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.

19 thoughts on “Copyright’s Creative Disincentive

  1. AKMA

    By way of illustration, one might assemble a list of great creative works and the copyright regimes under which they were produced. For much of Western history, that’s “No copyright whatsoever”: Aristotle, the Bible, Cervantes, Dante, et. al. For another span, works were produced under what seems now to be a surprisingly short 14 years (under the first US copyright law, renewable for another 14, subsequently extended again). The rise of the English novel, the French novel, European classical music, the political essays of the Age of Revolution, all took place under a much more limited copyright regime than is prevalent today.

    So we can prove that creators will produce outstanding works, masterpieces of the world’s creative energies, with little or no copyright protection. The question is, Can we expect the same, or better (than Dante, than Shakespeare, than Homer), by extending copyright to functionally indefinite duration?

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  3. Mark Federman

    Among the many reversals of the ubiquitously connected and pervasively proximate age is the observation that under UCaPP conditions people do not tend to be paid directly for what they do. Instead, the entire concept of reward and remuneration is becoming rejigged to include a myriad of both direct and indirect, complex payments – a network or “conversation” of remuneration, if you will – that relate to one’s total contribution to the society at large.

    Consequently, the instrumental argument that copyright is required to ensure fair pay for creative production is reversed, as you so eloquently propose. Fundamentally, knowledge is a non-rivalrous commodity; attempts to create an artificial scarcity of knowledge (via strengthening copyright, DMCA, and other similar strategies) seems to be counterproductive in a world that will only survive on innovation.

  4. Bob Morris

    Richler wouldn’t have written any books at all if he’d got zero advances. Nor would he have gone on writing if it was legal to copy 100% of what he wrote.

  5. kyle clements

    that is the best description of copyright and its effects on creativity I have ever seen.


    creative content is no longer the limited resource it once was. Audience attention is now the rare commodity in the equation. If these big-media companies want to maintain any of their relevance, they will need to shift gears; move away from claiming copyright for themselves and screwing over the artists, they need to become promoters, sift through the noise and allow the most creative acts to get recognized.

  6. Parker Donham

    One problem with the public consultation is that many of the presentation seem to hoe the same shallow ground – making the same valid arguments in very repetitive ways, without much depth to the argument.

    This strikes me as a particularly valuable addition to the discussion because you offer some insights, and examples, of what’s faulty about conventional wisdom on copyright.

    Thanks, Tucows. And thanks for steering me toward a ton of good software over the years.

  7. Pingback: Tucows on copyright : Contrarian

  8. John Morris

    Both sides have a good argument.

    Hundred million dollar films simply won’t get produced if they show up on the Internet before they hit the theater on a regular basis. Publishers won’t give authors an advance if everyone downloads the book instead of buying enough copies to earn them a profit.

    Yet as the public domain continues to diminish, with every idea, plot , etc. increasingly owned, creation of new works becomes more a legal issue than a creative effort.

    The answer seems simple yet unspoken. Yes we need copyright, but for the original (i.e. right) reason and not the current system (wrong) system that has the incentives all wrong. We should not be offering incentives to milk one idea for a hundred years, we should nudging people to create on an ongoing basis. We need to return to short copyrights.

    Think about it. If we returned to the 14+14 model that would allow enough time to release a movie, get all the box office money, the pay per view, dvd and tv royalties. Enough time to remainder the DVDs on the $5 rack at Walmart then release a 10th, 20th and 25th anniversary rerelease DVD/BD/nexgen and remainder all of that inventory before the copyright expired and everybody got to play around in the sandbox and mash it up into new stuff. If you haven’t broke even by then then you either suck or are an American film studio stiffing the actors who opted for a percentage of the profits.

    And if we made that renewal at 14 years cost a non-trivial amount material that has little economic value would go on into the public domain fast enough to be perhaps be useful as raw material for someone else to build on. Think how much easier the Mystery Science Theatre folks would be able to get fodder for their comedy.

    The current system is insane. No DVD will ever be public domain, the darned things don’t LAST a hundred years. I wouldn’t even put good money on being able to find a drive in a hundred years. As a general rule, unless you buy library trade copies most books published today don’t last that long either. I have never even seen anyone attempt to make the argument that the copyright on a hundred year old work is ‘promoting progress in science and the useful arts.’ or the similar phrase in Canadian law.

