195 - Is copyright wrong?

I have, without question, simply accepted the principles of copyright as simply the way it is, I had never thought to question it. Indeed, I have several times tried to assert as copyright that photos of me may not be taken, let alone used, without express permission. Yet current practice and the prevalence of mobile phones as cameras and as other sorts of recording devices, make this in practice not possible. This is one of the reasons I am very glad to no longer be in teaching, where young people will automatically push any boundary to discover just where the hard edge of any argument is.

Way way back, 1841, there was discussion in the House of Commons on this topic. I quote: Macaulay’s1 position, slightly modified, became the basis of copyright law in the English-speaking world for many decades.[18] Macaulay argued that copyright is a monopoly and as such has generally negative effects on society.[18]

Which statement, on the face of things is a contradiction: if it is a monopoly and a generally bad thing, why was his position the basis of adopting the very thing he declared to be bad?.

Copyright (paraphrasing wikipedia on the topic) is a type of intellectual property (essay 37). It is a legal right giving the creator of work rights to its use and distribution.... Copyright typically expires 50 to 100 years after the author dies, depending on the jurisdiction.... The development of digital media and computer network technologies have prompted reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and inspired additional challenges to copyright law's philosophic basis. Simultaneously, businesses with great economic dependence upon copyright, such as those in the music business, have advocated the extension and expansion of copyright and sought additional legal and technological enforcement.

There are issues of fair use, worth reading; for example in Canada you can copy for personal use, but you can’t do that in Australia.

Amusingly, the / an opposite view to copyright is copyleft. In effect this is a licence to copy and freely distribute copies of a work. The idea of creative commons runs through wikipedia, for example.

One can argue—and indeed I can find examples—that the existence of copyright is a restriction upon the transfer of information and as such is a curb upon the development of mankind. It can be argued that copyright is an issue in which the Establishment at its worst seeks to preserve its property in the widest sense. It can be argued that this all stems from the interests vested in publishing to preserve that business at any cost. There is an assumption in such arguments that monopoly is a bad thing not to be tolerated under most circumstances but that copyright is one such circumstance.

Issues at stake here, and I here lean on what Macaulay said in 1841:

Does a person have ownership of their ideas? If so, is this ownership such that the idea cannot be shared or copied? For what reason, if it were granted, would such ownership extend beyond the life of the creator of an idea?

The notion of property is one enshrined in law. Is intellectual property the same as physical property? Can it be handed on? [To me, clearly not, since retention of the work / idea is part of the passing of the content: I share an idea and we both have it, or our versions of such. Ergo, intellectual property is substantially different from, say, a house or a horse. Or perhaps even a book, if I have not read it. That does not preclude some various values ascribable to physical property  also being given to intellectual property.  But the same, they are not.

Advantages of copyright, as Macaulay put it, are obvious. Books require someone to be paid for putting in the creative work (and copyright provides a mechanism for that, perhaps the least offensive way of that).

Why would copyright extend beyond the death of an author? Macaulay says this is obvious, too, to keep the publisher in guaranteed income. “It is a tax on readers for the purpose of giving a bounty to writers”. He describes a situation in which there is an inevitability to the copyright after death moving steadily to a publisher. Thereafter the publisher is necessarily trying to recoup the costs of that purchase. He picks on the (then current) example of Milton’s works on infinite copyright owned by a Tonson publishing house and selling Milton’s poetry at “an exorbitant price”, while, relevant to his discourse, Milton’s only surviving grandchildren live in poverty. He picks on a succession of well-known books and ridicules the proposed law, pushing it in a direction that counts a stipulated length of time from publication, where the benefits should go (are intended to go) to the author. But Macaulay’s issue is that publishers will always argue for exclusive copyright and there is no guarantee that the owners of exclusivity will make the work available (and a lot of evidence to the contrary). But whether the blame for this lies with copyright as an idea or publishers as a body is less clear. I think the objection is that a publisher will be unwilling to spend money producing copies under unprofitable situations. That is not going to change, but reproducing copies electronically is a very different proposition from doing another print run. If we have a digital copy, it costs us very nearly nothing to find it and pass it along (at some nominal charge, I hope). The equivalent process with a paper print run is frequently ridiculously expensive per copy, which is how we now have vanity publishing.2

I don’t understand how copyright, which was intended to be the ownership of an author (the originator of a work) then passed in part or whole to the publisher, who was not the inventor of the content, though may well be a significant party in causing the work to be readable and available.

Who owns a work?

