The wrongs of copyright

Published in Issues, volume 95, September 2011, pp. 33-36


Brian Martin


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What is copyright and who really benefits from it? The open-access alternative challenges the rationale of copyright and side-steps powerful interests.

You're sitting at a meeting and you scribble down some notes about what's happening, or text some comments to a friend. Or perhaps you draw a silly-looking picture.

What you've just written is automatically covered by copyright law - you don't even need to add the copyright symbol ©. You immediately have certain rights over the text. Only with your permission can others reproduce these creations. This copyright lasts a long time, currently in Australia for the duration of your life and then 70 more years.

Copyright is a form of what is called intellectual property, along with patents, trademarks, plant variety rights and various other types. Patents apply to inventions; patent owners have exclusive rights for a limited period, for example 14 years with a single possible extension. After that, others can use the invention without permission or fee.

Here I focus on copyright, which covers the expression of an idea. If you write an article, you have rights over reproducing the exact words that you wrote, but others can use the ideas without permission, although they should give you an acknowledgement, just as we teach students to correctly cite sources they use.

Compared to other forms of intellectual property, copyright is peculiar in that no effort is needed to acquire it. As soon as text is created, it is subject to copyright. In contrast, to acquire a patent on an invention, an application and fee are required.

Copyright is also peculiar in its duration: it keeps being extended. Every 20 years or so, the US Congress extends copyright protection for another 20 years, and most other governments follow suit. So it seems that copyright has become perpetual, on the instalment plan. The notes you scribbled today may be under copyright for the indefinite future.

The Australian government, due to its trade agreement with the US, follows the US rules on copyright. However, there are subtle differences, for example in exemptions for fair dealing. The rules keep changing on everything from software service contracts to second-hand sales of digital books.

Rationales

Why does copyright exist, anyway? A lot of people think the reason is that authors deserve protection from unauthorised copying, to reap the fruits of their labours. This argument sounds plausible, but on closer scrutiny reveals a fundamental weakness. No person works alone and produces anything worthwhile. We are all part of society, and gain our understandings of the world and our skills at expression from others, either through formal instruction or through observing and learning from examples.

Isaac Newton said his contributions, such as the concept of gravity, were built "on the shoulders of giants." Even the greatest scientists, novelists and composers build on the accomplishments of their predecessors, and for the rest of us the debt to prior efforts is immense. So why should the latest output receive perpetual protection when it depended so much on prior work?

A fundamental problem with justifying copyright is that the thing protected, an intellectual product, is not a physical object, but the equivalent of a string of data. When you wear your own shoes, no one else can wear them at the same time. But when you write a poem, this feature of exclusivity does not apply. Even if a million people read the poem at the same time, you can read it too. The poem can be copied and circulated at minimal cost, and everyone can enjoy it.

Infringement of copyright is sometimes called stealing, but it is not like stealing physical objects. If I steal your shoes, you can't use them, but if I copy your poem, you still have it. Texts are infinitely reproducible, so they don't need protection, like shoes, to ensure the owner can use them.

Copyright is not a matter of possession but rather about having the right to make copies. You own a pair of shoes but you don't necessarily have the right to reproduce photos of the shoes or to make exact copies of the shoes.

So what exactly is the official rationale for copyright? As stated in the US Constitution, the idea is to stimulate the creation of new works: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The rationale is that the creator is granted exclusive access for a limited period, to reap some benefits, before the product becomes freely available. If there were no protection, so the official rationale goes, creators might feel it wasn't worth the effort, because someone else would immediately copy their creations and get all the benefit without the hard work.

What sort of protection is needed: how much and how long and how widely applicable? This is where the rationale for copyright breaks down. The idea is that you, as a creator of a poem, scientific paper, painting or software code, will produce more output - of value to society - if you know that you and your descendents will reap the benefits, up to 70 years after you die.

Few authors or scientists think this way. They create because they are driven to and because the process of investigation and creation is intrinsically satisfying. They would like a fair income for their labours, to be sure, but this hardly ever comes through copyright payments. Few scientists think to themselves, "I'd better do more experiments and write more papers so my grandchildren will have an income stream after I die". Actually, there's no good evidence that lengthy copyright terms have any effect on the amount or quality of creative work.

There's another flaw in the argument. Copyright doesn't automatically stay with creators: it can be relinquished with a signature. Most scientists, for example, sign away copyright to their papers to the companies that publish scientific journals. Few scientists are worried about this, because they have salaries. They want, most of all, for their work to appear in respected journals where it will be read and recognised. Scientists want to receive acknowledgement for their work, because that is how they obtain jobs, promotions and acclaim. They rarely care about copyright.

As for creative writers, such as novelists - another category of creator - very few can make a living from their writing. In contrast to the wealth of a few superstars such as J.K. Rowling, the median annual income from creative writing is a few thousand dollars. Most authors have other jobs.

Copyright and Plagiarism

Some people think copyright is needed to protect against plagiarism, but this is based on a confusion. Plagiarism is taking credit for someone else's ideas, for example by copying an extract from Wikipedia into an essay with no quotation marks or citation. However, the stigma associated with plagiarism is not necessarily associated with copyright violation. If someone copies a passage from Charles Dickens, without acknowledgement, this is plagiarism but doesn't violate copyright, because Dickens has been dead for more than a century. If you write an article and someone publishes the same article under their own name, again it is plagiarism but you can't sue for copyright violation if you assigned copyright to the publisher.

Imagine submitting an article to a journal and a referee using your ideas to publish their own article before yours is even accepted. Maybe they even use some of your text. But copyright doesn't protect you, because the plagiariser has copyright for the text. This disturbing scenario happens more than most people realise.

