16 May 2010

Who owns ideas?

From a discussion I led on 7 January, 2010. Some of this needs re-writing — my understanding of how book publishing works has changed a bit and what I stated here was oversimplified — but the basic ideas are, I think, solid.

In a capitalist world, one can meaningfully ask the question, “who owns ideas?” Try owning one -- you'll quickly run into an absurdity. What we mean instead when we ask the question is, “who owns the right to make use of an idea?” And while in a free consideration of that question one still quickly collides with absurdity, now we have an absurdity that someone can make money off of. It is in this world possible to restrict who makes use of an idea and how they use it. Therefore, capitalism has invented the idea of copyright.

1 Definitions

Intellectual property is “the conversion of intellectual, creative, and all other non-material labour into a commodity.” In a capitalist system, which attempts to commodify everything, it is natural that the idea of intellectual property will emerge, and furthermore natural that it will be formulated in such a way as to favor the ruling class.

In the law there are three major types of intellectual property. The one we'll discuss tonight is copyright, which commodifies creative works such as art, literature, and music; another major area which is complex enough to be a discussion in itself is patent, which in its modern form protects inventions, methods of doing business, and in the broadest sense methods of creating wealth. The third area of intellectual property law, trademark, protects things like brand names and slogans; while trademark is open to abuse just as patent and copyright are, the issues associated with trademark tend to solve themselves in the act of working-class revolution and the transition to socialism.

I should also mention briefly the ideas of censorship and privacy. While censorship and privacy are not recognised as part of intellectual property law today, in the modern era all intellectual property questions collide with questions of these ideas and we should at all times have in the back of our minds basic rights of the individual with regard to freedom of thought.

2 The copyright system exploits workers

I'll start off the discussion of copyright with the following statement: the copyright system operates under the pretense that it protects the creators of art, but in practice, it is an institution that exploits those creators for someone else's profit.

Art is an odd commodity. Its value is really only measurable at all after it's produced, its value changes depending on the social context it's in, its value is basically subjective. You can't go to a store and ask for “fifteen feet of art” -- at least, not if you're expecting it to be good art. Nonetheless, people make their livings as artists, musicians, writers. And art is bought and sold, sometimes not even on some kind of inherent value but on the reputation of the artist or the rarity of the work.

The copyright system emerged almost as soon as it was economically possible: with the introduction to Europe of the printing press. Some dates: Gutenberg's printing press starts in Germany about 1436, the first German copyright is issued around 1501. Caxton's press goes into operation in 1475, the first copyright is issued in England in 1518. This underscores an important part of copyright: copyright is not the legal ownership of an idea or a piece of art (we'll come to the question of ownership of ideas later), but rather, copyright is the right to reproduce a piece of artwork or literature or music. Now, look at what's quietly happened here, with this transformation of the “industry” of art. For thousands of years, each bit of artwork was unique, had to be made by the artist themselves or, in the case of literature, copied by a scribe (usually a monk) who would add his own artistic touches to the piece. Suddenly, with the printing press, we can create art in abundance -- but the means of production, which was entirely in the hands of the artist, is suddenly, in large part, under the control of the person who owns the printing press!

Copyright quickly evolved the following standard: the right to reproduce a work originates with the creator of a work, who has the freedom to sell the copyright or not. But for an artist working in any kind of mass media, this is equivalent to bourgeois “freedoms” like the right not to work, and if you starve it's your own problem. Under the capitalist copyright system, an artist must become alienated from the fruits of their labour. So we see that capitalist copyright, the commodification of creative work, is bound up in the earliest steps of the proletarianization of artists.

Now, how far can this alienation extend? I think one of the best examples of this is Paul McCartney. We're probably all familiar with Paul McCartney's work; as a member of the Beatles from 1962 to 1970, McCartney is credited with writing dozens of the most famous songs in the history of pop music. In 1963, McCartney and John Lennon, who had been professional musicians since their teenage years and were quite naive to the ways of business, were persuaded to set their songwriting work up as part of a publishing company, with the copyrighted material held by that company. In 1965, for tax reasons, their manager convinced them to let the company go public. To make a long and complicated story short: Paul McCartney, when he performs in concert, now has to pay a fee to perform songs he himself wrote. Even with all the money McCartney's made in his musical career, he has not been able to afford to buy the rights back.

