Friday, December 2, 2011

Perspectives on copyright

If you want to understand where this one-sided discussion originated, try here.

First off, what is copyright?  We can't have an informed discussion if we don't understand what we're discussing.

Now, I'm not a lawyer and I don't play one on TV and I don't even begin to consider myself an expert.  So this is NOT going to be a discussion of Copyright Law, so don't start screaming at me if you're an expert and you think I've got it all wrong.  I'm writing about how the non-lawyer general American public looks at copyright, what they think it is and isn't, how they believe it works, and why they think it is or isn't a good thing for them.   If you are a lawyer, may I remind you that this is an OPINION piece.  One is entitled to one's own opinion, if not to one's own facts.  If I get a fact wrong, that's one thing, but you'd better make sure you're correct an error of fact, and not merely an opinion you disagree with.

"Copyright" is a funny kind of term, often misspelled (copywrite or copywright, even copyrite) and often misunderstood, especially when it's violated.  The commonly used term is "plagiarism," but the legal term is "copyright infringement."  They are not necessarily the same thing.

Some cases of unauthorized copying are just plagiarizing, which is the use of someone else's work and presenting it as one's own.  The original work may not even be protected by copyright, either because it's so old as to be in the public domain -- a Tennyson poem or an Austen novel, for instance -- or because it was put into the public domain by the creator.

Plagiarism may not even involve verbatim copying of words.  Suppose I wrote a novel about a poor family in Africa who stumbled upon an enormous uncut blue diamond and endured all kinds of tragedies trying to get their treasure to a buyer at a city on the coast and finally, having decided that the wealth the stone would bring wasn't worth all they had lost, including their infant child, I'd be pretty much plagiarizing John Steinbeck's 1947 novella The Pearl.  But if I provided enough alterations of the events and added 21st century geopolitics and my own interpretation of events, I probably wouldn't be infringing on the late Mr. Steinbeck's copyright.  A retelling of a previously-written story may be plagiarism, may br copyright infringement, may be both, and may be neither!

In other words, plagiarism in and of itself is not illegal.  It may very well be, if it also infringes on a copyright, but plagiarism itself is not illegal.  Plagiarizing academic work, such as buying a term paper on line and turning it in, may get you an F on your assignment or even kicked out of school, but it is not in and of itself a crime.

Copyright is a legal term, and it means different things in different legal jurisdictions.  Each country -- usually countries establish copyright laws -- determines its own laws and enforces them.  The law protects the original creator of a work -- written work such as stories, articles, poems, plays; artwork such as paintings, sculptures, or photographs; and performances -- from unauthorized copying of the work.

My purpose here is not to discuss what copyright laws are, how they differ from one jurisdiction or another, or which are right and which are wrong.  Instead, I want to explore a concept that underlies and influences but is not the same as copyright law.

All laws, regardless what they regulate, arise from social conditions.  They do not precede the conditions.  Seatbelt laws were enacted as a response to, well, seatbelts.  Seatbelts existed and were in production and in use before there were laws requiring their use.  Speed limits were set when there were vehicles capable of going faster than what people considered safe speeds.  Legal voting ages weren't determined until voting became possible.  Laws always come after the social situation is established.

Now, I know you're going to come up with a list of laws that have been enacted before. . . . something.  But before you start showing off your erudition, stop and think about the background to the law you're going to cite.  I'll bet you just about anything that there are social and/or cultural conditions already existent that gave rise to that law.  And that applies whether the law is one that permits something or one that prohibits something.

The enactment of laws can have an impact on subsequent social conditions, but the laws ALWAYS come second.

Social conditions are very organic, in that they develop over a period of time and are influenced by all kinds of factors, including but not limited to geographic, economic, political, etc.  As those factors change, the social conditions change and laws can be and often are changed to accommodate that change.

The whole concept of "ownership" is a good example of the relative nature of legal issues.  It makes no difference if we're talking about ownership of real estate or a flock of sheep or a novel.  "Ownership" is one concept in and of itself.

"Ownership" can be limited or regulated or even abolished depending on what is owned.  But "ownership" itself is a separate concept and is often defined differently in different cultures, and therefore regulated differently depending on how the laws are promulgated.

For example, it is against the law in the United States to own human beings.  At one time, however, it was perfectly legal to do so.  As social circumstances changed -- whether by the persuasive power of a novel like Uncle Tom's Cabin or through the medium of war -- laws were changed.  The laws were not changed in a social or cultural vacuum.

In other countries, however, ownership of human beings as tangible possessions is still legal.  The social conditions have not changed to the point of changing the laws in those jurisdictions.  One can own, buy, and sell human beings in many countries.

