherence to, and even strengthening of, existing IP regimes, to the immediate rejection of copyright protection in any form. What is at issue is theft and piracy. Almost no one maintains that outright theft of property is acceptable, but the disagreement stems from widespread disagreement over the extent and scope of protection afforded to intellectual property, whether authors are actually receiving compensation for their work, and what an appropriate middle ground, if such a thing exists, would look like.
II. A BRIEF HISTORY
For thousands of years, “copies” were made by scribes. It was not until at least as early as 868 in China, and again independently in 1041 by Shi Sheng, that the first use of movable type occurred. Ultimately, however, this innovation failed to catch on because the large number of Chinese characters presented a formidable barrier to widespread commercial printing technology.[1] Later, European monks began making wood carvings that would impress an image onto paper or leather, but these were fragile and would only yield a few decreasingly clear copies.[2] Finally, in 1450, the problem was solved by a goldsmith named Johannes Guttenberg’s printing press, which finally allowed ideas to be disseminated en masse.[3] The printing press finally allowed individuals such as Luther, Jefferson, Newton, and many other influential thinkers to promulgate their respective ideas on religion, democracy, and science to the masses via this new medium.
The notion that property could be intangible did not arise until shortly thereafter, in early 17th century mercantilist England.[4] Three-hundred years later in the United States, intellectual property law is arguably better defined than anywhere else in the world and there is still heated contention as to how it should be structured to accommodate the legal needs of creative persons and industries. Our already complex society is a rapidly developing cyber-society with unforeseen challenges and it is unclear whether existing IP regimes will continue to provide effective protection to authors without serious revision.
III. THE PROBLEM
Protection in the United States stems from Congress’s enumerated constitutional power to promote the “progress of science by securing for limited times to authors the exclusive right to their respective writings.”[5] One of the first acts ever enacted by Congress was the Copyright Act of 1790 (modernly codified as 17 U.S.C. § 101 et seq).[6] The 1790 Act only protected “books, maps, and charts for 14 years.”[7] Amendments expanded the Act for the next 100 years, but a significant overhaul did not occur until 1909 when it was expanded to include “all writings.”[8]
Despite these protections, however, large publishing firms have been complaining about the tendency of pirate printing operations to “ruin the market,” by releasing their intellectual property into the market without providing any compensation or procuring any authorization, for at least 400 years.[9] The main complaint has always been the same as it is today: they were unable to remunerate authors for “their respective writings;” and, the result would be a resignation of all talented people from the creative arts.[10] Alas, that did not happen and these arguments proceeded unchanged until the internet emerged in the 1970s.
Copyright in the modern world is faced with a stark new challenge that was missing from the pre-internet era. Namely, old-world structures are developing into digitalized versions of their former selves. Physical and practical concerns govern fewer and fewer human activities with each passing year. Take communication, collaboration, war, theft, and education as just a few examples of areas which are decreasingly subject to physical restraints. Conversations take place via email or cellphones; newspapers will not be made of paper for much longer; conference rooms are situated in online forums; communities are organizing on social networks, rather than in town squares; kinetic weaponry is slowly taking a backseat to cyber-attacks or remotely deployment mechanisms; an endless stream of academic lectures and papers on countless subjects is available electronically; and the final step in transmitting a love letter involves pressing send.
IV. The Argument Favoring Strong Copyright Protection
The general argument for strong intellectual property protection is that incentives to create and innovate weaken when the public can utilize those advances without adequately compensating the individual responsible for its creation. In the United States, protection for these works comes from 17 U.S.C. § 101, et seq. International protection stems from the Berne Convention and various other IP treaties. These frameworks are sufficiently general to allow authors, businesses, and societies to benefit from the works. As long as the work endures and is considered valuable by consumers, the creator, or one who has purchased that creation, should be entitled to preserve its integrity and value by regulating its use and unauthorized reproduction. The existing regimes are fair and flexible enough to respond to advances in technology and those who choose to disregard those laws are either violating long-held international customary norms against piracy or opportunistically taking advantage of the spoils which pirates make widely available on the open market.
Piracy has been so widely disfavored by domestic legal systems around the world that its illegality has solidified into jus cogens, a universally accepted norm of customary international law. The public’s attitude toward traditional copyright law is out of step with the laws themselves and violations range from intentional infringement to the grey areas surrounding the fair use exceptions. Nevertheless, just because the Internet allows users to share any type of electronic media, instantaneously and without regard to cost or geographic location, does not means that it should be considered ethical or legal to do so.
