CopyRant Part 1

Okay, I promised a copyright rant, so here’s at least a 1st pass at starting that conversation. This will probably end up as a multi-part series, digging into some general philosophy and specific history on the issue of copyright, and how it relates to synching. I’ll just state right up front that I’m not a lawyer, I’m just interested in the philosophy and politics of copyright and creativity; so please don’t take this as definitive legal advice. I have read quite a bit on the topic, some of which was written by lawyers… or at least legal professors. However, I do think one can gain a lot from considering the issues around this. A lot of times, all too often I think, we take assumptions as facts and that can lead to trouble.

So, where to begin? I think it would help to look, first off, at what we’re talking about when we talk about creativity, copyright, and that rather nebulous term, intellectual property. Intellectual Property (IP) is the current, fashionable buzzword to describe the “marketplace of ideas,” which carries with it a lot of assumptions about how creativity works.

Read more after the break...

The Artist And His Muse
In Western culture, there is a tradition of “the artist and his muse.” That’s to say, the artist and his ideas, as if they exist alone, in a vacuum. However, unless one truly is in the nothingness of space, the artist is by no means alone at all. Creativity feeds off the ideas, experiences, words, culture, etc. of others, of all of the humans that have gone before, and even the rest of the universe. The concept of IP tends to disregard the contributory aspects of the larger cultural context in favor of the rights of that “solo artist,” even when, by and large, the legal owner of that IP in today’s society tends to be a corporation. Corporations, by definition, are another legal fiction really, a system created by humans to create and consume resources (including IP), at least from one point of view in looking at them.

That’s another key fact about the discussion around IP actually, that often gets overlooked. The discussion tends to be in the abstract, about the “artists’ rights,” but when those rights are enforced, 9 times out of 10 they are for a corporation, in today’s society. I’d actually recommend looking at the documentary The Corporation, which makes a pretty strong argument that corporations are inherently, by design of the system, psychopaths, without strong regulatory controls against that type of behavior. That again, will play into how I would approach the discussion of copyright as a larger issue.

So, in thinking about IP, in defining it as property, we also bring in a lot of assumptions about physical property and apply them to something that is, again by definition, not physical. If you own a book, say a copy of J.R.R. Tolkien’s Hobbit, and I take it, you’re out one book. However, if you have an idea for a story about a small human-like character who has adventures, and I use that idea for another story about a small human-like character, both ideas can exist, at the same time. Copyright law tends to cover “fixed form” representations, although that has greatly expanded in recent decades, but that was how the system initially skirted the issue of the greater marketplace of ideas. After all, the second idea does not negate the first, in the example, whereas the taking of the book does negate the first in the physical book example.

Fixed Form Representations
Ideas, as opposed to the fixed form representation of those ideas, are exponential. Instead of 1 book, 2 books, 3 books… ideas tend to multiply. One idea begets 3 or 4 or 10 or 100 other ideas, as new people get exposed to those ideas and bring their own interpretations. One of the problems that copyright was meant to solve though was that, in that infinity of possibilities, it becomes very easy for the less scrupulous to just change one thing (like the author’s name, or Bibbo instead of Bilbo in the Tolkien example), which then undermines the commercial marketplace for the “original”. Copyright puts a finite cap on those possibilities in order to prevent the less scrupulous from simply redistributing.

The problem is that definitions of “redistributing” tend to be rather fluid. If I took the exact text of your book, and just changed your name to mine, it’s fairly clear-cut that that is pretty unscrupulous, and really didn’t involve much creativity on my part. However, if I were to take the basic story of your book, and draw a comic based on it, there’s definitely creativity involved there, at least in the interpretative aspect of drawing the story (instead of writing it). But since that comic is in “competition” with your book, it does have a somewhat negative effect. That’s because, ultimately, although the # of ideas may be infinite, our attention, and the time we pay to those ideas, is very very finite. Copyright then, as a system, tends to, in the short term, lose those more derivative ideas, in favor of the originator.

In Conclusion
In looking into a larger discussion of copyright then, I view the main assumptions/parameters within that discussion, based on what I’ve read about it are:

• Artist as the solo originator of the ideas behind a creative work.


• Treating Intellectual Property as if it were physical property.


• Copyright policy being decided generally around “fixed form” representations of ideas, rather than the ideas themselves.


• Derivative works competing with the primary work.

I’m going to end this entry for today, with those thoughts… and just open the discussion by anyone see any glaring examples of my own assumptions in how to approach this topic?

I’ll follow up next with a bit about the history of copyright, generally and within the US.

For your enjoyment, here are some books that I’ve found in my own quest for understanding on copyright…

• Digital Copyright by Jessica Litman


• Code and Other Laws of Cyberspace by Lawrence Lessig


• The Future of Ideas: The Fate of the Commons in a Connected World by Lawrence Lessig


• Free Culture: The Nature and Future of Creativity by Lawrence Lessig


• Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity by Siva Vaidhyanathan


• The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System by Siva Vaidhyanathan


• DarkNet: Hollywood's War Against the Digital Generation by JD Lasica

peace,