And it is also possible that the social context could change in the U.S. to the point that chattel slavery -- ownership of human beings as property, the legal right to buy and sell them -- is reinstituted as perfectly legal.

Put simply, statutes are not fixed; they are relative to time and location and circumstances.

In most cases in what we consider to be civilized societies, the concept of ownership implies the ownership of something.  Ownership does not exist without something to be owned.  That something could be a house, a car, a diamond ring, a peanut butter sandwich, a mongrel puppy rescued from the pound, a first edition Lord of the Flies.  We don't have much trouble understanding this kind of ownership because the owner -- us -- is easily identified and so is the thing being owned.  We may have legal documents to clarify the ownership, such as a deed to a house or vehicle registration, and we may even have to pay taxes to maintain our ownership, but we pretty much accept these concepts as common knowledge.

If we look at those concepts closely, we find that "ownership" is actually a fairly complex issue.  It may entail specific legal responsibilities, which are different depending on the object owned.  We may not have to pay tax on the peanut butter sandwich, and we may in fact not own it for very long if we consume it, digest it, and, well, you know.  We may have to pay taxes on a house or car, and  we may have to maintain the house to a specific standard either by local ordinance or Homeowner's Association restrictions.  In fact, that HOA may tell us we can't have a dog on the property, so we have to choose to keep the puppy and move, or stay in the house and get rid of the dog.

In other words, "ownership" may very well not be an absolute.

Now, let's look at that first edition copy of William Golding's 20th century classic novel, Lord of the Flies.  You own it.  You bought it at an estate sale for $5.00 and now you own it.  You put it on your bookshelf right next to your first edition copy of Kathleen E. Woodiwiss's The Flame and the Flower.

Your son comes home from school with a library copy of Lord of the Flies.  He does not own that book.  It's the same novel, by the same author, printed by the same publisher, but the physical personal property that is that book does not belong to him.  Your copy belongs to you because you paid for it and bought it and "took title" to it.  The copy your son has is borrowed from the legal owner, which is the library.

Therefore, possession and ownership are not one and the same.

Now please remember that I am not -- I repeat in bold NOT -- discussing legal issues but rather the kind of definitions that we all use almost without thinking about them.  They've developed over the course of our history as a society, as a group of people living more or less together, interacting in many different ways, even indirectly.  Thus, your son uses the library and even though he may not ever encounter 99.9% of the library's other patrons, he is connected to them through the social conventions of using a public library.  Everyone understands that the books are being borrowed, not purchased (except when they are put on sale and actually are purchased).

And yes, there are statutes or local ordinances covering the borrowing of books from a public library.  I'm not saying there aren't.  And sometimes those ordinances may say things that are never or rarely put into practice, like keeping books too long overdue can lead to arrest.  I'm only addressing the commonly understood practices we all follow (most of us, most of the time).

Now, you own that first edition copy of Lord of the Flies.  Let's say, for purposes of discussion, that you learn it has a value of $500.  The library copy your son brought home is not worth $500 even though it is the same novel.  There are physical attributes of your copy that make it more valuable than a newer copy.  But you don't own $500 just because you own the book.  You couldn't deposit it in your bank for $500.  All you own is the book.   The $500 is an intangible, a potential.  You might be able to pawn it for $100, or auction it on eBay for $5,000.  But all you own is that single physical copy.

So again, value of the thing owned is also determined by social factors.  First, you have to be willing to sell it, and second, someone has to be willing to buy it.

But you also only own that one copy.  You do not own the right -- another intangible -- to make copies of it.

Copyright and patent are different but they accomplish similar goals -- they protect the ownership right of a creative artist or inventor to their work.  These collections of laws -- which can differ from country to country -- give the creators of "intellectual property" the right to be the only ones to decide whether or not to put their property into the marketplace.

Suppose you invent an electric jacket, like an electric blanket but designed to be worn outdoors and it runs on solar-charged batteries.  You apply for and receive a patent on it.  You conceived the idea -- even if it utilizes some technology developed by other people -- and the U.S. Patent Office determined that it is a new and distinct product unlike any other before it.  You are granted the patent.  Ownership of that patent -- which is not a tangible thing but an intangible, a "right" -- allows you to either sell it outright to a manufacturer, who pays you a lump sum and who then takes complete and total ownership and control of it, or to license a manufacturer to produce the jacket.  Or you can even manufacture it yourself.  You and you alone have the power to make that decision.

