Copyright and the Social Contract

[This week’s Communications column for the Vanuatu Independent. It’s a somewhat fleshed out and more rounded version of this essay.]

Since the arrival of the Internet, there’s been unceasing talk about the imminent demise of traditional publishing models (especially newspapers), the subversive effect of ‘free’ online content and the purported damage done by Peer to Peer ‘pirates’ sharing music, movies and other creative works. At the centre of all this debate over the imbalance that new technology has created between creator and consumer is the oft-ignored conclusion that copyright as a regime for encouraging creativity in modern society is simply unworkable on the Internet.

Pundits, lawyers and media distributors the world over continue fighting the tide, thinking they can shape the Internet to match their expectations concerning copyright. Instead, they should be shaping their expectations to match the Internet.

Faced with the inevitable demise of mediated, controlled distribution – the core of the traditional content industries profit model – we have two obvious options: We can continue to tinker with copyright, attempting to redefine fair use, to place reasonable penalties (or at least disincentives) on unauthorised copying… ultimately, to renegotiate the compromise that lies at the heart of the concept.

This incremental, ostensibly pragmatic approach unfortunately ignores the fact that digital information is quite simply immune to copyright enforcement. The practical ‘right’ to make copies is the very essence of digital technology. Its usefulness is predicated on the fact that data is infinitely mutable and that copies cost as close to nothing as makes no difference. To pretend that we can place anything more than voluntary limits on this capability is dangerously naive.

People copy because they like to, because they can.

Alternatively, we can scrap copyright, go back to first principles and examine in detail what the rights of the creator really are.

I believe that the latter is the best course. We should try to find a new, workable model for managing creative works. But we’re making a big mistake if we assume from the outset that such a framework will be envisioned and enacted based exclusively on an iron-clad conception of ‘rights of the author’. Authors’ rights as a definable concept have been nebulous at best since they were first posited.

A fundamental conflict exists between the creator’s benefit and society’s. It’s a natural desire for all creators to want recognition (and ideally, validation) for their work. Creative processes resulting in notable works are time-consuming, exacting and often quite painful on a personal level. Poet Robert Frost memorably described this aspect of writing as ‘the pleasure of taking pains.’ Such pleasure notwithstanding, writing without reward often feels more like an affliction than an avocation.

Society, on the other hand, benefits most when the fruits of these efforts are replicated simply and as close to no-cost as possible. We can play the chicken-and-egg game of guessing whether society benefits more from its great authors or its newfound ability to reproduce their works at no cost, but the fact remains that society as a whole benefits most when no restrictions whatsoever are placed on the reproduction of creative works and ideas.

(You can argue that creating an environment that formalises authors’ entitlements benefits society by allowing creators to prosper, but you’d have to demonstrate some sort of causative relationship between the two. You’d also have to deal with the numerous historical counter-examples where art and culture have flourished in their absence. Until you do, I’ll assume that the argument is hypothetical at best.)

The approach that the copyright regime takes is to negotiate a compromise in which creators receive exclusive rights from the public in exchange for reasonable limitations on (and duration of) those rights. But those demands are becoming increasingly unreasonable, thanks largely to the eternal copyright policies driven by large media producers, and by their increasing tendency to carve away at existing consumer rights by licensing material rather than selling it.

The public recently got a sharp reminder of the cost of such licensing regimes when Amazon deleted George Orwell’s 1984 and Animal Farm from people’s Kindle e-book readers without so much as a by-your-leave.

On the other side of the issue, people blithely circumvent every technical measure thrown into their path, copying and sharing music, movies, e-books and anything else that strikes their fancy.

The copyright compromise has been subverted by both parties and cannot be remade.

Which leaves is with a sticky question: Given the circumstances, can we actually express what we mean when we talk about the rights of the creator?

The basic concept that creators retain some sort of moral (and therefore legal and economic) rights over their creations is implicit in many legal and philosophical arguments concerning creative works. That’s all well and good, but the plain fact is that, left to itself, society doesn’t recognise or respect them. It does not pay for creative works as ‘just desserts’; it recognises and rewards such efforts – usually according to arbitrary and fundamentally fickle criteria.

In short, societies generally recognise authors, but not their rights. They reward the artists they like and they often punish the ones they don’t. (And because societies are not monolithic, they sometimes do both at once. The list of authors who have perforce lived with this phenomenon could fill volumes.)

As a writer and photographer, I would like nothing better than an enforceable, predictable social contract that codifies the relationship between creator and society at large. But the fact of the matter is that in this day and age it’s just not reasonable to expect anything other than a rather ephemeral set of notions that rely on nothing more than the goodwill of the majority of the audience.

In short, I don’t think we really have any choice but to do what minstrels, painters, actors and countless other artists have done since time immemorial: Throw ourselves at the mercy of society and rely on the kindness of strangers to make a living out of a lifestyle. It’s often unjust and occasionally cruel, but I just don’t see a workable alternative.

In practical terms, this means that creators should look more closely at contract law and other means of asserting clear terms and conditions on the use of their creations on a case by case basis. And the contracts no longer need to be between the creator and the distributor (like the traditional – and much abused – recording contract). Instead, online technologies make it possible for creators to appeal directly to their fan base, establishing the terms for each creation on the fly, even, possibly, on different terms with different individuals.

Admittedly, this creates a bit of a Wild West atmosphere; in fact it militates against the average creator’s sense of justice (”I deserve to be paid for my hard work, not for some arbitrary valuation of my product.”). But the issue is not so much about justice as it is about practical means of being rewarded for one’s efforts. By relying on contract law, we can create a more adaptable, more organic regime that rewards innovative approaches without encumbering society with legal precedents whose logical conclusion is a copyright regime that turns consumers into criminals.