It's hard to feel too bad for Sir Paul, however. McCartney's own holding company, MPL Communications, owns the rights to the bodies of work of half a dozen other composers and musicians, including that of Buddy Holly.

Something else I'd like to point out: we're talking now about music, but copyright was originally a legal framework for dealing with printing. Although in theory in the 16th century you could copyright a song, the law simply wasn't applied to music at that time; nobody could record music until the early 20th century so extension of copyright to that area simply wasn't practical. This gives us a nice illustration: while we have a functioning copyright system for print before and throughout the rise of industrialization, music remained unregulated, so we can see what a system of artistic exchange looks like without copyright restrictions distorting it.

In the days before copyright was extended to music, hardly anybody was paid for songwriting, and hardly anybody got credit for it. Yes, there was a tiny minority of professional composers, and this is the music we're taught about in school; I won't reject the value of artists like Tchaikovsky or Debussy. But most of what was getting written, and most of what was getting performed and listened to, was the music of the workers and peasants. Musicians would learn songs from each other, and they would perform them, interpret them, modify them, and pass them on at will. Professional musicians made their livings on performances, and traded on their abilities and their reputations as performers.

From a capitalist perspective, there was no incentive to write songs and no incentive to learn new ones. And yet, the sky failed to fall, the oceans failed to rise up, and new art continued to be created. Somehow, in the absence of copyright regulations, music survived, with musicians living a basically petty-bourgeois life.

In terms of income, by the way, things have gotten worse for musicians. For a period of about eighty years, from around 1920 to 2000, to get mass exposure as a musician you needed to sign a contract with a recording company, but these contracts have always been so one-sided in favor of the recording company that the vast majority of most musician's incomes strill come from performances. You hear about “royalties”, these are small payments made to an author for each book sold or to a musician for each record sold; but the average musician can expect to get no more than between two and seven pence on the pound for record sales, the average author ten per cent of book sales. This will make you very comfortable if a million copies of your album or book sell for fifteen pounds each; but publishers invariably concentrate promotion on a handful of artists and authors and the vast, vast majority of signed artists and authors -- more than ninety-nine per cent -- will never make a living off their creativity.

The super-exploitation of creativity by capitalism doesn't stop when the artist dies. When copyright laws were first drafted, they were monopolies to the publisher that lasted for, at first, two years. Over time this extended to fourteen years, then twenty, then thirty, always ending with the death of the author. The theory -- even put forward by bourgeois scholars of the time -- was that after a certain period of time, a work became part of the culture, in a certain sense owned by everyone: it entered the “public domain”; and furthermore, it was nonsensical to protect the property rights of dead people. But then, around the time of the emergence of monopoly capitalism in the media, something very strange happened: the law began to assert that not just people but corporations could be authors of works; and that copyright could extend for decades beyond the life of the (in this case human) author. The most recent extension in the United States, which has historically gone the most overboard with copyright term, was passed in 1998 and protects all works published after 1923 until the year 2019. Why are these years important? Well, under the old law, Mickey Mouse, who first appeared in 1928, would have entered the public domain in 2000. This is not a coincidence, and today it is routine that lobbying by the biggest and most-established media companies distorts the picture of copyright far beyond the first flailing dreams of its creators, in an attempt to commodify the entirety of modern culture for the benefit of a tiny minority of corporate interests.

3 The early Soviet approach to copyright

The problems of the copyright system had not yet reached such a fever pitch in the early 20th century, not least because at the time international conventions on intellectual property were not firmly in place. Nonetheless, the theoreticians of the early Soviet Union recognized the basic failings of the copyright system and made attempts to strongly reform it while retaining the general mechanisms of the bourgeois system preceding it.