If you license Purplenose Outerwear, Inc., to produce the jacket and sell it through various retail outlets, you can dictate some terms of the licensing contract.  You may have to give up some control over things like colors of fabric or whatever, but you have the right to reject any offers made by manufacturing companies who want to make and sell your jacket.  You own the patent.

If you turn down Purplenose Outerwear's offer and they go ahead and produce a jacket very very similar to yours using virtually identical technology, you can sue them because they had access to your patented idea and they used it without your permission.

Patents generally are granted to cover the invention of physical, tangible things.  I have the papers for the patent granted to a distant cousin of mine for his invention of a device used in manufacturing facilities in the early 1900s.  Drugs, genetically modified organisms, chemicals, etc. can be patented.

When the creative work is not physical and functional -- that is, designed to perform a specific task in a specific manner, such as keep people warm in cold weather -- then the protection is called copyright.  And what a copyright does is grant the creator of the work legal ownership so she/he can decide whether or not to have copies made and distributed, either free or for a price.

Patents have to be applied for and there is considerable expense involved in the application, because there must be a determination that the invention or discovery hasn't been invented or discovered before by someone else.  Ultimately, for various reasons, no patent may be granted.  The item may have been invented by someone else or it may not be considered enough of an original design to be considered patentable.  For instance, a person who invents a motorized toilet bowl brush made from white plastic might be granted a patent because the mechanism is considered new, but the person who "invents" one made of green plastic would not, because that's not a significant modification of the original's function.

In the case of literary works -- novels, poems, plays, etc. -- the legal instrument that provides that protection is a copyright.  In the U.S., a copyright does not have to be applied for:  As soon as the creator of the work fixes it in a tangible medium -- prints it on paper, saves it to a disk drive, records it on a cassette tape -- that copyright is deemed to have been granted. 

The creator can register the copyright -- for a fee -- and registering it gives the owner certain specific rights that are enumerated in statutes.  The statutes, of course, are subject to revision, for both registered and unregistered copyrights.  For instance, the length of a U.S. copyright has been changed many times.  At one time it was only 28 years, and could only be renewed once. That meant some authors whose works were published when they were very young lost ownership of their work within their lifetime. 

But even a change like that arises out of considerations explored within the larger society.  When few people outlived the copyrights on their works, the 56 year length of a renewed copyright was more than sufficient.  But as 15 year olds (and younger) created works, and even 30 year olds lived a lot longer, the length of the legal protection under copyright law was changed.  Again, the law was changed to reflect changes in the cultural context of how the ownership of creative works should be defined:  Artists should at least be able to retain copyright during their lifetime.

What I hope this illustrates is that copyright law, regardless what it actually is or says, evolves from ideas and concepts and beliefs within the social and cultural context of the society over which the laws are imposed.  The laws do not appear out of a social or cultural vacuum.

As the cultural context changes, sometimes due to technological changes, the laws may or may not keep up.  We've seen in just the past few years how the issue of copyright -- ownership of creative works -- has been impacted by electronic reproduction technology.  It was bad enough in the days of vinyl records,  AM radio, and reel-to-reel tape recorders, but at that time there was little opportunity for any one individual to make or distribute many multiples of a copyrighted record.  And the cost involved -- purchase of the recorder and tape -- was somewhat prohibitive, because it was actually cheaper to go out and by the record for $1.00.  (And yes, even in the days when minimum wage was only $1.00 an hour, and babysitting paid half that!)

But technology advanced quickly and for all types of "publication," duplication and distribution without the copyright holder's permission became easy and affordable.  Why pay for a CD or DVD or even for a legal download to your iPod if you could get it free from a sharing site?  It may have been the very ease of duplication and distribution that prompted a shift in public perception of who had the rights to what, but over the past few years, there has been a shift.  The consumers of intellectual property have claimed a kind of ownership, and that ownership has been facilitated by technology.

The technology, especially the software, that facilitates the duplication is itself often an intellectual property covered by the laws it is circumventing!

That technology and its ownership have also contributed to a cultural perception that ownership of intellectual property is not a public good.

When people like Bill Gates and Steve Jobs and other technology billionaires use their ownership of copyrights to amass huge sums of wealth and prosecute anyone, even individuals who could not afford to buy Microsoft or Apple products legally and therefore would never be paying customers, those billionaires are seen by many to be parasites and bad owners.  They give copyright and intellectual property, as concepts, a bad name.  As rock stars become millionaires -- regardless whether their fortunes come from sales of recordings or from ticket sales to performances or from licensing of merchandise -- fans feel they have the right to free copies of recordings because the artists already have so much.

