Copyright, Copywrong and Copyleft Part 2 – “Let The Artist Decide?”

I’ve got several other posts planned out – one on Darkseid, one on the Beatles, a new playlist, and so forth, but I’ve spent most of today reading the new Pratchett (not a masterpiece like Nation, but solidly entertaining and summing up a lot of my conflicted thoughts about football – and at this point, the fact that Terry Pratchett is capable of producing ‘an average Terry Pratchett book’ is well worth celebrating). They will be coming over the next few days – having four days off work has made me far less ill.

But I’m going to deal here, briefly, with one of the comments from my last post – LemmusLemmus saying “Revolutionary idea: Let the artists decide whether they want to give their work away or not.”

Which brings me to a point I was going to make anyway – why should it be the artist’s decision, at all?

Essentially, saying the artist has a right to prevent someone who has purchased their work from copying it, is to privilege (literally – ‘private law’) the artist as opposed to the rest of society. When anyone else sells you a product, they don’t actually get to prescribe how you must use it, and proscribe uses that offend them. When I bought my banjo and mandolin, they didn’t come with special songbooks and a rule that I can’t play any other songs on them. When I buy my computer, it doesn’t come with a rule as to which software I can run on it (it might if you run Windows, but I don’t do that).

So why, precisely, should artists and authors be given a right to control what is done with their work once it’s paid for?

Currently they are given such a right, but what I’m questioning is why they should be given such a right. As a more reasonable analogy than the ones above, if I buy an apple and plant the seeds from it, I can grow many apples, which I can give to my friends who can then grow their own apples. We could put greengrocers out of business! Yet nobody has yet attempted to criminalise the growing of trees in one’s garden.

To my mind, the issue of copyright in fact breaks down into several totally different – and possibly incompatible – ‘rights’ for the purchaser and the artist.

1) The moral right of the artist. The artist should have the right to be identified as the creator of the work, and should also have the right to control some minimal set of uses of it. Paul McCartney, a famous vegetarian, should be able to stop people using recordings of his voice to sell sausages, as that would give the impression that he in some way endorses those sausages himself, which he might well consider defamatory.

2) The right of the artist to be compensated for commercial exploitation – I don’t think anyone disagrees that if someone is going to make money from the work then the artist should get some of that money. I personally don’t think there’s anything wrong with sharing recordings of Please Please Me by The Beatles – I think Messrs McCartney and Starr have probably been paid enough for their ten hours of work done when my mum was four years old. But if someone’s going to put that album out in a CD box set and charge people two hundred quid for it, it’s only fair that they should get a bit of that two hundred quid.

3) The right to share. This isn’t a legal right in the same way the above two are, and I think this is a problem. I think pretty much every decent human being will, if they have something they like, that they think their friend will also like, want to share that thing with their friend – especially if they can do so at no cost or inconvenience to themselves. I think that this is such a general instinct in humanity that trying to legislate against it is pointless, even were it a negative thing, which I don’t believe on the whole that it is.

4) The ‘right’ of artists to get paid. This is the one that most people focus on, even though the world doesn’t actually owe anyone a living for writing or singing or acting. A recording, book or whatever is only worth what people are prepared to pay for it.

So what we need to have for copyright (and please note I am here only talking about copyright, not ‘intellectual property’, which lumps a load of different, incompatible laws about trademarks and patents into one category) to function well – and whatever your view of the rights and wrongs of the current law, I think we can all accept that it simply doesn’t function – is some system that protects rights one through three, while at the same time providing some form of compensation for artists for ‘right’ four.

I’m going to talk about some of the ways we can do this in future posts, but for now I’ll just say that ‘letting the artist decide’ is not only simply not working – and prohibition of anything where tens of millions of people both engage in that activity and consider themselves justified in doing so is never going to work, no matter how much you may wish it – but also on shakier moral ground than it at first appears.

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15 Responses to Copyright, Copywrong and Copyleft Part 2 – “Let The Artist Decide?”

