Radically Rethinking Copyright in the Arts

A Philosophical Approach

James Young

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000179354
• Edition: 1
• Topic: Philosophy
• Subtopic: Aesthetics in Philosophy

This book radically rethinks the philosophical basis of copyright in the arts. The author reflects on the ontology of art to argue that current copyright laws cannot be justified. The book begins by identifying two problems that result from current copyright laws: (1) creativity is restricted and (2) they primarily serve the interests of large corporations over those of the artists and general public. Against this background, the author presents an account of the ontology of artworks and explains what metaphysics can tell us about ownership in the arts. Next, he makes a moral argument that copyright terms should be shorter and that corporations should not own copyrights. The remaining chapters tackle questions regarding the appropriation of tokens of artworks, pattern types, and artistic elements. The result is a sweeping reinterpretation of copyright in the arts that rests on sound ontological and moral foundations. Radically Rethinking Copyright in the Arts will be of interest to scholars and advanced students working in aesthetics and philosophy of art, metaphysics, philosophy of law, and intellectual property law.

1
The Problems and the Keys to Their Solutions

Contemporary Intellectual Property Regimes

The rationale for current intellectual property laws, particularly as they apply to the arts, is that they promote the public good. They promote the public good, defenders of the status quo maintain, by giving artists an incentive to create. The incentive, in most jurisdictions, takes the form of a lengthy copyright term, usually the life of an artist plus seventy years. For that period, artists have a monopoly on the creation and distribution of their works. Artists are also, on the standard view, incentivised to create by the prospect of monopolies on the creation of derivative works and trademarks on fictional characters. In return for the granting of monopolies, the public receives the benefits of a flourishing art world where creativity abounds. The trouble is that there is little evidence that any of this is true. On the contrary, most artists are not doing well under current intellectual property regimes and there is a good deal of evidence that artistic creativity is being constrained rather than promoted. However, contemporary intellectual property regimes do enrich some people: the already very wealthy. I believe that a justifiable intellectual property regime will serve the public by encouraging creativity and actually serve the interests of artists.

Let us begin by getting a sense of contemporary intellectual property regimes. The first copyright law was the Statute of Anne, enacted by the Parliament of Great Britain in 1710. This act provided that works published after 10 April 1710 would be protected by copyright for fourteen years, if registered. A copyright conferred on an author a monopoly, the exclusive right to print copies of a book. If the author of the book was alive at the conclusion of that period, the copyright could be extended for another fourteen years. After a maximum of twenty-eight years, a work entered the public domain and could be copied by anyone. Copyright applied only to literary works. No mention was made of rights to create derivative works or any other subsidiary rights. The history of copyright since 1710 has been the history of granting to holders of copyright ever greater rights over copyrighted works and expanding the range of items to which copyright and other forms of intellectual property law apply.

The term of copyright has constantly grown since 1710. The first copyright law enacted in the US adopted the same term as the Statute of Anne: fourteen years, renewable for another fourteen years. In 1831, the initial term of copyright in the US was increased to twenty-eight years. After this initial term, a copyright could be renewed for another fourteen years. In 1909, the US Congress again amended the term of copyright. After the initial period of twenty-eight years, a copyright could be extended for another twenty-eight years. In 1976, the term of copyright was increased to the life of the author plus fifty years.

In 1998, just as the copyright on the early works featuring Mickey Mouse was about to expire, Congress passed the Copyright Term Extension Act, often known as the Mickey Mouse Protection Act. This established a copyright term of the life of the author plus seventy years. The Act’s nickname is well deserved. Eighteen of the twenty-five congressional sponsors of the Act received funding from the Disney Corporation. Michael Eisner, then chairman of the corporation, personally lobbied Republican Senator Trent Lott, then senate majority leader, and one of the recipients of Disney’s largesse.¹ Works copyrighted by corporations were granted a copyright term of ninety-five years after publication. The US term is now widely adopted. It is the term enforced by the European Union and it is the term recently (2018) imposed on Canada by the terms of the United States-Mexico-Canada Agreement. Previously, Australia was required to accept the US copyright term under the provisions of the Australia-US Free Trade Agreement of 2005.

Initially, copyright was simply that: the exclusive right to make copies. Additional rights began to accrue to copyright holders in the course of the nineteenth century. In the UK, starting in 1842, musicians were required to pay fees in order to play copyrighted works in public. A similar law was enacted in the US in 1870. The US Copyright Act of 1870 also put restrictions on derivative works for the first time. In particular, works could not be translated and novels could not be dramatised without the permission of the copyright holder. The Berne Convention of 1886 placed additional restrictions on the use of a copyrighted work. In particular, “Unauthorized indirect appropriations of a literary or artistic work of various kinds, such as adaptations, arrangements of music, etc.” were “specially included amongst the illicit reproductions” forbidden by the convention.² The sense in which an adaptation is a reproduction was not explicated.

Perhaps the most consequential amendment to copyright law is found in the 1909 US Copyright Act. For the first time, copyright could be vested in a corporation rather than an individual artist. Contemporary law does not merely allow that corporations can be persons. For the purposes of copyright law, a corporation can also be an artist every bit as much as an individual writer, painter or composer. Many artists have been reduced to the status of hired hands. A corporation can make millions, even billions, of dollars from the work of its employees. Some artists receive a salary, often meagre. Others do piecework.

