Culture vs. Copyright/Chapter 6

by Anatoly Volynets

CHAPTER 6

Three Models

A remark from a post on the DMCA-discuss list from June 5, 2003 reads: “Take copyright away and guess what? Somebody is going to undercut YOU in price because they can make cheap copies, and thus, YOU won’t make any money at all!” “YOU” there referred to an author who had spent a number of years writing a novel.
How can I respond to the above assertion? I want to start my deliberations on this subject with yet another quote: “If art teaches anything (to the artist, in the first place), it is the privateness of the human condition. Being the most ancient as well as the most literal form of private enterprise, it fosters in a man, knowingly or unwittingly, a sense of his uniqueness, of individuality, of separateness—thus turning him from a social animal into an autonomous ‘I’” (Joseph Brodsky, Nobel Lecture, 1987). This gives us direction for further analysis.
If a work of art, according to Brodsky, is a private enterprise, it is obviously of a different nature than a regular business. The artist’s “business” is to foster a sense of uniqueness in humans. When we regard art as art, we must take into account its nature. We must remember and take seriously the fact that art is not determined or driven by rewards or punishments, profits or losses. On the other hand, we know that business does develop around art. In this case we must take into account and apply relevant laws. Hence, we have to determine what part of an artwork, where and when, may be traded and what part of it, where and when, must be just shared.
If we uphold this approach—that is, if we try to follow the precise nature of our subject—then there is hope that we will get the most from art in terms of both creativity and business. This also means that we can resolve and forget all of the problems caused by the monster called “exclusive rights” which result from the mixing of subjects of different natures.
“Somebody is going to undercut the price”—what is so tragic about this when we talk business? It is a simple question. What is the honest answer? “OK.” It would be OK for any other branch of business. It would be OK in publishing too. So why would publishers (through copyright) want to mutually restrict each other from profiting? Yet another question: If an author simply sells his work to a publisher, how does copyright help him? Does it not?
Well, I have hinted more than once that I am not satisfied with the commonly accepted speculations about exclusive rights, regardless of how long those speculations have been around.

Options for Governing Culture

In order to understand what is happening in the regulation of cultural affairs and what could ideally happen, I have framed three options for analysis: (1) no regulation at all, (2) the current type of regulation and (3) an ideal regulation, corresponding to the nature of culture. These are: Self-tuning, Copyright, and Authoright.

Self-tuning

This means there is no copyright nor any other specific regulation of cultural affairs. There is a rather close historical precedent for this situation. In Jacobinian France, for a short period of time (until 1793) all royal publishing privileges were abolished. It would be very helpful to find out what exactly was going on with book market in France at that time. And earlier there was a somewhat similar situation in Great Britain when royal privileges were, for a certain period of time, ignored by small printers, causing big ones to press for a law like the Statute of Anne. What was going on in that market? Such a study merits research.

Copyright

This is the universal publishing monopoly. It is the ownership, similar to private property, which is imposed upon cultural phenomena. This regime was introduced despite public outcry in Great Britain in 1710.

I will discuss it more below.

Authoright

This is when a work of art is free to use without restriction, and individual authors and publishers have the universal right to attribution. Such a law does not yet exist, although its partial and twisted implementations, like public domain, have occurred.

Method of the Research

It became clear in my previous deliberations and discussions with the students that the nature of creativity is the same in different areas of human activity. Based on that conclusion, I presume that neither genre nor kind of art nor historical time nor any other technicality plays a vital role in the reality I am now going to scrutinize. That is, analyzed scenarios, in their essential features, can equally apply to any creator at any time in any area of human activity. I examine fundamental points, such that my analysis would be the same for a music composer or painter or inventor or any other creator in the eighteenth or twenty-first or thirtieth century. Obviously, cases differ in detail, but details and nuances are not my priority here. So, I have chosen a writer in the eighteenth century who is looking for a publisher. His situation is analyzed in the scenarios below.

Self-tuning

As stated previously, cultural affairs that are not regulated by a specific law are the subject of this section.

