What I Mean By "Reflexively Anti-Copyright"
I think in previous ones of these I’ve made passing mention to being reflexively anti-copyright or something to that effect. And in the interest of both having a thing to link to, and in using writing to clarify my own thoughts, I’m trying to put together something that goes into that in more depth. Not quite manifesto, least of which because this isn’t really meant to convince, more statement of purpose or statement of beliefs. Annoying? Perhaps, but as always, this is a free substack!
When I say “reflexively anti-copyright”, the reflexive part is important to me. This is not a carefully researched and deeply reasoned policy proposal, this is a reflex, more indicative of the System 1 snap judgments than the System 2 higher order thought.
As I started outlining this, I think there’s two core things that push my reflexivity in this direction. First, I don’t think I believe in originality.
What I mean by that is I don’t believe in the conception of “true” sui generis originality, wherein an idea or creative work comes primarily from wholly novel creative impulses of the brain. As best as I can tell through my handful of decades of both consuming, critiquing, and creating, all creative work is at some level a combination of prior influences (whether intentional or not.) I was going to make a joke about “maybe David Lynch is the only exception and only truly original artist”, but even that’s obviously not true: his work is incredibly influenced by Hitchcock, Cassavetes, Francis Bacon, etc.
And I think a lot of artists and critics would probably agree with that sentiment, at least in part! The place where I probably break from consensus is even if we all agree sui generis originality isn’t really “real”, I think a lot of people would still consider it a thing to strive for, in the same way that it’s impossible to live a life without sin, but that doesn’t mean you shouldn’t try to.
However, for me, in this case, I don’t particularly see it as anything all that valuable to strive for! Or at the very least, it is not the thing to strive for, it may be just one of many elements of a work that may be desirous. Even in cases where I do value the “originality” of a work, I tend to mean it in the sense that I appreciate how disparate elements were combined in a new way. And I don’t necessarily always value that! There are certainly circumstances were I would prefer an aesthetically exceptional derivative piece over an aesthetically subpar “original” one, or ctrl-f “aesthetically exceptional” with “emotionally challenging” or “historically interesting” or any other element that contributes to the overall impact of a piece of artwork.1
To that end, and this is the first of a couple parts of my little 95 theses that actually has some (half-remembered) research to influence it, my understanding is that “originality” as we think of it now is not a pre-ordained universal value. So many of my weird interests and beliefs seem sourced from randomly taking a couple seemingly unrelated classes within a quarter or two of each other, and in this case in college I took a class on remixes and remix culture at around the same time as taking a class on Medieval and Early Modern English literature. And I learned that Renaissance literature, particularly British Renaissance, particularly particularly British Renaissance theater, did not place strong value on originality, at least as we see it. They did not have modern copyright and they had absolutely no compunction against recycling plots and characters. Several playwrights took a swing at the story of Hamlet before (and contemporaneously with) Shakespeare, and that was not just acceptable but expected. Maybe this is me reading too much into it, but Elizabethan education was also one that was focused on rote learning, wherein the value was placed on being able to successfully recite the great works of the past without error, and I imagine there is some relationship between that and a theater and literature culture that values repetition and remix over novelty.
A valid counter argument is either “yeah, and isn’t it great that we’ve changed our value system away from that of the Elizabethans and Jacobeans?” or “isn’t Shakespeare, the one main Renaissance dramatist we care about, the one who had the most original elements to his works?” And I don’t disagree with those necessarily, especially if your value system is one more aligned to the modern conceptions of originality.
But again it does point out that these are choices of value systems, not pre-ordained universal truths about how humans always think about art and creativity. There do seem to be some general, near-universal preferences for some types of aesthetics that spans across cultures and times (your golden ratios and whatnot) but “originality” appears to be much more culturally contingent.
So in the same way that an annoying atheist realizes that “wait everything I was told in Sunday school is just a product of faith and belief, not some proven universal truth??” and goes on to reject both the good and the bad of their former faith, so am I with the value of originality in art.
The second part is related to the first, in that while it doesn’t necessarily logically follow, it’s hard to imagine I’d care as much if I didn’t have a more deep-seated mistrust of originality as a value:
I think I place the most societal value in the act of creation and the total amount of creation that takes place.
This is also where specific feelings about actual intellectual property regimes start to come into play for me. Paraphrasing from the one Coursera class on it I took, intellectual property rights, like all property rights, are also not universal truths handed down from on high. Rather they are choices of societies and government to impose artificial rules and limits to achieve some aim. And artificial does not mean bad! It’s an artificial limit that my neighbor can’t break down my door and steal all the stuff in my house (or at least can’t without punishment later) but I place a lot of value in the existence of that limit!!!!!