  1. pillock says:

    Hear, hear.

    So, what do you make of the levies on blank media, in this light? I have just about decided that in 2009 it finally makes sense for me to agree to accept a share of the computer-based levy…though I still won’t be doing it because to me that would mean tacit participation in the demonizing of “illegal downloaders”…but according to your formula above, wouldn’t that overly privilege Right Four?

  2. pillock says:

    I mean, if it was just the levy we were talking about, and of course not the attempt to BOTH get the levy AND collect on every downloaded song, which I hope to God looks like double-dipping to the whole world…because it is…

  3. pillock says:

    Now that I think about it, I do believe I consider the Right To Share a component of “liberty” — which makes it not exactly a “right”, I guess, in technical terms. But I think there are worse definitions of “liberty” than “the stuff that isn’t expressly guaranteed in writing, but which is still essential to democracy”. A right to be civilly disobedient isn’t expressly guaranteed to anybody anywhere. Rights to privacy in the United States for example (and I am mildly horrified that I know more about the American Constitution than my own, I blame my erstwhile roommate who took off with my paperback copy for no good reason except he wanted it…he also borrowed my mop and bucket and then returned the mop but not the bucket…) are spelled out, but have not yet to my knowledge become settled in law…

    Not to overinflate the matter. But it seems to me quite straightforward to say that contemporary democracies are by and large hostile to this kind of “liberty”…and the little stuff definitely counts.

    Anyway they keep bloody chipping at it. And because liberty’s not a Jenga-block of positively-established “rights”, but only a spiderweb of negative-space freedoms, they keep making inroads on it.

    Uh…

    Badly-mixed metaphors?

    And, maybe a rant better saved for my own blog?

    Yes…yes of course, you’re right…

  4. Dave Godfrey says:

    As someone who creates art (photography) with no intention of selling it for profit I want to have control over how it is used. Primarily I don’t want my pictures scattered around the internet without attribution. If someone was to use my images to make themselves money I’d want a cut, though I’ll forgo that in the case of a friend or an institution where I feel I’ve got something of non-monetary value out of the deal (experience, enjoyment, etc).

    I agree that Mr McCartney has earned his due from that particular recording session, so I would have no qualms about sharing copies of his music, even with passing acquaintances. Were he a modern artist on a minor label, (and thus with a much lower income) I would feel less comfortable with this. If a friend gives me a copy that’s fine, but I
    don’t like obtaining copies from elsewhere.

  5. LemmusLemmus says:

    Hey Andrew,

    I don’t have the time/concentration/energy to write an appropriate response now; will respond tomorrow night at the latest, though.

  6. kalyarn says:

    What’s interesting in regards to 2 and 3 is that, at least here in the U.S. and also in Europe I believe, if I buy a physical CD or Book, I’m completely within my rights to turnaround and sell that as a used copy (First Sale Doctrine) and I don’t have to give any money to the artist.

    However, the music companies would like to make it illegal for me to take that CD and put the music on my computer (even if I was just doing it to put on my iPod and then didn’t delete it). They are argue it’s another form of a reproduction violation, although I don’t believe this has been litigated. (This is pretty insane and I’ve got to believe they’d lose if they pursued it in court…well, I hope they’d lose).

    I believe the two are connected in that conceivably you could buy all your CDs, burn them for your own private use, and turn around and sell them for (likely if its right after release) a little less than you paid for them. And it would all be legal (again at least under US copyright law as it stands right now).

    I think this points out the disconnect of the Digital Version of a Media Creation and its Physical Version. We’re still ok with people doing what they want with their Physical property, because we don’t believe people will be selling it enmass to the aftermarket.

    • pillock says:

      There’s a funny thing that happened a little while ago — radio stations make temporary copies of songs for the purpose of broadcast, in the form of audio files, and then they’re supposed to delete them after play, then for the next play recreate them. So, it was discovered that they weren’t doing this, that they were instead not deleting the temporary files, and so it was decided by my rights society (and I assume all its sister-societies in other countries too) that money was owed for this unauthorized use.