Changes to copyright laws have often been to the disadvantage of artists. Consider, for example, the revision to the copyright terms in the US 1976 Copyright Act. This Act supplanted the 1909 Act. The earlier act provided for an initial copyright term of twenty-eight years. After the expiration of this term, the artist could renew the copyright term for a further twenty-eight years. In 1909, the US Congress considered a single, longer copyright term but rejected it on the grounds that such a term was not to the advantage of artists. The committee studying copyright law reported to Congress in these terms:

It not infrequently happens that the author sells his copyright outright to a publisher for a comparatively small sum. If the work proves to be a great success and lives beyond the twenty-eight years, your committee felt that it should be the exclusive right of the author to take the renewal term, and the law should be framed as is the existing law, so that he could not be deprived of that right.³

Three quarters of a century later, things had changed. The framers of the 1976 Copyright Act were content to see authors and other artists deprived of this right. Artists were not completely deprived of the right to regain their copyright, but they could not do so until thirty-five years after the publication of a work and they had to navigate a series of challenging hurdles.⁴ A leading authority on copyright has noted that, “the termination right has become virtually meaningless, much to distributors’ delight.”⁵ Even if an artist succeeds in regaining copyright on a work, the original grantee retained copyright on the work in all countries other than the US. In other countries, artists face challenges in regaining copyrights that they have assigned. In Canada, artists who have assigned copyrights to corporations can regain their copyrights twenty-five years after their deaths.⁶

In other unfortunate developments, courts have become increasingly likely to regard as subject to copyright items not mentioned in copyright law. For example, fictional characters are regarded as copyrightable, even when they are not mentioned in copyright law. Fictional characters are also protected by trademarks so that control of them becomes perpetual. Courts have become willing to protect the “look and feel” of a work. Effectively, this is protection of a style despite the fact that copyright law does not protect styles. Such developments place serious impediments in the way of artistic creativity and make intellectual property law a tool for enriching the wealthy.

Problems

There is little evidence that current intellectual property laws are promoting the interests of most creative artists or of the public. Many artists are not earning a decent living under current laws and these laws place restrictions on the creativity of artists. Restrictions on the creativity of artists, in turn, set back the aesthetic interests of the public. The primary function of current intellectual property laws is actually to enrich already wealthy individuals and corporations at the expense of the public and a majority of artists.

A few examples will suffice to demonstrate that most artists are not flourishing under current intellectual property regimes. In 2015, professional writers in the UK earned a median income of £11,000 from their writings. This compares to a national median income of £27,011. These statistics apply only to professional writers. Non-professional writers earn even less. In real terms, the incomes of authors fell 29 percent in the decade between 2005 and 2015.⁷ This was at a time when overall sales of books in the UK rose 1.3 percent to £4.4 billion.⁸ Phillip Pullman, author of the His Dark Materials (1995–2000) trilogy, described these findings as “a national disgrace.”⁹

The situation of authors in other countries is similar. A recent report produced by the Writers’ Union of Canada found that, after correcting for inflation, authors made 78 percent less in 2018 than they did in 1998. In the three years between 2014 and 2017, average earnings for Canadian authors fell 27 percent from C$12,879 to C$9,380.¹⁰ Dr. Johnson famously said that, “No man but a blockhead ever wrote except for money.”¹¹ If this is true, then most authors are blockheads.

The situation is similar for those who produce comic books. According to Fair Page Rates, piecework writers can make anywhere from $25 to $100 per page of script. Line artists may be paid $2,000 for a 100-page book.¹² This may seem to be a reasonable rate, but a new artist may spend eight hours working on a page. This translates into an hourly rate of about $2.50. Most artists in the comic book industry are freelance, but some have salaried positions. The average salaried writer makes about $55,000,¹³ an amount below the average American income in 2018. In contrast, Isaac Perlmutter, president of Marvel in 2018, has a net worth of $4.5 billion and is 126th on Forbes’s list of the world’s wealthiest people.

Recording artists are not doing very much better than writers and those in the comic book industry. In the US in 2018, the total revenue from recorded music amounted to $43 billion.¹⁴ Of this revenue, recording artists took home about 12 percent. Artists earn $0.00029 each time their songs are played on Spotify. Their record label receives $0.0016 per play, or over 6.5 times as much. Artists would need to have their songs played 4,053,110 times in the course of a month in order to earn the US national monthly minimum income of $1,160. When a track is downloaded from iTunes for $0.99, the recording artist receives $0.09. The record label receives $0.53, or almost 6 times as much.¹⁵ The record label, not the recording artist, is usually the copyright holder.

The use of low royalty fees is not the only way that corporations take advantage of artists. High fees for the use of copyrighted material are another. In 1996, the band Too Much Joy recorded the album Finally for the Warner label. The album sampled the actor Alan Arkin uttering the words, “Uh, oh, too much joy.” The sample was taken from the movie Simon (1980), the copyright for which is owned by Warner. Warner wanted to charge Too Much Joy $5,000 to sample five words on an album that was being produced for Warner. Warner simply saw another way to take money from artists. None of the money from such a permission fee goes to the artists who made Simon. It is all retained by the corporation that holds that copyright.¹⁶ Warner was not in the least concerned that a band was unable to realise its vision because of a high licensing fee.

Of course, while most artists are not doing well under current intellectual property regimes, some are doing very well indeed. In 2018 J.K. Rowling had a net worth of £700,000,000.¹⁷ The world’s top grossing band in 2018 was U2. They earned $54,400,000. Interestingly, however, the...