Copyright Duplicity

In today’s The New York Times, Scott Turow, Paul Aiken, and James Shapiro make the argument that copyright has provided the possibility for creativity for 300 years:

Copyright, now powerfully linking authors, the printing press (and later technologies) and the market, would prove to be one of history’s great public policy successes. Books would attract investment of authors’ labor and publishers’ capital on a colossal scale, and our libraries and bookstores would fill with works that educated and entertained a thriving nation. Our poets, playwrights, novelists, historians, biographers and musicians were all underwritten by copyright’s markets.

And they feel that copyright, today, is under attack through “pirates” stealing work, and that:

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish.

Though I have read and like Turow’s fiction, this is a self-serving and dishonest argument.

First of all, “copyright” is not the same today as it was in 1710, when the Statute of Anne became law, establishing an author’s rights for 14 years, after which (were the author living) rights would revert to the author and could be renewed for an additional 14 years.  Over the past few decades, people like Jack Valenti and Mary Bono Mack, given the Constitutional command that copyright be of limited term, have had the gall to argue that the term be ‘forever minus one day.’  We are approaching that.  For an individual, copyright extends a lifetime beyond the creator’s death; for a corporation, it holds for a full century after creation.

Copyright, as it exists today, is quite different from what it was 300 years ago.  Until not too long ago, a work was not covered by copyright unless the creator made it so.  Today, the law’s sweep is so extensive that we have ‘orphan works’ whose ownership is unknown, which cannot be used in new works or reproduced for fear that someone might step forward, demanding payment.

There is little profit, for most creative works, after the first few years on the marketplace.  Yes, for some, money keeps pouring in.  But these are few and far between.  The creative incentive is only partially based on money, and is certainly not based on the idea of a perpetual stream of income–unless you are among the very rare, very successful writers like Turow.  I write, and know dozens of writers, musicians, filmmakers, visual artists.  Very few of them would stop what they are doing because their copyright would run out absolutely in 28 years.

Copyright law no longer is made for authors, but for corporations, for those who believe in ownership in perpetuity because they can exist forever (of believe they can).  It is protection for the “I got mine” crowd and has nothing to do, any longer, with the Constitutional instruction “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.”

It is not “counterintuitive” to argue that looser laws would allow expanded creativity.  Aside from the deliberate swipe at copyright-reform professors and lawyers (a group I am proud to belong to), the argument made by Turow and friends misleads–wait… there is no argument, simply a statement that we are wrong.  The Constitution, as the pertinent clause makes clear, begs to differ.

I know, as I write, that my work would be much easier, that I could do so much more, if I weren’t constantly beset by copyright concerns.  I have to be extremely careful that I do not cross ‘fair use’ bounds; even with older works that may be in the public domain, I check the work out.  When I use a Kindle, I am unable to copy-and-paste, for the machine has been constructed to impede copyright abrogation.  Even some websites make it difficult to copy material (The New Yorker‘s, for example).

Almost any creator who is working other than in complete fiction (and even those do, though differently) relies on the work of the past.  When we are limited in what we can use (look at what has happened to ‘sampling’ in hip-hop), our output changes and, in general, is weakened.

The people with the power and the money, however, the few whose works have put them in the ‘big time,’ are those with the influence and the platform to make sure that copyright protects them–and to hell with those coming after, who might want to build on their work or use it as part of a new creation.  They may use The New York Times to claim they are crusading for all creators but, when it comes right down to it, they are in it only for themselves–and for the corporations which will handle their copyrights once they are dead.

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