      Convoluted stuff, eh? You could’ve knocked me over with a feather — of course in my naive little mind they were still playing records

  7. LemmusLemmus says:

    Andrew,

    I’ll also make a numbered list.

    i) The way I read your last post, it was a long argument how it is actually beneficial for the artists if their music is downloaded illegally, or at least not harmful. Using such arguments to argue that no artist should have the right to say that she does not want to give away copies of her product for free is like arguing in favour of a law against wearing red trousers on the basis that they look crap anyway.

    ii) I don’t recognize the existence of any rights in the metaphysical sense of the word. I’m not sure whether that’s the sense in which you’re using the word.

    iii) “So why, precisely, should artists and authors be given a right to control what is done with their work once it’s paid for?” They aren’t given that right by anyone but the person who is willing to pay for the work fully knowing that the product comes with strings attached. If that doesn’t suit you, don’t buy.

    iv) Whether it makes sense to talk of “an instinct to share” depends on how you define “instinct”, but if the instinct to share qualifies, then surely the instinct to keep the money one has earned from an anonymous entity that tries to take it using (threat of) force or doing very painful things to someone you catch in bed with your partner must qualify, too. By your reasoning, that means tax evasion and assault should be legal.

    v) If I read you correctly, you are also saying that if many people break a law, it should be abolished. Again, should tax evasion be legalized? Speeding?

    vi) And you advance the hypothesis that there would be no additional sharing of copyright-protected files if it were legal. I think that is false.

    vii) Nobody owes anyone a living for selling flowers. Hence, stealing flowers from a shop should be legal?

    viii) From the previous post: “sharing information, especially, is in my view a wholly good thing, because nobody has been deprived, and someone has gained.” That strikes me as naive. Artists are deprived of income they could have obtained. Music lovers get deprived of music that is never recorded because not enough people are thought to be willing to pay for it.

    • Andrew Hickey says:

      1) Which is why I never used that argument to make that point. I am making several points, many of which argue for different viewpoints, during this series of essays.

      2) I’m using it in the sense that the artist in your view has a ‘right’ to determine how her work should be shared.

      3) Except that it’s well-established that an onerous contract can’t be enforced. Whether stopping people from sharing is onerous or not is open to question (I’d say not, but I know plenty of people who’d argue that one).

      4) Those things, unlike sharing, cause demonstrable harm. A better analogy, to my mind, would be laws against sexual acts by consenting adults, or drug laws.

      5) No, I’m saying that if a law is not enforceable in any practical sense it should be abolished – or at least changed. If tens of millions of people are doing something and only a handful are being caught then the law is having no deterrent effect and the punishment is entirely arbitrary. Applying ever more draconian measures to the one-thousandth of one percent who actually get caught is ludicrous.

      6) I don’t – though I don’t believe there would be anything like as big an increase as you might expect. What I *do* think is that given that it’s happening anyway, far better to find a way to make money for the artists from it than to punish a tiny minority of those doing it.

      7) No, because then you’ve taken something (the flowers) from the person who is selling the flowers.

      8) So your argument is that a purely hypothetical gain to one person (the artist) should outweigh an *actual* gain to many people (the files they’ve shared)? That is, of course, even accepting that artists *are* deprived of income, when as far as I can tell that doesn’t appear to be the case…

  8. LemmusLemmus says:

    2) Again, not in a metaphysical sense. I think it’s good to have laws which let the artist decide.

    3) Which kinds of contracts are considered onerous is itself a part of the legal framework. As long as those contracts are not considered onerous by the courts in charge, the argument holds (assuming the default assumption is “not onerous”).

    4 and 7) You’re changing the criterion. It was “instinct” and “don’t owe a living”, now it’s “demonstrable harm”.

    5) That’s assuming the only way in which a law reduces the outlawed behaviour is deterrence. I don’t think that’s correct. (I’m mildly certain there has been no quality empirical work on the matter.)

