04 March 2021

The copyright wrangle

 So a corner of the net I pay attention to is having the usual round of "that should be free!" about books and is descending into copyright yargling.

I find the general pattern of analysis generally lacking for two reasons; one is that it's trying to get capitalism to produce fairness, and two is that it's focused on an amorphous abstract taxonomy of mythological rights, rather than the basic purpose, which is to pay the creator enough to keep creating.  (This is more than "to live".)

So, one. Copyright shouldn't exist.  It did a sort of plausible job of paying the creator in the era of laborious manual typesetting; it's totally pointless now.

Two.  No corporation ever created anything.  Creation is a function of natural persons, and solely natural persons.

Three.  There is no legitimate barrier to creating transformative work, but commercial transformative work with immediate derivation should pay the creator of the work from which it is derived.

One implies things about distribution.  

The post office, or the ministry of culture, or the regional arts council, or the national archives, or the public library, becomes the repository of your work in its legally meaningful archival form.  (NOT inherently "electronic form".)  Someone who wants to produce material artefacts of that kind of work can select a work from this canonical repository and proceed.  For every copy they make, they owe a fee.  (The amount of the fee is an implementation detail; enough for the creator to keep creating, past a certain threshold of popularity.  And possibly varying by type of art, but flat within a type.  Your fee for one copy of a book and the fee the most popular author in the world gets for one copy of a book are the same.)  The fee goes to the creator or the creator's estate for life + 20 or median age of death + 20, whichever is longer.  After that time, the fee goes into the system to reduce its need for direct funding from taxes.  There is never, ever, in any way, a fee to register  your work or to maintain the archival copy.  This is a public service.

(Note that there's no right of alteration involved or implied.  And book covers, album art, etc. is a separate creative work incurring its own fee.)

Two implies things about collaboration.

If it takes eighty seven people to produce an opera -- to sing, to make costumes, to play in the orchestra, to write the score, to write the libretto, to manage the lighting, etc. -- every live instance of that opera is something to which they all contribute.  Their share of the fee must be paid to each of them for each time.  If there's a recording, the share of the fee is due each of them for every copy.  (How the shares work is another implementation detail.  It should be legislatively constrained to be flat; not more than an order of magnitude between the star tenor and the apprentice scenery painter.)

Living creators cannot surrender their fees; these will be paid.  They will be paid to all creators, the mad, incarcerated, addicted, or appalling included, without exception.   No contract can be made concerning the fees, and a contract found to be de facto concerning the fees is unlawful and void. "Work for hire" ceases.

Three says that if you make a direct transformative work with a living creator (when you start!)  and sell it some amount less than half of the fee goes to the living creator whose work you are transforming.  (Let us say three eighths.)

You can't say "based on" without their permission; they may exercise a moral right to make prefatory remarks up to five percent of the length of work absent their remarks, which will always be included in the work (which become part of the official archive copy), so the library will tell them when you register your archival copy of the completed work.  Deceptive marketing has to be defined and prevented, which is another one of those implementation details.

Fee-evading distribution is of course fraud and tax evasion, and by treaty the government in whose territory this takes place is obliged to pay the fees which are being evaded.

So, yes, lots of implementation details, but it keeps the creators creating.  It makes it easy to create transformative works.  It puts the culture back in the public sphere.  It keeps cops from using copyright as a means of avoiding being recorded.


Anonymous said...

A possible side effect: Banning work-for-hire could restrict creative careers to the wealthy. An apprentice scenery painter might need to buy food today, and might not be able to wait months or years for an opera to be performed, recorded, and distributed. Poorer people would only be able to do monochrome house painting, while only the children of the rich could paint backdrops for the promise of future payment.

Graydon said...

Three approaches -

income and asset caps remove the social distortion from having rich people at all (the lid is about an order of magnitude over the average); guaranteed basic incomes remove "if you don't work, you starve". "Kickstarter model" creative productions might become the norm.

Nothing says you can't hire people to do creative work and sell tickets; you don't own the resulting work and you can't control who else uses it but you can charge more for the tickets than it costs you to put it on, including paying the people who create it. (Which is not far off how Elizabethan drama worked if I remember long-ago classes correctly (and the historical consensus hasn't moved!))

Work-for-hire is rarely a good deal today; one of the problems being identified by folks saying "yeah, copyright is awful but the proposed solution (shorter terms) means a lot of older artists starve to death in the street" is that work-for-hire art profoundly doesn't pay in material terms. (Satisfaction, maybe, but the wages of satisfaction aren't sufficient to material needs.) Preserving work-for-hire as a means of paying artists thus seems highly questionable.

Remember -- the goal of whatever system is to ensure creative people get paid enough to keep doing art. ANY profit-maximizing corporate will act against that, because that's what profit-maximization does, it destroys value. (The ratio of benefit to cost; there's a value proposition to doing any particular kind of work, too, not just products.)

Zeborah said...

Really the first thing that needs to change in copyright law is for its terms and fees to vary by type of art. Because one thing that almost all such discussions about copyright forget or neglect is that copyright doesn't just cover fiction and the like: it also covers the world's scientific literature.