Scenarios

Our author has to shop for a publisher. He may never find one, thus end of story. Suppose he finds a publisher. He may conduct preliminary negotiations before having his book published. Suppose his work is accepted. The author will be paid a certain amount of money. If the sum is considerable in the author’s view, there’s a happy ending. If the publisher wants exclusivity, he may pay more and put it in their contract. Naturally, this exclusivity is effective only until the work is published, because, with no regulation in the field, anyone can use it after the first publishing.
If the publisher does not want exclusivity, the author may take a copy of the manuscript to another publisher and get paid by both.
What happens after publication? That depends on the acceptance of the work by the public. Generally, the author gets more and more exposure as long as other publishers reprint and sell his work. And they do this as long as it earns money. In doing so, they all promote the author regardless of their intentions.
Does second-hand publishing (reprinting of a published work) provide incentives to the author? It may. For example, if a publisher wants to develop a brand, he may compensate the author in order to be the author’s announced sponsor. Would any publisher do this? Some may be tempted to do so because this marketing strategy is not worse than any other.
If the author is well-accepted, his next work will be sold at a higher price. Publishers will compete for the opportunity to publish it first. Obviously, being the first in this environment means being a brand. What if the very first publisher robs the author; say he does not give any written promise, takes the work, and publishes it under some other name? This does not change the situation much, because the author can take the work to another publisher and expose the first one as a fraud. Moreover, if the first work earns a considerable amount, a second one will not be stolen because other publishers will come forward in order to publish it. Thanks to Selftuning—that is to say, thanks to the no-exclusive-rights situation— sooner or later the real author will become known. Also, corresponding outcomes for the author, the publisher-thief, and the entire artistic and publishing community will result. Particularly, the author may turn to the courts and sue the publisher for breach of contract. For this scenario, the author would need another copy of the work and a witness to his agreement with the publisher-thief. Such measures can effectively secure any work from theft.
Now, suppose the first work does not earn anything; this means the work was not admired. In this case, the entire scenario starts

over with his next work.

Summary

For the first summary, let us stress that as long as this model creates a highly competitive environment, publishers have to fight to develop brand names. A publisher may achieve this by trying to: (a) always be first, (b) offer the best in terms of quality to the public, or (c) sponsor authors instead of “freeloading,” thereby providing additional incentives to authors.
It is noteworthy that as far as all works are accessible to all publishers, the success of an author depends solely on his talent. If an author lacks talent, no one suffers but the author.
Actually, I used to think that no-regulation environment would be much worse than it appears now. It looks as if it could result in a fairly self-tuned market that would be extremely challenging for all parties. It is unlikely that any work of art may escape unnoticed in this environment.

A Historical Excursus

The Self-tuning model is based entirely on contractual law. If this model were in place, publishers with considerable economic power would eventually plot to contract authors and publish in a copyright-like manner. That is, they would try to get rid of competition and secure their portfolios and revenues for a certain period of time. The next step would be an attempt to gain government support for that “copyright-like manner” in order to hinder authors from dictating conditions. This is what happened in Great Britain with the Statute of Queen Anne in 1710.
For about two hundred years before that, the Crown had resisted the demands of licensed scribes (and later big printers) to limit printing and restrict the spread of the printing press. In 1710, the Crown was eager to get rid of anonymous pamphlet writers; this desire by the government for effectual censorship coincided with big printers’ thirst for easy money. That mutual interest brought about the Statute of Anne. It is ironic that the same law in its basic features was later adopted in the U.S. in order to provide for “the progress of science and useful arts.” The question is, how could the same mechanism work in such a contradictory fashion—to back both monopolies for the “big guys” and provide incentives for the smallest ones, the “starving artists?” Across centuries and among countries, publishing monopolies
have clearly proven to be useful only to governments and big publishers. The pretext proffered to the public is that said monopolies protect authors, promote creativity, develop culture, etc. Has this ever been proven in reality? The answer is: No. Much speculation has been produced but never any proof.

Publishing Monopoly or Copyright

While analyzing below how copyright works, I am going to determine the differences between the two models.

