The copyright assumption debunked?

One of the prevailing moral opinions today seems to be that the illegal copying of intellectual property is rampant and if it isn't stopped then all creative endeavours will cease and as a consequence, society will be worse off. Very little voice is given to an opposing view. The Open Licensing topic for the Introduction to Open Education course being run by David Wiley covers a number of areas concerning copyright, mostly from the perspective that copyright laws have gone too far and are stifling creativity. This blog entry will summarise the resources supplied in the above topic, particularly the points debunking the assumption that stronger copyright laws are always better for creativity and society as a whole, an important topic that needs to be discussed openly, with arguments from all sides, before policy decisions are made to increase the monopolistic terms of current copyright holders.

One of the tenets of copyright that the topic criticises is the assumption that the stronger the copyright laws and the longer they last, the greater the benefit to society as a whole. This argument assumes that Figure 1 on the left is a true representation of the premise that stronger copyright rules (term length, penalties, enforcement, etc) leads to a larger number of new works produced in a society and vice versa.

The counter argument to the above assumption looks something like Figure 2  which says that copyright laws encourage creativity up to a certain point. Beyond this point, further strengthening of copyright has the reverse effect, till it wipes out creativity completely.

Lessig in his TEDxNYED video talks about the need for a balance between commercial interests and fair use. He uses a video by Julian Sanchez, who in turn uses a series of The Breakfast Club video remixes, to highlight the way that earlier works are used by people as a platform to express things. Lessig and Sanchez are suggesting that too tight a control over copyright would limit the ability of people to produce these types of work, thus lowering the number of new works created. Aoki, Boyle, and Jenkins, (2006) emphasise this same point in their comic Bound by Law by looking at cases where significant pieces of documentary footage have had to be removed, or projects abandoned altogether, for fear of litigation over copyright.

Lessig (2011) also points out in Against Perpetual Copyright that copyright is not a morally just concept in its own right but a monopoly bestowed upon creators of original works in order to "promote the progress of Science and the Useful Arts." Copyright is a means to an end, not an end in itself. The moment copyright stops promoting the progress of science and art then it loses its usefulness and validity. So if, in fact, Figure 2 is correct and Figure 1 incorrect, there comes a point in time where copyright laws should be weakened, not strengthened. Lessig suggests in all his arguments that we have gone beyond this point.

The question that Lessig doesn't answer is, "How long should copyright be permitted?" Rufus Pollock (2007) does answer this question is his paper Forever minus a day? Some theory and empirics of optimal copyright. According to his economic analysis the optimal period of copyright is 15 - 30 years. Pollock believes this duration strikes the optimal balance between the commercial interests of the copyright holder and society's need to continuously create new expressions of ideas.

Underlying all of the above is the belief that all creative works are built upon the creative works of others. Shakespeare is repeatedly used as an example of a work being used as a platform for others to express themselves. Lessig (2011) highlights how difficult it would be for modern interpreters of Shakespeare to track down the author's heirs if perpetual copyright existed back in the sixteenth century. Ironically, one of the strong proponents of strengthened copyright rules, Disney (according to Lessig), exists because it was able to repackage old fairy tales that were in the public domain at the time. As Lessig succinctly puts it in the TEDx video, there is a call for stronger copyright laws "so no one could do to Disney what Disney did to the brothers Grimm."

In conclusion, the material supplied by the Open Licensing topic does seem to indicate that there is a case for limiting the duration of copyright and that this limitation, if struck at the right balance, can protect the current holders of copyrighted material while ensuring new creations. To do otherwise risks grinding all creative processes to a halt which not only stops future creations but also destroys the licensing value of current material.