Copyright in the Digital World Part II: Why Shift Focus?

July 3, 2011 at 1:59 pm | Posted in Copyright and IP, writing | Leave a comment

So, if it’s no longer about copying (or shouldn’t be) and it’s actually about use (or should be), then the question is: what do I mean by use*?

The way I see it, there are a lot of different ways that a work can be used:

  • “consumed” (read, listened to, etc.)
  • distributed
  • sold
  • adapted
  • sampled
  • etc.

With digitization, all these uses can be appropriated by anyone with a computer and the right programs installed.

By contrast, there are many benign reasons for copying a work and making multiple reproductions of it (e.g. so you have access to it from your various devices; printing off a fresh copy if you left your printout elsewhere and need to look at the work on the page etc.)–none of which are in any way cutting into the creator/rights holder’s ability to profit from their work, but which are illegal under a regime that emphasizes the right to copy.

So Why Is This Bad?

So fine, you can copy benignly, and you’re technically breaking the law, but unlikely to be caught (let’s face it, you’re unlikely to be caught even if you’re doing a bunch of the other, less-than-benign things under the “use” list as well). So what’s the big deal?

The big deal is right in the formulation of the issue, above: namely, that you’re breaking the law but don’t care. That kind of devaluation of a legal regime is deeply problematic because of what it means for the relevance of the law. If otherwise law-abiding citizens are breaking the law and don’t give a crap, then what kind of desensitization might that lead to?

I’m not crying anarchy or anything even close. But, within the context of copyright, if you’re breaking the law to even commit these harmless acts of copying, then that desensitization to the boundaries between legal and illegal in the context of copying is going to have an effect on the culture (and indeed, as is obvious to anyone who hasn’t been living under a rock, it already has) and how it views copyright in general. It will ultimately render much of it meaningless, except in cases where there’s some chance of being caught.

There’s a profound tension between the valuing of the creativity, craft and hard work of the artist (which we generally like to insist that we value deeply) and the desire to get something for nothing. The latter seems to prevail, making the former seem like so much lip service. Sure, we value artists, but if we can get their work for free, then let’s do it.

The Indie v. Studio Dynamic

There’s also another factor in the mix. Though many of us will, if we know there’s an indie artist involved, pay for the consumption of the work we’ve acquired, we also have an intuitive sense that the artist is a little more distanced from the revenue stream when there are large publishers/producers/film studios/etc. involved.

Though the artist ultimately suffers, at some level as a culture, I think we believe that they’re already being exploited and robbed by the savvy “money guys” in the big corporations, so we’re happy to steal from the money guys. It’s our small way of stickin’ it to the man.

I am ambivalent about this.

Ultimately, the money guys are generally there when they are needed. The old structures and models may be losing relevance with the new technologies and the emergent, evolving culture that comes with them, but if there are gaps and needs within the new methods and models of distribution, the business people who love the arts and want to get them “out there” and make a living at it, if possible, find those gaps, and will make themselves necessary once again by facilitating the process.

Let’s face it–only a small subset of creative types are into the number crunching and marketing side of things. If possible, many of us will leave that stuff to someone else. And so, between that simple fact, and the fact that there is almost always a challenge associated with bridging the gap between creation and intended audience, the business people will have an essential place, filling an important gap, in facilitating the connection between creator and audience. And quite frankly, I’m all for them. They’re the ones who have brought my attention to many a great book, film and musical work, over the years.

*Again, I’m going with Drassinower’s conception of the use v. copying distinction, though I cannot promise that I am correctly representing his arguments. I find his distinctions between the two concepts key to understanding more than just fair dealing and so I have followed them. They also speak to interesting potential directions to take in the area of (c) reform. That said, those ideas have now been processed through my particular set of interests and issues on the subject, and might not conform precisely with what he is arguing.

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