Mar 22 2009

Copyright: It’s not just for authors (Part 1 of 2 or 3 parts)

By Janet • Book Reviews, Ebooks, Letters of Opinion • • Tags: ,

This isn’t a formal poll, but rather a copyright pop quiz.   But don’t worry, it only has one question.   And no penalty for the wrong answer.   Plus it’s multiple choice.

Who said the following:

Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft. And this is true even for our greatest artists.

a)       a torrent site owner
b)       an admitted downloader of pirated books
c)       an anti-trust attorney

Okay, the fact that I included the last answer kind of gives it away, but again, the point isn’t the answer, it’s the question.   And more specifically the statement made by Carl Sprigman, an anti-trust attorney who wrote a fascinating article, “The Mouse That Ate The Public Domain,” on the dangers of stricter copyright codes.   The rest of the statement I quoted above is as follows:

If we know little about the utility of longer copyright terms, there is abundant evidence regarding the vital importance to the progress of our culture of a robust stock of public domain works.

Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft. And this is true even for our greatest artists. Shakespeare’s Romeo and Juliet (1591) was taken from Arthur Brooke’s poem Romeus and Juliet (1562), and most of Shakespeare’s historical plays would have infringed Holingshead’s Chronicles of England (1573). For the third movement of the overture to Theodora, Handel drew on a harpsichord piece by Gottlieb Muffat (1690-1770). . . .
Cultural giants borrow, and so do corporate giants. Ironically, many of Disney’s animated films are based on Nineteenth Century public domain works, including Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book (released exactly one year after Kipling’s copyrights expired).

Borrowing is ubiquitous, inevitable, and, most importantly, good. Contrary to the romantic notion that true genius inheres in creating something completely new, genius is often better described as opening up new meanings on well-trodden themes. Leonard Bernstein’s reworking in West Side Story of Romeo and Juliet is a good example.

Now I can practically hear the gnashing of teeth at the idea that I might be promoting theft of intellectual property, so let me back up a little bit.   To Section 1, Article 8 of the Constitution, which articulates specifically the purpose of Congressional control of copyright:

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

Note that the purpose of limited temporal protection is not to protect the rights of authors and publishers, it’s to “promote the Progress of Science and useful Arts.”     We may disagree on a fully incorporative definition of   “Progress,” but certainly the perpetuation of creative endeavors would qualify under any circumstance.   And given the fact that virtually every discussion we have on piracy includes the impact on monetary profit to the writer and publisher, were there no protection for these folks, there would likely be no incentive to keep creating new works.   Of course not every artist is motivated by potential financial rewards, but that is not the same thing as having a disincentive to create, which the lack of some protections would likely constitute, at least for some artists.

However, like all rights enumerated in the Constitution, copyright is constructed as a balance between creators and the public, a balance that recognizes that the public’s interest in intellectual property is sometimes possessory, too.   That, for example, the person who writes greeting card blurbs may be inspired by an old Shakespearean sonnet and draw on the poem in writing his copy.   Or that the person making a homemade quilt for a new baby might be inspired by a design she saw in a museum, and with a few changes it fits her vision perfectly.   Copyright law has largely evolved with an eye on maintaining this balance, even in the midst of complaints it has over or under-reached and lobbying to expand or limit its application in new statutory and common law authority.   I’ll talk more about the state of that balance later, but for now I wanted to get that initial point on the table as it’s central to the rest of my post.

Rarely in these discussions, as I’ve read them, at least, do we proceed beyond the justifications for copyright protection and the enumeration of reasons to strengthen them for the benefit of authors (those darn torrent sites!).   But several questions hover at the end of those points, starting with Why is progress important? and   Why is it necessary to limit the protection of an artist’s rights to control their own intellectual property? The second question may seem easier to address than the first – without limits we would run out of material to use in art – but it takes on additional resonance when we consider the first more closely.

Why is progress important? A simpler, non-literary example here is that of generic drugs.   Drug companies spend millions upon millions of dollars on research and development for new drugs, which they hold a patent over for 20 years, during which time the manufacturer will hopefully recover its investment in R&D through its monopoly over that drug.   However, the high cost of these drugs often impacts their widespread use, especially among those who cannot afford good or any insurance, and thus the persistence of the drug manufacturer’s monopoly would limit the development of cheaper competitors.   And since one of our main economic and cultural premises is that competition leads to more and better products, limiting patent protections is a way to balance the labor, money, and creativity of the original manufacturer with the public’s right to affordable, effective drugs, and the potential of other manufacturers to produce better, cheaper drugs.

The importance of progress in the fine arts may be more amorphous, but the logic is basically the same:   the more material that circulates through the public domain, the more art that can be produced, and the more the public can benefit from the diversity and availability of various art forms.   Whether that benefit coalesces into the cultural good of a museum, entertainment through reading, different clothing designs, or even the perfect throw pillow for your living room redesign, it accrues to the public in a way that we view as good.   And the benefit extends to artists as members of the public sphere, too, who behold ever more material for inspiration of their own work.

So to return to the previous question about why intellectual property protections must be limited, it’s not simply for the benefit of new artists, but of society as a whole, because of the cultural good that emerges from the continual generation of artistic expressions.   Of course, the limitations also extend to type as well as time, and the reasons are related although not necessarily identical.   Fair Use, for example, is explicitly tied to the need for scholarship to make use of otherwise protected work.   But satire and parody are also protected under Fair Use, in part because of our fundamental free speech rights (which include the right to comment on the expression of others – think about how closely political criticism and parody are tied), and in part because of the way parody and satire can “transform” the nature of the parody so that it becomes an entirely new artistic expression.   And if it is a new expression, it cannot be a copy of the original, thus not a violation of copyright, even as it draws significantly upon a copyrighted work.

Which is part of the conundrum that Sprigman was addressing, namely that art is never produced in a vacuum, and more likely than not, it is produced within a specific context informed by other words of art.   Just go to famousplagiarists.com to see the massive list of accused thieves, including Mark Twain, the Rolling Stones, Shakespeare, Johnny Cash, Martin Luther King, Jr., Helen Keller, and NPR legal affairs correspondent Nina Totenberg.   Twain went so far as to say,

…..substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, which is revealed in characteristics of phrasing. . . . It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone, or any other Important thing– and the last man gets the credit and we forget the others. He added his little mite–that is all he did.

Whether every book constitutes a “little discoloration” of someone else’s work is another debate, but the main point Sprigman is making is that “borrowing” produces more and better work, which benefits artists and the public at large.

However, the artist’s impulse is often not to share, and copyright protects this impulse in limited ways.   It is a balance between the artist’s rights and the public’s that must be maintained, and the original grant over copyright to Congress recognizes this, because, as Thomas Jefferson argued (as quoted by Sprigman):

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

None of this addresses the actual piracy of books, the mass digital downloading of books in violation of the copyright code, something I will do in a follow-up article.   For now, I simply want to open up a discussion about how intellectual property rights do not merely accrue to artists (writers and publishers, for example), but also to the public (readers, for example), and reiterate that these rights must be carefully distributed and balanced not only to maintain our Constitutional mandate, but also to fulfill the ideal behind that mandate of a productive, politically stable, economically flourishing, culturally engaged society.

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