Most scientists primarily want credit for their ideas. Copyright is not the basis for this. In many cases, copyright gives only the illusion of protecting the author's work.

Who Benefits?

So where are the benefits of copyright going? The answer: mostly to large companies. Indeed, even when the concept of copyright was initially developed, only a few hundred years ago in England, the purpose was to protect publishers, not authors. The idea of protecting authors was tacked on to justify restraint of trade.

The prevailing economic ideology today, neoliberalism, is based on enabling markets by removing barriers to flows of capital and other economic factors. However, at the core of neoliberalism is a giant contradiction, intellectual property, which restrains trade by granting a government-guaranteed monopoly to owners. A more accurate label for intellectual property is "monopoly privilege". And of all the forms of intellectual property, the most blatant restriction of free markets in ideas is copyright, with its zero entry cost and indefinite duration.

The main beneficiaries of copyright as a system are large powerful companies, such as international publishers, Hollywood producers, music companies and software giants. They are the ones pushing for continued and expanded copyright coverage. The repeated extensions of the duration of US copyright are sometimes called the Mickey Mouse protection acts, because the Disney corporation's continued royalties from use of popular cartoon characters - including Mickey Mouse, originally sketched by Walt Disney in 1928 - would otherwise lapse.

The internet has made it far easier to circulate and exchange ideas than before. A vast repository of information available to anyone to use and adapt seems like a creator's dream, but the internet's potential is being hamstrung by copyright restrictions.

Consider the typical process involved with a scientific paper. Scientists, usually on a salary working for a university, government or corporation, work hard on experiments and theory and write a paper reporting their findings. They submit the paper to a journal, whose editor is unpaid. The editor sends the paper to referees for quality control purposes; the referees are unpaid. The paper is published in a journal. If it's a journal owned by one of the large publishers, then the published paper is not freely available. Libraries have to pay substantial amounts to subscribe to electronic databases containing these journals. Very few printed copies are involved anymore.

There's an alternative model: cut out the publisher and just put the papers directly online. That way, there is open access to all scientific output. This doesn't affect the income of scientists, editors or referees. It just eliminates the giant profits of publishers, who contribute nothing to the creative process.

This alternative is so sensible and socially beneficial that it has triggered a movement, with campaigners pushing for the open-access model. One approach is to encourage scientists to put the final pre-publication version of their work on institutional repositories. This is legal, because most copyright agreements apply only to the publisher's version. Another approach is to encourage scientists to publish only in journals that allow open access. The movement is gaining support, but still must contend with the central obstacle to a rational system of open access, namely copyright itself.

Another scene of struggle is the music industry. Few musicians make much money from copyright. They assign their rights to companies, and most of the returns go to the companies, four of which dominate the world scene. But there is another option: direct distribution of songs on the internet. As in the case of scientific publishing, the alternative model allows much greater access to creative outputs.

Some performing artists have adopted the new option, making their songs freely available as a method to increase visibility and build a fan base, which they can then tap when touring. Some seek fan donations to support recording of new albums. However, these alternatives are being systematically opposed by the music industry.

Tactics

The methods used by the music industry against those who challenge its copyright-based monopolies - those who share their music files with each other - are typical of those used by other powerful beneficiaries of copyright.

The music industry giants denigrate their challengers as "pirates," "thieves" or "criminals". Moviegoers regularly see advertisements claiming that those who "pirate" films are destroying the future of the Australian film industry. Labelling opponents as criminals helps to make the actions taken against them seem less reprehensible.

Music industry advocates provide dubious figures and perspectives. Corporations claim they are losing billions of dollars due to illicit copying, often on the false assumption that every music file downloaded represents a lost sale. The perspective the companies offer is that they are providing a valuable service to society.

The music industry has used threats and legal actions against challengers. The Recording Industry Association of America has sued thousands of individuals for downloading music files. The US government, serving the interests of powerful corporations, applies enormous pressure to other governments to agree to intellectual property arrangements that serve US corporate interests. For example, the Australian government agreed to an extension of copyright despite this being of little benefit to Australians but instead a continuation of money flows from Australians to US-based copyright holders such as Disney.

Challengers to powerful interests built around copyright have used a set of counter-tactics. They present file-sharing as a natural, fair activity. They paint the companies as self-interested monopolistic enterprises that contribute nothing to creative work but actually inhibit it by resisting uses of material under copyright. They continue to share music files despite the risk of being sued.

Open-source software is created through voluntary efforts of networks of contributors. The underlying code is available for inspection, enabling improvement as well as exposing nefarious use such as trapdoors. This sort of software is a major challenge to proprietary software - and a major benefit to society as a whole. It is protected from commercial takeover by a set of principles and contracts that bind users and adapters of the software to continue to make it generally available.

Open-source software shows what is possible when publicly available intellectual work can be used freely to create new products. Without the stultifying constraints of copyright, creativity in other domains - writing, cartooning, musical composition - would be similarly stimulated.

Many individual creators think of copyright as a personal benefit. They don't realise that they pay out much more than they ever gain, every time they buy a book, watch a movie or buy software. Most of what they pay out goes to large companies, not to individual creators like themselves. The psychology of personal benefit is rather like the owner of a tiny piece of land who defends private land ownership without noticing that wealthy owners control most of the land - and there are no public parks. Critics of copyright want to expand the public domain, to unleash creativity and benefit everyone.

Acknowledgements

I thank Chris Moore and Colin Salter for valuable comments.