Thursday, October 06, 2005

Copyright and the Christian

Since someone cancelled last night, I was finally able to get down to stacking some of my own durians:

Amazon! Don't sue me! I'm helping to promote your music (which is not half bad) and anyway, I've got no money!

Just some popular mainstream indie new wave revivalist stuff whatwhat? Well, our unfortunate neighbours across the Causeway think it's worth its weight in gold as this chap explains. Yes, it was only written a week ago in modern Malaysia!

What would we do in such a situation?

I have some very old bootleg copies (in the days of cassette tapes and so waaaay before any local copyright regulations ever reared their heads) of folks like Afghan Whigs and The Smiths before they could be found in Singapore because I had the fortune of knowing someone whose stepuncle's stepchildren brought them in from the Grey Island. My friend went on to form a several bands and quite a few of them (and many of his girlfriends who went on to form their own all-girl bands) had the benefit of his bootleg tapes. How would the music scene have developed without that input? (oops double-edged question)

What's a Christian to do faced with such a copyright situation?

The presumption copyright proponents drill into the collective heads of the general public is that there is no right to copy until money changes hands. We've all been indoctrinated with the view that copying = stealing.

Intellectual Property isn't "Property"
However, to suggest that infringing a copyright is identical to stealing property is too much of a jump. As far as I know, no scholar has ever admitted that what is called "intellectual property" is property per se. Most textbooks start out by acknowledging with a shrug the artificiality of terming it as such. So-called "intellectual property" actually consists of ideas crystallised in material form; a "Material Idea". So what isn't "property" can't be "stolen".

Copying Intellectual Property isn't "Wrong"
To a mere layman like me, it appears that copying intellectual property isn't a moral wrong:
  • first of all, copyright infringement should be distinguished from plagiarism. Copyright infringement suggests that you copy a Material Idea wholesale while giving due acknowledgement to the creator of the Material Idea. Plagiarism on the other hand is suggestive of copying a Material Idea, then sticking your name on it and pretending that it was yours in the first place. Prior to copyright regulations coming into force, I know of no civilisation that has found the former dishonest, although the latter would most certainly be found to be a form of cheating or lying; and
  • secondly, the idea of copyright first emerged as a method of censorship of the media, rather than a way of rewarding the creator of the Material Idea for his creativity.
Reward for Creativity vs Public Good
Right. Let bygones be bygones. The current basis for much anti-piracy publicity is that copying lowers rewards for creativity that are found in sales, and lowered rewards for creativity in turn lowers creativity.

Does copying really lower sales?
Remember the old free Napster? There were accusations that Napster was destroying the record industry, but it is suggested that file trading on Napster actually stimulated, rather than hurt, sales. Wikipedia tells us that:
proof may have come in April 2000 when tracks from Radiohead's album "Kid A" found their way to Napster three months before the CD's release. Unlike Madonna, Radiohead had never hit the top 20 in the US. Furthermore, it was an experimental album that received little promotion and almost no radio airplay. As MP3 Newswire described, it was a perfect vehicle to test this theory as the effect of Napster was isolated from other elements that could be credited for driving sales. By the time of the record's release "Kid A" had been downloaded by millions of people worldwide. The record industry braced for the worst, but then came the big surprise. "Kid A" not only broke the top 20, it captured the number one spot on the charts in its debut week. The record beat out the CDs of some of the most heavily marketed artists of the time including Madonna and Eminem. In the absence of any other force that could account for this success, Richard Menta of MP3 Newswire declared this was proof that Napster was a promotional power.
Does anti-copying really ensure fair returns to the creator?
Article I, Section 8, Clause 8 of the United States Constitution which gives Congress the obligation to "promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This clause was the constitutional foundation for the first Copyright Act, which granted the holder of a copyright the exclusive right to print, publish, and sell a copyrighted work for 14 years with a second 14-year term possible. There were no rights given to the copyright holder regarding the public performance of the work nor could the holder control adaptations or derivative works. That was considered adequate to ensure fair returns to the creator.

The present day span of creator's life + 70 years and control of adaptations and derivative works gives the creator far more than fair returns. It ensures a monopoly for the creator and his children.

That is of course, if they actually see the money at all. Some articles suggest that the creator/artist might see less than 2% of royalties on their products. The British economist Martin Kretschmer concludes that "the rhetoric of author rights has been largely carried by third parties: publishers and record companies investors in creativity (rather than creators) who are also the chief beneficiaries of extended protection".

If that is true, then the way to ensure that creators are adequately paid for their work is not more/stricter copyright regulation and enforcement but the abolishment of sledgehammer copyright laws.

If sledgehammer copyright laws were abolished, it is possible that many more artists would be able to make a living from their work. It could work out like this: much global artistic enterprise is currently controlled by just a handful of huge cultural conglomerates. Through their ownership of copyrights, these conglomerates determine, unilaterally and depending on which copyrights they have control of, which works of art and which artists are promoted/marketed. Heavy global promotion and aggressive marketing campaigns to achieve returns on their investments determine the content and contours of cultural landscapes worldwide, without regard for local preference or sensitivities. Without copyright regulations, conglomerates would not have monopolistic market control. Enormous numbers of people who would have the opportunity to produce, distribute, and promote works of art, while simultaneously encouraging cultural diversity. Artists would have the opportunity offer their work to the public and not have their projects prematurely aborted because a conglomerate predetermines that that particular work would not be well-received by the public. If their works are gladly received by the public, they would be able to earn a decent income for their work. If not, then they could join the ranks of famous artists who slaved for their art only to become famous after they died paupers. Or not. Artists from Third World country cultural landscapes would have the opportunity to flourish under the influence, but not domination of foreign cultures. This would allow local artists too the chance to earn a decent wage from their work.

