Thursday, January 12, 2012

real cultural damage, and the phantom kind



(Pratt Library at U of T - will copyright shut it down forever?)

Regular readers of this blog will be familiar with the free culture movement's habit of creating false problems having to do with copyright, using fake math in their attempts to discredit copyright, and imagining phantom damage to culture because of copyright. The latest contribution to the panic-fest can be found over at the centre of the Canadian free-cultureverse, michaelgeist.ca.

University of Ottawa law professor Michael Geist is making one of his infamous calls for public outrage about the possibility, perhaps, maybe sometime in the future, that the government would consider, maybe, increasing the term of copyright from Life of the author + 50 years to the new international standard of Life of the author + 70 years. Judging by the good doctor's level of concern, such a change would likely mean the end of Canadian culture as we know it.

Geist lists a number of iconic Canadian writers (A.M. Klein, E.J. Pratt, Gabrielle Roy, Hugh Garner, etc.) and then claims that an extended copyright term on their work would have a significant impact on Canadian culture and history. He doesn't spell out exactly what that impact on Canadian culture would be, other than the fact that the works of these authors would continue to belong to their rights holders (generally the family members and heirs of the writers in question).

Just imagine... the sons, daughters and grandkids of important Canadian writers continuing to own the works their parents and grandparents bequeathed to them. It's like some sort of totalitarian nightmare, isn't it?

Geist goes on to claim that a term extension
"would have a dramatic negative effect on access to Canadian literature and history. Looking ahead, the likes of Margaret Laurence and Robertson Davies would be similarly delayed for 20 years."
Delayed? Delayed from what, exactly?

I did a quick search of every one of the authors mentioned in Geist's posting, all those who will soon feel this "dramatic negative effect" from having their copyright (maybe) extended. Every single author currently has books available through amazon.com, many in e-book editions. What's more, most if not all are also widely available through Canadian and international library collections. I can walk a block from where I'm writing this blog posting - to the E.J. Pratt Library at the University of Toronto (see above) - and almost certainly find original works by all of these authors and significant critical texts related to them. The suggestion that Canadian culture is about to be robbed, and Canadian citizens denied access to the works of these authors because of so insignificant a thing as a term-length for copyright is laughably absurd.

Who (if anyone) will suffer under an extended term?

Well, as I pointed out in an earlier posting, the folks most concerned about copyright terms and getting as many works outside of copyright as soon as possible are not the everyday consumers and culturally-minded Canadians Geist purports to speak for. No, those most looking forward to E.J. Pratt et al losing their copyright protection are the giant, multinational content aggregators like Google who want to suck up as much digitized content as possible without the hassle and bother of dealing with copyright licensing or permissions, so that they can continue to make gazillions of dollars selling advertising on top of other people's "free" content.

Real Cultural Damage

It should be noted here that Geist's blog posting looks quite different today than it did when he first published it on Monday. That's because many (though not all) of the spelling and grammar errors in the original posting have since been corrected (after prompting from me).

I wouldn't have bothered to help out, but the idea that Gabrielle Roy layed the foundation for the Quiet Revolution was just too disturbing to me. I know that Quebec Premier Jean Lesage was quite the looker, but is there any evidence to prompt such a scandalous assertion about him and Mme. Roy* from the heart of the University of Ottawa? This is just the kind of clumsy English-Canadian slight that could encourage another round of separatist activism.

These necessary corrections to Geist's writing are what the free culture folks call "crowd-sourcing." Crowd-sourcing means other people work so that Geist's words actually make some kind of sense on the page, and he continues to draw his impressive salary as a Canada Research Chair.

Now I ask you, what causes more actual damage to Canadian culture...

a multinational corporation like Google having to seek permission from (and perhaps pay royalties to) Canadian writers when it uses Canadian content in its privately-held, for-profit aggregation business; or a high-profile professor (at one of our most important universities) with questionable writing skills and/or an all too tenuous grasp on Canadian history?

As always, genuine, respectful, insightful comments and questions from real people continue to be welcome.






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* By the way, anyone wondering whether or not Gabrielle Roy will remain available to Canadians need only check out a Canadian $20 bill. Mme. Roy is quoted on our money, asking "could we ever know each other in the slightest without the arts?"


(Photo of E.J. Pratt Library sign courtesy me and my little camera.)

7 comments:

Albin said...

