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:

(1)

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).

Global Tax Crackdown = Global Surveillance State & Lower Standards of Living. [Plus Copyright.]

In an effort to mitigate all the good effects of last night’s free trade deal signed for Pacific nations, world governments are moving on their draconian plans to stymie the world economy by adding as much cost as they can to those firms we would, as individuals, otherwise want to trade freely with. The below comment to this NBR piece indicates the source of the problem - statism has won over freedom:

#1 by norman godden   16 hours ago

About time too. I have observed so many multi-nationals reduce profits here by loading up related party debt and unrealistic management fees.

I replied to Norman on that thread, but as ever NBR’s moderation works to stop the free flow of ideas, and it never made it up to the site. This will have been due to it falling through the cracks of their creaky moderation system which sees comments lost, not because of content. As near as I can remember my comment it was as follows – well, expanded:

Goddamn Godden. These firms were operating their tax affairs in our best interests, preferring to use their profits for innovation and lower prices to benefit customers, rather than increase the size of world governments.

Tax is a cost in (at least) two ways:

First tax is a cost to business which will be passed on in higher prices for goods, and via less innovation, less choice. Indeed, when New Zealand soon moves to add GST to all imports – unrelated to this crackdown, but the same impetus - I can see some overseas firms who won’t find it profitable to trade here, not bothering to. So our cost of living will rise, as the quality of life we’ve had through global trade declines.

Second, the money that is extorted from consumers – as they are always the one who pay corporate income tax as well as sales tax – is used by governments that have grown to half the size of their (planned, centrally dictated) economies, to grow themselves yet further via dependence to the welfare state, undermining always the self-reliance required for freedom and prosperity, and the entrepreneurial spirit rewarded by laissez faire capitalism that has given the West the best standard of living of any previous civilisation.

Norman’s comment is representative of the statist gestalt that has won in the West, capturing Left and Right, which produces from our state school system sheeple who would vote for abattoirs if they thought they might get a free lunch on the way to the trucks.

Footnote:

I’m moving further away from Ayn Rand on copyright. I will always hold it as a valid right, but a bad provision of the TPP (Trans Pacific Partnership) – other than that there are so many provisions and true free trade should be agreed in a single sentence (so this is cronyism on top of free trade) – is the increasing of authorial and music copyright to 70 years after death from 50, as it is in the US. This is retrograde as far as artistic use is concerned. I believe copyright should die with the creator.

Further Reading:

Amazon is Our Hero, Not the Villain of the Piece.

Why do Statists Want Higher Prices for Consumers?

Crown & FBI Hand Dotcom Their Case

First, in a sobering display of the abuse of state power, seventy keystone cops armed with assault rifles raid Dotcom, his pregnant wife and nannies, over alleged non-violent crimes. Disgusting. And incompetent given the paperwork was so badly drawn the raid looks to have been illegal anyway.


I say the above as a supporter of IP: it is a valid property right, and copying is theft. Although that is not the case against Dotcom. Rather, merely that he built a platform on which unassociated individuals were trading pirated files - no different than prosecuting the owner of a road for crimes that road was used to commit, or an ISP for crimes committed by it's users.

But it gets worse. To compound the multitude of errors already made by the fumbling crown and FBI, now on the latter body illegally taking clones of Dotcom's hard drives out of the country, they've come with the following justification that hands Dotcom the case, morally, if not in actuality:

FBI agents who copied data from Megaupload founder Kim Dotcom's computers and took it overseas were not acting illegally because information isn't "physical material", the Crown says. ... Crown lawyer John Pike, for the attorney-general, said the material stored on the hard drives could be shipped overseas for the FBI to examine because it did not constitute "physical" material. The relevant legislation applied only to physical possessions rather than information ..."

Outside of the fact these two government bodies have time and again acted as if they're above the laws they are charged to uphold, they've just used as their justification for taking these files, an argument almost on all fours with the anti-IP anarchist scarcity argument - the nonsense that it is - that IP is not a physical possession, thus taking/copying files is not stealing, or, in this case, against the law. Surely, if there is no law broken by sending such copies, then Dotcom, even if he did copy files/information himself, by their own reasoning, has committed no crime. Alternatively, they have just committed the same crime they are prosecuting. Case over. Dotcom's business destroyed, livelihood taken from him by force, by two out-of-control states, for nothing.

It will be interesting to see if the defence makes something of this.

You wouldn't want these clumsy oafs, sorry, gun welding clumsy oafs, who since the raid have been making it up as they go along, re-scoping each law as they break it, running your life for you. Oh, wait a minute ...