Do sales really affect creativity?
Many creators work to be able to put food on the table, but how many are *ahem* incentivised to go beyond their call-of-duty to create astounding works for monetary reward? Einstein was a clerk in the Swiss Patent Office when he thought up the Theory of Relativity. But not for money, that.

Furthermore, if the legal basis of copyright law was founded on the balance between perceived rewards for creativity and the public good, then viewing copyrights solely as a tool for the acquisition of wealth by the holder of the copyright shows that we've lost our way somewhere. What about the public good bit then?

Can the balance between rewards for creativity and public good be determined properly en masse?
Where does the balance of rewards for creativity and public good lie when we realise that every human work of artistic, medical, technical or other merit follows on from the works that came before it. The notion of complete originality is an artificial idea that does not take into account the history of the world. In fact, the copying and development of ideas (material or not) has always been how nations and cultures develop. One of the greatest ancient civilizations, Rome, was a shameless copier of all things Greek. And the newly-born United States of America was also a hungry pirate nation, ripping off shiploads of Material Ideas from all over the world for at least a century, particularly that Grey Island across the Pond.

Now, what hope do developing countries to develop have in view of the sledgehammer intellectual property laws? The current system of copyright entitles artists and the copyright industries to forbid anybody else to adapt "their" works of art creatively, as has been the case historically. The concept of copyright is strange as well to most cultures in Third World countries. But, under pressure of the World Trade Organisation they have been obliged to introduce regimes of intellectual property protection. So, they must pay intellectual property rights to western companies for knowledge and creative products, which are sometimes partly derived from their own stock of knowledge and creativity. And that exacerbates their debt problems.

And where does the balance of rewards for creativity and public good lie when people in developing countries cannot get access to the pharmaceuticals and medical treatments that are so commonplace in developed countries because of patent rights?

Leaving behind any conspiracy theories and the politics of WIPO and international intellectual property treaties, it is safe to suggest that current legislation takes a poorly-thought-through sledgehammer approach to ensuring fair returns to the creator of Material Ideas.

What's to be done?

We could philosophise about widespread and independent civil disobedience being evidence of the disparity between the law as the social contract of a democratic society and the real opinion of the masses.

We could do some good thinking and get active like other people/groups like Cory Doctorow or Access to Knowledge on these issues.

We could suggest that the way forward could be by using Creative Commons, General Public Licence, free use, public domain or open source concepts.

We could lobby for all these things through the appropriate channels but ultimately, we must submit to God, who tells us:
Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrongdoer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also because of conscience. This is also why you pay taxes, for the authorities are God's servants, who give their full time to governing. Give everyone what you owe him: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor. (Romans 13:1-7)
So we might also have to think about how our church activities could constitute an infringement of copyright regulations: for example, the photocopying of scores for all the members of the music team, the putting of song lyrics on the overhead projectors, and even the performing the songs. But let's not trouble anyone's conscience unduly before we get proper advice from ARPC's copyright lawyers (if any)! ;-)

PS: I do take a sniff at other people's durians just to see what the music is like. If I like the music, I go purchase the original copy (ha! oxymoron!). If not, it goes into the bin or gets recycled.

PPS: Haven't bought an ipod yet because apparently copying mp3s from one's original copy of a CD to one's ipod is an infringement of copyright legislation. Why then don't the music distributors sue Apple from aiding and abetting infringement like they did the old Napster? Hmmm…

Related post: Parallel Imports



At October 06, 2005 10:14 pm , Blogger taiyongchieh said...

As Christians, we ought to live a life worthy for the testimony we bare with our lips concerning Christ.

I think for most of the time, it is better for others that we don't entertain our greed for something that we did not pay for. Also, of everybody, Christians should learn to live in submission to any God given authority so long as they do not compromise Godliness. From this angle, I think there is no need to go down into such details of what is allowed and what is not do decide what to do and what not to do.

At October 06, 2005 11:29 pm , Anonymous wb said...

Hello taiyongchieh,
I am not sure I follow what you are saying. I read The Shadow as saying that there are reasons not to agree with the sledgehammer approach of copyright laws. But because of his Christian beliefs he will obey these laws because these laws are made by the authorities and the authorities are put in place by God. I am Christian too. For me to be able to follow the secular law I must know what I can and can not do under the law. For instance are CD parallel imports illegal? If I don't know then how can I follow the law?


At October 07, 2005 10:30 am , Anonymous hamster said...

Maybe it's worthwhile to note that copyright infringement isn't necessarily piracy - which is flat out wrong since someone wants to make a profit at the expense of someone else. No discussion there I hope.

I think Shadow's discussion - and I do agree with it - is more along the lines of wb's note... That copyright laws are rather draconian and actually sometimes totally fudged in definition and in implementation (how much is infringement? Is one song downloaded an infringement? Who am I infringing - the record co or the artiste? What if I copy my own songs for my own listening and I can prove it?). But they're there, they exist, and we have to follow them...

Sigh. God's will be done lor.

At October 09, 2005 10:51 am , Blogger paddychicken said...

Very nice roundup of copyrighting perspectives. So we can conclude that copyright laws are for Pharisees?

I also think The Killer's Hot Fuss was notably overlooked from your durian basket.

At October 09, 2005 1:12 pm , Blogger shermanc said...

well written.


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