V. THE ARGUMENTS AGAINST STRONG COPYRIGHT PROTECTION
One of the more radical perspectives on this point, maintains that the existence of democratic government and its power to pass, enforce, and interpret law are merely revocable licenses, requiring the consent of the masses. The average consumer has widely rejected strong copyright protection in their daily lives, by failing to distinguish between widespread commercial distribution of copyrighted materials and illegally downloading the same for personal use or small-scale circulation, use, and posting. Further legislation of strong copyright “protection” is thus imposing upon the population an antiquated morality that benefits only a small group of media conglomerates and not a recodification of what the public deems out-of-step with social mores.
A more tempered argument admits the utility of existing or similar copyright regimes and supports the notion that the outright theft of an author’s intellectual property is unacceptable. Unlike radicals who wish to abolish copyright laws altogether, moderates direct their criticisms at ironclad, draconian copyright regimes, claiming that the use of copyrighted material is all too often labeled infringement, rather than fair, non-infringing use of the work. Organizations such as Creative Commons advocate a “no rights reserved” or a “some rights reserved” approach over an “all rights reserved” system.[11] Thus, authors could be entitled to sanction the use of their work for non-commercial uses and demand compensation for its commercial exploitation.
VI. WHY WE NEED SOME IP PROTECTION
Intellectual property is still property and copying that work without adequately compensating its owner is justifiably illegal because it corrodes the financial incentives of all creative persons, in all creative industries, to continue to create better work and techniques. If individuals cannot profit from innovations in their respective creative industries, new industries that would have otherwise emerged may never do so, and the current state of existing arts and techniques may be degraded or lost entirely.
The world may quickly find that the most talented individuals have opted out of a career in the creative arts, for the same reason that many parents’ eyebrows raise when their bright young college freshman informs them of his or her intention to major in pottery, xylophone performance, or theater. “How do you plan to find a job in that field? How will you support yourself? The difference between professionals in your chosen field and a large pizza is that the pizza can feed a family of four. Major in Business.” This is not meant to be humorous. It is sad.
Nevertheless, regardless of how individuals acquire their skills, those who choose to use their gifts and talents to produce creative works, and who actually do create original works, should be entitled to prosper from their efforts in much the same way that a laborer is entitled to prosper from the sweat and toil of a day’s work. It is not beyond discussion; however, whether toiling away an afternoon to write a song or a poem should entitle the author to two lifetimes worth of legal standing to bring an infringement suit over the use of that work.
VII. Industries with No Copyright Protection
The counterargument to strong copyright protection is that ironclad IP protection is not the only means, or at least not necessarily the most effective means, to maintain creative and innovative incentives. Some creative industries with virtually no copyright protection, such as the food and fashion industry, enjoy vastly greater annual profits and rates of innovative development than those with strong copyright protection. It is important to note, however, that these creative industries tend to have a greater utility than traditionally copyrightable subject matter.[12] Thus, the disparity between these profit margins is difficult to resolve by simply concluding that these industries generate more wealth simply because they enjoy no copyright protection. That be said, analyzing these industries is still appropriate, if not necessary, because they represent real-world models of creative industries that do not rely on any intellectual property protection.
Even if the policy arguments in favor of strong copyright protection are valid, they may not accurately portray the inherent drive to innovate and out-run the market. The fashion industry thrives and maintains faster rates of creative innovation than almost any other industry, despite the fact that fashion designers are not eligible for IP protection on their designs.[13] Yet, despite this lack of access to state granted monopolies, the industry remains fast-moving, extremely vibrant, highly profitable, and enormously competitive. In terms of creativity and innovation, fashion endures free market capitalism in its unbridled form.[14]
In fact, it is precisely the lack of protection that drives creativity and innovation in the industry. Designers anticipate that a design will be stolen the instant it crosses the runway.[15] Thus, they have an incentive to plan future designs (sometimes years in advance) and surround themselves with as many proactive, creative people as possible (ideally as employees) in order to maintain their position at the forefront of the industry.[16] They waste no time litigating or worrying about infringement issues. Rather, some high end designers even choose designs and materials which would break or tear if an inexpensive, weaker material were used.[17] This type of innovation shows that in a truly free market, success depends on innovating over the prior art and outsmarting the competition.
The Nigerian film industry is another example of a creative industry with negligible copyright protection. Producers in this market sustain themselves in spite of widespread piracy by flooding the market with new films, effectively out-producing the pirates and sending their own work into obsolescence. While the temporary disadvantage to this system is that the profit margins are so slim that even popular producers can only secure roughly $30,000 per film, the upside is that the art form is developing at an astonishing rate.
