I recently picked up Copyfight (2015), a collection of Australian essays on copyright edited by Phillipa McGuinness. Most of the essays are sympathetic to copyright and the plight of artists who feel that infringement shows a lack of respect, but a few — such as Dan Hunter and Nic Suzor — celebrate so-called remix culture and fear that the copyright industries threaten the ability of "produsers" to copy-paste music and video into mash-ups.
My first reaction was to wonder: so, where are all these produsers? I've never heard of the heroes of Hunter and Suzor's essay; infringement apologists are overwhelmingly complaining about the cost and availability of major label music and Hollywood blockbusters, not a shortage of prodused video clips; and none of my friends are sending me amusing mash-ups. I've heard plenty of remixes and samples on the radio and on the "bonus tracks" at the end of albums, but in the vast majority of cases I've felt that the original mix was the only one worth listening to. Nor can I think of a remix achieving any sort of lasting popularity or repute (though there are some classic cover versions).
Maybe I don't hang around the right people or the right places, leaving me in some elitist bubble that pays attention only to serious professional art — though I enjoy the company of plenty of people who take their own photographs, play their own music, build their own mediaeval costumes and cook their own treats. Or maybe I'm not of the new generation — though I know and teach many people who would have been in nappies when people like Lawrence Lessig, Yochai Benkler and Clay Shirky began celebrating this stuff, not to mention that Lessig et al. themselves are all older than me as far as I know.
Whether or not I see much of it, and whatever I think of what I do see, some more thought got me wondering: might complaining that copyright is making it difficult to re-use existing recordings actually be proving copyright's worth, if it is forcing people to go out and create new recordings instead of re-using old ones? And, faced with the "time-critical participant" defence of infringement of the copyright of popular television series, might not one ask: wouldn't a really active participant in culture have friends and adventures of their own to talk about, rather than needing to download them from some giant television studio?
That's not suggest that there's no place for making use of existing art: I often use quotes when I'm writing, many of my musician friends play music that was written by someone else, and I follow recipes when I cook. But let's not pretend that the stuff we're building upon is manna from heaven, or that we're helpless without it: much of it was funded by copyright, and we have the choice to go elsewhere if we don't want to pay the going price. And, speaking of cooking, does anyone suggest that having to pay for ingredients inhibits the creativity of cooks anyway?
The Conversation began a series on creativity this week with Dan Hunter complaining that copyright is a poor mechanism for encouraging creativity since awarding money for effort is known to reduce the intrinsic desire to make the same effort. Many of the commenters were not impressed, pointing out that this is easy to say for those in publicly-funded university positions; the grant system that Hunter seems to favour has its own problems; Hunter uses very selective examples to assert the supposed success of amateur creation; and, perhaps most importantly, that copyright has never been about encouraging creativity in itself anyway but about protecting artists from exploitation.
A simple experiment, similar to one I've previously proposed on this blog, might illuminate the last two points. Consider one of the many media users who complain that the cost of blockbuster film and television series is too high or unfair. How would such a user respond to being told to just watch YouTube etc. instead?
I doubt that many such users would find this a very satisfactory suggestion. If it was, surely they'd already be watching YouTube instead of Hollywood blockbusters. The point is that, for better or worse, copyright rewards not just any creativity, but only creativity that has value to people other than the artist.
If we leave copyright out of it, Hunter is probably correct to reason that many people enjoy creating for its own sake, and that lawmakers therefore don't need to provide any extrinsic incentive for such people to express themselves. Supporting the intrinsic desire to create is more about providing citizens with reasonable access to the time, materials and skills required to pursue their creative interests. Some of Hunter's suggestions seek to do more or less this, and, indeed, governments already have plenty of programmes seeking to do things of this sort.
Coming back to copyright, perhaps the real question is: how and to what degree should the law encourage artists to create works that are of interest to other people? Would society lose anything if art was only produced to satisfy the creative (and possibly exhibitionary) urges of artists?
Those who complain about lack of access to blockbusters presumably believe that society would lose something if for-profit art were to cease being provided, though I don't know if they would recognise it. Of course it is not easy to know how we'd fare if the kind of art supported by copyright did not exist at all, since we have no recent experience of such a world or any obvious way of simulating one. But, being important enough to warrant fifteen years of loud debate, nor is it an easy thing to dismiss.
I published my first Conversation article last week, giving a brief history of copyright protection technology and its deficiencies. Thanks to my editor at The Conversation and Victoria University's Public Affairs Department, the article also appeared in Technology Spectator, Mumbrella, Phys.org and SBS.
I wrote the article in response to what I saw as some incompletely-thought-out criticism of the Australian Government's recent Online Copyright Infringement Discussion Paper. The paper floats the idea of giving Internet service providers a legal incentive to assist with the enforcement of copyright. Critics of this notion typically insist that the media industry should do its own policing — but, in previous rounds of the debate, copyright activists cried foul at attempts to restrict or sue individual users. So what to do?
The comments on the article fall into four broad categories. Firstly, there are the re-statements of classic anti-DRM anti-copyright positions that don't address any specific point in the article. I won't address them here any more than they addressed anything I said there.
Secondly, there are those who insist that the solution is new business models or lower prices. The discussion paper itself recognises that pricing may have an influence on the level of copyright infringement in Australia, though I think I could just as easily have written a history detailing the failure of new business models to produce any change. Whatever the case, all this does not actually answer the question of how best to enforce copyright law, and no business model or price point seems likely to work without a law that gives creators something to sell.
