Copyright & Originality | And Why Not Use Simple Damages.

I’m breaking brand Rand on copyright, as my ideas morph. IP in the arts is not the same as property rights in tangible property because IP raises the nebulous issue of what originality (even) is, or if it is possible artistically - (please be warned my argument is around originality, not scarcity: I realise property rights are not defined by scarcity - pirating a book off the internet without payment is theft from that author). Noting I support the recently signed TPP because I support free markets and global trade knowing both are what have given me the best quality of life of any generation before me, I am yet dismayed at that provision of the IP Chapter of the TPP containing an extension of copyright terms from life of the author plus 50 years, to 70 years. My preference – I’m starting to think - which I see as consistent with property rights and artistic use, while allaying the state monopoly on force, would be to leave matters of copyright to the common law tort of damages. Outside that, I think copyright should vest in the author, and die with them, otherwise artistic use has to be negotiated with beneficiaries and their lawyers, and that is to close down use almost completely to the detriment of the author - for example, Janet Frame's work can barely - if at all - be anthologised since her death.

I don’t have time to write on this in detail, or even coherently, so I will instead post (for now) my two comments to this previous post, against the claim I’ve gone all interventionist. Some of my examples aren't the best, because not that long thought out, but you get the point, and I'm not building any straw men here. My Pachelbel example is lifted from a piece by economist Eric Crampton, which I have lost the link for, however, is included in the body of this post. These are the questions I would raise – feel free to debate (or correct me) in comments:

My ideas are changing on copyright.

I will always recognise copyright as a right, but there are problems around artistic use.

An example and some questions for you:

Pachelbel's Canon in D has a 4 chord sequence - just four chords - that is subsequently used in countless pieces of music.

My opinion is that every sale of Canon in D [the entire work] should go to Pachelbel's estate for eternity, for all I care⁽¹⁾. However, over his life other artists should have been able to negotiate - at the least - use of that combination. After his death that combination should have been freely available (including as homage to Pachelbel). What's your opinion on that?

This is simply 4 lousy chords: inevitably in the centuries since his death other composers would have come up with the combination without any reference or knowledge of Pachelbel – so why are they to be denied a product of their own minds?

I've just written a novel in which I thought I was being 'genre-istically' original: but I find on finishing the manuscript it fits pretty much exactly in some important techniques of an avant-garde movement called readymade - which I've never read the authors of, or knew - calling into question the whole notion of whether originality is even possible. I fell on these techniques because they fitted what I was doing. Despite I had no knowledge of their existence previously, am I to be excluded from using them? (Noting using those techniques is not a breach of copyright, but I include in order to query the notion of originality, again, which copyright requires.)

IP is a legitimate property right, but is not black and white like rights over tangible assets. There has to be a case for artistic use.

Include in your answer your definition of artistic originality. Include in that answer why the artist, say, who painted the first nude, could not then copyright (and exclude) the painting of every nude thereafter.

Regarding common law damages over a state enforced system of copyright open to cronyism:

I would be comfortable with a common law tort of damages being used in instances of 'supposed' copyright infringement.

For example, say I want to use one of Orwell's characters in a novel - which the literary agency of his estate refuses permission for on a blanket basis. So long as my use of that character is obvious (or credited) surely that raises interest in the earlier work, and thus renewed sales interest. Indeed, I don't see how it could possibly lead to a fall in sales of the original work.

Why doesn't the literary agent for Orwell’s estate have to therefore prove damages and sue me only on that basis? (If there is no loss of a sales trend, or it goes up, what the hell are they suing over, other than, ironically, to profit from my original use of that character in a very different context, with original significations?)

The respondent on that earlier (linked) thread claimed the damages were the rights holder not getting a royalty from my use; but I don’t think so. My secondary work would not exist without me creating it, so there would have been no royalty but for that; the originator work has lost nothing, indeed, gained by referencing of it with, one could assume, a renewed interest in sales. There cannot be damages from losing an income stream that never existed without the second creator.

Footnotes:

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Being beyond copyright certainly hasn’t stopped Jane Austen selling books with these great looking new editions published:

The coming title of Sense and Sensibility with a forward from Elena Ferrante.

[Note I've not asked for use of above photo, so I'm no doubt breaching someones copyright, albeit I'm pushing their work for them.]

Questions for the Objectivists reading this:

Do you seriously hold in the property right that would say Austen’s relatives should be controlling this publishing 200 years after her death, and then into perpetuity?

Should every secondary dramatization of her novels, including every TV period mini-series and every movie, be artistically directed by those same relatives (and their lawyers)?

That would seem absurd, so justify it please. And do you think if put under such strictures Austen's work would be so prevalent in our culture today? Of course it wouldn't. Now what do you think Jane Austen would have wanted? Was she writing to give a distant relative she will never know - and probably couldn't care less about - a living, or was she writing to get her art 'out there'? I think the latter, and therefore the modern draconian casting of copyright would be - if within her 70 year period - used against what her wishes would have been (and that goes for Orwell who is still covered by the 70 year copyright period).