Sunday, September 30, 2018

5 Seriously Dumb Myths about Copyright John Degen Should Stop Repeating

I had the misfortune of stumbling across an article by John Degen, Executive Director of the Writers Union of Canada, called 5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating. (Click the title now and read the article before proceeding!) Arguing that copyright is “complex and, frankly, not all that gripping,” he offers a “short list of seriously dumb copyright myths to help you through the clutter of free culture bunkum.” He then proceeds to engage in a pyrotechnic display of ignorance, shoddy research, misdirection, and omission, supported by arguments that fail the test of logic. His rhetoric resembles the macho, self-righteous posturing of right-wing talk radio.

Whatever your stance on copyright, Degen’s article is not worthy of even cursory consideration. It encourages you not to think, a disgraceful tone to adopt when weighing in on a nuanced and controversial subject. As the Executive Director of the Writers Union of Canada, a position of some gravitas I would imagine, he should be ashamed of himself.

Without advocating any particular position on copyright, I intend to demonstrate the worthlessness of Degen's article.

Myth #5. Artists Feel Restricted by Copyright
Right… and cyclists feel restricted by bike paths. Drivers feel restricted by the network of roads and highways. Pilots feel restricted by lift and drag.

The point Degen appears to be making is that restictions are something everyone has to live with, so put up and shut up. Let’s examine his argument, noting first that his analogies are out to lunch:

  1. Cyclists do not feel restricted by bike paths. They love them. They petition City Hall for more, not fewer.
  2. Drivers do not feel restricted by roads and highways. Roads enable them. Rare would be the person who preferred to, or even could, drive across Canada without them, let alone to the local mall.
  3. Pilots do not feel restricted by lift-and-drag. Degen is mixing terms. Drag is the force that acts opposite to the direction of motion. Except in a vacuum, it hampers the speed of any moving object, flying or not. If pilots feel restricted by drag, it is because they are constrained by the immutable laws of Nature, not the mutable laws of Man.

    On the other hand, lift, which is created by differences in air pressure, is what makes planes fly. It's hard to imagine pilots chafing at lift. Without it, they'd be out of a job.

Despite the analogies, Degen’s inference is clear: if we accept some restrictions in some domains, we must accept all restrictions in all domains. If you think his conclusion is valid, I suggest you take a remedial course in logic.

Degen winds up: “Truth: Professional, working artists who respect heir own work also respect the work of others.” The statement may arguably be true, but it’s unrelated to the subject, which is whether artists feel restricted by copyright. For all its relevance, he might as well have said: “Truth: When it rains, the streets get wet.”

Here, in a nutshell, is Degen’s take on Myth #5:

cyclists feel restricted by bike paths, and
drivers feel restricted by roads, and
pilots feel restricted by aerodynamics,
professional working artists respect the work of others.

If this makes sense to you, I suggest checking into an asylum.

I wish I didn’t have to waste further space on Myth #5, but Degen goes on:

Anti-copyright crusaders love to shout about remix culture and how copyright aims to stop it. Real artists understand:

a) Remix culture was not invented by the Internet. Original works of art have been referencing and remixing other original works of art since the dawn of… well, art.

This is deeply confusing. Is Degen saying that artists who re-mixed prior to copyright (i.e. throughout most of human history) ought not to have done so, or that artists who re-mixed prior to copyright were able to do so because there were no copyright restrictions? If the latter, then it’s an argument against strong copyright. If the former, a significant portion of our cultural heritage would not exist. Is Degen saying that would be a good thing?

b) There’s a difference between creative remixing and uncreative copying. That’s a line all professional, working artists recognize by instinct, and it’s a line professional artists are happy to have defined by law.

Degen is engaging in misdirection. There is indeed a difference between creative remixing and uncreative copying, though it doesn’t take a “professional, working artist” to acknowledge it. The Canadian Copyright Act does a fine job (section 29.21).

It is equally true that some—maybe most—artists are happy to have the distinction defined by law, which doesn’t mean they are happy with the current definition. It’s why there is an ongoing debate, and why, Mr. Degen, you have an opinion on the subject.

Myth #4. Copyright Harms the Public Domain
First of all, there is no “public domain” without copyright. By definition, the cultural public domain consists of those works of art and expression that have for one reason or another fallen out of copyright protection. You can’t really have one without the other.

It’s hard to know where to begin with this one. The first sentence is untrue, and the second presents only a partial definition of the Public Domain.

In jurisprudence, the Public Domain is defined negatively: all works not restricted by copyright, including older works that were never so restricted. Degen's definition excludes these, which paints a false picture of the Public Domain. Works that never had a copyright can hardly “fall out of” protections they never had.

If the Public domain is all uncopyrighted works, and works pre-dating copyright were ipso facto all uncopyrighted, the real scope of the Public Domain extends back to the first cave paintings.

Copyright didn’t create the Public Domain; copyright gave it a name. There can be no serious discussion about copyright without acknowledging that the Public Domain, by whatever name one calls it—res communes, the public sphere, the commons of the mind—has been around since “the dawn of... well, art.”

