The recurring theme at "Creative Industries in Transition: New Directions for the Digital Era" today at GW University was from keynoter Robert Merges, law professor at UC Berkeley. In a paper presented at the symposium and in his remarks, he thoroughly discredited the "free culture" thinking rampant in academia. His thesis came in three parts: 1) Copyright still makes sense in a digital economy (the daily theme of the Copyright Alliance). 2) Discrete rights for different creators makes sense (he cited songwriters). 3) Performing rights organizations are more important than ever.

The symposium was sponsored by the GW Law School and GW's Creative & Innovative Economy Center (CIEC) and BMI, and also featured US Register of Copyrights Marybeth Peters, GW Professor and former Copyrights Register Ralph Oman, Grammy-award-winning songwriter and music publisher Dennis Morgan, and Public Knowledge President Gigi Sohn.

Sohn's opening remarks sought to show what she had in common with the other speakers, but panel back-and-forth and audience questions drew out how differently she perceives copyright, namely from an end-user perspective rather than a creator. For example, he called out "larger companies" that hold copyrights for enforcing their rights "too aggressively," as if she should be able to decide to what extent they can defend their rights, and ignoring that any dilution of rights to a large company also affects individual creators, like the songwriter sitting next to her. Try applying the ability to restrict enforcement of rights to any other right in this country, from the right of privacy to the right to vote, and see how people react to that.

(Another example of her disconnection: she repeatedly referred to songwriters as "artists.' I interact with a lot of songwriters, and most prefer not to be called an "artist," because in the music world "artist" refers to a "performing artist" or "recording artist." A songwriter is by definition a musician, but not always an artist in that sense of the word. Morgan, for example, does not record or perform his compositions.)

Merges spent a fair amount of time in both the paper (when I get a digital copy I will link to it) and his presentation on the extensive writings of university professors criticizing copyright. He divided these academics into two camps:

1) The "withering away" crowd, who maintain that copyright has become beside the point, copyright owners are dinosaurs, and the bottom-up wiki model will replace all existing media. Merges didn't see any likelihood of a wiki Indiana Jones movie or a wiki Metropolitan Opera. In other words, he said, sometimes collaboration has to be done in a coordinated fashion, not by random people contributing pieces.

2) The "bottleneck" crowd, including Lawrence Lessig, who say we are in a "permission culture" based on a few anecdotes and worst-case-scenario reading of copyright law. While obaining rights isn't always easy, it is critical to individual copyright owners that they have rights, from the right to say no to the right to give their works away. Not surprisingly, Merges said an emphatic "No!" to compulsory licenses, a case I have been making for years myself. (Sohn said she is "undecided" on compulsory licenses, but did point out the danger of having legislation and rate courts deciding the fate of rightsholders. I hope she comes around to that view and opposes any new compulsory licenses, because we so rarely agree but I would like it if we could a bit more.)

Peters of course continued her defiant opposition to compulsory licenses, further cementing in my mind the fact that she is one of the nation's great copyright champions. "I care about the creator," she said. "They're the ones copyright was created for. It's a property right." Noting Merges' references to Lessig, Yochai Benkler and other, shall we say, troublesome academics, Peters said, "I've been fighting the free culture movement for a long time." Many of us are grateful to her for that.

Sohn dismissed the concerns of Merges and Peters on academic opponents of copyright, saying their proposals have no chance in Congress. That may be true now, Oman said, but won't necessarily remain that way. Merges added to that, noting that free-culture thinking is prevalent among students and is seeping into the culture. "Today's wacko book may be tomorrow's policy proposal," he said.

Merges is right — any student of the conservative movement knows that the principle tenets of conservativism were first written in the 1960s and were cultivated and developed at think tanks (they couldn't make much ground at universities with a few exceptions such as the University of Chicago) while liberals dominated the legislature. Reagan's election, and Newt Gingrich's rise to power in the House, can both be traced to the intellectual work of conservatives. It is no surprise that in recent years we've seen the founding of liberal think tanks. Ideas have power, whether they are sound or misguided.

Free culture ideas are misguided; they ignore the fact that there are more creative works, at lower prices or for free, than ever before. Copyright is not irrelevant, nor is it a bottleneck. Creators want their works distributed, so methods will evolve to make sure they are distributed. The PRO model seems to work for songwriters. Other models will work for other creators — the discrete approach outlined by Merges. Copyright, in other words, is just as relevant as evern in the digital age.

So you've read all the way down here, 'eh? Nick Carr would be impressed.  As a reward, let me give you a great description of the intangibility of intellectual property, what makes it at once so special and magical and on the other hand so hard for copyright opponents to comprehend.

This joke was told by GW Law Dean Frederick Lawrence, who opened the conference. The devil promises three people that he'll grant them any wish if they can come up with a task he can't perform. The first two suggest turning a mountain into gold and a sea into oil, both easy for the devil. The third hums a tune, and says "Now sew a button on that." Literalist copyright opponents would say that the lack of button-sewing capacity means that the tune isn't property, but that tune wouldn't exist if someone like Dennis Morgan hadn't written it. It is property, and it is unique, and its intangibility makes it all the more necessary for us to ensure the rights of the property owner. 

This entry was posted on Wednesday, June 18th, 2008 at 2:00 pm by Patrick Ross and is filed under copyright opponents, creators, education. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.