Any interest in providing a sense of balance to your post?

Bob Tarantino said...

Copyright duration extensions are problematic from both a theoretical and practical perspective. It strikes me that those arguing in favour of the extension of a (quasi-) property right should bear the onus of demonstrating that there will be some benefit to the extension which would outweigh the deleterious effects of it. I don't think I've yet seen an argument which cogently demonstrates the net benefit of a duration extension.

Those in favour of a duration extension should not force those opposed to it to try and prove a negative ("show me which works have not been created because the copyright demands were too onerous"). That being said, we can demonstrate that additional copyright protection entails costs for creators: where creators want to make use of copyrighted materials (or even materials which were previously copyrighted or even materials where there is barely a colourable claim to copyright (such as the James Joyce estate fiasco)), they have to incur clearance costs (legal advice, license fees, etc.). While those clearance costs may be incremental or marginal, they are real (every dollar a producer/distributor/publisher spends on clearance costs reduces by a dollar the amount spent paying a creator) and, when aggregated, substantial. Putting the onus back where it belongs, on those arguing for the extension, where is the evidence that twenty more post-mortem years of copyright protection will (or has) incentivize(d) creators to create more or better works? More concretely, where is the evidence that the benefit of such additional/better works outweighs the clearance costs which would necessarily be incurred?

And what's good for the goose should be good for the gander: if a point in favour of duration extensions is that limited durations would benefit corporate content aggregators, then a point against duration extensions should be that they will mostly benefit corporate exploiters/distributors of copyrighted works, since they hold the vast majority of them and so will stand to reap the vast majority of the additional revenue generated during the extended term.

John said...

Thanks for the comments Albin and Bob Tarantino -

I'll answer both at once, if I may.

I have no problem expressing an argument as to why the benefits of copyright term extensions outweigh the negative effects of them. Here goes.

I don't believe there are negative effects. It's really that simple, and I think I've done an excellent job showing fears of reduced access are silly. I think all of the panic around terms and term extensions and damage to the public domain is a bunch of theoretical hooey.

As long as there is real commercial value to the rights protected by copyright, I believe the original author and her heirs should have reasonable first refusal on that value. By the way, the great Prof. Geist once expressed much the same idea when he floated the idea of variable copyright terms, though I haven't heard him repeat that idea so I assume it met with a free culture freeze out.

So, to address the examples of negative effects you forward:

1. Extra costs for creators.

We live in an exchange economy. There are always costs to doing business. Professionals understand this, budget properly, get the work done and then price their product to recoup costs. Copyright clearance on something you did not create is not an "extra" cost. It is a standard, reasonable, cost of doing business.

The argument that eliminating clearance costs means more money directly to creators is, well, funny. I say again... Google.

2. Incentivizing the dead with twenty more years.

Everyone dies, not just creators (I hope I haven't ruined anyone's day). Most of our economy takes mortality into account and has no trouble whatsoever dealing with it. We allow ourselves to transfer all sorts of monetary and rights value past the moment when the soul flees the body.

If you want your kids and grandkids to own the house in which you currently live, well then they will.

The rights to original creation under copyright have the same potential value over time as real estate (actually, they have potentially more value). The ability to lease out, sell, license or give away those rights is in itself valuable. Add more time up front to that ability and you add more value. That's simple logic.

3. The vast majority of copyrighted works are held by corporations.

Balls!

Copyright attaches to every single creative work as soon as it is created. Commercial value sometimes, though not always, follows. The overwhelming majority of copyrighted works are held by individuals. The attack on copyright attacks individuals primarily.

5. The James Joyce estate is an example of the evils of copyright.

No, the James Joyce estate is an example, I suppose, of the evils of greed. It is one extreme instance where someone attempted to unreasonably use copyright law as a club. That situation did not, in fact, remove Joyce from bookstores or classrooms. I did an entire seminar class on Joyce at the U of T, wrote papers on him (including quotations) and no one was sued. I also seem to remember seeing and excellent film adaptation of The Dead with Angelica Huston in it.

Should Stephen Joyce have been less clenchy about his relative's work? I think he should have. But, I also think that much of the so called "damage" to scholarship and use of Joyce had less to do with actual copyright law and more to do with fear of litigation. I agree that abusive use of litigation is a problem in the world. You fix that by addressing litigation laws, not copyright.

Bob Tarantino said...