VIII. WHAT THE FUTURE HOLDS
We are entering a democratized period of media. Those who wish to produce are no longer precluded from doing so due to a lack of “permission” from large media conglomerates, which for the majority of the 20th century were the only entities able to afford the production, distribution, and marketing costs associated with launching a new artist.[18] In fact, it is not unusual nowadays for a publishing firm to require an artist to have a large, self-established fan base before entering into contract negotiations. Services like YouTube, iTunes, and PayPal allow any individual with computer access to post and sell creative works online. Initially this flooded the market with as much drivel as quality work, but new mechanisms quickly arose to distinguish those with talent from those who simply have laptops. “Like” buttons, “Share” forwarding, “Star” rating systems, and number of views allowed high quality creative works to emerge from the digital swamp, go viral, and impact society in a way that never would have been possible previously.[19]
Of course, the technology to circumvent traditional 20th century media distribution networks existed long before the internet. Anyone with a reel-to-reel tape deck or a Morse key, a short wave transmitter, and a diesel generator could have sent music or messages through the ionosphere.[20] The problem was that not many people would have gotten the message. The Internet provides an accessible forum where that information can be stored digitally and accessed an unlimited number of times.
The fact is that people are forming online communities, sharing ideas, and innovating more than ever. Consequently, creative industries and expressions within those industries are developing as never before. Open-source software collectives, comedy troupes, tattoo design communities, and breakdancing groups, to name just a few, all have open participation policies. Membership lists are comprised of individuals with different backgrounds, who speak different languages, and who often have never met face-to-face. They exchange ideas, watch and teach each other, and learn from each other. Perhaps most importantly, somewhere, someone is constantly endeavoring to improve upon the previous day’s high water mark in the art. With progress in these creative enterprises leaping forward at such breakneck speeds, stopping to worry about who owns an expression that represents one single iteration of an evolving field that is only evolving due to widespread public participation is ludicrous if not impossible.
IX. THE UNDERLYING PHILOSOPHICAL DILEMMA
That being said, I reject the notion that copying an intangible copy does not deprive the creator of possession of the original, or at least a fundamental aspect of that original which contributes significantly to its value. Part of what creates value in an object is its scarcity. While the creator retains an unaltered version of the original file, the nth copy of that file increases the supply of that object to n times the original. Once enough of these copies have been created outside of the control of the creator, the object has been effectively rendered universally available and incapable of yielding a competitive price. For this reason, the conventional wisdom reads as follows: copying the work of another increases the supply and diminishes the potential for the creator to profit, therefore copying is bad and should not be allowed without permission. But, it is downright lazy to logically arrive at a dent in profits and conclude that the cause is a monster.
This parochial viewpoint seems to stem from a value system wherein steadily rising profitability and growth are hallowed, risk is minimized or hedged at all costs, and the ferocious potential of the free market is something to be feared. This conclusion can only be reached by valuing profitability over innovation, efficiency, and perseverance. Artificial monopolies are inconsistent with long-held tenants of capitalism. Current IP regimes justify these monopolies as retroactive compensation for the labor required for innovative breakthroughs.
But, garage-tinkerers and online communities that value innovation over profitability have long been the source of major creative industry breakthroughs, not large companies with R&D budgets and IP lobbyists. Creative industries such as mountain-biking, rap music, skateboarding, comedy, and so many more were developed by enthusiasts and dissatisfied consumers, with little prospect of ever making a living off of their labor. Were they the grantees of artificial monopolies, and thus occupants of the safe harbors they provide, their focus would likely have shifted to yielding a profit from those developments, rather than continuing to innovate better versions of the original breakthroughs.
Innovation is not an endangered species, unless strong IP protection is involved. Intellectual property rights give otherwise creative individuals an incentive to stop innovating, dig in their heels, and claim that they own as much territory around their protected work as they possibly can. This is not to say that IP protection is an inherently bad thing. Rather, that the philosophical underpinnings commonly heralded in its defense are not so watertight and sometimes yield precisely the opposite results as those claimed. Namely, that innovation is the product of IP protection.
IX. SUBJECT MATTER AND DURATION
What is commonly held to be copyrightable subject matter is largely derived from other content within the genre, or varies in some trivial way from other protected works. Moreover, as technology moves beyond physical copies, it is important to reassess long held maxims of property law to ensure that they apply to the changing world which defines them. When the very nature of “things” mutates, so must the laws that govern them. This approach requires constantly questioning what should be considered “property” in the first place, what rights those who own that property are entitled to, and what remedies should be available once a violation of those rights occurs.
