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.
This piece contains several logical fallacies, false assertions and factual inaccuracies. Among them:
1. The Ad Hominem attack on Scott Turow. He is not “woefully uninformed”. He merely holds a different view to you of the efficacy of copyright. History appears to endorse his view.
2. You say: “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.” This is a Straw Man argument. Nowhere does Turow argue that copyright is the *only* way economically to support authorship.
3. You claim that “revenues from copyright so seldom actually filter down to authors and artists”. Not true. For example, photographers and graphic artists directly engaged in the primary licensing of their copyright works receive all the license fee and royalties. Primary licensing is a very common activity in these media.
4. You say: “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.”
Again, not true at all in the case of commercial artists such as photographers and graphic artists, and let’s not forget that *anyone* wishing to make money from their creation (as opposed to receiving sponsorship for creating) becomes a commercial artist in this sense.
5. You assert 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.” This is true (it was customary at the time) but largely irrelevant to Turow’s argument.
Turow’s point is that the “cultural paywalls” provided by Elizabethan theatres created a new revenue stream such that “For the first time ever, it was possible to earn a living writing for the public”, as opposed to writing for a private patron, and that “Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft.”
The latter statement implies that the level of patronage then available to dramatists was insufficient to support the “wave of brilliant dramatists” that emerged as a result of it becoming “possible to earn a living writing for the public.”
The fact that the works’ *content* was “borrowed from others and reworked” had little economic effect on this new market, because the works themselves were hard to copy, books still being rare, and because the general public remained largely illiterate. The economic impact of piracy on authors came much later, with greater literacy levels and availability of books, and gave rise to the Statute of Anne:
“The preamble of the draft bill explicitly referred to copyright as a personal right of authors, stating that the printing of books
… without the consent of the Authors thereof, in whom the undoubted Property of such Books and Writings, as the Product of their Learning and Labour, remains or of such Persons, to whom such Authors, for good Considerations, have lawfully Transferred their Right and Title therein, is not only a great Discouragement to Learning in general, which in all Civilised Nations ought to receive the greatest Countenance and Encouragement, but is also a Notorious Invasion of the Property of the Rightful Proprietors of such Books and Writings…” – Wikipedia.
The fact that the Statute was not enacted in this form probably says more about the political power of early publishers than it does of principle and the economic harm caused to authors by piracy. Some things don’t change.
6. You say that “great art often depends on the ability of artists to borrow from and reshape earlier work”. This is true. As a result of our social conditioning and education we all stand upon the shoulders of giants. We are all influenced by what has gone before us and by the works of our contemporaries.
Most of that which has gone before us is out of copyright and directly available for us to reuse if we can. The works of our contemporaries are quite rightly their economic property and unavailable for our direct use without their permission. These works remain available as influences upon us and nothing prevents us from making work stimulated and informed by contemporary work that does not plagiarise it.
I am surprised that an institution as august as Duke University should publish an article of such low quality as this.
If Copyright is a barrier to such intellectual journalist moving society forward then I have no doubts that these talented people will not have any problems creating their own work without the need to steal it from the talented who they believe to be hindering progress.
Hyenas !
Fantastic response Paul. I’d like to pick up on just a single point from the author if I may and ask just exactly how a system of patronage or full-time educational appointments could possibly fund the level of creative work that is now produced, enjoyed and demanded by 21st century society?
The technological advancements of the last decade have ensured that the arts are no longer the preserve of a wealthy elite and are enjoyed and created in many different forms across many different social strata. Surely we have a duty as a modern society to defend the cultural progress we have made here, which means ensuring that our photographers, graphic designers, writers, film makers, animators, musicians and the rest are able able to continue to produce great work for the benefit of all?
The sheer scale of the work produced and consumed would make it impossible for any nation other than those with a vast centralised authority to fund such a system of patronage (communist China perhaps). And it’s difficult to imagine the great business philanthropists of our time being willing or able to put up such revenue for the arts. And neither would it be particularly desirable. Whether or not you believe in the efficacy of the market in supporting the best art of our time, at least there’s an element of democracy involved. If the work is universally disliked, the artists is forced to change tack, or simply try his or her hand at something else. Having a set of government ministers or millionaire bankers deciding what does or doesn’t account for good taste simply doesn’t bear thinking about.
I’m certainly not advocating a purely market-driven agenda; I think some centralised funding is essential in guaranteeing that important works get made that may not have a commercial angle, and to ensure that the under-privileged get access to the means of producing art in its many forms. But the idea of abolishing the right of artists to get their market-share in favour of a system of patronage and educational appointments is a dangerous lunacy that needs to be challenged on every level.