Usually the author, except when work-for-hire rules apply. See here for detail. However, it is common practice for a publisher to require assignment of copyright as a condition of publication. Obviously there are extra rules where collaboration has occurred; again, see the link for detail. As to what is copyrightable beyond writing, the list includes stuff such as this page; music in recorded and written form; animations, video and film; design, meaning software, website, architecture; and photographs, where the copyright lies entirely with the taker of the photo (with which I disagree3, see personality rights below4). Copyright does not apply to: Mere facts; exact duplications of public domain works; ideas; systems; works created by employees of the Federal Government; titles and short phrases; logos and slogans; forms that only collect information (rather than provide information).

There is available gradation of the handover of rights; it doesn’t have to be total. Most authors, I suggest, want a copyright licence, such as would yield, say, the right to publication of a work in a single form. See. I suggest that, historically, many authors have felt so pleased to have any publication at all that they happily succumb to the ‘it’s just a standard contract’ and sign away all their rights. In those cases where an author is truly delighted to receive an instant payment, they have indeed handed over the risk of publishing  for a price and at a cost, presumably one they feel worthwhile. An author could buy back the copyright, and a few have.

I tried to discover the rates at which authors are paid. I do not deny that publishers do work; I have seen how hard their staff work at turning a work into something that will be saleable. It is an economy of scale that makes a publishing house able to commission work, to support authors they think worth the effort and at the same time to have some sort of house style. Whether that genuinely generates customers I have no evidence.

The suggestions I picked up from Prime Palaver are that an author might get four to eight cents in the dollar, which seems to me a very poor return on being the originator. I had imagined a more major fraction, perhaps a little less than half. Reversing the calculation, at what rate would you wish to be paid to write full-time? What would a living wage be for such a self-employed role? Would you not expect there to be a range from journeyman up to expert / elite? It is clear that very few people are successful full-time writers any more than there are rich full-time musicians (and perhaps fewer, since a good deal of a musician’s income derives from performance, which writers tend not to have available). A paper book you find in a shop for £20 has cost the supplier between £14 and £6 depending on the volume throughput (the size) of the end seller. So the publisher receives about half the apparent price. An author who receives royalties will receive 10 to 15%, usually the lower end of that scale, so perhaps 20% of the publisher’s receipts. See.

If you regard that end result and want to live off the proceeds, and if we accept that 3 months represent 80% of sales, then each book must earn an annual income in that time, since it is rare to see authors who manage more than a book per year. Say you want £30k; that requires £300k of sales, perhaps 30k books sold. But read this. If we accept that 3 months is 80% of the total sales, then either you want 30k books to be the 80% (or you want 30k to be 100% and accept the trail in income; I don’t think so; the other 7500 sales later is what you want). That makes for the same sort of patchy income as a farmer has, taking produce to market—the analogy is good. And a writer has, it is established great difficulty finding a publisher at the outset.

As to what counts as a bestseller, the jury has mixed replies. These are complied weekly based on reported sales. Tess Gerritsen suggests that 4-5000 copies in a week will put you in the Times top-15. But that is 5000 copies reported and quite likely 8000 actually sold. Also, it depends on the time of year, though I never thought of book sales as having a seasonal element. (Apparently twice the sales in September over January, irrespective of academic demands). Tess compares books with cars quite successfully—very similar numbers.

Eric Flint argues—I think very well—that sales must be a reflection of the numbers aware of your effort. Which is why every author is interested in increasing the number of people aware of their work. Which in turn supports the argument`(s) that say an author needs to make stuff available for free, for how else can you the reader establish whether this is someone whose work you wish to pay for? Some of us will always have the something-over-nothing preference; for such folk, if paying is such a limiting problem, then they will always be at least three months ‘behind’ and for some that is an entirely acceptable cost, akin in my mind to saying of a new film, “I’ll watch it when it comes on tv”. Next year. As argued earlier, such people were never going to make a purchase, so they are not lost sales. Similarly, those who revel in what the publishers call piracy; though these pirates don’t do rape and worse, they could be described as looters. But such folk also do not represent lost sales for they too were not ever going to buy the material. They become pirates when they then attempt to sell what they collected for nothing and that deserves the full force of the law applied, plus support from the ordinary and honest populace. Purchase of cheat cheap copies for sale is wrong and we should not support it, nor those who do so. Encouraging others in an enthusiasm for a source is a source of income for authors, and the actions of lending a book, borrowing from friends or libraries, buying secondhand books—none of these are sales that affect the original author unless and until some of that audience becomes fired up enough to want their own copy. And at that point, there is a decision about whether you want hardback, softback, new or old, which is a judgement as much about how long you want your copy to last as it is an expression of support to the author. I see no appreciable difference in the treatment of audio or video, but then I live in a black and white world more than most.