But if we’re going to go through the effort of designing a system of artificial limits around intellectual pursuits, then there must be some motivation to do it. And two major flavors of these motivations are a “utilitarian” basis and a “moral rights” basis.
In a utilitarian motivation, the idea is that society will get some benefit out of imposing intellectual property protections, and those benefits to broader society will outweigh whatever costs are borne. Moral rights motivations, instead, focus on the belief that there are intangible rights owed to the creator of a work, regardless of what broader benefit society may gain from IP protection.
It can be a little hard to tease apart the differences, particularly when talking about copyright, because while the United States is legally very utilitarian in its IP law frameworks, a lot of the discussion around it takes on a moral rights flavor. “As the author you deserve your copyright protections,” etc.
An easier example (for me) is thinking outside of copyright to trademarks and patents. In a trademark, a company can apply for a monopoly on the use of a particular mark (logo, phrase, color in some cases) in certain circumstances. And a lot of the casual discussion around trademarks focus on the benefits for the company in terms of being able to “protect” themselves and their own name or logo, but just as important (if not more important!) to the actual legal regime is that trademarks protect customers. The real motivation for a trademark system, in the US at least, is that it will prevent a customer from accidentally spending money on something under false pretenses, thinking it’s associated with a different brand. It’s designed to protect the grocery shopper from buying a bad soda because they thought it was made by Coca Cola, not designed to protect Coca Cola from their copycats. This is why trademarks are narrow, scoped to only the specific industries that a company operates in, and have a lot of other restrictions on who can get them and how and when they can be used. Trademarks are primarily a consumer protection tool, not a creator protection tool, which is a very utilitarian way to design a system.
In a moral rights focused system, trademarks would primarily be for the protection and rewarding of the creator, and would not be subject to examination based on say the likelihood of customer confusion.
Patents I think are an even stronger example of where a utilitarian and moral rights system diverge: a patent is a limited time monopoly on the use of a newly discovered technology or scientific process. In order to get a patent, you have to file an application with the US Patent and Trademark Office describing in excruciating detail everything about your new discovery. And if it’s sufficiently novel, you can be granted your monopoly for 15-20 years, depending on the patent type.
The goals of the patent system are two-fold: we want to encourage people to keep furthering science by developing new things, and so giving them a monopoly over their discovery will presumably bring them some financial or competitive benefit, and the desire to take advantage of that benefit will incentivize more discovery. But we also know that science doesn’t progress if everyone keeps their discoveries secret, and so as a condition of getting the monopoly, you have to tell everyone how it works. And publish it as a patent. Which, since the patent document itself is public domain, everyone can read and print and share the patent with no restrictions whatsoever! They just can’t use the actual discovery…. Yet. In 15-20 years though, it just becomes part of science and is free for everyone to use.
That’s incredibly, explicitly utilitarian. It’s a system designed to create “more science” and it does that by striking a balance between “reward people for doing the science” and “allow everyone else to learn from their science.” A moral rights system would say that the act of discovery mandates ownership over the fruits of that discovery, and a maximally moral rights system would not have the disclosure requirements or limited terms that patents have. You created it, it’s yours, you have no responsibility to share it!
I bring this all up to say that regarding intellectual property, I am 1000% a utilitarian and 0%, maybe even negative %, a moral-rights-ian. I do not believe that people have a right to control the stuff they make. I believe the appropriate moral contract is that by choosing to share your work, you lose any moral claim to what others do with it. If you want complete control, then you keep it private.
I will begrudgingly admit that in our modern capitalist society, there is probably some utilitarian value in intellectual property schemes that attempt to provide monetary or competitive rewards to the act of creation. But I see it as a necessary evil that is more properly solved by things like broader social safety nets or direct grants to artists, rather than through IP monopolies.
It was years ago and I didn’t keep a link or screenshot, so I’m probably misquoting, but there was a tweet talking about what the tweeter believed were the rights of authors and included things like they deserve healthcare, fair compensation for their work, and the right to control adaptations of their work (among others.) And it was a perfect moral rights vs utilitarian crystallization for me, because I believe there’s a reasonable utilitarian argument for the compensation parts, but do not believe even the slightest in the “right to control” parts….unless you can make a good utilitarian argument for why it’s valuable to the broader public to choose to grant that power.
