[Home]RightToDerive

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The reason we control access is that some resources cannot be sustained if made completely free. For instance, if my home were made "free" then it would cease to act suitably as my house . Similarly, the expense of producing a book, film, or piece of software cannot be sustained without adequate remuneration. This either means profits in a market economy or influence/power/attention in a statist/non-profit economy.

However, some content production is self-sustaining, as the act of creation is itself an act of remuneration. Creating works can be educational or enjoyable in itself or further religious or political goals. For instance, certain widespread ideas are continuously regenerated in pop writing, such as appears on blogs and wikis. As well, some programming solutions will appear continuously. And there are millions of musicians in the world producing music with limited (or no) expectation for financial remuneration.

PatentLaw? has an exemption for obvious ideas given the state of the art for this very reason, and copyright exempts two works created in isolation from each other that appear similar. That is not how the Net works though, as we are a rip and mix culture, not a monkish recreationist culture. FairUse does alleviate pressure, but only for criticism, not for derivation.

Nonetheless, providing copyright protection for such cheap efforts is ridiculous in 99% of cases and for what it's worth they have no effective copyright since they cannot enforce it without the financial liability to pay for lawyers. It may serve to protect the public commons from commercial exploitation, though, since a large company cannot just take a found work and resell it without paying the original artist in return.

There are troublesome issues though in this dichotomy between commercial ownership and public "street" discourse. The commercial sector owns the more efficient distribution systems (cf. GlobalMedia?). For those who do not seek to filter commercial messages out of their lives, a large amount of the daily experience is bound up in commercial content (c.f. NeoLuddite). For the CommonContext required to have public discourse, especially mass discourse, there is rarely a better source than commercial content. For good reasons, we are limited from (ab)using such content in our dialogues, as it would dilute the market of this material and thus lower its value, making adequate remuneration for the content harder. Thus, we cannot simply take it and form a new language around it, even if it is so compelling. As the GreyAlbum demonstrates, there can be a lot of power (emotional, not political) in reforming such works as part of art, dialogue, creativity, and innovation. Even if we are not allowed to use such works as a new language they form a new language anyway--the language of water coolers, hair salons, and the Street. This language is owned and controlled in ways that languages should not be. And thus we need to find a meaningful way to free it.

Of course, the small detail of remuneration still remains. We are not allowed to derive at will since that provides an alternate revenue source not flowing into the original content creator's hands. We do have a concept of royalties, however, to cover this. If we derive we pay, but not necessarily a lot and not necessarily anything depending on the context.

For music, the U.S. Congress opened exemptions (WikiPedia:Compulsory_licensing) in 1909 forcing music companies to allow "covers"--complete derivations--for a royalty. The music companies could not prevent covers, and they in fact demanded the right to cover as a basic foundation of their industry. What is novel and powerful about this system is that it allows derivations without hampering the original author's right to recouperating costs. In fact, it encourages new authorship by easing the process of creation through derivation (it's easy to copy&modify than make a whole new work). Further, it creates a speed bump to bad derivations, a common concern for all original artists worried their works will be destroyed, by using market forces as the arbiter of survival.

Right now faced with the growing counterforce of cheap public content creation, traditional content owners are clamming up. They are trying to protect their content from being misappropriated (i.e. without remuneration) by the public that ironically are their customers. They are losing money because of this sea change from content consumption to content negotiation (readers are authors). They clam up to their own disadvantage as well, another irony. The top selling works in the music industry, for instance, rely heavily on sampling--the digital age equivalent of covering. So while they insist others pay for every work sampled, they hurt themselves by having to pay as well. While the six major labels have a lot of content they can sample for much less than the going street rate (as they don't have to pay themselves, just the original artists), this is clearly hampering them as well.

Meanwhile, out there in the public, the cheap and easy content creation and distribution has created a whole new surge of content available for everyone. What's more, as small artists notice the value of stealing material from other artists, they have entered a GiftEconomy by letting other small artists share their works. They use CopyLeft licenses to give the RightToDerive, the RightToDistribute, and a number of other important rights, whilst simultaneously restricting these uses to only the little guys. This CopyLeftNation? is best represented at the moment by the FreeSoftwareFoundation for software and the CreativeCommons for other artistic works.

It can hardly be argued this by itself is a bad thing. Copyright enables this kind of development. The Internet has also commodified distribution channels, so this enables TheIndividuals to organize from the bottom up without the permission of a powerful central authority who owns the distribution channels. It's understandable why this has also caused the original content owners a lot of agony since their chief means of revenue was the control of distribution channels. Music companies control the radio stations. Movie companies control the film theatres. Book stores force painful contracts on publishers since they control a lot of the market share. And for those consumers who asphyxiate under the stranglehold on access of the traditional distribution model, it's a perfectly legitimate market action to organize their own more efficient distribution models.

