I've ranted a fair amount about copyrights. The debate often sounds like this:
"Down with money-grubbing corporations! Information wants to be in the public domain! Freedom to make derivative works!"
"Down with naive hippies! Artists deserve to be compensated! Authors have rights!"
Maybe this actually a false dichotomy. Why can't we compensate authors and guarantee access and derivative works? My thoughts were sparked by the following Usenet post by J. Michael Straczynski. He created Babylon 5 and wrote most of its episodes. He's also written for Murder, She Wrote and some 80s cartoons.
From: jmsatb5@aol.com (Jms at B5)
Date: Sun, 29 Jun 2003 09:09:10 +0000 (UTC)
Lines: 48
[Eliyahu Rooff said:]
Can anyone seriously conceive of writers or musicians deciding that they aren't going to write or perform any longer because the copyright won't last more than fifty years beyond their deaths? Writers write because it's what they want to do. Musicians compose and perform because they love to. Painters paint and sculpters sculpt, again, because it's what they want to do. To put the question to JMS -- Joe, would you cease your writing if the duration of copyright were only fifteen years, renewable once?
No...but you're not getting the crucial point.
Residuals, and royalties, are part of a writer's compensation for the work he does. They're not a bonus, they're part of his (or her) compensation. It may take a novelist five years to write a given novel. The money he earns from that book covers the down-time between that project and the next one.
Writing is a notoriously ill-paying profession, and it is not especially gracious on aging writers. So a writer's only chance for income past a certain age is the royalties he's built up on prior works.
If those works become public domain after ten or fifteen years, he can no longer make a living from those books. Will that writer stop writing when younger because of that issue? No, of course not.
Will that writer be able to *survive* financially if the rights to public after a while?
In most cases, the answer to that question is no.
We're not talking corporations here, we're talkling writers who, in a lifetime, may turn out maybe five, ten really good books, in the hope that the royalties from those books will help to keep them alive in their golden years.
So many of those writers may have to take other jobs to survive, limiting their ability to write, and hence their output. Or, if they cannot take othe work -- writers are notoriously poor employees -- more of them may have to survive in serious poverty than before.
jms
(jmsatb5@aol.com)
(all message content (c) 2003 by synthetic worlds, ltd.,
permission to reprint specifically denied to SFX Magazine
and don't send me story ideas)
Author copyrights for life
For all my rhetoric about weighing benefits to the public with benefits to the author, should we really be framing the issue in such a utilitarian way? Maybe we should give authors the better end of the deal as a show of appreciation, even if the public gets fewer works that way. Maybe that would be the "moral" thing to do, and it would make us better people on the whole.
What would happen if we took that approach? It would mean that we should grant authors lifetime copyrights, to ensure that they always get compensated for their work. We would still have little reason to extend copyrights beyond the lives of the authors. (There's the providing for children argument...) However, we would not change our attitude toward corporate copyrights, as we have no moral obligation in that case. All the old utilitarian arguments would still hold with corporations.
Compulsory licensing
But then I got to thinking some more: Copyrights themselves are not really the issue. I don't really have a problem with compensating authors for many years after they create a work. What I do think is important is that people have access to the work.
Radio, and thankfully now Internet radio as well, work on a compulsory licensing system. Copyright holders cannot deny stations the right to play copyrighted songs, but stations do have to pay for airing those songs. Furthermore, the amount they pay is related to the amount they make. I guess that's what I see as the best of both worlds. Artists are compensated, and people get to listen to the music at a reasonable price. This sort of compulsory licensing system is also in place for medical patents and such.
I'm not saying it's an appropriate model for everything, and I need to think about it some more. I'm just saying that we might be able to apply it elsewhere. It's a sort of compromise solution.
Proposal for handing derivative works
I got thinking about compulsory licensing from an article Judge Alex Kozinski and Chris Newman cowrote called What's So Fair About Fair Use? [100K PDF]. (I found it from this Volokh post.) In this article, the authors discuss the problems with modern fair use. Under current law, a derivative work is either considered fair use, in which case the original authors get nothing, or it's not fair use, in which case the original authors prevent its publication. The authors of this article argue that we really should be encouraging derivative works.
Their solution (simplified a bit): We should prevent the court from issuing injunctions so easily. Instead, copyright holders should be able to sue for the portion of profits that represent the original work. Authors of the derivative work should be able to keep profits that represent the value they added to the work. But what if the new work hurts the reputation of the original work? Well, authors of the derivative work can still be sued for actual damages. Only if they can't pay up can a judge issue an injunction. The result is that we ensure compensation to the original authors, but they cannot force a derivative work out of existence if it doesn't really hurt them.
So again, we could separate money from access. We can support the right to make derivative works while still insisting that authors be paid. I love to say that everything in the world is gray. Perhaps we can find some middle ground.