Scenarios

Well, our author has to shop for a publisher. He may never find one, thus end of story.
Suppose he finds a publisher. He may conduct preliminary negotiations before having his book published. Suppose his work is accepted. The author will be paid a certain amount of money. If the sum is considerable, there is a happy ending. There is no difference from Self-tuning so far.
If the publisher wants exclusive rights or a monopoly, he may pay more. This monopoly will last for the period of time determined by law; this is the first difference from the Self-tuning model. If the publisher does not want exclusive rights, the author can take a copy of the manuscript to another publisher and get paid by both. However, this is not likely to happen, because nowadays the idea of exclusivity is ingrained in people’s minds. Due to a copyright-driven “business model,” no publisher would accept a work if it is being handled by another publisher.
What happens after publication? This depends on how well the work is accepted by the public. The author gets exposure depending on the marketing efforts and abilities of his sole publisher. This is the second difference from the Self-tuning model. The author’s next work may garner more money if the first one became famous. In this case, publishers compete for the opportunity to be the first in line—if the author did not sell the rights in advance.
There is another circumstance fostered by the legally enforced printing monopoly: having secured a certain amount of work for a prolonged amount of time, a publisher may not be interested in buying another book. This is the third difference. Or he may buy it not in order to publish it, but to prevent competitors from doing so— the fourth difference. In any case, this is exactly what big publishers have fought for: easier lives at the expense of the public and authors. This is how the printing monopoly strips authors of potential income instead of providing it. The latter phenomenon affects an author in yet another way. The author, condemned to selling his work to just one publisher, has to consider this dilemma and make adjustments to his work. This trend plainly undermines creativity—the fifth difference. This last feature of the copyright-driven environment is of specific interest because it directly contradicts the proclaimed goal of exclusive rights: to provide for “the progress of science and useful arts.”
What if a publisher robs the author: he does not give any written assurance, takes the work and publishes it under another name? This changes the situation dramatically. Having exclusive rights, the publisher can prevent other publishers from acquiring the work and thus is assured that no one ever learns who the real author is —the sixth difference.
However, this variant can result in a poor reputation for the publisher-thief. Moreover, the author may turn to the courts and sue the publisher under copyright law—the seventh difference. But again, if the theft is not proven, the author has lost his work forever.
Another new feature requires explanation. Remember, because of the very nature of art, we, the audience, develop personal relationships with a work of art. We noted earlier that these relationships are, in fact, very similar in nature to those with real people. The only difference is the consequences. If a desired work of art is not accessible, no substitute would suffice. If you want to read the Bible, only the Bible will do; if you want The Lord of the Rings, then you want only The Lord of the Rings. It is a personal issue. Yes, in practice, if you cannot get the artistic work that you want, you may find some “substitute,” but this would be as upsetting as substituting a good friend with someone else. This means that a publishing monopoly of a book is, in fact, as effective as if this book were the only book on the market. Thus, copyright causes prices to be raised to the maximum level possible—the eighth difference. Like with a casual monopoly, this feature hinders public access to distributed works and thus negatively affects the market.

A quite unexpected development within the copyright-driven environment is the promotion of effective plagiarism—the ninth difference. How is this possible? Normal plagiarism cannot survive within the Self-tuning model because the public is acutely sensitive to it, and no publisher would risk his brand while any original work is at his disposal. On the contrary, selling a book similar to a best seller is particularly tempting within the copyright-driven environment. In order to do so, one only need provide measured formal differences from the best seller. What is it if not plagiarism? Some publishers prefer to buy plagiarized work instead of buying something genuinely new with an uncertain sales projection. Hence, we have one more blow to creativity caused by the publishing monopoly a.k.a. copyright.

Yet another consequence of copyright is that, having a portfolio to profit from for years to come, publishers are compelled to prolong current public predilection for the arts. Publishers must therefore try to influence audiences in order to achieve this—the tenth difference. They need to discourage the promotion of new ideas, new aesthetic approaches to arts, new kinds of arts, new genres, and so forth. Moreover, by investing money in this impediment, publishers are driven to promote “new” works to fit the same old picture, thus contributing again for the third time in the suppression of creativity.

Now let us get back to the author. Suppose the first work does not earn any money, which means the author has not become well-liked. The entire story starts over with the next work. However, it is harder for the author to start over in an environment poisoned by publishing monopolies; publishers with established portfolios would not risk working with an unsuccessful author. It would not matter whether he were a misunderstood genius or someone who just failed to convince a powerful publisher to market his work. On the other hand, a publisher with exclusive rights is interested in promoting the work, no matter how bad it is—this is the eleventh difference from the Self-tuning model.