It is obvious that this post generated quite a bit of anger, although little that is genuinely responsive to the points it made. In the meantime, Mr. Turow, at the Senate hearings on Wednesday, continued his remarkable penchant for choosing the wrong analogy when he told the senators that bitTorrent was to IP pirates what bolt cutters are to bicycle thieves. Although I am not often fond of the parallelism between intellectual and real property that is exploited by the content industries, I will concede the analogy to Scott and point out that we do not outlaw the sale of bolt cutters just because some people use them for illegal purposes. After all, bolt cutters and bitTorrent have perfectly legitimate applications as well.
What is really at work when the Authors’ Guild and the RIAA ask Congress to strictly regulate file-sharing websites, even before there is legally-cognizable evidence of infringement, is a desire to move the cost of copyright enforcement off of their budgets and on to taxpayers. It is cheaper, after all, to tell hardware stores not to sell bolt cutters than it is to track down stolen bicycles. But copyright has always been a private right that inures to benefit of private entities and should be enforced by them.
Kevin Smith wrote:
“It is obvious that this post generated quite a bit of anger, although little that is genuinely responsive to the points it made.”
In what way, please? As it stands this is yet another unsubstantiated assertion to add to the rest.
You say: “Although I am not often fond of the parallelism between intellectual and real property that is exploited by the content industries…”
You may not be. Professional freelance creators who support themselves and their families directly and solely on the proceeds of licensing the intellectual property they create, and suffer daily harm from piracy of that intellectual property, usually beg to differ.
You say that: “What is really at work when the Authors’ Guild and the RIAA ask Congress to strictly regulate file-sharing websites, even before there is legally-cognizable evidence of infringement, is a desire to move the cost of copyright enforcement off of their budgets and on to taxpayers. It is cheaper, after all, to tell hardware stores not to sell bolt cutters than it is to track down stolen bicycles.”
This is true, but as I understand it is not the central thrust of your argument and in a digital context is somewhat disingenuous.
You say: “But copyright has always been a private right that inures to benefit of private entities and should be enforced by them.”
Private entities such as professional freelance creators *do* enforce our rights whenever possible. Unfortunately defects and deficiencies in current copyright, contract and competition law (certainly in the UK) often make it nigh-on impossible to enforce our rights, and not cost-effective for us when we try to do so.
This must change.
So many layers of meaning here… the intellectual, theoretical and the practical. As an artist myself, I am very concerned with copyright, intellectual property and the protection and reinforcement of it. Paul Ellis mentioned the case of individuals: photographers, designers or illustrators who earn a living from the royalties based on the usage of their copyrighted creations… I can understand that very well, as it is part of my professional reality and one source of revenue I rely on to support my family. Matt Henry wrote… “But the idea of abolishing the right of artists to get their market-share in favour of a system of patronage and educational appointments is a dangerous lunacy that needs to be challenged on every level…” which I absolutely agree. It would simply take the power away from individuals and concentrate it in the hands of a few institutions and a small minority of a few selected artists. It just feels wrong, counterproductive and going in the reverse direction of evolution. There is a danger of intellectualise the subject, to conceptualise to a level of forgetting how it will actually affect the life and career of real people & individual 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”
Unfortunately, in the visual arts, there is very little evidence that a teaching post would have produced a Picasso, an Avedon, a Kubrick etc but there is a lot of evidence that copyright monopoly did and does.
This is a very interesting dialogue, and I welcome it on this site, at least insofar as it does not degenerate into special pleading or, worse, a flame war.
I called parts of this discussion unresponsive only because some of the posts attempt to refute arguments I did not make. I never argued, for example, that no one at all could make money by exploiting copyright, that copyright did not serve the interests of professional photographers, or that it should be abolished in favor of a pure patronage system. I simply argued that there are many reasons way people create art and scholarship, and many different ways in which that creation is rewarded.
The primary audience for this blog is academics, and that is a group that seldom profits from copyright ownership. Indeed, I have advocated that they should do more to retain those rights and use them in their own interests. But academia is a culture that is primarily based, as Shakespeare’s was, on a type of patronage. If it would not have supported Picasso, it still supports a great deal of creative activity of all kinds. Recognizing this does not require attacking other ways of making a living, such as professional photography or graphic arts. But it does suggest that changes in the law that are designed to benefit “commercial” creators must be considered in the light of their potential impact on other types of creative work, many of which are just as valuable to society.