What the content owners do still control is talent and material that the amateur content creators still do not have. It's less than what they controlled before, but it's still significant. Hampering this process with a bad IntellectualProperty framework is self-defeating.

The trouble is that they are also still big guys with Big Capital. Big Capital is not interested in making music, books, films, or software. Big Capital is interested in making more capital. If these industries turn unprofitable, through market actions or by lobbying for bad legisliation, Big Capital will leave these industries and go elsewhere, leaving the craterous and leacherous legal landscape behind them without any more Big Capital to put it back into shape. This should be mildly disconcerting for the rest of us living under such laws. It may be the case that Big Capital will fix laws that make it unprofitable, but not if it can move across the wire into countries with better legislative (or no legislative) environments, leaving us behind. And once Big Capital invests and gets going, it has an interest in staying wherever it is for a long time.

So, I would argue that it's imperative to reexamine the CopyrightLaw to ensure that it isn't crippling new artistry, but I would argue against moves towards replacing copyright with CopyLeft. While CopyLeft supports the little guy, the Big Capital is also critical to society as the people who pay the little guys during the day so they can afford to be creative at night. Rather, create opportunities for the little guy to use commercial works in ways that remain profitable, and that will allow the big guys to use commercial works in ways that are really profitable, and all the while let the CopyLeftNation? continue on. -- SunirShah

CategoryCopyright

Cheap as chips?

You say you use the word cheap to refer to the costs involved, but I'm struggling to see that. While often the cost base of self-sustaining content is lower, it's more significant that self-sustaining content is cheap in terms of price, as supply outstrips demand. --MartinHarper

How much did it cost you to type that in? The felt costs of Internet use are so low that they are measured in personal time rather than in capital expenditures. -- SunirShah

It didn't cost me much to write that paragraph. But then, it doesn't cost Stephen King much to write a paragraph of a book. Our costs are similar. What's different is our abilities, and what we are able to charge for that paragraph. Another example: it doesn't cost me much to play an hour of an online game such as Starcraft. Similarly, it doesn't cost much for the Korean #1 Starcraft player to play an hour of Starcraft. Our costs are identical. Our prices are completely different: I pay to play, he gets paid to play.

Now, because of our difference in prices, there is a difference in costs. #1 Korean player can afford to buy the world's most expensive mouse. But the price is the driving force. -- MartinHarper

I think there's a huge difference between VanityPresses and what the Internet allows. It's not just creating the idea, it's the distribution of that idea. Distribution as a commodity now is much lower than it was before, enough that we can play a flat rate for it rather than paying (a lot more) for each distribution event. More to the point, we've socialized distribution since we agree that I only need to distribute my content only as far as the next computer who agrees to relay that information on, and that agreement is enforced by a TechnologySolution. If the InternetProtocol was not just so, if people could select what content they will accept and what content they will pass on, then it would be a totally different place. But since it isn't, the market advantage of constructing the physical distribution network has been wiped out for digital content. -- SunirShah

One of the things that gets lost is the role of the public in creating the social context that causes authors and works to become prominent. To take your Stephen King example, I would argue that he is not a particularly capable writer, that is, no more so than thousands of others. People read his works because he has become a [[BrandManagement|brand]], and they know exactly what to expect from one of his novels. He has been made successful by his large fan base. This sort of thing is a major frustration to aspiring writers, artists, and musicians: the fact that inertia and public acceptance play a greater role than talent in determining what sells. In the USA, my favorite example is Country Joe & the Fish: their hit song was illustrative of a particular social sentiment, and became an anthem of a generation because it was featured in the Woodstock movie. What made the song famous? The writing and performing, or the thousands of people singing it in movie theaters across the land? There were many other equally meritious songs that captured the mood of the moment just as well, and that this one became the most famous was, chiefly, happenstance. --Steve

I think it would be a wild stretch to claim that Stephen King was a no talent hack. I also think it's a wild claim to suggest these things are completely random. From an outside, observational view, life may seem random, but the reality behind the scenes is more involved than it may originally appear. The people may be primed for something, but the something has to be created. That's like saying food is unimportant because everyone has to eat, so why do we bother paying for it? -- SunirShah