Summary

I used to think that the copyright model was not as pathetic as it appears now. It appears to be totally disruptive for any normal market development. A toxic copyright-driven environment pressures a creator to give in to the tastes of publishers. It compromises creativity in at least three ways, as seen above. Copyright promotes effective plagiarism. In this monopoly-based environment, any work of art may disappear unnoticed, regardless of how brilliant it is. High prices suppress the book and art markets’ normal development.

This last trend causes tension in the industry and spurs attempts to extend the initial monopoly even further in order to restore vanishing profits. Actually, such attempts manifest themselves even before the market shrinks. As long as the idea of monopoly is considered proper, rights holders desire it and religiously fight to extend it.

The copyright trick amazes me more and more. It adversely affects culture and civilization in many ways, while it helps big publishers to more easily go about their business. It is noteworthy that nobody even knows whether “easily” means more profitable or just the opposite!

Authoright

I want to reiterate some of the guidelines of this really simple model. We saw that the Self-tuning model provides a good framework for cultural and culture-related business development. Still, the author’s well-being is uncertain because publishers are not required to attribute. Thus, it seems to make sense for society to require attribution. What about other features of this model? Based on the ideas presented in previous chapters, I assume the following:

• The natural law of culture that results in its normal development is ultimate freedom.
• No cultural phenomenon can be owned.
• Only a material thing with a cultural phenomenon inscribed within it can be owned.
• The cultural equivalent of physical stealing is lying.
• Cultural phenomena are produced in an individual mind or in the free communication among individuals.
• Culture, when governed according to its nature, rewards authors, publishers, and society as a whole to a much greater degree than under current law.
  

Hence, the main features determining Authoright are:

• No entity of any kind may control or regulate in any way the copying, sharing, distribution, performance or another public use of an idea, work of art or any other cultural phenomena.
• Most importantly, there must not be any restriction in the creation of derivatives or any other artistic use of a work.
• Every author has the eternal and inalienable right of attribution.
• An author may sell his works, but not his “rights.”
• A publisher or any other entity may pay an author for the right to be named his sponsor.
• No company, organization, or group entity of any kind or nature other than the actual author of a creative work may be considered the author.
• The source of a work must be attributed in every public use of the work.
• Any sponsor of an author, a single work or a single publication deserves attribution.
  

The full text of the Authoright can be found in the Addendum.

Below the differences between models will be highlighted.

Scenarios

Our author has to shop for a publisher. He may never find one, thus end of story. However, we have to note this kind of outcome is less probable here (and within Self-tuning as well) than in the environment poisoned by publishing monopolies. Since it is much more difficult to secure a monopolized portfolio for a considerable time, it is vital for a publisher to be the first to find a new work or discover a new author—this the first difference from copyright.

Suppose he finds a publisher. He may conduct preliminary negotiations before having his book published. The author will be paid a certain amount of money. If the sum is considerable, there is a happy ending. It is noteworthy that this kind of ending is more probable here because there are no exclusive rights. An author and his new work are now more valuable for many reasons—the second difference from copyright. The first reason is that he is free to sell his work to as many publishers as he wants. The second reason is that only individual authors can claim authorship. The third reason is that the best way for a publisher to develop a brand is to be the first to get the work.

If the publisher wants exclusivity (until the work is published) he may pay more. The same story happens within other models. The difference lies in time frame only, and this affects publishing only. We saw that copyright causes nothing but negative results here.

If the publisher does not want exclusivity, the author may take a copy of the manuscript to another publisher and get paid by both. Again, this is not likely to happen under copyright just because it is against copyright-driven “common sense.”

What happens after publication? That depends on the acceptance of the work by the public. Generally, the author gets more and more exposure as long as other publishers reprint and sell his or her work. They do this while it earns money. Thus, the entire competitive publishing community promotes the author—the third difference. If a second-hand publisher wants to develop a brand, he may pay the author in order to be the author’s announced sponsor—the fourth difference. The last two features have a more powerful effect within Authoright, as contrasted with Self-tuning, because attribution is mandatory here. More important is that an author would now be really free to create and would have no need to adjust to anyone’s taste; only his inner interlocutors would dictate what he writes. Having his name protected by law and the work promoted by the entire publishing community, the author knows that he will be judged by the public for his work and talent only—the fifth difference from copyright.

