Breaking the chains of copyright
(graphic: Christoper Niemman)
Robert Boynton published The Tyranny of Copyright in the New York Times Magazine‘s January 25, 2004 issue. In it, he takes up the conflict between two opposing tendencies within the creative world: the urge by inventors and innovators to control their creations in order to reap maximum financial reward from them; and the countervailing needs of society to freely consume these new ideas and innovations and adapt them to unforeseen future uses. Boynton describes the two tendencies as the “permission culture” versus the “free culture movement” or “cultural commons.”
He harkens back to the dawning of the internet age when its promise seemed infinite and limits seemed remote:
Not long ago, the Internet’s ability to provide instant, inexpensive and perfect copies of text, sound and images was heralded with the phrase ”information wants to be free.” Yet the implications of this freedom have frightened some creators — particularly those in the recording, publishing and movie industries — who argue that the greater ease of copying and distribution increases the need for more stringent intellectual property laws.
These “content providers” propose a copyright standard which critics derisively refer to as the “permission culture:”
Whereas you used to own the CD or book you purchased, in the permission culture it is more likely that you’ll lease (or ”license”) a song, video or e-book, and even then only under restrictive conditions: read your e-book, but don’t copy and paste any selections; listen to music on your MP3 player, but don’t burn it onto a CD or transfer it to your stereo.
Songbird behind bars
These critics view iTunes, Apple’s new online music store, as the first step toward a society in which cultural activity we currently take for granted — reading an encyclopedia in the library, selling a geometry textbook to a classmate, copying a song for a friend– will be monetized through a system of micropayments which give participants the rights to ever smaller pieces of our culture are doled out. ”Sooner or later,” predicts Miriam Nisbet, the legislative counsel for the American Library Association, ”you’ll get to the point where you say, ‘Well, I guess that 25 cents isn’t too much to pay for this sentence,’ and then there’s no hope and no going back.”
The problem with this philosophical approach to copyright is that it is likely to stifle creativity and innovation. You can think of it in terms of the amazing variety of engineering innovations produced by the U.S. space program. This creativity was translated into thousands of new consumer products and processes which have in turn made our lives better. The same adaptive process happens with books, films, music and the realm of ideas.
Imagine, if you write a weblog like me. In the permission culture, there is no room for the free exchange of ideas unless you first pay to use them. In quoting this very article, an adherent of permission culture might find me violating the New York Times copyright. Again, this would entitle the New York Times to pursue me for copyright infringement. This is the very same approach that the music and film industries are taking in going after file sharers. It is the same approach they are taking in attempting to engineer new media players that will not allow copying of songs or movies, nor the playing of content previously copied.
But the “free culture” activists are not taking it lying down.
These lawyers, scholars and activists fear that bolstering copyright protection in the name of foiling ”piracy” will have disastrous consequences for society — hindering the ability to experiment and create and eroding our democratic freedoms. They object fiercely to the way copyright has been distorted by recent legislation and manipulated by media companies. They share a fear that the United States is becoming less free and ultimately less creative. While the American copyright system was designed to encourage innovation, it is now, they contend, being used to squelch it. They see themselves as fighting a radical effort to turn copyright law into a tool for hoarding ideas.
Instead, they believe in the ”cultural commons” — a shared stockpile ideas where the majority of America’s music and literature would reside, from which anyone could partake without having to pay or ask permission. The public domain is a necessity for social and cultural progress, not some sort of socialist luxury. ”Our art, our culture, our science depend on this public domain,” he has written, ”every bit as much as they depend on intellectual property.” (James Boyle, Duke Law School)
No less an American innovative genius than Thomas Jefferson understood the tension between these perspectives all too well:
”If nature has made any one thing less susceptible than all others of exclusive property,” he wrote, ”it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone.”
Jefferson, it seems, would not come down on the side of the permission culture.
Larry Lessig, Stanford Law professor, and one of the seminal thinkers in this field poses the problem in stark, even extreme rhetorical terms:
‘We are invoking ideas that should be central to the American tradition, such as that a free society is richer than a control society,” he says. ”But in the cultural sphere, big media wants to build a new Soviet empire where you need permission from the central party to do anything.” He complains that Americans have been reduced to ”an Oliver Twist-like position,” in which they have to ask, ”Please, sir, may I?” every time we want to use something under copyright — and then only if we are fortunate enough to have the assistance of a high-priced lawyer.
Those of us bloggers who maintain a Creative Commons blog license should thank Lessig and the others in the group which created this concept, positing a lesser or looser definition of copyright. In the case of my blog, anyone may avail themselves of my content as long as they do not use it for commercial purposes or to benefit themselves financially. I also ask borrowers to acknowledge me as the source of the content they appropriate and not to distort the meaning of what I’ve written. Other than that, you’re free to lift what you like.
This matches my view of what the web should be: an open marketplace of ideas available to make the world a better place. The only way we can change society for the better, the only way we can find ways to enjoy our lives more is through free and open dialogue. The more control there is over this marketplace the weaker the level of innovation and the impulse for change.
If you are skeptical of this approach, you have every right to ask: “if you do away with copyright as we currently know it, what would you put in its place that would compensate creators for their work while providing full, free access to consumers?” William Fisher, director of Harvard’s Berkman Center for Law and the Internet, has come up with an imaginative solution. Just as songwriters receive royalties from ASCAP and BMI based on the number of times their songs are played on the public airwaves, so
works capable of being transmitted online would be registered with a central office (whether government or independent is unclear). The central office would then monitor how frequently a work is used and compensate the creators on that basis. The money would come from a tax on various content-related devices, like DVD burners, blank CD’s or digital recorders. Fisher’s proposal might be the best thing that ever happened to the cultural commons: the creators would be paid, while every individual would have unlimited access to every cultural creation.
If you think this sounds like a wild-eyed, radical scheme,
Fisher and Charles Nesson, his colleague at Harvard Law School, have showed this proposal to movie executives and lawyers for several media conglomerates. Fisher says that his ideas have been received with great interest by the very industries — music, home video — that see their business models disintegrating before their eyes.
I don’t think even the most extreme free culture activist believes that this proposal will sweep the land. But the online content providers face a severe crisis (look at the music industry, for example) They can change or die. Fisher’s proposal provides them with a way to thrive by embracing the web’s innovation, rather than foolishly attempting to stifle it.
