Thursday, July 19, 2012

Do we even need copyright?

As we established last time, copyright is an indirect subsidy.  The purpose of this is to incentivize creativity, the idea being that art for its own sake is important, but won't pay the bills on its own.  But art has a nice property: people like it, especially if it's original and well-executed.  As there's both a supply and a demand for original, creative expression, I must wonder whether the market can connect the two without the use of a subsidy.

Historically, creative works were paid for by patronage.  You either commissioned works on a case-by-case basis, or became the patron of an artist.  Either way, the work was payed for before it was even made.  There was no concern about whether something would sell or not; either someone was paying for it, or they weren't.  This gave artists relative creative freedom compared to today.  But there are a few problems with this approach:
  • Most patrons are rich.  Most artists will cater to their patrons.  So most art will be targeted at the rich, to the detriment of the public.
  • Many rich people these days see other causes as more important than art, and spend their money elsewhere.  I'm not making a value judgement either way about this, but obviously it harms the patronage system.
  • It is impractical at scale as it is wholly dependent upon a relatively small segment of the market.
There are also a few major problems with the copyright system:
  • It grants a monopoly to the artist, which is economically troubling.
  • It places fair use in a de facto legal gray area due to the lack of hard-and-fast rules.
    • Even if there were rules, I doubt the average person would be familiar with them.
  • If I own something, I ought to be able to do whatever I please with it.  Copyright breaks this assumption.  In the US, first sale mitigates this but does not eliminate it.
  • It places artists in the position of people selling products.  But that's not what artists are good at, so they delegate this to businesspeople, creating middlemen.
The important thing to remember here is that our goal is to fund creative works, and not to protect notional "rights" of authors.  So how else are works funded?  Well, Kickstarter is focused more on getting creative projects started than on continually funding them, but it's still an interesting model.  For those unfamiliar, here's how it works:
  1. A creative person comes up with an idea.  It could be a product, book, movie, or any number of other works.  Creativity is not always at the heart of the idea, but it often is involved.
  2. The creator figures out how much revenue in preorders they would need to launch the idea (start manufacturing product, start shooting film, etc).
  3. The creator starts a Kickstarter project with that amount of money as the goal.  (S)he writes a pitch for the project and sets "rewards" for various different levels of contribution.  So you might get a movie poster for a small donation, and a nice boxed copy of the movie for a larger donation.
  4. People pledge money to the project until it reaches its deadline.
  5. If the project fails to meet its goal, no one is charged.
This process is not intended to be a one-off fling for the creator.  It's supposed to help the creator launch a self-sustaining business.  However, I don't see why it couldn't be adapted to pay for one-off creative works.  What if we had an open-source Kickstarter?  It would work like this:
  1. Follow steps 1-5 above.  Make sure you're making something ordinarily subject to copyright.
  2. If the project succeeds, release the work under a free license, such as CC-BY-SA, or if you're feeling really generous, CC-0.  Mention this in the initial pitch.
But if we had something like this, anyone could fund a creative work just by using it, and it would largely or entirely bypass the copyright system.  Since anyone using Kickstarter can do this, right now, it seems to me that copyright is superfluous to this process (yes, licenses like CC-BY-SA are dependent on copyright, but look at the actual requirements of that license: you need to attribute (which is basic courtesy anyway) and you need to share alike, which doesn't apply in a post-copyright world).  So maybe we should consider getting rid of it entirely.