There was no consensus in the early Soviet attitude to the development of culture in the workers' state. One group under Alexander Bogdanov put forward the idea that the Party should actively, through a special ministry, the Proletkult, encourage the development of a “proletarian culture”, in collaboration with pre-existing left-wing artistic movements. Trotsky, meanwhile, put forward the idea that discussion of “proletarian culture” was meaningless, as the ongoing revolution would dissolve the proletariat into a classless society with a new culture of its own making; and besides, the more urgent question was that of spreading the revolution. Lenin took a middle position, supporting the existence of Proletkult but minimizing its autonomy and ensuring its subordination to the Ministry of Education.

Meanwhile, the construction of public monopolies on publication and reproduction of recordings in a workers' state changed the relationship between artists and publishers. As Trotsky outlined, the role of the state in the early Soviet Union with regard to art was to encourage the publication of works that moved the revolution forward, and block the publication of counter-revolutionary works. The immediate incentive for creators wishing to reach a mass audience was not whether their works would be popular, or even necessarily if those works were very good; but whether they advanced the working class. This was seen as a temporary measure brought on by the necessities of the revolution and Trotsky also stated that revolutionary art should be allowed to develop freely, without state intervention. (Trotsky, Literature and Revolution, 1924, introduction, chap 6, chap 7, especially: “Our policy in art, during a transitional period, can and must be to help the various groups and schools of art which have come over to the Revolution to grasp correctly the historic meaning of the Revolution, and to allow them complete freedom of self-determination in the field of art, after putting before them the categorical standard of being for or against the Revolution.”)

It's against this background that, in 1925, the Soviet Union revised the Tsarist copyright laws to the following program:

• Copyright existed from the moment that the work was created (this is standard worldwide now)

• The right to publish & reproduce was permanently held by the author, who could temporarily assign it to a publishing house

• The scale of royalties was set centrally and authors were given a right to royalties by law

• The term of copyrights was scaled back to 25 years (from the Tsarist term of life of the author + 50), with a limited right of heirs to benefit from inherited copyright.

The state also proclaimed itself to have a monopoly on works by many authors and composers.

In the situation of the time, given the knowledge and assumptions of the time, this is a decent reform program for copyright, but I should underscore that, perhaps with the exception of the inalienability of the creator's moral right to publish, this is still a reform program and no more. Furthermore, as has been discussed earlier, an author's moral right to publish is meaningless if the author still has to find a publisher and convince them that a work is worth publishing.

But I say this jaded by the experience of what has happened in the world since 1925. The eighty-five years that have followed the early Soviet copyright system, both in the Soviet Union and outside, teach valuable lessons about the nature of culture and art and point the way toward a program that could definitively solve the question of copyright.

4 The contradictions in modern copyright

All great commodity booms of capitalism are in reality bubbles. A market inefficiency exists: it becomes, for one reason or another, possible to obtain a commodity in one place for little and then sell it in another place for far beyond its real value. Then, through the nature of the market, the inefficiency is ironed out, the commodity's sale price collapses, and the bubble pops.

I would like to put forward the proposition that the entire music recording industry, the entire film industry, the entire publishing industry -- all the sectors of the economy which depend on the existence of the copyright system -- are all century-long bubbles.

What is the market inefficiency? It is as it always has been: a work is created, but the duplication of that work, making it accessible to a wide audience, required resources first to duplicate it on an industrial scale; and then, as the market developed, to promote the work on an industrial scale.

The advancement of technology in the 20th and 21st centuries means that now, the cost of duplication of a work, in itself, is measurable in milliwatts of electricity -- effectively zero. Meanwhile, the pumping of more and more resources into the promotion of fewer and fewer creators has reached a critical point where the public is reacting against corporate manipulation.

