Great Ideas Live Forever -- But Only If We Let Them.

As promised, here's the Op-Ed piece (lightly edited) that I sent in to the New York Times as a response to Mark Helprin's article on extending copyright.

Great Ideas Live Forever — But Only If We Let Them.

The title of Mark Helprin's May 20th Op-Ed piece ("A Great Idea Lives Forever. Shouldn't Its Copyright?") puts an important question front and center. And the answer is a resounding "No."

It is precisely because great ideas and great works of art live forever that restrictions on accessing them should be temporary and limited, much more limited than they are today. This is not only because access to culture and knowledge is a public benefit in itself, but also because those who create new works build on the works of their predecessors and peers. All creation is derivative — as Mr. Helprin, himself a writer, ought to know.

Treating works of the mind as physical property fails at a basic logical level: if I steal your bicycle, now you have no bicycle; if I copy your song, now we both have it. When Helprin argues that the government should not be able to "commandeer" your works (by which he means, apparently, allow them to pass into the public domain), he blurs this crucial distinction. The government is not commandeering anything. Even after leaving copyright, your work is still your own. After all, no one is arguing against rights of attribution being preserved: the world will still know who made that book, or song, or painting. What's really happening is that the government is finally relinquishing command of the work, by allowing it to flow freely in the great creative stream where the bulk of humanity's inheritance resides.

The question we should be asking is: for how long should the government give any private party — sometimes the author, more often a publisher — the ability to prevent others from making copies and derivative works? That is all copyright does, in the end. It is not an ownership right, it is a temporary monopoly. In possessing a copyright, I possess nothing tangible that I didn't have before, I simply have the privilege to cause others to possess less, and can rent or sell this privilege for a fee.

But if copyright is just the option to prevent other people from exchanging information freely, we should surely demand the strongest possible proof that it benefits society, before granting such severe powers even temporarily. Yet Helprin proposes extending copyright terms to be essentially infinite. Why?

Helprin has fallen prey to three myths. The first is the fallacy of a natural right of ownership (that is, control) for works of the mind. The reason ownership makes sense for bicycles is that, without ownership, it would be too difficult to decide how a particular bicycle would be used. Imagine a world where bicycles couldn't be owned: every time I wanted to ride mine, I might have to put it up to a vote by the whole world. Endless discussions would ensue, perhaps a run-off election.

The idea is ludicrous, of course. We have ownership so we can efficiently make decisions about exclusive allocation of resources. But the key word is "exclusive": when the resources are infinitely renewable, as with works of the mind, I can ride my bicycle and so can you, and neither of us need interfere with the other. The idea that owning creative works is somehow a natural right thus founders on the rocks of physical reality. When Helprin equates copyrights with houses, he chooses a bad metaphor, and comes to bad conclusions.

The second myth is that of the lone genius, the solitary creator whose works spring de novo from some unique spark, owing nothing to anyone else. That's simply not how creativity works. It is sobering to realize just how many masterpieces we would be without now, had copyright laws always been as strict as they are today. Helprin cites a Mozart aria as an example of art (and let us note, in passing, that Mozart was paid through grants, commissions, and salaries, not through copyright royalties). If Helprin is fond of opera, has he considered that we would likely be without Verdi's "Macbeth", had Shakespeare's plays not been part of the public domain, accessible to all as a basis for derivative works? I pick this example at random; there are many others. Derivation is not some statistical outlier, it is the norm, and the freedom to practice it has been central to creativity for millennia. Transcription, rearrangement, quotation, and translation of other works have always been the marrow of art, as any musician, painter, or writer can testify. Only recently have we begun insisting that certain of these creative imitations be kept private, or else be subject to the grueling process of "rights negotiation", which causes so many works of art to be suppressed or heavily modified.

The third myth, which Helprin relies on unquestioningly, is that today's severe copyright regime is justified because it provides an economic basis for creativity. A look at the lives of most artists suffices to show how wrong this is. Today, as in the past, most creators fund their activities through day jobs, grants, commissions, patronage, sale of first-print rights, and performances — but only rarely through copyright royalties. It is true that a small minority of creators do earn a living from copyright, and if we think that business model worth preserving, we should be considering how long copyright terms really need to be to support it. It's hard to imagine, though, that if we evaluated copyright strictly as an economic incentive, we would be able to justify multiple decades of monopoly control, as we currently have, let alone extending and tightening that control to the degree Helprin proposes. A few years of copyright? A decade, perhaps? These are the lengths of time within which most copyrighted works make most of their royalties. Restrictions beyond that should be viewed at best as indulgences, certainly not as rights.

Helprin writes that "an agricultural-age law makes no sense in our creative era". But copyright is not an agricultural-age law. It was designed in the early eighteenth century around the limitations of the printing press. Publishers, not authors, proposed it as a compromise measure to replace an expiring censorship law. Their argument was that exclusive print rights would be needed to ensure dependable reproduction, in an age when the technology and economics of print runs were the main hurdles in making works accessible to the public. From the start copyright was not really about subsidizing creation, it was about subsidizing distribution, just as it is today.

Except that today we have a far better distribution mechanism than the eighteenth century ever dreamed of. We've just finished building a worldwide copying and editing machine — the Internet — and this is no time to shrink from using it. Mark Helprin's proposed course would hurt artists and the public alike. Instead, we should be trying to reduce copyright to the minimum needed (if any) to bring new works into existence, and treating works of the mind as seeds, to be returned as soon as possible to the fertile earth of the public domain.

