Listening to CBC’s Spark on the great copyright debate, I was forced to revise some of my earlier ideas. I agree with James Boyle that debates on copyright should be based upon fact. However, it seems that both sides lack at least one important fact. Before making the claim that “file-sharing” has hurt or helped the recording industry or any other industry, we must have accurate statistics about the number of files being “shared”. Industry has an incentive to exaggerate the number (i.e. higher claims for lawsuits). File-sharers have an incentive to minimize the number (i.e. lower claims for lawsuits).  Both sides seem to be making faith-based ideological arguments.

Exactly how many people are downloading files? Getting accurate statistics could be impossible since the people doing the most “file-sharing” have little incentive to be honest when they face potential lawsuits.  Secondly, once a file is downloaded to a computer there is no way to determine exactly how many times it will be re-distributed. Files can be burnt to a CD without going through the Internet. Files can be placed on a USB key or an iPod without going through the Internet. How many times are such copies being made? No one can determine that accurately and anyone who claims they can is engaged in faith-based statistics.

As a professional visual artist, I am keenly interested in the copyright debate; it affects my livelihood. To claim as some people have that money has nothing to do with copyright is intellectually disingenuous. Why has industry spent millions on lobbying for copyright legislation?  Why are some recording artists, such as Elton John or AC/DC, so opposed to the Internet? The perception that money is being lost is at the heart of the copyright debate. To convince the skeptics among us, file-sharers must address the skeptics’ concern about money. Failure to do so will only convince them to be more skeptical.

As an educator I am also interested in how copyright affects academic freedom and the ability of educators to help students develop new knowledge. I find that both sides in this debate tend to have a simplistic one-size-fits-all solution. Throw everyone in jail or make everything free. I think we need different types of copyright to cover the different uses of media.  What that would look like I am not certain but I know whatever solution is arrived at has to address the monetary concern of the skeptics. The skeptics are the source of most of the opposition to new technology.

I wrote this in response to http://onphilosophy.wordpress.com/2006/12/04/the-ethics-of-file-sharing-2/

I want to pick up on this concept of wealthy patrons.

“Certainly a world without Mozart or Bach would be a poor world to live in. But wait, Mozart and Bach made their music without the support (or even existence) of any kind of record company! Like the painters and sculptors of their time, they were supported by wealthy patrons. I suppose that in this modern era it might be possible that such a system wouldn’t work, but our modern painters and sculptors seem to get along just fine (ok, well most of them have to supplement their income with other jobs, but they still are able to produce great art). So if the record companies collapsed I suspect that music would simply go back to being made in this way. That means that there would certainly be far fewer musicians than there are today, but quantity doesn’t always mean quality. Maybe we would only have one pop band. In fact I think that such a system might even encourage higher quality music, since the musicians would have to fight harder to get patrons.”

The reason the patronage system broke down is because wealthy patrons tend to be conservative in taste. New music and new art was not receiving official support and in some cases was actively suppressed. Artists who were creating unique paintings or unique musical compositions had to fight to get their work seen and heard. In the case of visual art, no one remembers the art of patron-supported artists but everyone has heard of the Impressionists (Monet, Manet, etc.).

The worst thing that could happen to art would be to go back to limiting art creation to a few mediocre artists who have official support. Jazz, Rock & Roll, Reggae, and Punk music were all new musical forms that were suppressed at one time. Conservative people with money tried to destroy these new musical forms. It was because artists were able to make money WITHOUT PATRONS that these forms survived and flourished while the officially supported music of their time has largely been forgotten.

rms

I had the good fortune of attending a lecture by Free Software Foundation President and Founder, Richard M. Stallman (rms). Stallman often makes distinctions between free in the monetary sense and free in the civil rights sense. His talk focused on freedom in a civil rights sense. While his focus was on software, the most important parts of his talk for me were his statements on art. Some highlights from his talk:

• Free software is about sharing and corporations don’t want people to share because they are afraid of losing money.
• People can still make money if they share
  e.g. MP3s sell better when people are allowed to sample the music
  e.g. Monty Python saw a 300-fold increase in sales when they put their work on YouTube for free!
• The Four Freedoms (he owes FDR a royalty) foster sharing, co-operation, and community
  0. Freedom to run the program however you wish.
  1. Freedom to help yourself by viewing the source code and modifying it.
  2. Freedom to copy software and distribute the copies to others.
  3. The Freedom to publish and distribute modified source code.
• Artists are not entitled to payment for their work!
• Copyright law should be changed because copying technology has changed:
  hand-copies > printing-press > computer networks
• There should be three categories of copyright:
  1. Practical works should be completely free (0, 1, 2, & 3) (Software, Recipes, Fonts, Clothing Patterns)
  2. What People think should be shareable but not modifiable because it would alter the original intent (0 & 2) (Memoirs, Autobiographies, Scientific Works)
  3. Arts & Entertainment should be completely free after 10 years of copyright protection.