JD: "As long as there is real commercial value to the rights protected by copyright, I believe the original author and her heirs should have reasonable first refusal on that value."

You're effectively arguing for perpetual copyright protection - correct? That's certainly a position one could adopt, though no jurisdiction I'm aware of has ever adopted it, and every theoretical justification for copyright I've ever encountered recognizes that copyright should, at some point, expire. To ask (what I hope is) a rhetorical question, are you really arguing that William Shakespeare's heirs should have an entitlement to revenues generated by his plays?

JD: "Copyright clearance on something you did not create is not an "extra" cost. It is a standard, reasonable, cost of doing business."

Agreed. But implicit in the nature of copyright (or at least every iteration of copyright we've ever seen) is the notion that at some point it will expire. If copyright is to be incrementally extended in perpetuity, then there must be some kind of justification for it.

JD: "The argument that eliminating clearance costs means more money directly to creators is, well, funny."

Every dollar in the budget which does not go to clearance costs will go somewhere else in the budget - it's not certain that it will go to creators, but it at least offers the possibility that it will. Put a different way, if we have the option of spending a budgeted dollar on a lawyer or a budgeted dollar on anything else in the budget, why choose the lawyer?

JD: "We allow ourselves to transfer all sorts of monetary and rights value past the moment when the soul flees the body."

True.

JD: "If you want your kids and grandkids to own the house in which you currently live, well then they will."

They might - but that's a false analogy. The better analogy is: should the heirs of the person who built the house be entitled to revenue generated by the sale of the house? Why or why not?

JD: "The rights to original creation under copyright have the same potential value over time as real estate (actually, they have potentially more value)."

True.

JD: "The ability to lease out, sell, license or give away those rights is in itself valuable. Add more time up front to that ability and you add more value."

True. But I'm having trouble seeing where this is going. We all agree that extending copyright duration will result in more money for the creators/owners of the work - but what is the justification for giving them more money?

JD: "Balls! ... The overwhelming majority of copyrighted works are held by individuals."

Perhaps, but the overwhelming majority of *commercially exploited* copyright works are commercially exploited by corporate entities. In the film/TV industry, I'm having trouble thinking of *any* works which are owned by individuals. In the publishing industry, the vast majority of books are commercially exploited by publishers, not by authors. In the music industry, the vast majority of works are exploited by commercial entities (whether record labels or music publishers). In all of those scenarios, you and I both know that the commercial exploiter takes a *much* bigger chunk of the revenue than the original creator (if the original creator gets anything at all). So, using your Google logic, extending copyright duration will primarily benefit the commercial exploiters, not the individual creators.

JD: "The attack on copyright attacks individuals primarily."

I'm not sure who is "attacking copyright". We're discussing extending the term of copyright.

JD: "I agree that abusive use of litigation is a problem... You fix that by addressing litigation laws, not copyright."

Agreed - but there's two potential ways to fix abusive use of litigation founded on misbegotten copyright claims: fix litigation and copyright. Why not do both?

John said...

Bob,

It looks like a lot of this we're going to have to continue to disagree on. You'll excuse me if at some point I stop discussing it in this particular stream. I've been responding to these same points for years now. They don't get any more convincing.

To be clear - I am not arguing for perpetual copyright, though I have also never heard a very persuasive argument for why commercial value rights should eventually just go to anyone who wants them. We don't do that with other property, such as land (except in special circumstances, and even then it is always controversial for those having their land expropriated).

It is an interesting feature of copyright that it expires, but the argument that it not expiring hurts culture is entirely unconvincing to me. I think the requirement to make new work instead of recopying existing work is far more beneficial to culture. That's its justification. It's good for us to allow creators to profit from their work.

Royalties go to copyright holders - mostly to the original creators (through contractual agreements). Cutting out royalties reduces the amount of money going to creators. Your hope that more money will go to creators seems to completely ignore that fact.

As above, copyright is a negotiable item in contracts, and it is increasingly held onto by savvy creators. Amazon does not even expect to hold copyright on the self-pub work it sells. Your insistence that corporations hold most commercially viable copyrights is simply wrong.

I reject your rejection of my analogy. You own real estate property, and you own rights under copyright. This has nothing to do with who built your house.

The justification for giving creators more money for their commercially viable product is... they made it, and people want to buy it. Why should someone else make that money?