I am not someone who believes that computers are magic or that the Internet can cure all social ills. We must continue to recognize that access to the Internet, in a worldwide sense, is still only available to a layer within the working class -- but this layer is growing, and this growth is itself driven by capitalist interests in making the flow of information less expensive.

Let's look at where the pieces are on the board. The average new CD costs around, say, £10. As noted before, only about 50p of that goes to the artist. Comparable amounts pay for the production, the cost of making the CD itself is one or two pence. Eight-five to ninety per cent of the cost of the CD goes to finance promotion -- often of other albums -- or, since there are few major labels in the market, pure profit as the cost of oligopoly. Meanwhile, that CD, for the cost of one purchase distributed among the whole community, can be copied a practically infinite number of times for practically no cost. Similar situations exist with film, software and, on a lower profile scale but just as effectively, books. This is clearly an unsustainable position in the market. So how do the industries sustain themselves? They react with familiar strategies: propaganda and state terror.

We've all seen how anti-copying propaganda has escalated over the years from the quiet Interpol warning at the beginning of a videotape to the elaborate “You Wouldn't Steal A Car” commercials or the “Knock-Off Nigel” radio & TV campaign. Copying has continued apace, becoming more sophisticated and wider-spread.

But propaganda is not working -- it usually just looks pathetic -- so the state turns to terror. We hear stories about grandmothers brought to court because their grandchildren may have downloaded one or two songs on their computer, we hear about new legislation which might allow the government to cut off a person's internet connection for downloading illegal copies. In other countries, particularly Sweden, the state has made use of indiscriminate police raids and the threat of jail to try to combat copying. But these threats don't work: Over half the British public copies music in violation of the law.

Without going too much into the technical details, information, in the abstract -- and that is what all this artwork is, in the abstract -- obeys the following: it is easy to obscure; and it is difficult to block.

The Stalinists in the later Soviet Union learned that no matter how harsh their censorship regime became, people would still reproduce illegal literature on cheap duplicating machines and pass them hand to hand. The Chinese government attempts to censor the entire content of the Internet for political and social acceptability, and regularly fails -- as wonderfully attested by our comrades there. And in 1999, when courts attempted to block the publication of a bit of computer code that unlocks the encryption on DVDs, computer programmers worldwide made a point of spreading that passage of code so far and wide, with one group even writing it on balloons and releasing the balloons into the air, that nobody could ever put the genie back in the bottle. We can, here, even parallel argument we make about Afghanistan: if the full power of the Soviet state couldn't win against illegal publications, what chance does the British government have?

(The industry has learned nothing yet, by the way; in 2007 they went to court again to try to block the publication of a code that unlocks high-definition DVDs.)

So the state will soon face a dilemma. On the one hand, capitalism tends toward the cheapest state necessary to maintain order. On the other, the vested interests of publishers, studios, and so on are deep. Will capitalism choose to extend the state, intruding into the lives of the working class ever more deeply in order to enforce laws that it must know are unenforceable? Or will capitalism save money by abandoning the moribund oligopolies of the creative industries to the wolves? In the long run I think it will choose the latter; but there will be a very complicated time for the next few years as it tries to make the former option somehow work.

Meanwhile, the free exchange of information has collapsed the barrier to entry for creators who want to work outside the system of publishing houses and recording labels. In the music store, the latest X-Factor winner competes with the latest X-Factor runner-up. But in the online world, those same artists compete for attention with a huge range of performers promoted by word-of-mouth, and each of those independent artists gain so much more from the publicity they obtain by word-of-mouth that they become, if not equal in popularity, then effective competitors able to sustain themselves by performances. In short, with the hurdle of publication gone, the online exchange of creative works has allowed a reversion of the marketplace to its state before the rise of monopoly capitalism in the creative industries. I am not willing to call it superabundance; these artists are still by and large just getting by. But this is nonetheless progressive change.

A key point here is: many of these artists recognize that the source of their wealth is in performance and in the production of new material. So, they release their work under free licenses, requesting attribution but actively encouraging mass copying and distribution.