Secondly, can we please stop conflating copyright with a lack of access? Anti-copyright activists are weirdly proud of how they “liberate” books into the public domain when copyright terms end. The Little Prince fell out of copyright protection almost everywhere but France at the beginning of 2015. Was it more difficult to find, obtain or read a copy of The Little Prince before January 1st, 2015 than it is now?

Again, it’s hard to know where to start. Why should we—who is this we?—stop conflating copyright with lack of access when copyright is all about restricing access: materially, by demanding payment for every copy, and intellectually, by granting authors exclusive rights over the use of their work? Rightly or wrongly, in just measure or unjust, copyright and lack of access are inextricably bound, not conflated.

Ironically, it is Degen who is guilty of conflation: lack of material access with lack of intellectual access. His “weirdly proud, truthy-sounding activists and crusaders” who aren’t “real or professional working artists”—possibly because many of them are lawyers defending artists in copyright cases—aren’t “shouting” about lack of material access. Their concern is about intellectual and creative access, and whether copyright’s scope and term lengths are robbing society of its creative and intellectual vitality.

Myth #3. Copyright is an Attack on Artistic Freedom

I have been a working, professional writer for close to thirty years. I’ve felt my artistic freedom threatened by a great many things—state censorship, all manner of fundamentalisms, Internet bullying and shaming… to name but a few.

Copyright law is not on that list, and it will NEVER be on that list. The very foundation of copyright is the insistence that if I create an artistic expression, I own that artistic expression. And if I own something, you best believe I will protect it from those who want to impose their restrictions on it.

Truth: My right to own and profit from my free expression is part of the Universal Declaration of Human Rights. Enough with the Orwellian doublespeak about copyright attacking my rights. Copyright IS my right, dammit.

Please, Mr. Degen, stop SHOUTING. You’re starting to come across like a truthy-sounding activist.

It is spectacularly inaccurate to say that “the very foundation of copyright is the insistence that if I create an artistic expression, I own that artistic expression.” The purpose of copyright—its universally acknowledged foundation—is, in a few words drawn from the United States’ Constitution, “to promote the Progress of Science and useful Arts” (Article I, Section 8, Clause 8). In other words, to stimulate authorship.

Degen compounds the error by glossing over the issue of ownership, the very thing that makes copyright such a thorny subject: artistic expression, like ideas, cannot be owned.

In order for a thing to be ownable, it must be rivalrous. In economics, a rival good is one that may only be possessed or consumed by a single entity, whether an individual or a collective. You and I can't both be wearing the same pair of underwear at the same time.

Ideas (intellectual content) and artistic expression (the means by which ideas are communicated within a specific medium) are not rivalrous. If I read a book, I possess in my head both the ideas contained therein and the means by which they were expressed. If you read it, we both possess the same ideas and expression. A physical copy of the book may be rivalrous, but the ideas and expression in it are not. “There are certain materials—the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers—not subject to private ownership.” (Patterson, L. Ray and Lindberg, Stanley W. The Nature of Copyright: A Law of Users' Rights. Athens: University of Georgia Press, 1991.)

Copyright doesn’t confer ownership of ideas and expression; copyright grants limited rights over their use. “Limited” because Degen’s rights are restricted, particularly in the matter of fair dealing (“fair use” in US law and elsewhere). Does his bellicose assertion “You best believe I will protect it from those who would impose their restrictions on it” mean he rejects even fair dealing?

Degen rails against restrictions, yet asserts his right to impose as many as he likes. This from a man who has already advanced the argument, albeit poorly, that everyone has to live with restrictions, so put up and shut up.

Did someone cut the cheese, or is that the odour of hypocrisy wafting through the room?

Truth: My right to own and profit from my free expression is part of the Universal Declaration of Human Rights. Enough with the Orwellian doublespeak about copyright attacking my rights. Copyright IS my right, dammit.

Let’s face it: the Universal Declaration of Human Rights (UDHR) is a relatively toothless document. Every signatory state disregards at least a few of its articles with impunity. But it’s a go-to favourite when trying to throw moral dust in your opponents' eyes.

Truth: The UDHR makes no mention of ownership of artistic expression whatsovever. Article 27, subsection (2) states: “Everyone has the right to the protection [italics mine] of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Truth: Degen has cherry-picked only the second subsection of the Article. The first states: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” Degen conveniently ignores that the two articles, cheek-by-jowl and more than a little conflictual, are there so that signatory states are mandated to achieve a balance between users’ rights and authors' rights.

Truth: Degen has not only cherry-picked from the UDHR. By alluding to it alone, he has also cherry-picked his document as well. The UDHR is just one of three documents that, together, form the International Bill of Human Rights. The second document is the International Covenant on Economic, Social and Cultural Rights.

Article 15 of the Covenant begins by re-stating Article 27 of the UDHR in its entirety and adds three (3!) further sections.

The first mandates that the steps taken to implement Article 15 of the UHDR must include those necessary for the “conservation, the development and the diffusion of science and culture.” None of these can be achieved when copyright blocks access to works for an unreasonable length of time.