When it comes to writing, and especially in romance fiction, Big Name Authors like Rebecca Brandewyne's crusade to demand royalties from used bookstores and libraries added to a negative perception within the public of owners -- if not ownership -- of intellectual property.  Brandewyne did not feel purchasers of her books should have the right to trade or resell those copies without her being paid a royalty.  Even though she had been paid a royalty by the publisher for each printed copy of the book sold, she also wanted another royalty each time the used book was resold by a book exchange or other reseller, as well as each time it was lent by a library.  Many readers came to see Brandewyne's attitude as nothing short of greedy.

And of course there have always been resellers of merchandise, everything from used cars to secondhand clothing.  The original manufacturer never receives any payment on the resale, any more than a developer or builder is paid when a house is resold.

One of Brandewyne's justifications came from her experience with the music recording industry, where royalties were paid to performers, composers, and lyricists based on radio broadcast performances.  The recording industry, through ASCAP, BMI, and other registries, was able to attach royalty payments as a condition of station licensing.  In part, this was possible because radio and recording reproduction via the phonograph both were fairly new technologies that developed at about the same time, and the artists who had a vested interest in obtaining royalties from broadcasts of their recorded performances were able to do so through de facto unionization.  Many musicians were already unionized, so this was the next logical step.  And because of federal licensing requirements for broadcast media -- first radio, and then television -- there were enforcement procedures and provisions already in place.

Unfortunately for Brandewyne and other writers like her, print publishing and used bookstores were already a long-established feature of society, and the copyright laws that had long been on the statute rolls could not be changed to cover existing copyrights without disrupting the established pattern of commerce.   How would booksellers and libraries be able to charge readers and pass along royalties based on copyrights that had expired or had been granted before the lending/reselling royalty law was enacted?  The logistics of enforcing such a law would be enormous, compared to the already regulated licensing of radio and television stations and eventually cable networks.

There was also a perception -- especially within the romance-reading community -- that the authors were making a whole lot of money already and didn't need any more from the sale of used copies of their books via small private mom or pop book exchanges or public libraries.  The whole point of public libraries had always been to provide reading material for those who might not be able to afford to buy it.  (And there has never been "means testing" for library cards.)

What was happening, at least in the U.S., was that copyright was being transformed from a protection of the artist's labor investment to a protection of the artist's property ownership.  And property, as a tangible physical entity, becomes divorced from the human creator.  The U.S. culture is strongly oriented toward property rights, and this goes back directly to the Calvinism of the original emigrants from 17th century England, and includes, in the concept of grace, a dismissal of labor. 

In other words, Calvinistic doctrine says you can't work or earn your way into heaven; God alone grants "grace" and wealth is a sign of that grace.  (I became a Presbyterian as a young adult and this made no freaking sense to me; I didn't stay Presbyterian very long.)

Whether the European culture, with much more value accorded to labor, is responsible for differences in copyright law there which grant artists a bit more control over their rights even in publishing contracts, I don't know, simply because I don't profess to know anything at all about their copyright law.  But I think it's important to note that there are  differences, that intellectual property laws are not the same everywhere and that this indicates some sort of distinct evolution of the legal concepts that is dependent on social and cultural differences.

How would the American public view copyright, especially in this age of digital reproduction of movies, music videos, television shows. musical and theatrical performances, art (at least the two-dimensional kind) and literature in all forms? 

I believe that right now -- December 2011, since that's when I'm writing this -- copyright is looked upon as a "thing" that is very close to being tangible because it is embodied in tangibles, whether they are books or DVDs or MP3 recordings.  They are collectively referred to as "intellectual property," as if they are somehow akin to a car or a refrigerator or even a house. 

Especially in the minds of those who have grown up with this advanced technology that allows them to duplicate and distribute "intellectual property" with relative ease and without much expense, ownership of intellectual properties seems to transfer with the sale of the copy, completely divorced from the concept of copyRIGHT.  The very term "property" connotes something tangible and transferable.

We used to call them "works."  A "work" of art.  Literary "works."  "Opera" literally means "works," as the plural of "opus" or work, the Latin origin of which should be familiar in our word "operate."  Linguistically we connected the product to its producer, rather than separating it from her or him and making it a semi- or quasi-tangible "property."

Needless to say, this is not what has actually been done, but this is how we perceive things and then begin to behave in relationship to them.  By equating creative works with "property," we have divorced them in our minds and in our behaviors from the labor that produced them.  We no longer think of the work that went into creating them.  We no longer think of the hours spent writing the novel or doing the research for it, or negotiating with the publisher for a fair compensation.  Instead, we see "intellectual property" and we think purchasing a copy of the book grants us title to it.

