Techdirt points to a report that Facebook currently hosts 4% of every photograph ever taken in history. Whether that’s an accurate number or not, the social media giant does host a huge amount of photos on its servers. Masnick uses this story to question copyright:
What is the real purpose of copyright? Is it only to incentivize professional content creation, or to incentivize content creation overall? Given the stated purpose is to “promote the progress,” and to provide the public with more content, I would argue the goal is to promote more overall content, and it seems that technology is doing a much better job of that than copyright.
There’s a couple of points here I want to talk about later, but first is this undercurrent that runs through many criticisms of copyright — that of valuing amateur content over professional content.
Yes, copyright incentivizes professional content creation — it is an economic incentive to invest money in the production of creative output. There is a moral rights aspect to copyright — explicit in many civil law nations, implicit in many common law nations — but the incentive aspect of copyright is primarily economic.
Critics of copyright law occassionally advance arguments attacking the incentive given by copyright as unnecessary or outdated. This one in particular goes something like this: we have no need for copyright anymore because amateur creators don’t need copyright’s incentive to create and amateur creativity is better than professional creativity.
This notion isn’t unique to Masnick. Sci-fi writer Cory Doctorow shares this view. In the Guardian last November, he writes, “I mean, I love sitting in an air-conditioned cave watching Bruce Willis beat up a fighter jet with his bare hands as much as the next guy, but if I have to choose between that and all of YouTube, well, sorry Bruce.”
Swedish politician Rick Falkvinge is even more blunt, who, though he doesn’t get around to defining what he means by “new” types of culture, can’t wait for “old” types of culture to die out:
I’m going go out on a limb here and say, that even if it is true that movies can’t be made the same way with the Internet and our civil liberties both in existence, then maybe it’s just the natural progression of culture.
[…] After all, we have previously had operettes, ballets, and concerts as the high points of culture in the past. Even radio theaters (and famous ones). Nobody is particularly concerned that those expressions have had their peak and that society has moved on to new expressions of culture. There is no inherent value in writing today’s forms of culture into law and preventing the changes we’ve always had.
You’ll even find such ideas coming from more scholarly sources. The Social Science Research Council’s Media Piracy in Emerging Economies report adopts this idea and wraps it up in more academic language:
[W]e take seriously the possibility that the consumer surplus from piracy might be more productive, socially valuable, and/or job creating than additional investment in the software and media sectors. We think this likelihood increases in markets for entertainment goods, which contribute to growth but add little to productivity.
Promoting the Progress
“To promote the progress of useful arts, is the interest and policy of every enlightened government.” 1Grant v. Raymond, 31 US 218, 241 (1832).
In the US, the end goal of copyright law is promoting the progress of the useful arts and sciences. A private right is secured as an incentive for creating and disseminating works for the public benefit.
Usually when we talk about “amateur creativity” and copyright, we’re talking about cultural works that are made for many of the same reasons as professional works but without the commercial aspect — videos, music, and writing created by hobbyists or striving professionals. But some of those making the argument that amateur creativity makes copyright obsolete sweep in not only this type of creativity but all noncommercial creative acts.
Snapshots, home videos, and status updates are great ways to communicate and express ourselves, but these can hardly be considered contributing to the promotion of the progress of the useful arts and sciences. Where is the public benefit in a stranger’s vacation pics? (Never mind that, unless you’re friends with all these people, you likely can’t see most of them.)
I wonder sometimes about those who don’t see the value of art and entertainment made by someone who got paid for it. It’s stunning that they can’t see the value of these novels, or these films, or these albums, or these photographs. 2I chose these lists only as representative examples of works held in high regard. Obviously there are problems with ‘best of’ lists of this sort. To dismiss these works and countless others like them as mere “entertainment” that is “unproductive” is an incredibly narrow viewpoint.
What’s equally stunning is the view that the measure of progress when it comes to copyright law should be based solely on numbers — quantity over quality. Ten photos are better than one, no matter what.
I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.
But suppose we ignore all this and decide to weaken copyright protection since the incentive is not needed anymore — problems would still remain. While the type of amateur creativity discussed above doesn’t rely on copyright’s incentive, it still benefits from the protection copyright law affords. A lot of attention is focused on end-user piracy of works from larger entities, but larger entities can infringe on individuals’ works.
Certainly, this type of infringement happens now. Look at the flurry of controversy that stemmed from news that photo service Twitpic claimed copyright on users’ images, allowing it to distribute those images to its company partners. This is far from an isolated incident — in 2007, the family of a 16 year-old girl took Virgin Australia to court for using a photo of her, uploaded to Flickr under a Creative Commons license, in an ad campaign (the case was dismissed for lack of jurisdiction). And even the aforementioned Doctorow has publicly railed against the unauthorized use of one of his wife’s photos by a newspaper.
Without copyright protection, companies would have free rein to behave like this. There’s nothing magical about copyright protection that makes it only limit the ability of consumers getting free movies.
Development of creative tools
Technology is suggested by Masnick as a better mechanism for promoting creativity than copyright protection. It’s true that people today have access to a vast array of cheap and portable tools to record and produce high quality audio and visual content (though no technology has yet made it easier to learn how to tell a story or convey an emotion). But this idea that technology has rendered copyright obsolete begs the question that a functioning market for professional content had nothing to do with the development of that technology.
Would there be technological tools that help amateurs create — especially free or cheap tools like GIMP, Blender, and Reaper — without their commercial precursors? These tools required investment and development, and that came largely from their use in professional contexts — decades of improvement fueled by a need for this technology and enabled by the money to meet that need. Invention, after all, doesn’t occur in a vaccuum.
No doubt this technology would have developed without copyright and a market for professionally produced content. But it certainly wouldn’t have developed at the rate it had — the tools that are available today would likely be decades away in such a world.
This ties into the benefit of copyright protection and its economic rationale. I think even copyright’s critics would agree that the ability to create movies and music from a home computer is a good thing. And, while I’m unaware of any research quantifying the effect of a market for professional content on the development of the technology used to create that content, I think it’s safe to say that it does have an effect, and probably not an insignificant one. We, as a society, generally want to encourage those things that bring about good results. Viewed this way, copyright makes sense from a public interest and economic perspective.
The “progress” of destroying markets
The biggest problem with attacking copyright by placing amateur content on a higher pedestal than professional content is that it sets up a false dichotomy. When did this become an either/or choice?
Amateur creativity thrives regardless of the copyright incentive. In fact, it’s an essential part of any culture with professional creators: almost without exception, every one of those professional creators has started out as an amateur. What Masnick, Doctorow, Falkvinge, and others are saying is that society would be better off with only amateur content rather than the combination of amateur and professional content.
That doesn’t sound like progress to me.
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