Reworking Copyright

Some time ago I outlined my thoughts on copyright and Byron responded. I’ve been meaning to revisit that conversation for some time but needed to think it though some more. There are no easy answers to the copyright problem and I don’t have any answers to offer at all really. I just wanted to note down some of my thoughts with the hope that others might jump into the discussion and help complete some of these thoughts. Byron’s main comments were along the lines that musicians didn’t need to make their money from CDs and to some extent I agree with that. I had never intended my comments to be particular to any one industry, distribution method or business plan. In fact my line of thought has been along the lines of how to create a complete solution. To create a complete solution to the copyright problem you need three elements:

1. A set of laws controlling distribution of work. This of course may be the empty set.
2. One or more business plans that can work with the new set of laws.
3. One or more distribution systems which cater to the business plans and work for every affected type of work while being flexible enough to work with new types of work.

While the last one is by far the most complex and seems impossible, it’s actually the easiest. We already have a vast array of distribution systems that cater for pretty much every situation, we just need to pick and choose the right ones to make the business plan work (and making customers happy is an essential ingredient of making a business plan work). Essentially, I think the distribution mechanism will sort itself out once the laws and business plan are dreamt up. I don’t have a solution for what the laws or business plans should look like so I’ve just dumped a bunch of ideas and questions below.

Respect For Artists

How do you manage to preserve the respect for artists and their livelihood while still allowing as much reuse as possible? Respect for artists is just as important as their livelihood. People keep making the point that infringing copyright is a victimless crime because the copyright owner hasn’t lost anything anyway. By that logic though, trespassing is also a victimless crime, as is breaking and entering if they pick the lock without damaging it. Trespassing doesn’t take anything away from the owner of the land – the land is still there and yet I don’t hear a huge uproar about how out of date trespass laws are. The fact is, when an artists work is copied against their will, it shows a lack of respect for the artist and that is upsetting. Sure the big stars are probably used to it but it is very discouraging for a small-time performer and some very talented people have stopped making their work publicly available because they were upset enough about the lack of respect for their work. Regardless of whether or not you agree with that, the loss of their work from the creative commons is a loss for society. We should be encouraging people to share their talents, not encouraging them to give up and keep it to themselves. Just as I’d be upset if someone came into my house and looked around but didn’t take anything, I’d be upset if someone distributed copies of my work without my permission and without also adding value (anyone is welcome to come into my house and do the dishes…).

Of course, some artists want total control of their work. They aren’t happy with people building on their work to create something new. In these cases it’s not possible to respect the artist’s wishes and still support the betterment of society. We need to find the right balance between respecting the artist and their wishes (so they are encouraged to create) and the betterment of society. I think my last entry started to formulate my position on where that balancing point is.

The Cost Of Production

One of the other things that needs to be considered is that in some industries the cost of initial production is significantly higher than the cost of reproduction. When writing a book, you need to sit down with a pen and paper (preferably a computer) and write. You then get it reviewed by an editor a few times and finally send it off to be printed. The key thing here is that the main component involved is time. You need a lot of time to do the research and writing, you need some time from the editor to review it. The author has to be able to pay living expenses while they write the book and be able to pay for the editor’s time. Then of course we have a per-copy production cost. The initial production cost is fairly low so making just a small profit on each copy sold or relying on donations etc is within reason. The same is even more true for online comics – you have hosting costs and that’s about it.

Some industries however are exceptionally expensive in the initial production phase. Music is expensive to record well – it requires a lot of very expensive equipment and a lot of very talented people in production who aren’t artists, don’t get prestige and can’t use the album as advertising for their next concert. Recording a CD costs anywhere between ten thousand and a couple of million dollars. You don’t need to go spending millions of dollars so we can bring it down from there, but even at the bottom end – ten thousand dollars is a lot of initial outlay. There’s also a noticeable difference in quality between a ten thousand dollar CD and a fifty or a hundred thousand dollar CD. Is our society better off if we sacrifice that quality?

Even more expensive is the movie industry. Production costs there justifiably run into the millions of dollars with a bottom end, cheap-as-chips movie costing about two million dollars. If society wants to keep the top quality special effects we’ve grown accustomed to, society had better be prepared to fork out. The reason I bring this up, is because of the common misconception that CDs and DVDs are cheap to produce. Byron phrased this as:

The main reason I argue this is that a CD is essentially a no-value-add copy of a work. The creation of the work is an endeavour that should be compensated, but a zero cost copy of that creation is not. A CD’s selling price should cover the cost of production of that CD: stamping, distribution, and retail. Sure, stamping distribution and retail of a CD or DVD is cheap, but you also have to amortize the cost of initial creation over the various sources of income generated. You simply have to have a way to cover costs. That of course doesn’t mean that CDs should be $30 each but they do have to be more expensive than the cost of reproduction. Also remember that live recordings are much lower quality than studio recordings. Is our society better off with only live recordings being affordable?

