butler150px[Cross posted from brandonbutler.info]  In a recent listicle on Medium, the Canadian writer John Degen, executive director of the Writers’ Union of Canada, described what he characterized as “5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating.” Of course, Degen’s post takes aim at the usual straw man, a mythical “free culture” movement that hates all copyrights and wants them abolished. As a result, he ignores the complexity of the debate over copyright’s genuine costs and the real contributions of scholars who have shown the harm that unrestrained copyright can do. In fact, two of Degen’s “myths” have been shown empirically to be facts, and two are ambiguous statements with at least one interpretation that is reasonable and uncontroversially true. Only the #1 myth, “Copyright only helps corporations,” is clearly false, but that’s only because it is cast in such artificially stark terms.

Two Proven Facts

Artists feel restricted by copyright.

Degen’s first “myth” is that “artists feel restricted by copyright.” One way to know how artists feel about copyright is to ask them, and several researchers have done so. For example, Patricia Aufderheide and Peter Jaszi found in 2004 that documentary filmmakers felt constrained by their fear of copyright liability and the cost of rights clearance. In a more recent study, Jaszi and Aufderheide found that visual arts professionals “pay a high price for copyright confusion and misunderstanding. Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”

More proof of some artists’ feeling restricted by copyright can be found in the Copyright Office’s triennial rule making on the Digital Millennium Copyright Act, which invites artists and others who ‘feel restricted’ by the digital locks that help enforce copyright to petition for permission to break those locks for otherwise lawful uses. Every three years artists report being chilled from lawful expressive activity by the DMCA’s digital locks provisions.

Now, I actually agree with Degen that professionals (and other considerate communities) who work with copyrighted content (artists and non-artists) can have very good instincts for which uses require permission and which are fair or otherwise allowed. And, outside of the DMCA, I think that the copyright system, through fair use, can be fairly reasonable in terms of balancing the rights of past creators with those of the current generation of users and creators. That’s why I’ve done a decent amount of work with Jaszi, Aufderheide, and many others on the fair use best practices: they document these considered opinions in an effort to help lawful users overcome their (empirically proven to exist) feelings of constraint regarding copyright. Hardcore property rights maximalism like Degen’s, however, chills artists’ speech. The idea of copyright as a sacrosanct property right is exactly what makes follow-on artists wary to make new art that may be seen as “trespassing,” even though their instincts as artists tell them their uses are legitimate.

Copyright shrinks the public domain

Degen’s next “myth” is that “copyright harms the public domain.” Here I’ll let copyright scholar Paul Heald’s research speak for itself:

A random sample of new books for sale on Amazon.com shows more books for sale from the 1880’s than the 1980’s. Why? This paper presents new data on how copyright stifles the reappearance of works. First, a random sample of more than 2000 new books for sale on Amazon.com is analyzed along with a random sample of almost 2000 songs available on new DVD’s. Copyright status correlates highly with absence from the Amazon shelf. Together with publishing business models, copyright law seems to deter distribution and diminish access. Further analysis of eBook markets, used books on Abebooks.com, and the Chicago Public library collection suggests that no alternative marketplace for out-of-print books has yet developed.

This magazine article gives the Reader’s Digest version of Heald’s research, and includes a striking bar graph showing how availability of works plummets once copyright kicks in.

Degen says that “there is no ‘public domain’ without copyright,” because the public domain is defined as the absence of copyright protection. He suggests that works in the public domain “have for one reason or another fallen out of copyright protection.” This account privileges in-copyright as the default status of all creative works, with public domain as a kind of leftover bucket of odds and ends. The public domain on this view is like the dark matter of the world of creative works; more a theoretical necessity than a lived reality.

In fact, the leading theoretical and historical accounts of the purpose of copyright have long been that it is subordinate to the public domain; a “limited term” of copyright is granted only to provide incentives so that works will be created and published, and eventually rise into the public domain. Copyright terms were historically quite short, with a view to enabling works to become public property in time to ensure wide distribution unconstrained by the law. Heald’s research shows that copyright is not serving this goal.

Two ambiguous statements with reasonable interpretations that are plainly true.

Degen’s next two “myths” are ambiguous, but have reasonable readings that are simply true on their face, despite his heroic efforts to muddy the waters.

“Myth” #3 is that “copyright is an attack on artistic freedom.” Of course, copyright doesn’t constrain the freedom of the copyright holder, so that’s the point of view Degen assumes in finding this statement to be false. It is, however, clearly true insofar as it applies to artists who do not own the copyrights in works they are using in their art. Even if you think, as I do, that fair use should allow 99.99% of legitimate artistic uses of copyrighted works, there is no doubt that copyright chills some non-trivial amount of artistic creation and self-expression. This is especially true if you reject Degen’s view that the only people with a human rights interest in copyrighted works are their authors. Rebecca Tushnet has written eloquently about why this is a mistake.

Degen highlights Article 27(2) of the Universal Declaration of Human Rights, which deals with the moral and economic rights of authors, but he ignores Article 27(1) (whose numeric primacy was not an accident):

“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

The recent report from the UN High Commission on Human Rights’ Special Rapporteur in the Field of Cultural Rights highlights the importance of the right of access and cultural participation, and the danger of making that right subordinate to property rights in trade agreements and other legal contexts.

“Myth” #2 (he’s counting down, I suppose, which is confusing) is that “copyright costs consumers.” Degen actually acknowledges that this is true. The real question, of course, is whether it costs consumers too much, and he doesn’t engage it. He also ignores the cost in terms of lost access as documented by Heald’s research.

One loaded myth

Finally, Degen’s #1 “myth” is that “Copyright only helps corporations.” Well, sure, this is false, but it’s not terribly interesting. Of course copyright can be useful to artists and small businesses. The clinic where I work routinely counsels artists, authors, and others to secure and enforce their copyrights in a variety of contexts. But here’s a tougher one: do some of the recent, extreme expansions of copyright’s scope and duration benefit individual artists and the general public as much as they benefit large copyright-holding corporations? Some of the revenues from the last 20 years of the term of protection for a given work may trickle down to its authors, but the vast, vast majority of that wealth is allocated to the corporate owners. In the meantime, for every blockbuster work that’s still commercially viable 70 years after the author’s death, there are thousands of works disappeared from the public domain and unavailable to a public who might make better use of the work than its nominal owner.

Degen would like to live in a world where absolute copyrights for him have no costs for others, especially other writers and artists. Unfortunately, in the real world his rights come at some public cost. Acknowledging the tradeoff between one artist’s copyright and the interests of other artists, and of the public, opens the door to a conversation about the proper balance, however, and that seems to be a conversation Degen is anxious to avoid.