can there be a compromise on copyright? 02.08.2006, 7:19 AM
posted by ben vershbow
The following is a response to a comment made by Karen Schneider on my Monday post on libraries and DRM. I originally wrote this as just another comment, but as you can see, it's kind of taken on a life of its own. At any rate, it seemed to make sense to give it its own space, if for no other reason than that it temporarily sidelined something else I was writing for today. It also has a few good quotes that might be of interest. So, Karen said:
I would turn back to you and ask how authors and publishers can continue to be compensated for their work if a library that would buy ten copies of a book could now buy one. I'm not being reactive, just asking the question--as a librarian, and as a writer.
This is a big question, perhaps the biggest since economics will define the parameters of much that is being discussed here. How do we move from an old economy of knowledge based on the trafficking of intellectual commodities to a new economy where value is placed not on individual copies of things that, as a result of new technologies are effortlessly copiable, but rather on access to networks of content and the quality of those networks? The question is brought into particularly stark relief when we talk about libraries, which (correct me if I'm wrong) have always been more concerned with the pure pursuit and dissemination of knowledge than with the economics of publishing.
Consider, as an example, the photocopier -- in many ways a predecessor of the world wide web in that it is designed to deconstruct and multiply documents. Photocopiers have been unbundling books in libraries long before there was any such thing as Google Book Search, helping users break through the commodified shell to get at the fruit within.
I know there are some countries in Europe that funnel a share of proceeds from library photocopiers back to the publishers, and this seems to be a reasonably fair compromise. But the role of the photocopier in most libraries of the world is more subversive, gently repudiating, with its low hum, sweeping light, and clackety trays, the idea that there can really be such a thing as intellectual property.
That being said, few would dispute the right of an author to benefit economically from his or her intellectual labor; we just have to ask whether the current system is really serving in the authors' interest, let alone the public interest. New technologies have released intellectual works from the restraints of tangible property, making them easily accessible, eminently exchangable and never out of print. This should, in principle, elicit a hallelujah from authors, or at least the many who have written works that, while possessed of intrinsic value, have not succeeded in their role as commodities.
But utopian visions of an intellecutal gift economy will ultimately fail to nourish writers who must survive in the here and now of a commercial market. Though peer-to-peer gift economies might turn out in the long run to be financially lucrative, and in unexpected ways, we can't realistically expect everyone to hold their breath and wait for that to happen. So we find ourselves at a crossroads where we must soon choose as a society either to clamp down (to preserve existing business models), liberalize (to clear the field for new ones), or compromise.
In her essay "Books in Time," Berkeley historian Carla Hesse gives a wonderful overview of a similar debate over intellectual property that took place in 18th Century France, when liberal-minded philosophes -- most notably Condorcet -- railed against the state-sanctioned Paris printing monopolies, demanding universal access to knowledge for all humanity. To Condorcet, freedom of the press meant not only freedom from censorship but freedom from commerce, since ideas arise not from men but through men from nature (how can you sell something that is universally owned?). Things finally settled down in France after the revolution and the country (and the West) embarked on a historic compromise that laid the foundations for what Hesse calls "the modern literary system":
The modern "civilization of the book" that emerged from the democratic revolutions of the eighteenth century was in effect a regulatory compromise among competing social ideals: the notion of the right-bearing and accountable individual author, the value of democratic access to useful knowledge, and faith in free market competition as the most effective mechanism of public exchange.
Barriers to knowledge were lowered. A system of limited intellectual property rights was put in place that incentivized production and elevated the status of writers. And by and large, the world of ideas flourished within a commercial market. But the question remains: can we reach an equivalent compromise today? And if so, what would it look like? Creative Commons has begun to nibble around the edges of the problem, but love it as we may, it does not fundamentally alter the status quo, focusing as it does primarily on giving creators more options within the existing copyright system.
Which is why free software guru Richard Stallman announced in an interview the other day his unqualified opposition to the Creative Commons movement, explaining that while some of its licenses meet the standards of open source, others are overly conservative, rendering the project bunk as a whole. For Stallman, ever the iconoclast, it's all or nothing.
But returning to our theme of compromise, I'm struck again by this idea of a tax on photocopiers, which suggests a kind of micro-economy where payments are made automatically and seamlessly in proportion to a work's use. Someone who has done a great dealing of thinking about such a solution (though on a much more ambitious scale than library photocopiers) is Terry Fisher, an intellectual property scholar at Harvard who has written extensively on practicable alternative copyright models for the music and film industries (Ray and I first encountered Fisher's work when we heard him speak at the Economics of Open Content Symposium at MIT last month).
The following is an excerpt from Fisher's 2004 book, "Promises to Keep: Technology, Law, and the Future of Entertainment", that paints a relatively detailed picture of what one alternative copyright scheme might look like. It's a bit long, and as I mentioned, deals specifically with the recording and movie industries, but it's worth reading in light of this discussion since it seems it could just as easily apply to electronic books:
....we should consider a fundamental change in approach.... replace major portions of the copyright and encryption-reinforcement models with a variant of....a governmentally administered reward system. In brief, here's how such a system would work. A creator who wished to collect revenue when his or her song or film was heard or watched would register it with the Copyright Office. With registration would come a unique file name, which would be used to track transmissions of digital copies of the work. The government would raise, through taxes, sufficient money to compensate registrants for making their works available to the public. Using techniques pioneered by American and European performing rights organizations and television rating services, a government agency would estimate the frequency with which each song and film was heard or watched by consumers. Each registrant would then periodically be paid by the agency a share of the tax revenues proportional to the relative popularity of his or her creation. Once this system were in place, we would modify copyright law to eliminate most of the current prohibitions on unauthorized reproduction, distribution, adaptation, and performance of audio and video recordings. Music and films would thus be readily available, legally, for free.
