Doctorow: What do we want copyright to do?

While I cannot agree completely with his managerial state, utilitarian approach, his own approach and application of his general principles would result in far better (less bad) copyright law, and he has some gems sprinkled throughout his piece. A few choice excerpts below:

Let’s start by saying that there is only one regulation that would provide everyone who wants to be an artist with a middle-class income. It’s a very simple rule: “If you call yourself an artist, the government will pay you £40,000 a year until you stop calling yourself an artist.”

… For example, it’s been more than a century since legal systems around the world took away songwriters’ ability to control who performed their songs. This began with the first records, which were viewed as a form of theft by the composers of the day. You see, composers back then were in the sheet-music business: they used a copying device (the printing press) to generate a product that musicians could buy.

When recording technology came along, musicians began to play the tunes on the sheet music they’d bought into microphones and release commercial recordings of their performances. The composers fumed that this was piracy of their music, but the performers said: “You sold us this sheet music – now you’re telling us we’re not allowed to play it? What did you think we were going to do with it?”

… There is an ancient copyright agreement that Victor Hugo came up with called the Berne Convention that most western nations are parties to. If you read the agreement closely, it seems to make this whole business of blanket licensing illegal. When I’ve asked international copyright specialists how all these Berne nations can have radio stations and karaoke bars and hairdressers and such playing music without negotiating all their playlists one at a time, the usual answer is: “Well, technically, I suppose, they shouldn’t. But there’s an awful lot of money changing hands, mostly in the direction of labels and artists, so who’s going to complain, really?”…. Rather than having the right to specify who may use your works, you merely get the right to get paid when the use takes place.

Now, on hearing this, you might be thinking: “Good God, that’s practically Stalinist! Why can’t a poor creator have the right to choose who can use her works?” Well, the reason is that creators (and, notably, their industrial investors) are notoriously resistant to new media. The composers damned the record companies as pirates; the record labels damned the radio for its piracy; broadcasters vilified the cable companies for taking their signals; cable companies fought the VCR for its recording “theft.” Big entertainment tried to kill FM radio, TV remote controls (which made it easy to switch away from adverts), jukeboxes, and so on, all the way back to the protestant reformation’s fight over who got to read the Bible. [Emphasis added. –SK]

Given that new media typically allow new creators to create new forms of material that is pleasing to new audiences, it’s hard to justify giving the current lotto winners a veto over the next generation of disruptive technologies. Especially when the winners of today were the pirates of yesteryear. Turnabout is fair play.

… in the US, which has the largest, most profitable broadcast and cable industry in the world, the law gives no compensation rights to rightsholders for home recording of TV shows. There’s no levy on blank cassettes or PVRs in exchange for the right to record off the telly. It’s free, and it has conspicuously failed to destroy American TV.

There are whole classes of creation and copying that fall into this category: in fashion, for example, designs enjoy limited or no protection under the law. And each year’s designer rags are instantaneously pirated by knock-down shops as soon as they appear on the runway. But should we protect fashion the way we do music or books?

It’s hard to see why, apart from a foolish consistency: certainly, every currently ascendant fashion designer who’d benefit from such a thing started out by knocking off other designers. And there’s no indication that fashion is under-invested, or fails to attract new talent, or that there is a lack of new fashion available to the public. Creating exclusive rights for fashion designers might allow more money to be made by today’s winners, but these winners are already making as many designs as they can, and so the net diversity of fashion available to the world would fall off.

… say that tomorrow, the number of architects did shelve off radically, and no one could find anyone to draw up plans for a new conservatory or mansard roof anymore.How could we save architecture? Well, we could give architects a copyright in the likeness of their buildings, and essentially put architects in the rent-collecting business: rather than devoting all their time to designing buildings, architects would spend most of their time sending legal threats to sites like Flickr and Picasa and TwitPic whenever some poor sod uploaded a picture of his flat’s exterior Christmas decorations and inadvertently violated the architect’s copyright.

This would certainly make more money for some architects (especially ones whose buildings were situated near public webcams – everyone who operated one of those would have to stump up for a license!). But the public cost would be enormous. Instead of the mere absurdity of coppers going around ticking off tourists for photographing public buildings (as though bombing was a precision undertaking, requiring that terrorists photograph buildings in detail before wandering into them with bombs under their coats and blowing themselves up); we’d have vast armies of private security guards representing the far-flung descendants of Christopher Wren and that miserable bastard who designed the awful tower-block at the end of my road in 1965 or so, hassling anyone who took out a camera to snap a picture of the car that just ran them over, or their kids adorably eating ice-cream, or their mates heaving up a kebab into the gutter after a night’s revels.

Google Street View would be impossible. So would holiday snaps. Amateur photography. Fashion shoots. News photography. Documentary film-making.

Essentially, the cost of recording your life as you live it, capturing your memorable moments, would go to infinity, as you had to figure out how to contact and buy licences from thousands of obscure architects or their licencees. Surely in this case, the costs outweigh the benefits (and yes, I’m perfectly aware that certain European countries were stupid enough to give architects this right – there are also places in the world that prohibit women from driving cars, where they chop down rainforests to graze cattle, and where the used car adverts feature florid men wearing foam cowboy hats screaming into a camera – if everyone in France jumped off the Eiffel Tower, would you do it too?).

… Now, take $300m CGI summer blockbuster films: if the producers of these things are to be believed, the ongoing capacity to produce glitzy, big budget productions demands that services like YouTube be shut off (see, for example, Viacom’s lawsuit against Google over YouTube).If this is true – I’m no movie exec, maybe it is – then we need to ask ourselves the “balance” question: YouTube’s users produce 29 hours of video every minute and the vast majority of it is not infringing TV and movie clips, it is independently produced material that accounts for more viewer-minutes than television. So, the big studios’ demand amounts to this: “You must shut down the system that delivers billions of hours of enjoyment to hundreds of millions of people so that we can go on delivering about 20 hours’ worth of big budget film every summer.”

To me, this is a no brainer. 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.