That isn't the claim. I'm claiming that Stephen King comes from a large talent pool, and while he is well qualified, creative, capable, etc., he does not have the singular talent and skill that his success might connote. Bright ENTP/INTP types like to believe that we live in a meritocracy (c.f. ResponsibilityAssumption). But the AynRandian, EstLandmark?, SundaySchool, BoyScouts?, TalkRadio?, DaleCarnegie? view that talent and hard work pay off proportionately is false, indeed, patently so. Continuing our musical analogue, the label A&R people are looking for acts that they can control and package. This is new only in the extent to which it is being taken, in that in popular music, talent and creativity have now taken a back seat to ease of marketability and control. The thought is that creativity (in the form of outside songwriters and producers) and talent (in the form of outside studio musicians) can be readily added to a biddable act with the right image, while a musician who values artistic integreity and independence cannot be subject to BrandManagement and control with reliable results. --Steve

I don't think I said anything to claim that the most profitable is the most talented, and I'm not a "market Darwinist" either; i.e. someone who believes that the definition of best is whatever the market rewards. I was actually itching in class this morning to ammend my statement with the following model, so I'm glad you brought up the obvious objection against meritocracies. I apologize if this gets rambly.

Roughly, there are three sides to the negotiation. There are the artists who produce the content; the publishers who select, package, and distribute the content; and the consumers who purchase the content. Each partition is a large random assortment of people, and it's only statistically that better/worse distinctions might be made, if at all. So, there are many arists, many of which are very good, some better than others. However, that isn't enough to be published, as talent alone is nothing. An opportunity must exist for the talent to cross to the publishers (GlobalMedia?) who have an oligopolistic control over distribution at many levels in our society. These opportunities however are not random, but they bias towards certain qualities. Much like the randomness that a molecule may cross a membrane, not every molecule may cross, and some bad molecules like viruses may cross through the same holes, but in a viable organism more useful molecules cross statistically than others.

Thus, from the point of view of the publishers, as long as they continuously put out saleable material, they are happy. While they are interested in finding the most saleable material, they don't have all the time in the world to find the "perfect" content (which doesn't exist), and they are only really interested in a good ReturnOnInvestment?. If they find an good artist whom they can negotiate a profitable deal with (not always the case), they will agree to distribute their material. They don't care too much if this is the best artist, although in recent times the music industry can be faulted for relying too heavily on the best artists to carry them.

From the point of view of the consumers, they are only looking for something entertaining, inspiring, or what have you. Basically, they are looking for "fun" for whatever they consider fun. However, similarly, they will buy whatever seems like fun at the time they want fun, and they are willing to satisfice by buying mediocre material that passes the time. People will experiment, buy stuff they know they may not like, but mostly if the cost is low enough that it's worth the risk. The real cost to the consumer for entertainment is time, of course, so while music is really cheap to play around with, books take a lot more time (cf. Wiki:ReadingDeficit, Wiki:ReadingDebt). Books require a huge infrastructure of a recommendation system (e.g. New York Times book review) as well as an efficient production and distribution system to keep the cost per book low enough people are willing to buy books they may not necessarily like. More to the point, people buy what they think will not be a waste of their time, so they will buy Stephen King novels since they can reasonably expect they will be entertained.

So, for the struggling artist, being successful means being inexpensive, connected, aggressive & flexible with respect to the publisher, consistent, and talented. And a lot more things undoubtedly. What the Internet changes is the negotiated position of the artist with respect to the publisher and the consumer, and the consumer's negotiated position with respect to the artist. It also aides the publisher's internal system of control, but it doesn't help them in the external market, at least through traditional models of market interaction. And if you look at the type of net.content that becomes wildly popular through Internet distribution, it is really, really "bad"; e.g. All your base are belong to us. Being a fan of books, and in particular the direct benefit of the Chapters bookstore & distribution monopoly on the publishing industry in Canada, I'm not convinced that dismantling the for-profit industry is an overly good thing.

But then again, in Canada, we favoured cable television over RF broadcast television as a means to concentrate capital in one broadcast institution so that it could be strengthened, which is also why we have a highly controlled radio market. Not only did it help create and sustain world class stations like Edge 102.1 in Toronto, but it allowed for the "Cancon" regulation (35% broadcast Canadian content), which directly created a viable Canadian music industry in a way that Canadian film is not since only 2% of Canadian theatres are not owned by the major Hollywood distribution firms. Thus, the model isn't only unidirectional (producer to publisher to consumer), but it also goes the other way; when strong, ultimately creating opportunities for artists. -- SunirShah

I think I agree with most of what you just wrote.

Marketing and branding have become cruical elements in creative works. Enormous sums are spent to hype new movies prior to release, and large sums of money and political capital are expended to promote pop music acts. BrandManagement is powerful, because most of the buying public is RiskAverse and would rather have a guarantee of having acceptable entertainment than a chance of exemplary entertainment. In like fashion, publishers of all stripes, especially of movies, less so with film, and only marginally so with print publications and software, are RiskAverse, particularly with regard to those products that they market aggressively. The cost of the hype means that they can't afford to put anything in the content that will turn viewers off, so they take no risks.

