Tangled up amidst all the talk about the imminent demise of newspapers, the subversive effect of Free, the purported damage done by Peer to Peer ‘leeches’ and various other riffs on the imbalance that new technology has created between creator and consumer is the often unexamined conclusion that copyright as a regime for encouraging creativity in modern society is simply unworkable on the Internet.

That leaves us with two 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.

That’s a commendable, fundamentally reasonable approach that unfortunately ignores the fact that digital information is 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.

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

I’m sympathetic to the latter argument, that a new, workable model of managing creative works needs to be considered. But we’re making a big mistake if we assume a priori that it will be envisioned and enacted based on a concept 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 it as ‘the pleasure of taking pains.’ Unless one receives some kind of reward for those efforts, there is little if any incentive to undergo the costly struggle of the creative process.

Society, on the other hand, benefits most when the fruit 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 makes rewards for creative works more predictable 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 assert a happy medium in which creators demand exclusive rights from the public in exchange for reasonable limitations (and duration) on those rights. But those demands are becoming increasingly unreasonable (thanks to the eternal copyright policies driven by Disney et alia) and unenforceable (bittorrent, etc.).

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

Which leaves is with a sticky question: Can we actually express what we mean when we talk about ‘droits d’auteur?’ At the risk of oversimplifying, let’s start with this broad summary [wikipedia.org]:

The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honour or reputation […]. In many countries, the moral rights of an author are perpetual.

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 don’t recognise author’s rights. They reward the artists they like and they often punish the ones they don’t. (And because they are not monolithic, they sometimes do both at once. The list of authors who have perforce lived with this phenomenon could fill volumes, but J.D. Salinger, Arthur Miller and Jack Kerouac are notable American examples)

As a writer, photographer and generally creative person, 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. 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 getting paid. 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 the preservation of Mickey Mouse at all costs.