Thirdly, there are those who insist that ISPs should have no role in enforcing copyright law. This is exactly the view that I set out to examine, and I think the comments illustrate why. Critics of the discussion paper seem certain that any regime will be funded by ISPs, who will pass on the costs to their customers. But the discussion paper says no such thing; its second question actually asks "How should the costs of any 'reasonable steps' be shared between industry participants?". In constructing a false dichotomy in responsibility for the enforcement of copyright law, critics are blind to any solution in which the media industry funds technology or otherwise collaborates with the computer industry, both of whom have an interest in having good stuff to do with our computers.
Lastly, there are a few who interpreted the article as demonstrating that copyright protection technology is futile. While I guess they don't appreciate it, this group actually supports the article's thesis insofar as governments came to involve Internet service providers precisely because everyone rejected previous copyright protection technologies.
Reading government reports like the discussion paper in question, I sometimes reflect that their authors seem to be quite a bit more thoughtful and better-informed than their critics give them credit for. For critics with little knowledge of history and an interest only in consuming media as cheaply as possible, I guess it seems "obvious" that the media industry is the only party with an interest in enforcing copyright law and the authors of government reports are stupid for not seeing it. Of course the media industry is a lobby group trying to push its own interests — but so are critics who are only interested in how they can get cheap entertainment. A good government report knows this, and poses questions that lobby groups don't ask because they've already assumed the answer.
After getting into a discussion about the degree to which Internet service providers can or should contribute to the enforcement of copyright law, I did some reading as to what means might be available for Internet service providers to make a contribution. In doing so, I discovered that deep packet inspection technology means that Internet service providers can and do monitor and manipulate the data that flows over their networks. This seems completely at odds with the protestations of Internet advocates like Suelette Dreyfus that filtering network traffic is onerous and expensive: it turns out that network providers find it perfectly practical and affordable if they have something to gain from it. Any doubt that network providers are willing and able to monitor and manipulate traffic might be dispelled by the recent hullabaloo concerning net neutrality, which would surely be a non-issue if network providers really did find content filtering uninteresting and/or uneconomic.
Of course network providers aren't interested in the same things about packets as the media industry or Government censors, and implementing filters for these things presumably incurs some cost over and above what network providers have already done for their own purposes. Nor does the technical feasibility of filtering necessarily imply that it's the best way to address the issues involved. Still, allegations of technical impossibility or economic infeasibility might not be sufficient reason to oppose filters, and might be particularly disingenuous if they come from network providers who'd like to do some filtering of their own.
Quite a few legal scholars, such as Landes and Lichtman, argue that some sort of filtering might indeed be the most cost-effective method of enforcing copyright law, since it is much easier to police the relatively small number of network providers than it is to police the extremely large number of network users. If those scholars are correct, the proposals of Dreyfus and others like her would have us pay less for Internet access in return for paying even more for the things that we download from it.
Of course Internet advocates don't see it this way. Assuming that they accept that copyright law ought to be enforced at all, they see it as a question of who has the moral responsibility for enforcing it. The logical conclusion of this approach seems to me to be for the media industry to either implement digital rights management technology, or to sue individual infringers, or a combination of the two. Yet I'm hard-pressed to think of an Internet advocate applauding the media industry's past efforts in these directions.
Some mis-communication of my views on Suelette Dreyfus' recent Conversation article about the effect of the Trans-Pacific Partnership on Internet server providers drew my attention to a false dichotomy that seems to exist in apportioning responsibility for combatting on-line copyright infringement. Dreyfus fears that the Trans-Pacific Partnership might make Internet service providers more or less completely responsible for the enforcement of copyright on-line. The proposed methods being draconian, she suggests that "the motion picture and music publishing industries should pay for and manage their own security." If Dreyfus' characterisation of the Trans-Pacific Partnership is correct, I suppose there are at least a few in the media industries who hold the view that the computer industry should pay for and manage the same security. As I discovered, an attempt to explore a middle view is prone being interpreted as a view from one of the poles.
Dreyfus goes on to trot out the hoary old suggestion that media industries "simply trial new models for making money." I suppose that the media industries could point out that monitoring network traffic for commercial material and charging for it is a new model for making money. But whatever merits such a model may or may not have, insisting on a dichotomy shuts down any innovation that requires the participation of both the computer and media insdustries.
I'm reminded of an interview in the film The Corporation (2003) in which the interviewee describes corporations as "externalising machines" that will take any opportunity to transfer the costs of their activity to someone else. (Economists call such costs "externalities"). In the context of on-line copyright enforcement, the computer industry would like to sell the Internet and have the media industries provide the wares that make the Internet desirable, while the media industries would like to distribute their wares across the Internet and have the computer industry pay for upholding the law that makes this financially rewarding. Bill Rosenblatt argues that some of the problems with digital rights management systems stem from the media industry's pursuit of exactly this kind of externalising, leading the computer industry to develop the cheapest protection technology that it can get away with.
Rosenblatt may have a point, but of course funding the development of copyright protection technology is only part of the process. Even if the media industries meet all the costs of developing and managing copyright protection technology, the computer industry controls the environment in which this technology must be deployed. Whoever funds the technology itself, it won't be of any use if the computer industry can't be convinced to deploy it in the appropriate places.
Anti-DRM commentators play to this dichotomy when they claim that they respect content creators' interests, but go on to reject any attempt to protect those interests because it interferes with users' sovereignty over their computers. Extreme proposals from the media industries are the other way around. Yet playing media on a computer necessarily intermingles media and computer, and on what basis could the media become owned by the computer, or the computer owned by the media?