Does second-hand publishing provide any incentive to the author? It can. For example, if a publisher wants to develop a brand, he may pay the author to be the author’s announced sponsor. Will just any publisher do this? Some will, for this marketing idea is not worse than any other.

If the author is well-accepted, his subsequent work will be sold at a higher price. Publishers will compete for the ability to get the next one first. Being the first means being a brand; publishers must be quite fast to grab any new work in Authoright-driven environment. This is significant in terms of incentives for authors—the sixth difference from copyright.

What if the very first publisher robs the author, does not give any written promise, takes the work and publishes it under some other name? This does not change the situation much, because the author can take the work to another publisher and expose the fraudulent one. Now, if the first (stolen) work earns considerable money, a subsequent one will not be stolen because other publishers will act in order to get it.

The case of the stolen work results in a poor reputation for the thief, so he must take this into account. The author may turn to the courts and sue the publisher under Authoright law—this is the seventh difference from copyright. (Authoright also differs here from Self-tuning, where the author can use only contractual law.) It is worth noting that under Authoright an author can sue for theft of name only. What is important is that even if theft happened and even if it is not proven, the author may compete with the publisher-thief— the eighth difference from copyright.

We have previously discussed how, because of the very nature of art, the audience develops a personal relationship with a work of art. We know that such a relationship is similar to one with real people. The two differ only in regards to the resulting consequences. Additionally, regarding access to a desirable work of art, no substitution suffices. We already concluded that because of that feature, a printing monopoly on one book allows the rights holder to raise the price as if this book were the only one on the market. This is impossible within the Authoright environment, where a work of art is accessible for everyone to copy and use in any way possible from the very moment of its first publication—the ninth difference.

As seen previously, another quite unexpected development within the copyright model is the promotion of actual plagiarism cloaked in hypocrisy (the rationale is that it is feasible to promote and sell something similar to a best seller, providing carefully measured differences are incorporated). This would not work within the Selftuning and Authoright models because the public is acutely sensitive to plagiarism, and no publisher would risk his reputation while all original works are at his disposal. Again, while copyright promotes plagiarism and compromises creativity, Authoright promotes creativity and makes plagiarism impossible. It spurs a natural drive to create or acquire original works—the tenth difference.

Authoright eliminates the possibility of another negative consequence of copyrights: the publisher’s motivation to discourage the development of audiences—the eleventh difference. Insofar as publishers cannot secure a portfolio longer than necessary for the preparation of a work for publication, they have no interest in stagnating public taste. In this environment everybody seeks out new work, and it is profitable to have the public inclined to and capable of understanding anything new. It would be in the publishers’ best interest to encourage the public to learn new aesthetic principles, genres and so forth.

Now suppose the first work does not earn any money, which means the author has not become well-liked. The entire story starts over with the next work. A new start is likely to be easier in the Authoright environment, where the publishers and the public are in an ongoing hunt for new work and authors—the twelfth difference. After all, the only things which truly matter within Authoright are a work’s brilliance and the author’s talent.

Three Models: Summary

In general, the Authoright model includes the advantages of both the Self-tuning and the copyright models while having none of their disadvantages:

• Under Authoright, as under Self-tuning, an author is more likely to find his first publisher if he is unique. And vice versa (unlike under copyright), an author is less likely to find a first publisher if he just replicates a well-selling author.
• Within Authoright, as within Self-tuning, an author is a more valuable asset than with copyright and thus always has a chance of getting paid more from the very beginning.
• Unlike any other environment, it is impossible under Authoright for any entities other than individual authors to claim authorship. This specific feature puts an author into the center of a culture-related marketplace.
• As within Self-tuning, Authorighted work gets promoted by the entire competitive publishing community. Under copyright, however, the promotion of a work is restricted to the goodwill and real abilities of one publisher or another rights holder. Moreover, under Authoright, promotion of a work automatically means promotion of its author and depends entirely on his talent.
• Similar to Self-tuning, Authoright allows an author to sell his work, either literally fixed in some media or in the form of sponsorship, as many times as possible. With copyright, he is actually condemned to a one-time or otherwise limited sale. Any entity may sponsor an author in any environment but this cannot be really used with copyright for two reasons: first, the commercial and other public usage of a work of art is extremely limited; second, the rights holder is usually in full control of the work and may not be interested in promoting a sponsor. This may be useful under Self-tuning but to a lesser degree because attribution is not required.
• On the other hand, even within Self-tuning, an author’s name is protected at least twice. First, unwritten, academic-like standards for attribution have to emerge. Second, it is in the publisher’s best interest to attribute a work to its known author. Theft may occur, as discussed, at the very first public appearance of an author’s work. However, this is not profitable in the long run because the author’s name becomes a stamp of quality. If, nonetheless, theft does happen, there are certain protections which are even more effective than copyright law. Needless to say, the same mechanisms work under Authoright.
• Under Authoright, as under Self-tuning, the more talented and unique an author is, the more he gets promoted. On the contrary, under copyright the author is pushed to follow best-selling examples, that is to say, to plagiarize.
• Under Authoright, as under Self-tuning, an author is not limited in learning from others. On the contrary, under copyright, an author cannot freely learn and build upon the works of others. He is pushed to artistic naivety.
• Under both copyright and Authoright, an author can legally protect his name. Under Self-tuning, however, he has to use nonspecific laws. This feature does not amount to a considerable advantage for Authoright; the author can just more easily protect his name. As I said earlier, it is likely that unwritten self-enforced rules will emerge as they have in academia. This feature may, however, become significant during the shift to Authoright because of more than three hundred years of total disrespect for authorship fueled by copyright.
• Under Authoright, as with Self-tuning, if a publisher steals an author’s work, the author can still compete with the thief. On the contrary, under copyright, a work, if stolen and not recovered in the courts, is lost forever.
• As under Self-tuning, under Authoright, markets are flooded with works of art along a spectrum of content, quality, and price. Under copyright, market development is limited at least twice: first, by direct publisher regulation, and second, by monopolistic pricing.
• Within Self-tuning and Authoright, a work is promoted by any publisher willing to make money from it. It is exposed regardless of the financial or other abilities of specific publishers. Within copyright, however, exposure of a work depends on only one publisher. Hence, the author is naturally forced to look for a big publisher, which means that copyright also enforces regular monopolies. This trend once again back-fires on the author, forcing him to bow down to the tastes of a big publisher in order to be published, promoted, and paid. Thus, the author’s dilemma in the copyright-driven environment is in fact: “more money means less creativity.”
• Under Self-tuning, as with Authoright, an author is discouraged from committing plagiarism, while he is encouraged to do so under copyright. Where there is no publishing monopoly and all works are accessible to all publishers, publishers are naturally driven to go after the best and acquire them by all means necessary. Conversely, under copyright a publisher retains his portfolio for a prolonged amount of time. This portfolio is at the heart of the copyright business. Here, a big publisher may invest big money into the promotion of a work. Others are tempted to follow; they will try to buy something similar to gain some profit. There is no sense of urgency by publishers to find the “best.” The only urgent need is to get something sufficiently different from a best seller and monopolize it. Plagiarism is encouraged and reveals itself in false diversity when the market is flooded by imitations that mimic greatly promoted works. We should emphasize that under copyright, only well-promoted works, not the best ones, are imitated.
• Under Authoright and Self-tuning, derivatives are allowed without restriction as a natural way for culture to develop. On the contrary, a creator’s freedom to build upon earlier works is suppressed under copyright, while a plagiarist can easily measure the level of formal difference and follow all necessary formalities to be published.
• Under Self-tuning and Authoright, publishers are interested in public development while under copyright publishers are interested in the obstruction of public development.

Conclusions

All positive speculation about copyrights, patents and other exclusive rights looks somewhat rational on the surface but actually works in the exact opposite way.

Authoright, which governs cultural affairs according to the nature of culture, creates highly competitive, aggressively growing markets with the omnipotent and omnipresent drive towards novelty and provides competitive incentives for authors and publishers.