Painting with a very broad brush...., here would be the advantages of such a system. Consumers would pay less for more entertainment. Artists would be fairly compensated. The set of artists who made their creations available to the world at large--and consequently the range of entertainment products available to consumers--would increase. Musicians would be less dependent on record companies, and filmmakers would be less dependent on studios, for the distribution of their creations. Both consumers and artists would enjoy greater freedom to modify and redistribute audio and video recordings. Although the prices of consumer electronic equipment and broadband access would increase somewhat, demand for them would rise, thus benefiting the suppliers of those goods and services. Finally, society at large would benefit from a sharp reduction in litigation and other transaction costs.
While I'm uncomfortable with the idea of any top-down, governmental solution, this certainly provides food for thought.
Posted by ben vershbow on February 8, 2006 7:19 AM
tags: Copyright and Copyleft, DRM, IP, Libraries, Search and the Web, Publishing, Broadcast, and the Press, condorcet, copyleft, copyright, creative_commons, enlightenment, france, free_software, intellectual_property, libraries, music, open_source, photocopy, printing, richar_stallman, xerox
K.G. Schneider on February 8, 2006 1:53 PM:
Setting aside the predictable responses to Fisher's idea from the publishing industry and the anti-tax movements, I'm wondering if Fisher sees publishing intermediaries as all noise and no signal. Would we really want such a world? Maybe so--but as soon as people invent something, such as blogs, seems to me we then invent the tools to evaluate/organize/rate/aggregate the new new thing.
Still, a very thoughtful post.
Dave Munger on February 8, 2006 2:10 PM:
Fisher's idea sounds cool, but the problem for me is that it puts a fixed price on creativity. The world's creativity is paid for according to a tax structure, and even if (as must be supposed) the value of that creativity increases over time, the amount of compensation available doesn't increase (or increases only with inflation, while the value of creativity may be increasing exponentially).
I think the current copyright system, imperfect as it is, is more effective at rewarding creativity. There are other, smaller things we can do, such as reducing copyright terms and removing some of the more draconian provisions of the DMCA that would do a much better job of encouraging creativity than Fisher's proposal.
Douglas Galbi on February 9, 2006 12:32 PM:
A system of limited intellectual property rights was put in place that incentivized production and elevated the status of writers. And by and large, the world of ideas flourished within a commercial market.
This conventional master narrative isn't consistent with available occupational data. The Statute of Anne was enacted in 1710. U.S. states enacted copyright statutes in the 1780s, and a U.S. federal copyright statute was enacted in 1790.
These copyright statutes seem not to have done much to make "writer" a viable profession. In 1850, in the first detailed U.S. census of occupations, only 82 persons claimed the occupation of author. In contrast, 938 persons called themselves daguerreotypists. This was 15 years before a copyright statute that covered photography was enacted. For more data, see occupational statistics for authors and photographers from 1850 to 2000.
Historically, copyright law doesn't seem to have been a key determinant of the fortunes of authors.
ray cha on February 9, 2006 3:51 PM:
You cite some interesting statistics for 1850. However, could there be other factors that suppressed the viability of the writing profession in 1850? For instance, literacy rates in 1850, barriers of entry of published writing versus daguerreotypy, and potential size of these two markets/ audiences might have outweighed protecting intellectual property. Can we assume that if these factors where controlled for, copyright law would or would not have an effect on the economics of authorship?
ben vershbow on February 9, 2006 5:03 PM:
Yes, this narrative less reflects the statutory history of copyright than the cultural history -- that is to say, copyright's influence on the commercial literary culture that emerged toward the end of the Enlightenment and has continued to this day. Your figures certainly challenge the conventional assumption that copyright suddenly gave birth to an empowered class of professional writers, but I'm more interested in copyright's long-term impact on society's idea of the writer, and on how writers regard themselves.
When you think about it, the whole idea of writing as a profession is a little bit odd. Isn't writing something we just do? Like speaking or doodling or snapping a picture? But if you took the occupational census from today, I'm sure a significantly larger percentage of people would consider themselves writers than did in 1850, even if they didn't actually derive the majority of their income from writing. This is partly for the reasons Ray has mentioned, but is also due, I think, to the exalted, even romanticized, status the author has attained in our culture, with the book as the corresponding ideal of self-expression. And I think copyright has a lot to do with this.
It's not an assertion I can back up with any hard data, but I'd venture that there's a lot more than money driving the copyright wars. Maybe the fat cats at the top only care about profit, but in the vast middle it seems just as much about attitudes, respect, and what it means to be creative. What's interesting is that we only seem to know how to to talk about these big cultural questions in legal terms.
Preston on February 10, 2006 10:46 AM:
With registration would come a unique file name, which would be used to track transmissions of digital copies of the work.
Tracked where and how? Online libraries? Peer-to-peer networks? E-mail? It would take an incredible monitoring system and bureaucracy to manage such a program. Considering the hooplah over the domestic spying issue here in the US, I can't believe that such a scheme would find acceptance.
Douglas Galbi on February 12, 2006 10:29 PM:
could there be other factors that suppressed the viability of the writing profession in 1850?
Can we assume that if these factors where controlled for, copyright law would or would not have an effect on the economics of authorship?
I haven't studied the issue that carefully. The economics is rather different for publishers and authors. Copyright historically has most directly affected publishers.
ray cha on February 13, 2006 11:30 AM:
Copyright historically has most directly affected publishers.
I assume you mean economically affected. Could you expand on that a little more? Are you referring to the historic effects of copyright on publisher's economic viability? Did certain types of publishers survive while others did not, as copyright law evolved?