Hanging around IP lawyers quickly teaches you that no matter how complex and mind-binding you thought your model of copyright law was, the real thing is always sixteen times more so.
Regardless of that, I continue to be interested in real human’s naive beliefs about how copyright is supposed to work. Even when they’re wrong about the letter of the law – especially when they’re wrong about the law I think these attitudes illuminate the modern problems the public wants solved with copyright; and why sometimes it is not the best tool.
One behaviour I see a lot is a general tolerance towards copying, mixed with an absolute moral fury at passing-off. The fact that both activities are seen as straightforward violations of IP law both by the general public and by the legal system I think is confusing for everybody.
Let me give an example. I have a friend who is a reasonably successful DJ. Her continuing success comes from the distribution of her mixes, which she lets be passed around online and off. She’ll regularly get gigs from people who’ve heard her tracks, and want her to perform at their event.
A few years ago, she discovered that a Spanish DJ was using her mixes to promote his own career, passing them off as his own. Naturally, my friend was furious, and railed against pirates and all those Internet scum who shamelessly copy her tracks. I pointed out that she had actually encouraged them to do that, that it seemed to be an important part of her marketing, and, anyway, there was a good chance that her entire body of work would be impossible had the artists she worked with demanded the same controls as she was now envisaging.
I think a lot of people would view my friend as either confused, or hypocritical, in her apparent divisions of what is right and wrong in IP. Moreover, where you stand on the IP front determines how you think she should adjust her thinking to be consistent. If you’re for minimalist IP, you’ll conceivably feel that she should continue her art, and not sweat too much the Spanish DJ. If you’re a maximalist, you’ll feel the other way: its her fine comeuppance to be mistreated in the same way as she has flouted copyright law in the past.
I think, actually, that her confusion comes from two very separate matters that get blurred in the idea of “intellectual property”: copying as the tapping point for revenue redistribution, and correct attribution and sourcing as a side-effect of that.
Copying is important in the process of creative remuneration, I feel, because it used to be an excellent tapping point from which to extract value and distribute it back to the creator. Copying cost money, and the only reason you’d do it would be to sell the produced copy for cash. Therefore, it was a perfect statutory location to place a money-pipe back to the artist. Matters blurred when radio broadcasts and performance rights came along, but fortunately the term “copying” could still be stretched to cover these events without anyone feeling too uncomfortable. It always took money and effort to make a copy: costs that you’d almost always only pursue for commercial gain.
In a digital world, many people don’t see the act of copying as a particularly momentous or profitable event. Copying isn’t what we do as an act of purchasing; copying is a thing we do to our valuable artifacts. People are scandalised when its suggested that you should pay for a copy copied to backup drives, or iPods; they’re amazed when vested interests demand that cached copies or transitory files should count as extra purchases. Copying is no longer a good proxy for incoming revenue; which means it is no longer a good place to extract remuneration.
I think of it a little in terms of window taxes. From 1696-1851, Britain had a tax on windows on buildings, not because windows themselves had any particular significance, but because, absent reliable income records, windows served as an excellent proxy for how rich you were. One window: lower middle class. Forty windows: stinking rich.
As time went on, the proxy began to fail. Smart rich people blocked up their windows, flashy ostentacious people built buildings with lots of windows, and windows themselves became cheaper. Rather than acting as a successful measure, it did nothing but warp the revenue system and distort the nature of architecture.
Copyright is a similar tax, imposed for the benefit of artists, and collected at the act of copying. But it has also had another effect: by imposing a charge on copying, we also managed to limit fraudulent representation. If you wanted to claim some work as your own, you would probably have to copy it. If someone was claiming to have created your work, they probably made a copy to sell.
And so the legal management of fraudulent representation became tied up with the basket of legal concepts we now know as IP. Nowadays, copying isn’t always the core part of remunerative creative business. But accurate accreditation very much is.
I feel that the problem with the Internet isn’t that it creates so many damn copies: if it was, then we would have a nigh-infinite universal disaster, unsolvable except by closing the whole damn digital thing down. At least one societal problem we have is far more minor than that: that the opportunity and instruments for fraudulent behaviour have changed, and we need legal tools to deal with that which don’t obsess about who copied what bits and when.
I’ve often felt that if we could strengthen the pursuit of fraudulent claims in other parts of the law, then we could satisfy what many ordinary people want from IP, without pandering to pipe dreams of centrally controlling and taxing every act of copying in the digital world.
Of course, there’s also the remunerating problem, which is perhaps far harder to crack. But we mustn’t confuse the two, as IP has done for so long.