The second mandates that “the freedom indispensable for scientific research and creative activity” be respected. If artists do not have the freedom to build upon or transform works within a reasonable span of time after a work is made public, then copyright is not doing its job.

The third mandates that “the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields be recognized.” Co-operation is impossible without the unencumbered exchange—sharing—of ideas.

In short, all three subsections are incompatible with Degen's “I own it therefore I have the right to restrict it” position with respect to the imagined ownership of his artistic expression he believes copyright confers.

Degen’s omissions don’t stop with the leaving out the International Covenant. There is a yet a third document that forms part of the International Bill of Human Rights where it touches upon copyright: the United Nations Committee on Economic, Social and Cultural Rights General Comment #17.

General Comment #17 explains the intentions of the rights pertaining to Article 27 of the UDHR and Article 15 of the International Covenant. It’s a fourteen page long document addressing no less than fifty-seven separate issues arising from Article 15 of the Covenant.

The following quotation from General Comment #17 demonstrates Degen's ignorance both of the purpose of copyright and of the very document he cites in support his position. Pay particular attention to the second paragraph.

1. ...the scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1 (c) [of the International Covenant on Economic, Social and Cultural Rights], does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.

2. It is therefore important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1 (c).

One final Truth: The term “doublespeak” is not used anywhere in Orwell’s Nineteen Eighty-Four.

Myth #2. Copyright Costs Consumers
In a recent, weakly researched piece on copyright, Canada’s National Post published without challenge the claim that copyright term extensions for music in Canada will cost “the public billions of dollars in the long term.

The National Post’s weak research is matched by Mr. Degen’s. The real myth here is that advocates of copyright reform make such a claim. They don’t. The National Post does, a newspaper founded by a convicted fraudster and generally not acknowledged as a journalistic heavyweight.

The truth is that an overview of contemporary literature on copyright reveals a marked lack of concern over public spending.

Truth: Paying artists for works we want to consume is how we have a cultural economy. As long as we live in market-based economic systems, the exchange of money for works, goods and services is going to be an essential mechanism.

There is an extraordinary amount of cynicism seeping out of that first sentence. Do we “consume” art? Is it equivalent to a plate of Kraft Dinner, disposable diapers, a roll of toilet paper? The correct verb is appreciate, or value, or enjoy.

“Cultural economy” is equally base. We have a cultural economy only insofar as we monetize artistic expression. Regardless of one’s position on copyright, it is reasonable to ask if we in fact need to monetize artistic expression, or whether we need to have a cultural economy at all. How on earth did we get Homer, and Euripedes, and Aristophanes, and Cicero, and Catullus, and Virgil, or, for that matter, the Bible, the Bhagavad Gita, or the Analects of Confucius without a cultural economy?

The human race had a vital cultural life long before it had a cultural economy, with qualitatively no difference in the works produced.

Before advocating for strong copyright, as Mr. Degen does, the question needs to be asked: Is paying artists for works we want to consume the most effective way to promote “Science and the useful Arts” (i.e. the most effective way to stimulate intellectual and creative activity)? Is there an alternative, for example paying artists to work, rather than paying for their works? In an article as strongly worded as Degen’s, it is unthinkably lazy not to have examined this issue and responded to it with reasoned arguments.

Myth #1. Copyright only helps Corporations
This is the whopper of anti-copyright mythology.

One has to wonder what group of “anti-copyright acitivists” Degen consulted when deciding this was the whopper of all copyright myths.

No one subjecting current copyright law to a thoughtful critique would ever make such a statement since it is well established that the material protections afforded by copyright can be, and are, invoked by individuals.

That being noted, it must equally be observed that while copyright protection is available to individuals (i.e. does not only help corporations), the majority of copyright cases in Canada and the United States are indeed instituted by corporations, businesses, and agencies, at least as reported in the cases archive of the Stanford University Copyright and Fair Use Center and the Wikipedia List of Copyright Case Law .

Furthermore one wonders by what sophistry Degen embraces the United Nations Declaration of Human Rights while categorically rejecting the same organization’s findings, to whit, “Intellectual property regimes primarily protect business and corporate interests and investments. (The Committee on Economic, Social and Cultural Rights, General Comment #17, Article 2.)

As noted at the beginning of this article, I have not attempted to respond to Degen’s arguments or to advocate a position on copyright. My intention has been to demonstrate the shoddiness of research, the illogic, the contradiction of facts, the misdirection, and the general level of ignorance of the subject demonstrated in his article. Copyright is an issue with many sides and cannot be reduced to an ill-informed, ill-framed rant.

“How is anyone supposed to do the work of truly understanding copyright?” Degen asks presumptively at the start of his article. The answer, Mr. Degen, is by actually reading the literature.

For an excellent background to copyright, take a look at Lydia Pallas Loren’s clear and digestible article, The Purpose of Copyright or download—for free—a copy of James Boyle’s award-winning The Public Domain: Enclosing the Commons of the Mind .