  9. enoss

    the day in peterborough was interesting. just back (and with a new puppy!).

    it will be very interesting to me to see what the feedback is. there were clearly a couple folks at the roundtable who did not think much of my views. I hope the read this piece and keep an open mind.

    it is also worth noting that howard knopf wwas great today!

  10. Terry McManus

    “In fact, how long would it take you to list the bands that have gotten worse as they‚Äôve gotten richer?” ….. or the Tucow guys who have gotten more arrogant as they got richer. Here is a quote from your recent legal victory:

    “The domain names that make up our Personal Names Service are critical business assets, and we will and do defend them when forced to do so.”

    Now how about

    “The music that makes up our recordings are critical business assets, and we will and do defend them when forced to do so.”


  11. Harold

    A very good presentation. I put one up on the government website covering a slightly different take, but generally agreeing with the overall tone. The interesting thing I found was that when I originally emailed it to them, that it appeared to disappear into cyberspace. I have the feeling that they aren’t really listening and plan to recycle C-61.

  12. enoss

    terry, it is a shame you have so thinly researched your comment.

    we are, and always have been supportive of reasonable protection for trademark and copyright. we are trademark holders and content creators (

    the irony in your comments is that in the case of personal names we are defending our rights from overreaching trademark lawyers who believe they “own” a surname to the exclusion of any other use.

    in the case of music labels they are “defending” themselves from their customers. that is a mugs game that one can never win.

    terry, you are exactly the type of person who should be embracing the future. you could help all sorts of the new generation of artists. if you have not already, I would encourage you to read this post by trent reznor (http://noss.or/nin) and to look at the work of companies like, which is now the 9th largest video site on the Internet (!), who are breaking acts totally outside of the malaise of radio.

    canada has GREAT musical talent. the more its leadership looks to the past the worse we all will be.

    I do appreciate you commenting though. thanks.

  13. Terry McManus

    My research is fine and so is my purpose; to make sure creators get paid by people who use their music to make money. Helping the new generation of creators to roll over and play dead is not going to happen in my world.

  14. Kevin Arnolds, jazz musician

    “to make sure creators get paid by people who use their music to make money”

    I always wondered why should that be the case. Is it jealousy? Or what? We are all making money using someone else’s work. And not always we pay.

    There are at least two different ways people “use” music. One is passive – like, selling it. Perhaps in this case the above statement can be partially true, although even then it is like assumed that selling is easy – but have you ever tried setting up a store, attracting customers, keeping with all the workflow, delivering the merchandise? Isn’t it work? Work that the original author did not care to do, did he?
    The other way is active – like performing it, making covers and remixes. In this case I don’t understand why the original author must be paid at all.

    The original authors should be paid either once or by some other system, but certainly not every time their work is used. When their work is used, they are not themselves working, are they? I really don’t get it.

  15. Bernd Paysan

    The dichotomy “without copyright no author will get a single dime” is false. It has never been true, it won’t be true in future, either. Musicians that publish their songs on Magnatune get money back, though you can download everything for free, as well. Mozart and Beethoven made quite some money (though Mozart spent it all for gambling), despite there was no copyright protecting their work.

    If you think all people are dishonest thugs, please, speak only for yourself. It’s wrong. The way Magnatune makes money is by being honest: You know that 50% of the money goes to the artist. When you buy from EMI or any other of the big labels, you have no idea how much the artist gets, but it’s very likely much less. These major labels all explain that by the huge costs of “marketing”, which means “bribing radio station DJs”. Stealing from thugs is a lot more fun, so people do it.

  16. jean

    Well written piece. Bravo!
    As a creator myself, i would welcome the chang and finally wrote my memoire to them, lotsa of overlaps.

    Private copying is not preventing me from creating, the desire to communicate an original idea/ feeling is not based on wanting to generate revenue. Creativity is a limitless natural resource, sharing it with
    all turns it into a regenerative energy.

    I have control over the dissemination of my work, and share a little or as much i as want to. But the copyright laws are there to sustain a marketing industry and a star-system mining the quality of the canadian culture.

    “Access to more music makes the music better.”
    I disagree, it makes the listener better, the music… it’s just a matter of taste!

  17. Pingback: Canadians Caught as Copyright Consultation Nears Conclusion | Thriller Blog

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