    6) If you don’t, what’s the meaning of “pointless”?

    8) Of course observed situations should be compared to hypothetical situations. If one didn’t do that, however implicitly, one could never make a change for the better.

    • Andrew Hickey says:

      With 4 and 7 I’m not changing my argument, I’m showing that your analogies are not the same.

      I’m not even sure what you *mean* with 5 – surely reducing an outlawed behaviour *is* deterrence.

      The meaning of ‘pointless’ in that context is that the reduction in file-sharing caused by the law as it stands is tiny, and that what little effect the law does have is often counterproductive.

      And for 8, you’re comparing the situation *if* the person downloading the file would have discovered that work some other way and *if* it was available for them to purchase and *if* they wished to purchase it and *if* they would have done so and *if* downloading the file prevented them from doing so with the definite benefit they actually get from downloading the file. I might as well argue that my bank should increase my overdraft limit to a million pounds because *if* I bought a lottery ticket and *if* I guessed the number right I’d be able to pay them off…

  9. pillock says:

    “…To argue that no artist should have the right to say that she does not want to give away copies of her product for free…

    …Is not quite the same thing as arguing that the artist has the right to stop people who’ve already paid for her CD from giving it to somebody else, I believe. The artist still gets to bring her work to the marketplace, isn’t forced to give it up without requiring compensation: that’s not on the table, here, so we shouldn’t be arguing it as if it were. As well, it is already the case that no artist can expect compensation for all uses, all renditions, even all commercial performances of her work — the absolute right of copy that’s held as a matter of fact when the song is just a tune in her head is already diluted as soon as any copy is sold to another person, and I don’t see that we can really be arguing that, either. The flower-seller’s stock is wholly hers until she sells it or disposes of it, and then it isn’t hers at all anymore. The artist’s recording is not quite totally hers pretty much from the moment it becomes contractable, but can’t be completely alienated from her even by the act of its final retail purchase either, and that’s where the swampy ground lies.

    And just trying to make it “unswampy” doesn’t help anything. For example, you say:

    “So why, precisely, should artists and authors be given a right to control what is done with their work once it’s paid for?” They aren’t given that right by anyone but the person who is willing to pay for the work fully knowing that the product comes with strings attached. If that doesn’t suit you, don’t buy.”

    Which is a pretty tough philosophy as far as defending the rights of artists goes, because anytime you’re telling people not to buy the artist’s record you are still telling them not to buy it, no matter if you are doing it to show that you think filesharing is wrong or whatever you have still said “unless you would only ever get this music by retail purchase anyway, either GET IT SOME OTHER WAY or do not get it at all “, and that may indeed promote a certain kind of fairness (“if I paid twenty bucks for this, why should Joe Blow be allowed to get the same thing without paying”), but as far as the rights of the artist goes it seems to be offering them more rights, in exchange for less money.

    But they already start out with absolute rights to all their material in the beginning. The whole point of the exercise is to trade ’em for money!

    My two cents, as it were.

  10. pillock says:

    Additionally:

    “…If the instinct to share qualifies, then surely the instinct to keep the money one has earned from an anonymous entity that tries to take it…must qualify, too.”

    Except no one is taking away monies already earned, any more than they are compelling artists to reverse their rights…which I guess is a thing I might let pass without comment, except that I find the whole idea that filesharing prevents sales from being made to be dubious in the first place, so I feel like I must object to the idea that these sales are “real” enough to allow us to speak of them as though they are taking away existing sales from artists…somehow taking away existing money that the artist has already come to possess in actual life. If I sold 10,000 copies of a record, but then five thousand people downloaded it without paying, even if all those people would have purchased an authorized copy if the unauthorized ones weren’t available it still doesn’t mean I only sold 5,000 copies — I am not down five thousand copies from the ten

  11. Mike Taylor says:

    It’s a shame you never posted parts 3ff of this series. It’s interesting.

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