Stallman’s main argument is that copyright is bad for individuals, bad for creative people, and bad for society as a whole. I agree with some of the things he says because artists do not always benefit from copyright. For example, in a work-for-hire situation, a writer, a musician, or an illustrator is only guaranteed payment once. The publisher retains all rights and can continue to receive payment indefinitely (if copyright keeps being extended beyond a natural lifetime). Smart publishers will keep talented artists by continuing to pay them and offering them better deals. However, this is more the exception than the rule. For example, I recall my mother mentioning her musician uncle never received payment or credit for music he composed for a certain 1950s television show, although they clearly valued his work because they continued to use it!

One could argue that an artist does not require a corporation in order to publish her work, especially with today’s technology; the artist could self-publish. This argument has two serious flaws. The first flaw is that in a society where money is exchanged for goods such as food, shelter and clothing many artists will opt for a sure method of payment over a theoretical one. The reasoning goes as follows, “I could try publishing this myself but there is no guarantee I will receive any money. This publisher will give me money I need to pay my rent if I do work for them on spec (specification). Therefore, I will give away all my rights to my work just so I can have a place to live.” Some purists might accuse the artist of “selling out“, but I have often found it is easy for someone with a full belly to criticize someone with an empty one. On the flip side, my great-uncle sold-out and was ripped off!

The second flaw is that while lower in cost than it was in the past, self-publication is not free in the monetary sense of the word. I will remind the reader, Stallman differentiates between free in the monetary sense and free in the civil rights sense. Without large amounts of capital to produce a high quality product, it is often difficult for self-published artists to get a start, although not impossible.

Stallman greatly favors freedom from copyright in that it restricts people’s ability to share especially as it relates to software. He also points out the negative impacts of copyright for art. For example Shakespeare, generally acknowledged as one of the great writers of English literature, borrowed many of his ideas from earlier literature such as Beowolf. While hailed as a literary genius in an earlier age, in the modern age, Shakespeare would be accused of making unauthorized copies of earlier works without the permission of the copyright holders. Worse still, he would beguilty of creating “fan-fiction”, an inferior form of fiction based on the work of the officially sanctioned artists. Who is to say that “fan-fiction” is not in some ways aesthetically better than “official fiction”? It is here that Stallman’s greatest points are realized. Corporations borrow regularly from individuals without paying a penny. They see the value of sharing when it benefits them. When individuals attempt to do the same thing, they are criminalized.

In the case of software, the entire Internet is a product of free software development; open standards that anyone can use, scrutinize and improve upon. Corporations all benefit from this sharing as a new vehicle to promote business but they actively discourage anyone attempting to copy their proprietary systems. In the case of Arts & Entertainment, popular shows such as Star Trek benefit from so-called “fan-fiction” when their official writers have run out of ideas. Essentially they copy the works of fans without paying them or getting their permission, which is technically a violation of copyright. In the realm of Painting, what great artist has not copied the work of other great artists (living or dead) at some point in their career?

One area where I strongly disagree with Stallman is the notion that artists are not entitled to payment for their work. He used the analogy of listening to a song on the radio. Should everyone be forced to pay for the privilege of listening to a song they enjoy? Probably not. His idea is that artists should receive donations. Press a button and your favorite artists gets instant payment, similar to PayPal although Stallman opposes PayPal on privacy grounds. This could be done with music on iTunes, however the recording industry acts as a greedy intermediary.  The problem with this notion is that again, artists require money for their supplies and equipment. In the case of actors, it is very difficult to create great performances when one is hungry and without shelter. Artists often cannot create art without spending some money. Donations are theoretical payment but a price tag is guaranteed payment (provided people are honest and don’t steal). Perhaps recognizing this flaw in his reasoning, Stallman suggests that the state should provide financial support to artists. Some conservatives might argue that the already exists in the form of welfare.

I like his idea of donations based on a push button model. Imagine walking through a gallery and seeing a painting you think is absolutely breathtaking. You could automatically donate one dollar or more to the living artist or to the gallery based on your enjoyment of that work. Artists would receive direct payment instantly allowing them to continue their work. It still doesn’t get around the fact that artists require initial funds in order to create their work in the first place.

Although Stallman’s talk focused on software, his ideas have many implications for other disciplines and demonstrates once again that Art is everywhere.