A decent report on copyright and potential reforms in New Zealand did note this, and pointed out that what works for incentivising the starving novelist doesn't work for incentivising the gainfully employed university researcher. Immediately Copyright Licensing New Zealand, whose business consists of running a protection racket in copyright licensing agreements for universities who have to use scientific articles for educational purposes, drummed up a mob of New Zealand fiction authors to be outraged at the idea that not all authors are motivated by money; CLNZ having neglected to mention the minor detail that the report was here making a distinction between types of creators, not trying to argue that novelists don't need to be paid.

I'm a strong advocate for all scientific literature to be absolutely free to read. (There are various ways to do this, and fierce arguments in the open access field about which is best, and publishers pulling shenanigans to maintain their profit margin regardless.) But even I wouldn't expect fiction to be generally open access; not at least until we get a *really* decent guaranteed minimum income scheme going and utopian healthcare and the like is all reliably in place.

I do though think we need to:
a) fix the orphaned works problem (where no-one's earning off it but also no-one can copy it because no-one knows who owns it any more) - your solution would do this I think
b) have some point where the work enters the public domain so that fees need not be paid. I'd prefer for this point to be earlier than it currently is but at the very least no later.

Graydon said...


I agree that the fees should vary in principle since the hours of effort per hour of art varies rather a lot and the idea is to keep the creative creating. Since I think the term ought to be eternal (in the system I proposed; I don't think copyright should exist or can be fixed, because it depends on technological limitations we no longer have to be systemically meaningful) and "something else!" for copyright.

The omission is (in my case) because I don't think scientific works should be copyrighted either. Right of attribution but for science "publication" has to mean "is made public in a non-commercial way".

Science is a creative commons; in the system I'd propose, to qualify as science (to be admissible as a reference, to count toward tenure, grants, funding, publication history, and so on) publication has to take place in a context where there are no fees at all; not to publish nor to copy nor to distribute. (This implies an expanded role for a public library system, quite distinct from the "creative work" expanded role!) Completely non-commercial.

And there' an everything or nothing policy; if you want institutional access to the system as a publication channel, you publish everything you do. If it's not in the literature from you, you have no legal claim to the "we originated that, we should get compensated by the folks using our idea" system that covers commercialization. (same general idea as the fees for creative works, but with very different rules and percentages.)

(I would happily go so far as to criminalize charging for scientific publications, though I acknowledge this has all kinds of implementation problems.)

In the case of a), yeah, "orphaned" as a category goes away. If it's in the repository, it's there, you can use it. If the creator is alive and pops up and says "hey!", the repository is a public institution and pays them what's owed from the fees it has collected. (And is hopefully carefully designed as an institution to exist to pay creators, rather than allege that it pays creators.)

In case b), I don't agree. In this system there is no such thing as public domain because public domain derives from needing an "other" category for copyrighted works. (The "other" categories here are "science" and "government", laws, regulations, etc., things that there's an obligation to make publicly available to all.) Transformative works are fine, but as soon as you make money off it -- never mind how, merch counts, unspecific subscription systems count -- the fee is owed. Otherwise the system is dependent on funding from general revenue and that runs into having mammonites in charge of the government as a risk. Also once there's an exception category with respect to fees corporates will do anything to get placed in it. Only real fix there is for there not to be exceptions.

James said...

There was no copyright for authors in the Elizabethan period; such copyright as existed occurred when texts were entered into the Stationers' Register, and vested in the publisher. This regime continued until the early 18th Century; when an author saw money, it was on selling the MS to the printer/publisher as a one-time payment (as with Paradise Lost). The First Folio would have made money for Jaggard, but probably none for Heminge and Condell (although the company would have been paid for new MSS). The first author to really make money from the commercial market was Pope, and he did it via subscriptions (for the Homer translations). The system had a long and complicated breakdown in the 28th Century with traits of the current system gradually developing.

Money used to flow to authors via patrons; this is still true for authors who get a succes d'estime and a Canada Council grant.

There's no obvious reason to have a model like today's copyright, which just growed like Topsy from its 16th Century origins (or indeed any of our IP regimes, all creatures of statute). And changes in technology radically change our capabilities, not always in line with what is tried, much if which is simple orifut-seeking[1]. What you suggest makes more sense than the current system but the political will to get there given corporate interests may be lacking.

[1]In the 1970s I got a copy of G. Wilson Knight's The Wheel of Fire, originally published in the 1930s, for a few dollars as a Methuen Paperback, aimed at the Open University. The e-book on Google Play Store currently costs 180.00 from RKP; this in no way reflects their costs. (Knight died in 1985.)

Graydon said...

+James --
That was rather what I was trying to mean; no copyright, so whoever was putting on the play could only sell tickets, and they managed to turn a profit in those circumstances.

There's apparently a lot of money laundering going on in online ebook stores; put up a book for you-can't-be-serious prices, and it works as an effective laundry. Lots of books, they're obscure, maybe someone really must have a copy for their research, it's got this tinge of plausibility.

Political will is seriously a problem, yes, though I am hoping the mammonite tide may be starting to recede; food prices, even more than the plague, are a pressure against "the status quo is fine". If there's enough of a swing, there might be scope for fixing problems rather than sustaining profits.