The Live Concert Theory

Another theory that I question, is the concept that artists can make money from live concerts. This is debatable in the music industry because to make money from live concerts you have to be pretty popular in the first place. Gigs at the local pub are almost exclusively doing covers of popular artists CDs so the local gig income source doesn’t add substantially new work to the creative commons. Also, the costs of producing a CD purely as advertising for a concert or artist is simply not going to pay off except for an extremely small number of artists. Even if musicians could make all their money off of live concerts – playwrights would have a hard time with this. That may sound surprising considering plays are pretty much only ever performed live. The problem with it is that the productions are usually not put on by the playwright, they’re put on by a range of production companies around the globe. Without copyright laws, those production companies wouldn’t be required to pay the original playwright anything and the playwright would almost certainly have to stop writing and get a job. The result? Net loss for society. Whatever the copyright solution comes out as, it needs to accommodate the fact that some artists can’t make money directly off of live performances. Another example of this is book authors – who wants to go to a reading of J2EE in a Nutshell?

Artists Aren’t In It For The Money

This one is often (but not always) exceptionally hypocritical. Some people believe that artists shouldn’t be in it for the money at all, they should just love what they are doing and be happy to just make an basic living out of it. I don’t mind hearing this from people who are happy to just make a basic living out of their chosen occupation but I find it extremely hypocritical when it comes from people who then go off and look for a pay rise or take another job because it pays better. If it’s okay for me as a software engineer to want a high paying job, then it’s okay for a musician, playwright, movie director, actor or author to want to make money from their work as well. Besides, we want to encourage more people to get into being creative because that builds upon the creative commons that society can benefit from. Setting things up so that only the most committed, dedicated artists want to be a full-time creative professional just limits the potential of our creative society.

Music Is Crap These Days Anyway

While I tend to agree that most modern music is crap, that’s no reason to claim the artists shouldn’t be respected as such. When rock and roll first came out the older generation thought it was evil, when jazz came out, the older classical music enthusiasts didn’t like it, even the well-tempered tuning, which is the basis for almost all music since the time of Bach, had harsh critics when it was first created. Each generation wants to be different to the one that came before it and that desire is expressed through changing tastes in music and creative culture. The teenie-boppers of today will hate whatever new style comes out tomorrow just as much as we might hate today’s latest style. Face it, we’re just getting old (though personally, I’ve been musically old since I was about 10).

The Opensource Movement Shows Copyright Isn’t Needed

While I’m not sure that I’ve ever heard it stated as explicitly as that, there seems to be an implication that opensource software shows that copyright isn’t needed. I mean, all software should be free and similarly all music should be free and all movies should be free etc. People should make their money off of extras like support, live performances etc. There’s two problems with this. Firstly, the free software foundation depends on Copyright to enforce their policy of how software should be used. Without copyright, the GPL wouldn’t have a leg to stand on. Similarly for the Apache license, the BSD license and in fact every license except for public domain. So if you really believe that copyright shouldn’t restrict people’s use of creative work, you should be objecting to the GPL as well as non-opensource licenses. You should be complaining that Apache makes you add an acknowledgment and that you can’t sue the developers of BSD licensed software. At the very least you should be complaining about the way those restrictions are enforced even if you agree those restrictions should be in place.

Secondly, what’s wrong with making money directly? Why is that so evil? When you buy a new kitchen sink you don’t expect to only pay what it cost to make the sink and have the manufacturers make money off of the installation. Similarly you shouldn’t expect that CDs, DVDs or anything else should only cost you as much as they cost to make. Maybe you do think people shouldn’t make money off of making and selling kitchen sinks directly, I don’t like your chances of getting society to agree with you on that though. Getting society to accept it is important too. Communism is a great system if only you can get everyone in the society to buy into it. Heck, even if a significant majority of people bought into it that would probably be enough. Most systems fail however if the majority of people disagree with it or even if a significant minority disagree with it.

Migration Plans

How do we plan to migrate from the current system to this new system of copyright? Do we want to just say that anything created after a certain date goes under the new system? How much notice do we give? Is there a benefit to society to declaring all copyrights null and void and just putting everything under the new system regardless of when it was created? How are we going to support the people whose sources of income disappear because of these changes? Is it okay to just tell them to deal with it? Societal change almost always results in some people loosing out even if only temporarily but it seems reasonable and compassionate to provide them with some support to move over to the new system and find a new source of income.

There’s a lot of tough questions to be answered when thinking about changing copyright laws and they’re not just related to what the new system should be. Most people seem to think that we can just click our fingers and this wonderful new copyright system will be in place and everything will be okay. That’s just not going to happen. There will be a lot of problems, a lot of heartache and a lot of losers. The losers won’t just be big faceless corporations either, they’ll be little people just doing their job trying to earn a buck that suddenly find they no longer have a job. They’ll be the shareholders of the big faceless corporations and they’ll be the public at large who will likely wind up struggling with the new rules and dealing with all the fallout.