Some of us are concerned, and perhaps rightly so, about the ability of artists to create new culture by freely building on the culture that came before. To this effect, some of us have taken to advocating for the idea that looser copyright restrictions are necessary in order to facilitate freedom of art in the internet age.
This all sounds very good, but is there any substance to it? After years of studying the issue, I’ve become less and less certain that there is.
For more than 200 years, our country has dealt with so many of the same questions that have re-surfaced in the internet age. And we’ve addressed them through both legal and cultural means. Today, the principles that lie beneath these issues have not really changed much at all. Only the formats have.
Back in the 1700s, even Thomas Jefferson, proto-“libertarian” if there ever was one, conceded that intellectual property creates far more liberty than it destroys.
In the music world, it turns out that there are already great solutions in place for both “sampling” and “cover songs”, especially on the commercial level. For instance, no one can ever refuse you the right to record a cover song, or even to commercially distribute it.
If you do release your cover song commercially, you owe the songwriter a small cut. That’s it. And to stop ad execs and movie producers from exploiting songwriters with their own hired guns, the writer of a song must sign off on any use of her song in a film, TV show or advertisement — whether it’s a cover or not.
Pretty reasonable, right?
In the case of commercial sampling, there is again a working system in place: Musicians and their managers essentially negotiate their own terms with one another for any significant use of direct sample. This is a bit more complex and open-ended than the laws around cover songs are, but it did not stop, say, the entire rich history of hip hop, commercial remix culture or electronic music from happening.
(And yes, sound-alikes and imitations are allowed in almost all cases of sampling. Straight up jacking someone else’s expensive-to-make recordings without cutting them in on your earnings, isn’t.)
Music is not the only place where we’ve come up with inventive solutions that still work well on the web, so long as we simply enforce them.
We already have generous exemptions for “satire” and “parody” in the case of film and writing, and we have broad fair use protections covering scholarship, criticism and reporting. And of course, whether it comes to music or storytelling, “similarity” is not theft. Only outright direct theft, is theft.
But at this point, someone will often raise a valid question that occurs to me regularly as well: “What about non-commercial uses?”
That’s an important distinction to make. And to me, it merely begs a further set of questions:
- What is a non-commercial use?
- If a commercial company like Google profits from a cover video, how can this be construed as “non-commercial”?
- Likewise: If a for-profit company like Amazon benefits from selling fan faction, or if a for-profit business on Etsy benefits from selling unlicensed Dr. Who memorabilia, how can this rightly be construed as non-commercial?
- And perhaps most importantly: What is the long-term effect of these actions on other creators and on the market for new creations? (Think about that one for a while.)
There have been times in history when refinement has been necessary. I personally applaud the work done in establishing Creative Commons, which I have used extensively in the past. It’s is an alternative form of copyright for those who are unconcerned with making a living from their creations, and wish to opt out of traditional copyright protections.
But the success of this new alternative has only helped to make an even stronger case for why traditional copyright is perhaps better than ever and should also be preserved. There was something missing, and it simply got added.
Although I was once sympathetic to the idea that loosening some IP restrictions might benefit artists, the more these debates ring out in public, the more I’ve come to understand that there is tremendous validity to most of the current norms of copyright law, even in the internet era. I’m still waiting for an ultimately convincing argument to suggest that any one feature ought to be replaced or done away with.
By this point, it has become very clear that it is by no means too much copyright that has led to the troublesome issues in sustainability faced by the art and music worlds today. The problem of course, has been far too little enforcement of the good laws that we already have on the books. For the most part, they are reasonable and well-considered ones, even if any one person or lawsuit is not. Such is life.