While snowbound this week I read some pieces in The Washington Post about condescension. The first author wrote a piece titled “Why are liberals so condescending?” He maintained that liberals are “committed to the proposition that their views are correct, self-evident, and based on fact and reason, while conservative positions are not just wrong but illegitimate, ideological and unworthy of serious consideration.” (A South Park episode once depicted this by suggesting liberals enjoy the odor of their own gaseous emissions.) A letter writer then responded that the author was an example of conservative condescension, that is “the belief that no solution in which government has a role other than picking up the pieces — and often not even that — is preferable to what the marketplace might produce.”

As I’ve documented through citation of current social science research, we now live in an age of “digital hollows” where it is all but impossible for us to hear and process opposing points of view. My examination largely focused on the ideological divide noted above. I’ll add that when I try out my “digital hollows” thesis on self-professed liberals or conservatives, they always agree with my thesis when applied to their opponents, but usually resist with passion the notion that those with their own beliefs shut out opposing views.

How does this apply in the copyright debate? Copyright doesn’t fall neatly in a conservative-liberal category. There isn’t even consistency among libertarians, who fall on both sides of the issue, depending on to what extent they apply the principle of property rights to IP. But is there an intolerance of the point of view of the “other side” in this debate?

Yes. And I fall in that camp.

When I first started writing in defense of copyright and artists about six years ago, I said I was seeking a middle ground in the debate. I’ve heard folks on the other side make the same claim. I have determined, however, that it is hard to find middle ground when there isn’t agreement on First Principles.

Below are my beliefs on the First Principles of Copyright. As some or even all of these tend to be rejected by those who wish to see a reduction in copyright, it’s easy to understand why common ground is hard to reach. True liberals and true conservatives also operate from First Principles, making a bridge challenging for them too.

Here are what I consider five First Principles of Copyright:

1. Copyright has been and continues to be an incentive to creation, thus benefiting society and culture. Our legal history in this dates back to the Statute of Anne in 1710 and the U.S. Constitution in 1789 but the principle is far older. The argument of James Madison and others, essentially, is that in order to encourage “authors and inventors” to better society through the production of their creative works, those authors and inventors must have some ownership of their creations.

As someone who spent most of his professional career earning a living through the production of copyrighted works with economic value, this seems a no-brainer to me. If I hadn’t possessed the ability to license my writings to certain parties and not others, I never would have worked as a writer and journalist. Perhaps many would not have viewed that as a loss, but the same principle applies to all forms of creativity. When rights are reduced, there will always be some creators on the professional margin who drop out and pursue other careers, and the entire culture loses in that case. We don’t know what we’ve lost because it isn’t created, but look around at countries that do not have robust copyright regimes and note how little production of creative works enjoyable across that society are made compared to the U.S. It’s a dramatic difference.

2. Rights are rights, regardless of who holds those rights. I focus a lot on individual artists and creators because that is my background, but note I worked both as a freelancer, licensing my creativity through negotiated contracts, and as a work-for-hire reporter, on payroll with my creativity owned immediately by my employer. I found advantages in each model, and consciously chose what model worked for me at different stages of my life.

Defending the copyrights of an individual photographer is no different than defending the copyrights of corporations. Sure, it’s fun to bash big business, but think about all of the individuals involved in the production of those copyrighted works. We have a number of union members in the Copyright Alliance. Those union members make up the full spectrum from individual creators and rightsholders to full work-for-hire, but most all eventually find their rights represented by a corporation, just as my freelance writings — at least the ones I profited from — nearly always were published by corporations. Protecting their rights protects the creativity of those involved in producing the works associated with those rights.

3. Rights are rights, regardless of the ultimate representation of the expression. Let me repeat again, a creator who produces a creative work holds rights to that work regardless of whether it ultimately manifests itself in a physical work or in a series of ones and zeroes on a digital network. Any creative work can be reproduced; that is why copyright law came to be, to give the creator control over reproduction. So it matters not whether the reproduction is a photocopy — the primary threat to my own rights when I began as a professional writer twenty years ago — or a right-click copy on a computer.

Again, this seems intuitive to a creator. They put the same amount of effort and creativity into one of their works regardless of its ultimate medium. If you agree with First Principle #1, that copyright is an incentive, that incentive applies regardless of the ultimate form of distribution embraced.

4. Rights are rights, regardless of technology. This Principle builds on #3. We hear from those who wish a reduction of the rights of creators that “code is law.” If technology enables something, then we need to accept that reality and creators need to adjust accordingly. The logical conclusion of this is that we as human beings are subjects and technology is our master.

Really? There is no question that rightsholders in every creative industry are adjusting to the reality of new technologies. They are embracing technologies in the production and legal distribution of their works. They are noting when illegal uses of technology flourish and seeking ways to attract those users to legal alternatives. But it is not the case that because technology allows us to disregard the rights of creators that those creators thus should forfeit their rights. This leads to an irony, where those disrespectful to creators’ rights champion technologies that undermine those rights but oppose technologies that help creators protect their rights. If technology is the master you don’t get to pick which technologies will rule.

5. Rights begin with the creator. What does this mean? Well, if we accept Principle #1, that copyright is an incentive to create, then we must recognize that with many creative works, they would not exist without copyright. This is particularly true for creative works of commercial value, which even in this user-generated era are the ones with the most cultural exposure (has any reader of this blog not yet seen Avatar?) and have the most lasting cultural value (has anyone in the last six months viewed that online video of the crying teenage boy defending Britney Spears?).

When a creative individual seeks to exercise their creativity not by producing an original work but by repurposing someone else’s creativity, they must acknowledge that they owe a debt to that original creator. They are likely to achieve a much larger audience, and convey their expression more clearly, by piggybacking on the cultural penetration of the original work. (Why are mash-ups repeatedly done with commercially successful works when there is no end of works with Creative Commons licenses where the producer is begging others to remix their creativity but those remixes aren’t produced?) Since a remix can’t occur without the original being made, we must recognize that priority of rights must go with the original creator.

Copyright is of course not absolute. The Founding Fathers built a limitation — on time — right into the U.S. Constitution. We have needed laws to extend copyright beyond books, maps and charts — adding photography, compositions, sound recordings, audiovisual works, software — and we have codified dilutions of copyright — statutory licenses, fair use — over the centuries.

It is reasonable to have discussions about exactly how much copyright is sufficient to encourage creativity. But it is my belief that to have that discussion, one must accept the First Principles above as a starting point. I find many on the “other side” reject at least a few of these, and many reject all five.

Thus, I suspect to many who wish to reduce the rights of creators, I am viewed as condescending. So be it.

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This entry was posted on Friday, February 12th, 2010 at 12:28 pm by Patrick Ross and is filed under copyright law, copyright opponents, creators, culture, drm, fair use, founding fathers, licensing, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.