Pretending that Geist and company do not represent an attack on copyright is not quite honest, is it? I've been in this fight for well over a decade. I know the lay of the land.

Annnd... no, there's only one way to solve abusive litigation. By solving abusive litigation. People abuse litigation around libel all the time. Does that mean there's a problem with libel laws?

Bob Tarantino said...

Hi John

Yes, we probably will need to disagree about a lot of stuff, but these are useful discussions to have nonetheless.

JD: "To be clear - I am not arguing for perpetual copyright, though I have also never heard a very persuasive argument for why commercial value rights should eventually just go to anyone who wants them."

If not perpetual, then what is an acceptable duration? Honest question. Copyright rights (like patent rights) eventually go to whoever wants them because we think that a multiplicity of others who can access them at no cost will be better able to make use of them after a certain point in time. Maybe that's an incorrect assumption, but we'd need to see some evidence of the added benefit in order to displace it.

"We don't do that with other property, such as land (except in special circumstances, and even then it is always controversial for those having their land expropriated)."

We do it with certain types of property (such as patents) - but in any event, analogizing IP to "real" property, while often illuminating, isn't always so. I'd argue the latter in this case.

JD: "Royalties go to copyright holders - mostly to the original creators (through contractual agreements). Cutting out royalties reduces the amount of money going to creators. Your hope that more money will go to creators seems to completely ignore that fact."

Yes, but revenues go to owners (who may or may not be creators). Again, we're looking for a reason for increasing revenues to owners/creators which outweighs the benefits of foregone clearance costs - "owners/creators will get more money" is not the reason, it's just a description of what's happening.

JD: "Your insistence that corporations hold most commercially viable copyrights is simply wrong."

Whether they "hold" them or not is irrelevant - they exploit them, and they obtain the largest chunk of the revenue stream generated thereby. In any event, is there any empirical evidence for this point?

JD: "The justification for giving creators more money for their commercially viable product is... they made it, and people want to buy it. Why should someone else make that money?"

They should (and do) during the duration of copyright. Afterwards, it's up for grabs.

JD: "Pretending that Geist and company do not represent an attack on copyright is not quite honest, is it?"

I won't speak for "Geist and company", but I'm opposed to duration extensions and I'm pro-copyright.

JD: "People abuse litigation around libel all the time. Does that mean there's a problem with libel laws?"

Oh my goodness, yes. Libel laws are abused precisely *because* there's so much wrong with them and that's why there are so many proposals for reform of them. (I wrote a lengthy proposal relating to public figures if you're interested.)

John said...

Bob,

Your comment went into my SPAM filter. Sorry.

I have the feeling copyright terms expire on the assumption that there is some natural expiration date for commercial exploitation. Back in the day of the printing press and a much smaller literate population, 14 years probably seemed about right. In the age of the internet and a vastly larger literacy, not to mention the much vaunted "long tail" for cultural products, I'm not sure there is a good estimate for when commercial exploitation would reasonably peter out.

That is not an argument for perpetual copyright, but I do still wonder if this notion of expiration isn't hopelessly antiquated. And yes, I do think your assumption that others are better able to use my work for commercial gain is incorrect. Patents more closely adhere to ideas, whereas copyright is about expression. The link between property and personal expression is easy to see, for those who have eyes to see it. Conflating those two concepts doesn't help your argument.

What would be an acceptable term? I don't know. I think it's reasonable to toy with the idea of a long fixed term to take into account estate use of work, and then implementing some structure that involves the need to declare a desire for an extension. In that way the creator's estate gets, as I said, first refusal on the rights.

Your demand for empirical evidence from the creator side is backwards. The law exists to protect the interests of creators. Adjustments to it over time are in the interest of creators. The onus for evidence is really on those who wish to stop creator-friendly adjustments. How will protecting the value of my bequest to my heirs harm our culture? Show your work.

You also want "evidence" that more individuals than corporations stand to benefit from copyright? There are currently just over 7 billion people in the world, each and every one of them a potential or current creator of copyrighted content. These 7 billion people can either use a corporate middleman to realize revenue from their work, or they can bypass the middleman and realize revenue on their own (we're told again and again). Do I need to show evidence of each of the 7 billion? That could take some time.

Good luck on your libel changes. My point stands - if you're complaining about litigation, fix litigation. I guess what I mean is... don't try to backhand a criticism of copyright by complaining about litigation.