16 Comments

Well done!

I've listened to you talk about copyright issues for years, and read most of your essays. This is by far the most succinct and persuasive distillation of your arguments I've ever read. I'm going to have to bookmark this page and forward it to everyone who ever asks me about copyright. :-)

Sums up my view

That pretty sums up my view on copy rights. You inspired me to find a solution to the one problem I've had with removing copyright laws all together -- how to make sure people produce stuff. My solution is thta people who deserve it is paid to produce things the public wants.

That is, they are paid before they make anything. Ofcourse a certain reputation would be required to make any real money from it, but that's no different from today.

Mark Helprin's ideas

I agree that authors should have recognitions for their work and the right to earn money.
But the formalities should be minimal if someone wants to make a derivate, because will bring value to the society and to the original work.

Post by Dan from the gift ideas blog
http://www.giftideasblog.net

Right

I think you're absolutely right. Authors deserve the recognition and appraisal for their original efforts more than anything. But derivatives will also greatly benefit both the original author and the audience. It will bring even more publicity to the original work. Authors should consider situations like this as gifts.

Give authors what they deserve

Hi I am Peter. It is very important to give authors what they deserve. They have the right to their own creations, and they have the right to benefit from them. At this rate everyone, every potential new author will be discouraged. There is a point to make about the internet as well.

Copyright & Copyleft

I believe that people should be able to choose whether their works are copyrighted or if they want to share their works with the world.

Ultimately people who are open with sharing their ideas get more recognition.

Johnathon.

This sums it up

I'm not as eloquent as you but this sums up my thought on copyright exactly. If everything was copyrighted and stringently enforced as proposed, creativity would inevitably die. Everyone draws their influences from the world and people around them and your example using Verdi's Macbeth is an excellent one.

Unfortunatley a whole industry is now built around copyright and sad as it may be I can only see it getting stronger (even while the internet allows the bypassing of any measures relatively easily)

Signed
Mr Gadgets

fine art oil painting reproduction

What are you thoughts on art reproductions which are promoted by the artists themselves to increase their reach for selling their works?

Brushstrokes carries some of the finest oil painting reproductions available on the market. Their fine art oil painting reproductions are created using a patented process and then enhanced by actual artists using real oil paint on canvas. Living artists are paid royalties and other pieces are reproduced based on their availability in terms of copyright laws.

Re: fine art oil painting reproduction

I'm all for artists making money -- who wouldn't be?

But the bottom line is: people should be free to share information. That's what this site is about. The success or failure of any particular business model is not the important question. If this business model succeeds, then great. It need not be based on copyright law; it can use contract law and (for example) the Author-Approved Mark to sustain itself and its clients.

But if this business model does not succeed, that is simply an indictment of the business model, not an argument that we should have less freedom so that a business model that would otherwise have failed can be made to succeed by restricting people from sharing.

Is all creation is derivative?

I would like to belive that all creation is derivative...try telling that to a copyriht or patent lawyer! Or even a professor marking a paper for plagiarism, with 1 misspeled footnote. My question is that even in academia the same argument could stand...wouldnt it?

Brook

Re: Great Ideas Live Forever -- But Only If We Let Them.

"The question we should be asking is: for how long should the government give any private party — sometimes the author, more often a publisher — the ability to prevent others from making copies and derivative works? That is all copyright does [...]"

The government does not give anyone the "ability to prevent" copying etc.  It just provides legal recourse if/when they do.  DRM, OTOH, does (attempt to) give the "ability to prevent" copying.

(Maybe nitpicking, sorry; but I think it's an interesting distinction between making something impossible vs. making it criminal.  Great article!  Rock on, Karl.)

Re: Great Ideas Live Forever -- But Only If We Let Them.

I would have to disagree with you on this article. 

The second point is extremely important to artists. When we write, we are sharing with you a part of our soul. That might sound weird to you, but it's an idea that is very deeply entrenched, especially with books. For a single author, there is no other source of input for the book. It all comes from us. Even if we are writing about a non-fictional entity, it is our viewpoint on it. Lovecraft took this to an extreme with his book "The evil clergyman" where the protagonist is transformed physically into the author after reading his work. In a sense, all written material is intended to do that, to explain to you our point of view and hopefully convince you to adopt it. 

While you are absolutely correct in that many fine works of art have been produced as derivitives of other works, there is a sad tendency for this to be abused drastically. The worst offender i've ever seen would be "Ghetto Charlie brown" where charlie brown is pimping out lucy. This is absolutely not what the author wanted or intended his work to be used for. There are hundreds of other offenders, such as political or pro-life/pro-choice groups using music without caring what the creator's viewpoint on that topic is. Using the artists work in that way implies support, or at the very least, consent. 

As for the third point, that is astonishingly wrong as far as writers go. There are grants, but only if you are willing to toe the line of the granting party's ideology. Commissions aren't actually given to create an original work, they are given to create a work based on the issuing institution's desire. An example would be a statue of a founder of a department store, such as Timothy Eaton. Patronage is extremely hard to find, and is usually only given to groups that have mass appeal and aren't remotely controversial. Opera companies sometimes get patronage from companies like Bell; individuals never do. I can assure you as an individual artist, royalties are important.