One foreseeable difficulty is the requirement that creative works be reduced to a tangible form in order to qualify for copyright protection. Much like the Federal Rules of Evidence, which only account for electronic evidence by analogy to pre-internet forms of tangible evidence, the most recent overhaul of the Copyright Act was passed in 1976, and thus predates the development of the internet. The Act applies to “original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine.”[21] The Copyright Act remains well behind the technological advances of today and is regularly applied in circumstances far beyond what its revisers could have possibly imagined.
Two of my criticisms of the rights afforded to a copyright owner are the instantaneity of the copyright protection, once the expression is fixed in a tangible medium, and the length of time during which that protection persists. For works created after 1977, copyright protection attaches when the expression is fixed in a tangible medium and persists seventy years after the death of the author, who need not even request the protection. Anonymous or pseudonymous works are protected for ninety-five years from the date of publication or one-hundred and twenty years after the creation of the work, whichever comes first.
First, it seems ironic that intellectual property is required to be fixed in a tangible medium, especially when technology is eliminating so many of the physical aspects of the pre-internet world. Second, this is radically different than patent protection, which entitles inventors to a monopoly over their creation for at most two decades, but only after the work has undergone an extensive review by a patent officer to verify the uniqueness of the creation. In my opinion, the patent process seems to be the more reasonable of the two; because, it provides a limited period of protection to those who ask for it and can demonstrate the originality of the work.
Likewise, policymakers should seriously reconsider the instantaneous attachment of copyright protection and the fact that protection can so readily attach to works of questionable novelty and originality. As an alternative, procedures such as those imposed within modern patent regimes should be considered in general. This would require creators to subject their works to, at least some, official scrutiny before the weight and authority of US federal law attach to police its infringement.
V. CONCLUSION
Traditional copyright regimes have overemphasized how much protection is required to foster innovation incentives. To be clear, by no means is rebellion against profits, unmitigated risk-taking, or total deregulation of intellectual property a responsible solution. But, allowing copyright laws to grow too strong creates a market stability that obstructs, rather than promotes, innovation. Continued breakthroughs in the areas of innovation, knowledge, intellectual property law, as well as widespread access to those developments are essential to developing a shared cultural platform which can accommodate a sustainable global market for the exchange of information and ideas. Creative industries are thriving thanks to industry-specific motivational incentives, individual creativity, and commensurate advances in technology.
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[1] Video Tape: Tucker, J. A., The Evils of Intellectual Property, available at http://www.youtube.com/watch?v=8KSua3Nczjk.; Lemley, M., Menell, P.,and Merges, R., Intellectual Property in the New Technological Age, Aspen Publishers, 414 (2010).
[3] Lemley, M., Menell, P.,and Merges, R., Intellectual Property in the New Technological Age, Aspen Publishers, 414 (2010).
[4] Video Tape: Tucker, J. A., The Evils of Intellectual Property, available at http://www.youtube.com/watch?v=8KSua3Nczjk.
[6] 17 U.S.C.§ 101, et seq. Lemley, M., Menell, P.,and Merges, R., Intellectual Property in the New Technological Age, Aspen Publishers, 414 (2010).
[9] Video Tape: Tucker, J. A., The Evils of Intellectual Property, available at http://www.youtube.com/watch?v=8KSua3Nczjk
[11] Creative Commons Homepage, FAQ-What is Creative Commons, Creative Commons last accessed 11/04/2011.
[12] Video Tape: Blakely, J., Lessons From Fashion’s Free Culture, available at http://www.youtube.com/watch?v=zL2FOrx41N0 accessed 10/26/2011. (Industries which outsell and out innovate those with strong copyright protection (i.e., Films, Books, Music, etc.) include Gastronomic, Automotive, Fashion, and Furniture. Ms. Blakely asserts that things like books, movies, and music have been relegated to the domain of digital files by the public, “barely tethered to any physical reality … [B]ecause we can copy and transmit them so easily, [they] actually circulate within our culture a lot more like ideas than like physically instantiated ideas,” which were traditionally eligible for copyright protection. More on this subject can be researched at www.ReadyToShare.org.)
[18] Video: Anderson, C., How YouTube is Driving Innovation, available at http://www.youtube.com/watch?v=X6Zo53M0lcY. Accessed 10/26/2011.
[20] Savodnik, P., Enigma: A Russian shortwave radio station has been broadcasting mysterious patterns of beeps for decades. Why?, Wired 172 (Oct. 2011)