In my previous article, I examined one aspect of copyright infringement – wholesale replication of content. Audio-visual content if not already digital, can be easily digitized and then uploaded, and this process of filesharing I argued should not be prohibited for both economic and moral reasons. There is no need to impose an artificial scarcity of multimedia content when both producers and consumers enjoy a mutually beneficial relationship.
But another prominent aspect of copyright legislation is the issue of ‘copying’ the work of others. The common argument is that the original creator of the work, deserves appropriate remuneration for his contribution to the ‘copied’ work.
The argument can be summed up as follows:
Premise 1: Original creators need to be compensated because it is unfair.
Premise 2: It is unfair because the copier did not put in any work for the part of his product that he copied off the original, yet he made money off it.
Conclusion: Therefore the copier should pay the original author for the part they ‘copied’ and used in his own product.
Intuitively, most people would feel that it’s right to allow this as one individual appears to have unfairly ‘leeched’ off the work of another.
However, it could very well be that these two producers independently came up with the product on their own, and neither one copied each other; especially when it comes to music, where there’s always similar sounding songs that come out, simply because there’s only so many kinds of chord progressions one can play around with. But in current status quo, if such an instance does occur, the ownership of the specific plot elements/melody/chord progression etc. of the audiovisual content produced will belong to the first person who happened to come up with it. But it is impossible to prove this on a practical basis and therefore impossible to justify this policy simply based on who did it first. Just because some one did it first it does not mean the others copied.
This shows that the moral justification for copyright enforcement and compensation – the unfair ‘leeching’ off the works of others – is something that while on paper seems intuitive, is something extremely nebulous and difficult to assess. But even if copying was proven to have occurred, the main problem with copyright battles concerning audiovisual materials is that subjective concepts such as plot elements, chord progression, melodies and musical hooks all have overlapping similarities and influences, which can be interpreted as copying in one way or another. None of these things can ever truly be considered original, as everything is derivative of some other creative content that came before it.
Also, how much of the success and profitability of the allegedly ‘copied’ work is owed to the part that was copied? How does one objectively discern these things? In law, the fair use defence is only valid when the alleged copier has showed sufficient ‘transformative value’ of the copied content. But even that has its own problems in terms of measurability.
So this presents a serious problem when it comes to issues of compensation. Assuming we can prove that copying did happen, how can we fairly assess the level of compensation the original creator is owed?
Take a recent example in the music industry, in 2010, a relatively unknown band Tenspoke Indies filed a lawsuit against hit band Paramore for their grammy-nominated song “The Only Exception”, alleging that Paramore had copied the introductions, arrangements, chord progression, key and the melody of their song “Starlighter”, which Tenspoke Indies claimed to have sent to Paramore’s record label in 2006. Indeed side-by-side comparisons of the song do seem to suggest that the songs are remarkably similar, right down to the melodies, the key and the arrangement.
But how much of the success of Paramore’s song is due to the near-identical, chord progression, structure and melody of “Starlighter” and how much of it is owed to the vocals of Hayley Williams?
It was of music critic Leonie Cooper’s opinion that Paramore lead vocalist Hayley Wiliam’s “flawless and sturdy vocals” was what carried the soppy song. If true, a large part of the success and profitability of the song would be owed to the ‘transformative value’ of the lead singer’s vocals. Would that then be considered fair use?
But the problem with music and other creative content like film or television material is that what makes it popular and successful for one individual may not be the same for another, so when granting compensation, it is almost arbitrary in the way it is given out.
And this is what separates creative content from other issues in the law. There is simply too much subjectivity involved with defining the threshold for fair use in creative content. Sometimes its the smallest difference or alteration that propels an otherwise worthless piece of art/literature/music/film into something immensely popular or successful.
These however, are only the practical objections as to why I oppose copyright enforcement in this aspect.
The moral reason why I am opposed to copyright is the restriction it imposes on other people’s ability to create and produce more content for a greater diversity of literature, music and art.
No one should not be able to own the rights to certain abstract conceptual elements of literature, film, books or music, because then it directly affects everyone else who wants to build on or borrow some of those elements. These people might be forced to alter their vision more than they originally intended, or it may deter them from acting on their idea in the first place.
The most obvious example would be that of the film industry, where corporations own the rights to their movie characters, and anyone who wants to use them for commercial purposes have to ask them first and pay for the right to use it. But it doesn’t just stop there, the same caveats still applies even if the product is purely non-profit. For instance even if the copied content is used for a passion project made by fans, these corporations have the right to restrict the distribution of such created content.
MGM, who owns the rights to the James Bond franchise has forced internet-distributed James Bond fan films offline by closing down fansites devoted to non-profit James Bond fan films.
The issue I have with companies like MGM maintaining a monopoly on their characters is this idea of entitlement, that because they were the ones who came up with it, only they can create anything with it, and anyone else who wants to has to seek permission.
This perfectly illustrates my issue with copyright from music to film to literature, you give the creator of the initial material a monopoly on who gets to use it, and you restrict the public’s ability to produce more derivative content of it.
I believe all use should be fair use, whether it be wholesale copying and distribution i.e. filesharing or partial copying.
The producers do not need this monopoly as an incentive to continue producing, they are still tremendously profitable, they just want this monopoly so they can earn more profit for themselves at the expense of everyone else benefiting.