Art, sharing and copyright

November 5, 2011

There are some things that Western society usually encourages. Not that other societies don't, but the West is the one I know. Art is held up as a sign of civilised life. Sharing is considered one of the most basic social skills. The rule of law is something we have set up enormous governing entities to try to preserve. Yet we are at a point in our development as a culture where a sharp conflict exists between these three principles: create art and cultural works, share what you have and obey the law.

The conflict arises out of a set of laws that were intended to give artists protection against other people passing of the artist's work as their own. I am referring, of course, to copyright law. Copyright law allows the creator of a work to control who copies it, and under what conditions. The law says that we are forbidden from copying a work unless the creator gives us permission.

This rule gave artists an easy way to make money: I, the artist, make many copies of my work, and sell them to you. That works as long as I have control over the creation and distribution of copies. Which, in turn, works as long as copies are hard to make.

The problem that has arisen lately is that many works of art and cultural works (e.g. music, movies and TV shows) have been getting easier and easier to copy, now that we use computers so much. Copyright law has become unenforceable, because copying is so deeply embedded in the way we get data from one place to another. Copying had to become cheap, because we rely on it so much that we had to make it cheap. And now that it's cheap, anybody can do it.

That means that the creator of any work that can be converted to digital form is no longer in control of its distribution. Well, legally speaking they are, but in practical terms that control is so easily broken that it's easier to say it doesn't exist.

Not only that, but as the number of copies of a work explodes, the value of each copy collapses. When record labels only distributed copies of songs on tapes, making illegal copies was a lot harder. The only people who did a lot of it had special equipment that cost a lot of money. Those people generally considered that cost an investment; they were selling their illegal copies for a profit. We bought them because we couldn't afford to make them ourselves. Now that we can, the "bootleg" recording trade is dead and gone. We swap songs with each other for free, and because everyone can do it, there's no profit to be made from illegal copies.

So is there any profit to be made from authentic copies?

As with so many seemingly straight-forward questions, the answer is "well, it depends." If authentic copies of your work are easily distinguished from unauthorised copies, then yes. You still have something scarce enough that you might be able to make money by selling copies. Paintings, sculptures or films on celluloid might qualify here. But if your work is easily copied with little to no loss (say, a movie on DVD), then you're going to have to find a different way to make money from it. Public performances (like at the cinema) and merchandise are popular options, and convenience is a good one too (think of the iTunes store). But as long as you're selling something that can be reduced to bits, you'd better be selling something other than just the bits themselves.

Some copyright owners choose to use the legal system as a way to make money from their works. Mostly these copyright owners are not the creators of works, but instead have made an agreement with the creator that allows them to make copies of the work, sell them, and sue others who do the same without permission. The most common practice is to use a court order to get the contact details of someone whom you suspect has been making illegal copies of your work, then get in contact with that person and threaten to sue them, unless they pay you an amount of money that is just a bit less than the cost of going to court. Because going to court would cost you more money, and there's a chance you might lose.

What this means is that you're using the court to get money out of someone, and not to start a court case. And the legality of such a move is ... blurry. (I am not a lawyer. This is not legal advice.) It's pretty hard to prove that someone is threatening to litigate without intending to go to court. But the strategy has been compared to extortion; it certainly has a "pay up or else" ring to it.

Anyway, the practical upshot of everything I've been saying is that we have some strong community values that are in conflict, and the balance between them won't be restored easily. In the meantime, if you are creating works that can be made digital (and the number of things that can't is going down steadily), you might have to be a bit more clever in order to make money. Not because you don't have the right to make money from your work. You do. It's just not going to be as easy as it was. You'll need a model that's more than just "copies for cash." Because that's going away. Piracy, sadly, is not.