News / August 2009

Copyright’s Creative Disincentive

Tucows is participating in the ongoing Canadian copyright consultation. We will be making a formal submission and I will be appearing at the final round table tomorrow (Tuesday, September 1, 2009) in Peterborough, Ontario, Canada.

We are big fans of government embracing the Internet in order to better get input from its citizens to help with the legislative process. While the methods have evolved, the submissions tend to be very formalistic. By lawyers for lawyers. To try and evolve that we have commissioned an original piece by the brilliant David Weinberger discussing the fundamental misconception in linking copyright to creativity. This piece will form the bulk of our submission and follows.

In addition we urge Canadians to contribute to the process. A fantastic resource on how to do so is here. We all owe a big thanks to Michael Geist for his hard work in this process.

My oral comments tomorrow in Peterborough will focus on the role of service providers and how they are being miscast in this dialogue.

Tucows’ views can be summarized as follows:

  1. We believe any legislation should be technologically neutral. A DMCA-like approach that considers a technology or a non-infringing use of a technology illegal per se is a huge brake on innovation.
  2. We believe that fair dealing should be expanded to provide greater innovation and creator opportunities. Culture builds on culture and in order to derive the full benefit of the magic of the Internet we need to recognize that the Internet has sped up the dissemination of culture which naturally creates greater opportunities for sharing and extending. This is inherently a feature not a bug.
  3. We believe that service providers should be neither policemen nor tax collectors for the existing rights holders. Service providers should be focused on helping ordinary Canadians use the Internet more easily and more effectively.

Please speak out and please enjoy the work that follows:

Copyright’s Creative Disincentive

The argument seems simple: (a) If every time you put apples out on your fruit stand, they’re immediately stolen, pretty quickly you’ll stop putting out apples. (b) What’s true of your physical property is also true of your “intellectual property.” (c) Therefore, without a system of strong copyright, creators will have no incentive to create.

The nice thing about that argument is that it makes a factual claim: Weaken copyright and you decrease innovation. That the facts so resoundingly, enthusiastically, thumpingly dispute that conclusion tells us that the syllogism is wrong. Indeed, the facts say the syllogism has it backwards. Current copyright laws are holding back the innovation they were intended to spur.

The argument gets one crucial point exactly right: Copyright grants creators temporary monopolistic control over the publishing of their works in order to serve a larger social goal: to maximize cultural innovation, production, and sharing. But the syllogism is wrong because it misunderstands the role of incentives, and it misunderstands them so blatantly that it seems unlikely to be accidental.

Creators often do have financial incentives. Just like everyone else. Some artists want to make enough to quit their day job. Some want to get rich. Some want to make enough to pay for the materials they need. Some want to prove to themselves that their work is appreciated. Some want to prove it to their parents. The amount of money they need in order to keep creating varies as widely as the role and meaning of that money.

Even within any one class of incentive, the effect of money on creativity is rarely a straight line. Mordechai Richler would not have written four times as many books if his advances had been four times larger. The Guess Who might be tempted to release more recycled compilations if you pay them enough money, but their songs would not have gotten 1% better for every 1% their revenues went up. Thus, while copyright may provide a financial incentive that enables many creators to create, stronger copyright that results in more money does not necessarily result in more creativity.

In fact, how long would it take you to list the bands that have gotten worse as they’ve gotten richer?

For the most important creative cultural works, money is an enabler but not the reason the person is putting pen to paper, chisel to stone, or camcorder to eye socket. There are so many other reasons people create — from G-d whispering to them, to a neurological itch that can’t otherwise be scratched, to wanting to get laid. Copyright could do its job — facilitate an innovative, sustainable culture — if it aimed merely at enabling creators to create, rather than thinking that the creativity-to-financial-reward curve is a straight line angled at 45 degrees.

Now, there would be no problem with setting up a system of laws that overemphasizes the financial incentives for creators if that system had no other effects. But it does, especially now that culture and economics have slipped the bonds of the old physics. Even if we devised a copyright law that provided the absolutely right amount of incentive for every creator to keep on creating, it takes more than motivated creators to build a creative, innovative culture.

It takes culture. It takes culture to build culture.

Whether it’s Walt Disney recycling the Brothers Grimm, Stephen King doing variations on a theme of Bram Stoker, or James Joyce mashing Homer up with, well, everything, there’s no innovation that isn’t a reworking of what’s already there. An innovative work without cultural roots would be literally unintelligible. So, incentives that require overly-strict restrictions on our use of cultural works directly diminish the innovativeness of that culture.

The facts are in front of us, in overwhelming abundance. The signature works of our new age are direct slaps in the face of our old assumptions about incentives. Wikipedia was created by unpaid volunteers, some of whom put in so much time that their marriages suffer. Flickr has more beautiful photos than you could look at it in a lifetime. Every sixty seconds, people upload twenty hours (72,000 seconds) of video to YouTube — the equivalent of 86,000 full-length Hollywood movies being released every week. For free. The entire Bible has been translated into LOLcat (“Oh hai. In teh beginnin Ceiling Cat maded teh skiez An da Urfs, but he did not eated dem.”) by anonymous, unpaid contributors, and while that might not be your cup of tea — it is mine — it is without dispute a remarkably creative undertaking.

And it’s not just these large, collaborative projects. There are sites that every day aggregate the quirky, the awe-inspiring, the beautiful, the maddening…so many that there are sites that aggregate the sites that aggregate the sites that aggregate the works. All for free.

If you look at the works that are being produced — the facts on the ground, so to speak — you can get a glimpse of what is actually driving this creativity. It’s sure not the money. At site after site, amateurs — those who create for the love of it — produce and post works that are responses to other works. Sometimes they are responses to other amateurs. Sometimes they are responses — often mocking — to what the mainstream, paid culture has produced. For example, Auto-Tune the News turns mainstream news footage into politically astute, satiric music videos. In either case the incentive is clear: It is culture itself.

Culture is culture’s incentive. Works are the spur for creating more works. The greatest prompter of creativity is other creativity. Money is sometimes an enabler. But that has nothing to do with copyright laws that protect works for 70 years after the artist is dead. If enabling a culture of innovation is our aim, then cranking up the copyright protection dial to eleven is exactly the wrong way to go. Increasing the volume doesn’t make the music better. Access to more music makes the music better. The connections among people spurs the creativity that creates more connections that create more creativity.

In fact, excessive copyright protection, like a virus, seems to sicken innovation in every field it touches. Indeed, the industries currently trying to survive the digital upheaval by holding onto strict copyright enforcement laws are the ones that have been least innovative in coming up with new business models. Copyright is making them blind to the present and fatally uncreative about the future.

They should learn a lesson from what’s going on around them. After fifteen years of the Web making it easier to spread a work than contain it, and far easier to distribute it than to delete the existing copies, we now know some things for sure: People will create more than we can ever take in, without regard for financial recompense. Creators are carried forward by the creative swell around them. Culture enables more culture. And innovation overall is damaged by protectionism at the individual level.

The cultural opportunity before us is truly epochal. Yet, from the comedy of pretending that we’re looking out for the rights of little-known poets and singer-songwriters, we’re pushing ahead into the tragedy of willfully choosing to keep the cultural dimmer set on low. If our aim is to extract as much financial gain as we can from our culture, then let’s just say so. Far better an honest turning away from the vibrancy of culture than a high-minded pretense backed by patently false syllogisms.

Creative Commons License
Copyright’s Creative Disincentive by David Weinberger and Tucows Inc. is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 2.5 Canada License.

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