Battle lines are drawn, or so it seems, with a gulf opening up between creators and consumers on the future of copyright. No one can deny the extent to which the web has disrupted business models based on copyright. Legislation needs review it may well get it, but I fear that the gulf will be too great to generate a healthy and sustainable result. At its core are arguments between producers and upholders of copyright, and the new digital advocates for consumers and creators who see copyright as a barrier to innovations and creativity. I won’t make claim to any answers, but a few points come up again and again. This post doesn’t advance a comprehensive argument; it notes a few thoughts I have on the issues. They may be misguided or not well-enough informed. Comments are very welcome.
Assume these things
Creators have a right to make a living. We all need to acknowledge that.
Creators currently rely on producers. That may or may not change, depending on the creator. Some will be capable of producing a polished and desirable product that consumers want. Others will still require and benefit hugely from the services or professional editors, designers, and other production staff.
Producers needs to make a living too. They add value and need recompense for that effort and added value.
Innovation and creativity relies on sampling and re-using existing material. We stand on the shoulder of giants and all that comes before us. Fair use generally makes that possible and fundamentally copyright holders don’t get in the way of legitimate creativity and new works.
Some jurisdictions are going too far in new copyright protections. Think Disney and Mickey Mouse, Happy Birthday, and the like. It’s creating a barrier to creativity based on those common items of popular culture.
Distribution rights may be based on copyrights but they’re not the same thing.
If it’s broke, fix it
Where consumers bemoan not being able to buy Game of Thrones in New Zealand as soon as it screens in the US, that’s not about copyright; it’s about distribution. More than that, it’s about producers not responding to global demand and instead trying to maximize profits on a territory basis.
Conversely, producers who use the moral argument of protecting creators through copyright to justify maintaining the current territory based distribution right model are just not facing up to a broken business model that the web will not allow to survive.
When producers cry foul about copyright infringement, whose rights are they most concerned about? Often the argument is made on behalf of creators (think of the poor starving writer), when in fact producers have already captured the commercial rights of individual works. For a particular piece of work, producers can only really be concerned about their commercial rights in the product, short of the typically small sum passed onto creators by way of royalties.
But there’s a systemic justification: if the producer makes money off one product they can invest in subsequent products, which may in turn support creators and foster further creativity. Undermine the ability for producers to add value and derive an income destabilizes that system.
Where it gets interesting is in, for example, the recently announced withdrawal of the editorial offices of the likes of publishers Hachette and Pearson from New Zealand. As noted here, copyright and (what I think is a broken distribution system based on unenforceable) territorial rights played a part in Hachette’s departure. (As an aside I’d also argue against GST full stop, but that’s a different post.)
The irony here is that part of the problem is parallel importing – the practice where something can be imported into a territory (say, New Zealand) by someone despite someone else owning the right to distribute that product in that territory. But that parallel importing is being made possible by the multinational owners of the local publisher. The multinational is in effect putting its own subsidiary out of business.
That aside, and whatever the reason for multinationals closing their local offices, it means there are now fewer publishing channels available for New Zealand writers, particularly those wanting an entree to an international market via multinational publishers. It breaks part of the system that supports local writers.
That’s a very real problem that producers are struggling with; others need to help, and creators need to understand how serious a problem it is. Undermining copyright won’t address that problem; nor will extending or enhancing it. Perhaps we need to forget copyright and focus on finding a new business model that doesn’t rely on territory based distribution but still creates enough wealth to support creators and producers is the critical issue.