The question of attribution is not a trivial one, by the way. I mentioned Buddy Holly earlier. Many of Buddy Holly's recordings have the authors listed as “Holly/Petty” -- Buddy Holly and his producer Norman Petty. Petty did not write a single note of any of Buddy Holly's songs, but, living up to his name, conned the naive young musician into sharing credit in order to increase his own share own the royalties from the record sales. In the 1940s and 1950s this practice was widespread. The question of attribution remained on a slow boil before exploding in the 1980s, with two high-profile scandals about false attribution and recurrent and unresolved questions about the nature of sampling sounds from other songs. To date, courts have not produced consistent answers on the subject and many modern artists are tending toward a nihilistic approach, arguing that music exists for its own sake and that sounds exist to be played.

These recent responses are critical pieces of information to understanding the nature of copyright: we've seen how copyright is created for the benefit of publishers, and now we see that in the absence of publishers, copyright fades away of its own accord.

5 A transitional proposal for copyright

So with the experience of history in hand, what should happen to copyright in the transition to socialism?

I think it should be abolished.

We have seen that copyright comes about only when the mass reproduction of ideas is possible but requires capital investment. We have seen that when the barriers to entry into the marketplace of ideas go down, the idea of copyright is quickly rendered obsolete. We have seen that in the time in between, attempts to enforce copyright tend to become more impractical with time. Clearly, if it should come to a choice between propping the copyright system up and letting it fall, then to let it fall is the choice on the side of the people.

Perhaps, intermediately, a copyright system not dealing with royalties and rights of duplication might still persist in an attempt to enforce an artist's desire to receive attribution for the work they do. But even this, as we have seen, runs into complicated philosophical questions. In trying to build a socialist copyright system we are faced with two goals: on the one hand to help artists, as producers, maintain their livelihoods, and on the other to promote the development of culture. Culture never exists in a vacuum; all art is influenced by the art that comes before it. So while it may certainly be polite to attribute the artist whose work you draw on, should the transitional state expend its limited resources on the difficult act of enforcing attribution at the expense of the growth of culture?

And if we allow copyright even for attribution, if we allow one producer backed by the state to dictate what another, equal producer may not do, is that not morally questionable on the deepest level?

So instead of wasting the efforts of the state on holding together a ramshackle construct, we should instead prepare for the world without copyright.

The age of the superstar performer and the blockbuster film will end. And they should, because what will replace them will be better. Recorded music will be free; live performances will proliferate. Films unable to afford multi-million-dollar special effects and multi-million-dollar actors will have to have stories again.

The vast majority of authors will find their books being read more. As a result -- perhaps with the last function of the state publisher being to provide publicly-funded advances and commissions -- the vast majority of authors will be encouraged to write more.

But artists, musicians, authors will not need to rely on the state. In the absence of monopolistic pressure, the natural state of creators will be to form collectives, as some do even now. The transition to socialism in the arts proceeds automatically. Creators maintain one fundamental right, which is truly inalienable: the right of first publication, that is, the decision whether or not what they create ever sees the light of day.

What, then, is our role as the vanguard party of the working class with regard to creative works?

The Bolsheviks wrote about state censorship because that was what they knew, the legacy of the Tsar. But Trotsky also said: “It is childish to think that bourgeois belles lettres can make a breach in class solidarity. What the worker will take from Shakespeare, Goethe, Pushkin, or Dostoyevsky will be a more complex idea of human personality, of its passions and feelings, a deeper and profounder understanding of its psychic forces and of the role of the subconscious, etc. In the final analysis, the worker will become richer.” In a democratic society, with democratic exchange of information, there are no dangerous ideas, because any bad idea which rises to the surface can be discussed, dismantled and discarded. In a workers' democracy, we will never need to ban books -- which is fortunate, because we can't -- so long as we are always prepared, in the course of democracy, to argue for and demonstrate the rightness of our ideas. When information moves freely, our task is as it always has been, but becomes much easier: to become educated, and to educate.

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