Relatedly, I am fascinated by music licensing. In music licensing, there are different rights held by different people who contribute to a song: the songwriter has copyright for writing the music and lyrics, and the owner of the actual recording has copyright over that specific recording. And so if you’re wanting to play a song on the radio, that is “copying” both the actual recording and the underlying composition, and requires compensation to both sets of rights holders.
If you wanted to record your own cover version, that is only “copying” the composition, not the recording. You’re creating your own new recording (which you will own the copyright to) but you do still have to also pay the composer. This is kinda analogous to adapting a book into a film; you’ll now have a new piece of art (the movie) that will have its own copyrights and you can make money from, but you have to pay the owner of the book’s copyright for the ability to “copy” the plot, character, etc.
But the surprising thing is, for cover songs in the US at least, unlike the book to movie example, you don’t need the permission of the original composition’s copyright holder. You still have to pay them, but the base rate is set by statute and it’s what’s known as a “compulsory” license, so called because the original rights holder is compelled to grant it. The original author of the book can choose not to allow an adaptation, the original composer of a song can’t choose not to allow a cover song.
That fascinates me both because:
the differences between books and movies and music again highlights that intellectual property is not one consistent immutable fact of the universe, but rather a constructed system that is contingent on history and culture and laws and societies, and
we have at least one example of a market that split out the right to be compensated with the right for control, and it’s turned out fine (for all the problems with the music industry, I don’t think “songwriters can’t deny performers the ability to do cover songs” is one of the big ones.)
Finally, something unsaid in all of this talk of utilitarianism is, to what end? If utilitarianism is defined as focusing on costs vs benefits, what are the benefits to optimize for?
And here is where I come back to my earlier value statement: I think I place paramount value on optimizing for more art. And I think I would optimize for that over other values that are totally defensible priorities, like optimizing for the best art, or the most groundbreaking art, or the greatest number of professional artists, or the highest standard of living for professional artists, etc, etc. That is why when I do dive more into specific intellectual property schemes, I judge them based on what I think is their ability to enable more art to be created.
And a core tension to that is in an IP scheme that grants the creator a monopoly over their work (which is most of them), the more you power you load into the monopoly, presumably:
you’ll increase the potential value of your work and of its creation (and therefore hopefully increase the incentive to create the work in the first place, good for more art!)
you'll decrease the ability for other artists to use your work in their own creations (bad for more art!)
And if we jump all the way back to the first section, I basically believe all creative work involves using prior work in some form or another, so I boil it down to “more monopolies = more incentives to create, but less ability.”
So I’m very interested in things like the compulsory license scheme we just mentioned with cover songs, as that seems to strike an interesting balance between incentivizing the writing of songs (by requiring payment for the cover song license) and the creation of new performances (by granting copyright over the recording to the new performer, and by making the license for the composition compulsory.)
Similarly, I’m interested in shortening copyright terms, as I think the current death-of-the-author-plus-70 has the balance wrong. It really incentivizes “try to get a hit and milk it for yourself and your heirs”, rather than “try to create a lot.”
And I’m interested in expanding or better codifying fair use protections, especially to distinguish the idea of wholesale copying (which I’ll concede adds little-to-nothing to the creative process or the total amount of artwork) from even lightly transformative work (which, IMO, does add something new.)
And I’m interested in alternatives to IP monopolies like grants or prize challenges, where the reward for creating the thing is “someone pays you a bunch of money directly”, rather than “you can make money by metering access to the thing you created” like in a monopoly-based scheme.
But again, this is not a reasoned policy proposal, more a statement of beliefs: I am reflexively skeptical of copyright and intellectual property regimes, don’t place much faith or value in originality, and place a lot of value in as much art getting made as possible, and have no belief in the moral rights of authors to control their work. But I can concede that IP regimes may have a worthwhile utilitarian benefit, provided the goal is optimizing for as much art being created as possible.
That’s me! You’re probably different! I bet almost every premise in that statement of mine has someone who feels the opposite, or at least has different relative priorities for their values! That’s fine, but this is me!
Totally tangential, but I wonder to what degree does this dovetail with, in recent years, getting less invested in art forms like writing, movies, music, television and more invested in theater, woodworking, and watchmaking. It’s certainly not the case that there’s no consideration for originality in the latter crew, but at least in how I interface with them I feel there’s a much stronger emphasis on craft than on originality: in the woodworking case, it’s that you would rather have an exceptionally crafted derivative dining table than a totally unique and less well crafted one (same for watches), and for theater there’s something about the fact that it fades into time, so even if you have a totally derivative performance of a given play, the majority of your audience never saw the first one and never will be able to, so it’s still a “new” experience for them, in a way that’s untrue of recorded media like books/movies/music etc.