If copyright is the most successful way we have of rewarding authors for their creation, then it is not wrong. But that does not support the arguments that seems to say that all other acquisition of the same material is wrong,  or we would permit neither resale nor borrowing. Why copyright should run long after the death of the author is a different argument, more to do with the ownership of the copyright. I can see argument that says copyright should run for a period timed from first publication (say 50-100 years). I can see arguments for cases as Eric Flint argues that separates copyright from price structure (thoroughly supported).

Wondering about the strategy employed by Baen Books, to offer free two or three volumes from every author’s backlist so the customers can decide whether they like the material, and offering two or three chapters of new material and new authors’ works, it occurred to me that I see a parallel in bookshops who permit customers to sit in the shop and read—I have seen whole school classes scattered around the floor of large shops in China. Provided no-one tries for theft, the cost is a little wear on the volumes on offer, which might well be covered by a sales strategy that says the shop-soiled are generally not sold full price. Is there truly an equivalence in the music industry? Might that be selling an album on the strength of a single hit? In the cinema, this is the trailer.

I am satisfied that I like the approach of Baen Books and its associated authors. I support this and will purchase from them, particularly since I am aware that a significantly higher fraction of the whole goes to the originator. I no longer want works on paper; my reading habits and preferences have changed.

DJS 20160610












Questions: What is copyright? How does it somehow move away from the original author? What right does a publisher have or acquire? Are there contract limitations forced upon an author? Why would that be so? What are the parallels with the music industry [See Prime Palaver Vol 11?] Parallels with the film industry? What are the vested interests here?

1 Thomas Babington Macaulay, 1800-59, Whig politician, historian, essayist. In 1841 Macaulay addressed the issue of copyright law. Macaulay's position, slightly modified, became the basis of copyright law in the English-speaking world for many decades.[18] Macaulay argued that copyright is a monopoly and as such has generally negative effects on society.[18] After the fall of Melbourne's government in 1841 Macaulay devoted more time to literary work, and returned to office as Paymaster-General in 1846 in Lord John Russell's administration.

2 vanity publishing: you want your work in print so you pay for the printing to happen. I found an example with no effort, Grosvenor House Publishing, who offer you a calculator with which to calculate the typical cost of your Great Work. I tried 50,000 words and it looked to me as though £800 would produce enough to satisfy vanity, printing off copies effectively on demand.

3 Copyright of Photographs in the UK. See. My issue is with you taking a photo of me or my property without my permission and, worse, you having copyright and me not having it. It is clear that buildings in public spaces have no permission required, but there are particular places where that is not given (e.g. Parliament Square) and any public building can withdraw photo permission indoors. I suppose that means that one cannot ‘own’ a view, though there might be issues as to having the right to occupy the space from which the shot was taken. You might wonder about people using photos you upload into social media; the detail will be in the caveats you waived by not reading the fine print, but if you didn’t want them copied and used you wouldn’t have posted them and I suspect that the rules were waived by the upload at all. wikipedia is quite clear about this. There is a freedom, which we can call freedom of the press, which permits one to take pictures in all public places and of people in public without needing their permission; it would seem that by stepping into a public space you implicitly give permission. It is entirely different in a private space, where the photographer has to have permission, though implied permission may be enough, it is the ‘unaware’ photo that may cause problems. If an employed model is used, you need a model release form, much the same as yielding copyright to a publisher.

4 The thing that bothers me is, I discover, called personality rights. wikipedia again: The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

In Britain this is a matter of common law (not civil law). Around the world the matter at issue is commercial gain and only sometimes does privacy become an issue. So one might well ask about the use of camera phones in school (the classroom being different from the sports field). This is distinct from the right to privacy and to a private life, which you might recognise as evidenced by press behaviour with a scandal; they stop at the margin of the target property, but that doesn’t stop them going to bang on a door, an implied right.

So the subset of issues to do with photography in a school setting can be explored at a county authority level. Examples found for Kent and Devon. The issue of children taking video within a classroom, such as of a teacher having difficulties in the classroom and being filmed (without permission, of course, since the implication / assumption is that it would have been refused at senior management level) comes down to the lack of permission. I have no doubt that the children would succeed in not only publishing the video, but they would receive very little censure, while the teacher who loses their temper and is recorded so doing, will be censured severely. To my surprise I found no union response to such an issue. It would seem that the only protection is the assumption that the demand that there be ‘no phones in school’ will be followed. Dream on, do. http://www.qcc.cuny.edu/SocialSciences/ppecorino/Academic-Ethics-Privacy-in-Classroom.html

© David Scoins 2017