I can't seem to remember the title of the movie that came out in around 1985 that spoofed the spy-movie genre (There was a Ford Pinto that exploded and a cow costume worn by two soviet agents). The movie included a couple of references to an "anal explorer," including an illustration of an improbable such device. I remember talking to four or five people about the movie after it came out, and all of them commented on the "anal explorer" plot aspect. Some thought it ruined the movie, some thought it was the funniest thing they ever saw, but no one was unmoved.

You don't see that sort of risktaking in cinema today, because the distribution costs are too high to risk offending the viewers. We have RiskAverse content publishers, and bland content.

In like fashion, the large radio stations are centrally managed and have extensive do-not-play lists and very short do-play lists of songs that tend to make more than a certain percentage of people change radio stations.


While the traditional discussion of copyright revolves around economics, I think the more interesting philosophical perspective is to deny the 18th century reification of creation as that of a single auteur, transcendant from the rest of society. That is, the author as genius, the author as celebrity; the work as belonging to that one person alone who is greatly above the rest of us. Rather, we might rethink artistic creation as language creation; as a speech act; as a negotiation between experience, speaker, listener, context, and medium. More to the point, content is not the work of one person, but the work of many people (cf. TheProcessedBook), perhaps a whole society. Just like the words of our normal natural language is created by the richness of life, so too are the concepts and symbols.

So, the GreyAlbum demonstrates for instance that The Beatles' White Album became part of our vocabulary, and we are denied from expressing ourselves with this vocabulary. -- SunirShah


There is a very real philosophical point that copyright is only meant to protect the style of an expression of an idea, not the idea itself, but that comes from an age where style was thought to be separate from idea, without content in and of itself. It was conceptualized as clothing (style) vs. face (auteur). But the clothes alone don't make the man, rather clothes+human make the image, and we buy and sell the image, not just the clothes. After all, this is why we made authorship so important.

So, similarly, while The Beatles version of the White Album is only theirs, the songs theoretically should be allowed to be resung by anyone else, as the songs are just the ideas. However, we look at The Beatles version of the White Album as the only meaningful version, or at least the definitive, and therefore we only see "The Beatles' White Album"--that is, their album, not just their version of it.

Digital means of perfectly copying the image attacks this view, versus the analog means of copying which is idiosyncratic to the copier, where the new copy reflects a different "image" (an analogy of the original, rather than the original). So covering isn't as threatening as sampling because a cover obviously is distinct from the original author.

The final tension to this is the deflation of the auteur as transcendant genius, but rather just another symbol generator whose personal reputation no longer matters. In many ways we see this on the 'Net, where the identity of the original idea generator gets lost. We have an EgolessWiki? to reflect this view as well. But what's lost in this is that some people are better than others at creating content, so we as consumers want to know authorship simply to save us the time of ingesting bad content. Reputation is an effective selector. -- SunirShah

Reputation is an effective selector for content from established creators.

Pragmatically, much of this could be addressed by radical shortening of the duration of protection and reducing its scope. The notion that one can own, in relative perpetuity, a creative work is a recent one. Copyright did not exist until 1710 with the adoption of the British Statute of Anne, which provided that copyright could be held for 14 years from the date of publication, plus another 14 if the author was still alive. The duration of copyright has been extended gradually over the course of years. Early copyright law limited, specifically, the printing, reprinting, and publishing of books, and did not apply to any handmade copies.

14 years is probably too long today, since in most cases content succeeds or fails in the marketplace in the first year or two after publication. What if copyright lasted only three years? Would studios quit making movies? Hardly. And in time the overall expression of an idea would pass into the public domain for reuse, sampling, repurposing, and whatnot. --Steve


The DigitalNetwork/NoLogo notion of ideas as vocabularies, and how much of our CommonContext today (as built by the entertainment industry; cf. GlobalMedia?) is restrained by IntellectualProperty laws (e.g. Mickey Mouse), and thus they rightfully belong to our active vocabulary. But while we of course can use them around the watercooler, we cannot use them in recorded media, except given LifeInText, the distinction between recorded media and the watercooler is so minimal as to be useless. The most detailed investigation about this on the Internet surrounds the SlashFiction? subculture. Sampling and remix culture on the digital network means that instead of reexplaining an expression, you simply use a reference to it and let the reader follow it (links as speech).

I actually think like this, at least to the extent of the topics we write about here on MeatballWIki?, which means its often very hard for me to explain things (particularly Meatball things) verbally as I have reexplain my referrents, but trivially easy to write on MeatballWiki where we have already built a large vocabulary (the PatternLanguage). -- SunirShah''


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