The U.S. is  particularly, and perhaps peculiarly, property-conscious nation.  Owners of property often behave as if they have no responsibility to their neighbors or even to distant people who may be affected by how these owners use their property.  "A man's home is his castle" has somehow morphed into "It's mine and I can do whatever I want with it!" 

Work is not revered in this culture to the same extent that property and unearned wealth are.  The origins of this cultural attitude are long and deep in our unique American history.  This viewpoint has strengthened in the past generation or so as we see more and more "work" disconnected from "products."  Our American economy makes fewer and fewer things.  We know that the workers who make our televisions and our computers, our iPods and Androids, our microwaves and sweatshirts, are poorly paid and in distant countries.  We do not value them, and we do not value work.

We have adopted, as consumers, an attitude that the more cheaply we can get something, the cleverer we are.  Getting something "wholesale" used to be the mark of cleverness, but now it's getting it free.  We don't see that as depriving someone of the fair payment for their labor, because we don't see labor as productive.

So what we've ended up with is a sense that copying a copyrighted work becomes our right as a consumer.  We do not want our digital music or our digital movies or our digital books to belong to anyone but us.  The creators of those "intellectual properties" are no longer due fair compensation for their labor, because it's been turned into a commodity that belongs to us.

One of the comments on that Dear Author thread came from someone who called him/herself "eggs."  Eggs compared my ire at not getting the rights back to my books to my being upset that the purchaser of a house I'd sold them 18 years ago wouldn't give it back to me.

eggs says:
I guess I don’t really understand what’s wrong with Linda Hilton’s situation with Pocket. They offered her a contract, giving them the right to sell her books as they saw fit for X number of years in return for a sum of money. She accepted their offer and, presumably, their money. Now, more than a decade later, she has decided she doesn’t like this deal any more and thinks, as a result, the contract should be voided and the right to sell these books returned to her. Pocket doesn’t want to do this and has taken steps to prevent it happening, as is their right per the contract Hilton signed with them. And this is supposed to make Pocket somehow morally reprehensible? I cannot for the life of me fathom why.
If I was Pocket, there’s no way in hell I would return rights to an author in this situation. Why should they? It’s like Hilton built a spec house in 1992, sold it to Pocket in 1993, then demanding they give it back to her for free in 2011 because they’ve let it fall derelict. Am I missing something here?
To begin with, eggs him/herself hypothesized that the contract I signed gave Pocket "the right to sell her books as they saw fit for X number of years."  Indeed, had that been the case and solely the case, Pocket's rights in the books would have ended at the expiration of those X number of years, regardless.  Apparently eggs didn't think his/her hypothesis out very clearly.

But by suggesting that I had no right to request -- requesting is not the same as demanding -- return of the rights in the event Pocket allowed them to fall "derelict" is further failure to think through that hypothesis, because the reversion of rights clause essentially, to use eggs' analogy, requires the purchaser of the spec house to keep it from falling derelict, and if they don't, then the house/copyright reverts to me under the terms of the contract.

But therein lay a good part of the problem with Jane Litte's whole argument/disagreement with me.  She set up her thread to cover a variety of topics, ranging from plagiarism/copyright infringement to my particular experience with Pocket Books.  For whatever reason, she seemed -- in my perception anyway -- to have assumed that when I engaged the poster dick on the issue of property rights and plagiarism, that I must be speaking in terms of my copyright and my contract, when in fact that was not the case at all.  Later in the thread, Courtney Milan (who I believe is also a lawyer) chimed in trying to tell me what I was thinking, and subsequently a few others.

However, the two subjects were not inherently linked.  My comment to dick and the subsequent explanations and defenses were, in my mind, quite separate from the discussion with eggs regarding my particular contract.  It just so happened that I happened to have an opinion on both subjects.

So if Jane or Robin/Janet (who appears to be a law student and, like Jane, apparently can't wrap her head around anything regarding copyright in any terms other than Legal with a capital L) drops in here, I do hope they'll take the time to think through their responses, even if they don't write anything.  The original Dear Author thread was on several other subjects besides my contract with Pocket and plagiarism.  Just because I happened to be the principal in one of  those subjects doesn't mean I was obligated to drag those issues into a discussion of the other subject.

And for the record, on a third issue in that thread, whether it made sense for an author to charge more for a DRM-free copy of her digital book, was I the only one who thought, well, duh, of course you charge more for something when you pretty much know people want the DRM-free copy so they can sell it to someone else and you the author won't get anything for it! 

Or am I missing something here?