2021-11-02
Actually it's hard to talk about intellectual property in general, but I've mostly been in discussions about copyright in particular. Twenty years ago it wasn't hard at all. Everyone was sharing movies, music, and the occasional ebook (they weren't as common yet). Nobody agreed with the copyright lobby's claim that this detracted from sales. But then it became illegal, and after that a decade of quite fierce propaganda in favor of strong copyright. When I'd just started uni someone was placing flyers all over claiming that the Swedish poet and bard Bellman died broke and unhappy because others kept "stealing" his songs; that is, singing them. Basically making covers. No mention of the fact that Bellman was an alcoholic that spent all his money on booze.
And now it appears that tides have shifted. Whereas it used to be hard finding someone that defended the copyright industry it's now very much the other way around. And I keep running into the same misconceptions and pitfalls, and they're of the kind that discussions often have to be locked because tensions run high. I'll try to summarize and explain them here.
I wrote X, and now I see it on pirate sites where people download it without paying me! They're stealing my work! -- Common argument from creators I've talked to
The usual way this argument goes is that someone claims that it's theft and someone claims that it's not because it's just a copy and yadayada. I find that to be a tedious and mostly distracting tangent. Because really we're not even discussing the same thing.
For a creator who made something with the hopes of selling it and making a living, copyright infringement feels like theft. The feeling of being trampled on, having your stuff taken, being powerless... The emotional impact of finding their work on a pirate site shares a lot with the emotions you may feel when coming home to find that you've had a break-in and lost a bunch of things.
But copyright infringement is not theft, much like embezzlement is not robbery. Even though someone feels like they've been stolen from we have to keep our heads straight here. Otherwise we're discussing two different things: what something is, and what something feels like. One is a fact and the other is an emotion. Emotions are valid! They're just not useful in a rational argument.
Copyright infringement is just that. It's copyright infringement. That's the legal term for it. Theft is something different, and so is robbery, embezzlement, fraud. If you've been subjected to fraud you'll likely feel that someone stole from you, and you probably did lose something to the perpetrator. But we differentiate between these incidents either way.
If we can agree on this basic premise we can actually arrive at a place where the real discussion can actually begin.
But they should! Okay. Yes, I can sort of agree. I mean, as far as a utopian vision goes it's quite tame. I'd prefer it if making a living was well detached from one's ability to be productive in any way, but I digress.
Let's say artists must be able to make a living off of what they do.
Why? I mean, why is this some sort of intrinsic truth in a capitalist society that respects virtually no other trades the same way? Who decides which artist deserves to make a living doing art? The market? You?
The eventual conclusion here is usually the stance of the small time artist; if I write a book or make a painting and spend a whole lot of time on that then I want to be paid for my effort. I can sympathize with that, even agree to a certain level. But why is that an argument against reforming copyright? I mean, this has never been true in modern times at least, and it has nothing to do with private individuals freely sharing your work. It's the large companies that steal from the individual artists. They're the ones making money off the small-timers' work. Because guess what; you don't have the legal funds to fight them in court. There are countless examples of this:
Tell me again how artists are helped by existing copyright laws.
By now we've usually agreed that the copyright laws have some justification, but also that they have some unfortunate consequences the way they look right now. But all of this is sort of a side show, really, because the issue of copyright comes down to the same scale that most other political conflicts do:
The rights of the common vs. the rights of the individual.
One thing that's almost been forgotten in the decade and a half that the copyright industry has lobbied so hard is the rights of the commons. The acknowledgment that culture happens outside of the capitalist market, that creativity is very much about remixing, and that consuming, performing, enjoying, and producing culture is a human right in itself. The music of Johnny Cash or movies of the Marvel Cinematic Universe are as much a part of our culture as Christmas or folk music. It's not something that exists outside of our society. This blog and the games I've made are cultural expressions just like the poems you write or the instagram account your best friend keeps updated.
At some point everything that belongs to our contemporary culture or cultural history must be released from the shackles of capital and given to us, the people. It's in our culture now.
The question of when is the hard part, even though most agree that several decades after the creator's death is a bit extreme.
First of all this isn't true. If movie companies depended on the "long tail" profits they wouldn't cry like babies if their movies didn't do well at the opening weekend. All of those epic Marvel movies? Did any of them not break even in the first weekend? Do you really think Disney will be dependent on the income they may bring ten years from now? Twenty?
The entire Lord of the Rings trilogy made a profit in the first weekend of the first movie in the theaters. There's no way movie production companies wouldn't take bets on high end productions because they couldn't monetize them indefinitely.
Secondly: so what if we wouldn't have them? Did you feel that we were culturally starved in 1995 because we didn't yet have the technology needed to make George Lucas' vision of episodes I-III a reality? Did absolutely nobody appreciate the Batman or Star Trek television series because they didn't have the CGI effects of The Fifth Element or Avengers: End Game?
I love role-playing games. I also have a love for the history of them, and I'm not the only one waxing nostalgic about the early editions of a lot of games. Reprints are all the rage right now.
But you know what can't be reprinted? The old editions of the Swedish role-playing game Drakar och Demoner. The game that shaped the Swedish RPG scene and market. The license and trademark has been transferred a few times and newer editions have been made, but a reprint of old material is largely legally impossible.
Back in the days when these were written a lot of agreements were only verbal. There was much trust in the industry. From the few people still active we've learned that these verbal agreements weren't very detailed; more along the lines of "hey if you write that stuff we'll publish it!", "Sure!"
The legal ground for that is quite clear: the creators have agreed to their creation being produced and distributed in one format and one edition, because that was the context in which the agreement was made and the modus operandi of the publishers involved.
Fast forward 40+ years and you'd have to find a whole lot of writers that did the freelance work on these products to get their permission to publish their works again. People have tried. A few of these creators are still active, but many can't be found. They are known by a name in the credits section only, their contact details forgotten and lost.
Some of them have very common names. Some have no doubt changed their names. Some are probably dead.
And so, in about 140 years time I guess we can reasonably assume that all of the creators have been dead for at least 70 years. Will no republications be legally possible until then?
If you search for the term "abandonware" you'll find equal situations in the video games world. The entity that held some copyright went bankrupt or disappeared, but what happened to the copyright was never recorded. Did it pass to someone else? Was it actually owned by a person in the company? Who knows. Do you dare spread a copy of the video game in question in the hopes that nobody sues you? Because you sure as hell don't own the copyright.
Most everyone agrees that copyright laws need to be reformed. The big copyright lobby is very successful in getting their reforms (extended copyrights, enforced content filtering, high standard compensation for infringements, etc). But the rights of the commons are woefully ill equipped to stand their ground.
I hope we don't lose too much more.
-- CC0 Björn Wärmedal