On Monday author, attorney and Author’s Guild president Scott Turow published an op-ed piece in the New York Times arguing that copyright protection is vital for creative production and that the Web is a serious threat to authors. Such pieces appear regularly in the Times; every three months or so a different author or artist trots out these arguments. It seems a little bit unfair to critique these editorials because they are usually manifestly uninformed; several critiques of Turow have already appeared, and I don’t want to seem to be piling on.
Nevertheless, Turow offers a chance to drive home a very different point than the one he thought he was making, owing to his woefully unfortunate choice of an example for his piece. The core of the argument is that Shakespeare and his contemporaries flourished because their work was rewarded financially, owing to the innovation of producing plays in an enclosed environment and sharing the income from theater admissions with the playwrights. Turow then analogizes this physical barrier to theater admission with the “cultural paywall” of copyright in order to argue that the Internet threat to copyright must be addressed with stronger laws (his piece was timed to influence hearings held in the Senate on Wednesday).
Turow chooses Shakespeare simply to show that authors need to make money in order to produce creative work. That point itself is quite doubtful and multiple counterexamples could be ranged against it. But even more basically, the example of Shakespeare actually proves some very different points than the ones Turow thinks he is making.
First, Shakespeare lived before there were any copyright laws in England — the Statute of Anne was adopted almost 100 years after his death — so his productivity is evidence that there are ways to support authorship other than with copyright. In truth, it was not so much his share of theater revenues that paid Shakespeare’s bills as it was patronage. And patronage remains important to many artists even today, since revenues from copyright so seldom actually filter down to authors and artists. The National Endowment for the Arts is one such patronage arrangement, as are academic appointments that allow playwrights and poets and musicians to continue to create while still putting food on the table. These kinds of direct support are much more effective, in many cases, than relying on the monopoly income provided by copyright, since most of that money remains with intermediaries. The example of Shakespeare proves that copyright is not an absolute necessity for supporting the arts.
The second reason Turow’s choice of a hero for his piece is unfortunate is that Shakespeare was, himself, a pirate (in Turow’s sense), basing most of his best known plays on materials that he borrowed from others and reworked. If Boccaccio, or Spenser, or Holinshed had held a copyright in the modern sense in their works, Shakespeare’s productions could have been stopped by the courts (as unauthorized derivative works). This is not an unfamiliar point; most schoolchildren are taught that Shakespeare borrowed his stories. It is rather astonishing that Turow would choose Shakespeare to make his argument, therefore, and no surprise at all that TechDirt has reformulated Turow’s question to read “Would Shakespeare have survived today’s copyright laws?”
As much as Turow may want to argue that copyright is necessary to support authors and artists, what he really succeeds in proving, unintentionally, is that great art often depends on the ability of artists to borrow from and reshape earlier work, and copyright, in so far as it impedes that process, is part of the problem and not its solution.
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