Should We Abolish Copyright? | Tom Nicholas

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I wouldn't go so far as to call it theft but IP absolutely should be abolished.

👍︎︎ 1 👤︎︎ u/[deleted] 📅︎︎ Oct 04 2019 đź—«︎ replies

Call me a regressive but I think the original 50-year copy right was perfectly reasonable and provided a nice balance between encouraging future creativity and allowing for the creator to benefit from what they came up with.

👍︎︎ 1 👤︎︎ u/GoodGoyimGreg 📅︎︎ Oct 05 2019 đź—«︎ replies
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Hi, my name is Tom. Welcome back to my channel. Today, I want to talk a little bit (or actually for a fairly long time but I think it's worth it) about copyright and intellectual property. They're topics which draw in all of the intersecting subjects on which my channel tends to focus; there's a little bit of politics, philosophy, art and aesthetics. What I want to consider in particular, however, is whether the existence of copyright and intellectual property is a good thing for our society and our culture or not and whether we might benefit from abolishing both altogether. Now, unlike when I make most of my videos, I began writing the script for this video pretty uncertain of what my final argument would be. I was driven instead by a slightly more vague sense that the concept of intellectual property holds something of a strange place in the popular imaginary in the present. A couple of months ago, Katy Perry and her co-writers on the 2013 song Dark Horse were found by a federal court in the United States to have infringed on the intellectual property of Christian rap artist Flame by supposedly copying a 16 note bass riff from a song called Joyful Noise that he had released in 2008. And pretty much every journalist who reported on this story did so with a sense of astonishment. On this website, indeed, a musicologist called Adam Neely made a fantastic video pulling apart the notion that such a small number of notes could be owned exclusively by anyone. That particular event, however, was only really the latest in a long line of controversies surrounding how copyright law operates in the present day. In addition to concerns that the present system might encourage claims of intellectual property infringement in cases where the similarities between one work and another which is said to have copied it might seem very slight, frustrations regularly seem to flare up on this website surrounding what's known as the "fair use" or "fair dealing" doctrines which, in theory, allow for the use of material protected by copyright for the purposes of commentary or critique. I have possibly only watched one Let's Play video in my entire life but even I became aware of the controversy surrounding Nintendo's clamping down on such uses of footage of their games—something that they've since changed their tune on. Ultimately, however, I think both these episodes point to a broader shift in our perception of artistic and cultural works in which we increasingly no longer really view such works as something that can (or perhaps more importantly should) be owned at all. That's not to suggest that we no longer consider cultural works (whether that be video, games, films, books or whatever else) as something that we should pay to experience. Many people voluntarily part with a portion of their hard-earned cash to support those who create things that they like on a regular basis. My incredible Patrons—he says seamlessly working in a brief plug— such as J Fraser Cartwright, who recently became one of my top supporters by visiting patreon.com/tomnicholas, would still be able to watch my videos without handing over any money whatsoever. Yet they and anyone else who supports an artist or creator of some description on Patreon or Ko-Fi or similar recognize that creating videos or the like takes time and resources and so voluntarily decide to help to meet some of those costs. Many of us also subscribe to streaming services such as Netflix or Spotify. Nevertheless, the exchange which occurs when we pay to access films and music through a subscription service is clearly very different from that which dominated in previous decades. Where previously one might have bought a film or album either physically or digitally, the new normal is one far less predicated on the notion of ownership. Now, it's worth highlighting that the issue of the ownership of intellectual property in the sense that Flame apparently owns that bass riff and Nintendo own Super Mario Odyssey as an artistic work is separate and distinct from that of the shift in the way that we pay to access films, music and other artistic works. Yet I think the manner in which both infer an increasing skepticism towards the notion that anyone can or should have exclusive ownership over a piece of art or culture fascinating. And it's that thread of an idea on which I wish to pull today. For, if our perceptions surrounding the possibility of owning an artistic or cultural work truly have shifted in the way that I've just suggested, then it begs the question: why don't we just do away with copyrights and intellectual property altogether? In order to discuss intellectual property and copyright in any great depth it's important that we first have a solid understanding of what those things are and for us to be able to distinguish between them. As the Oxford English Dictionary has it, then, intellectual property is 'property [...] which is the product of invention or creativity, and does not exist in a tangible, physical form'. Intellectual property comes in a number of forms. Inventions (whether mechanical, biological, chemical or in the form of software) and designs such as a company logo can all be forms of intellectual property. These exist within a slightly differently legal system, however, and so, today, we'll largely be leaving these to one side. Instead, we'll be focusing solely on what are often referred to as "artistic works" which includes books, films, music, video games and other cultural works, all of which can also be forms of intellectual property. Copyright, by contrast with intellectual property, refers to the systems of laws and statutes which exist to protect the rights of an owner over the piece of intellectual property that they own. The video that you are presently watching, for instance, is my intellectual property; I conceived of and created it and thus, in most nations, am granted by copyright law the exclusive right to do what I like with it and, perhaps more importantly, to seek recompense against anyone who encroaches upon those exclusive rights. The same would be true if this video have been created by a group of people or a company—although, again, for simplicity's sake I'm gonna mostly discuss things in terms of individual creators today. As most countries have it, my ownership of this video gives me the exclusive right to make copies of and give access to this video to others either for free or for commercial gain. I also have the right to sell or transfer my exclusive rights of this video to another party—although, again, we're gonna leave that thing to the side for one day. The most important aspect of copyright law, however, is this fact that it is an exclusive right and thus, should anyone else copy or distribute this video without my blessing, whether for financial gain or not, they would be infringing on my intellectual property rights as articulated in copyright law and I would be able to take legal action against them. What it actually means to own this video, however, is slightly more difficult to explain. See, it's not just the mp4 file that your computer is currently displaying that I own. Instead, it's slightly more abstract than that. If you were to download the script for this video, say, and to recreate all or part of it yourself then you would still be in breach of my intellectual property rights. Although you wouldn't have copied the video file itself you would have still have copied the expression of ideas contained within. The counter to this is that I only own the ideas contained within this video in the specific form that they are expressed here. As the UK government puts it on their website, 'an idea alone is not intellectual property. For example an idea for a book doesn't count, but the words that you've written do'. In short, by making this video, I don't now own the concept of a video about whether copyright should be abolished or not nor even the argument that I make within this video—whatever that turns out to be. You or anyone else are free to make a video to the same end. You would only be infringing on my intellectual property rights once you begin to use the same sentences or filming and editing choices. If you're finding all of this highly confusing then you are not alone. And things are made a touch more complex by the existence, in most countries, of the "fair use" or "fair dealing" doctrines which I referred to a moment ago. These enshrine in law the right for someone to use a certain amount of someone else's intellectual property for certain reasons. The United States Code, for example, states that 'the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, [...] scholarship or research is not an infringement of copyright'. If you were to create your own video on a similar topic and, as part of that video, include an extract from this one in order to tear my argument to shreds for example, theoretically you would not be infringing upon my intellectual property. As we saw in the example of Nintendo, however, in practice things are not so simple. What counts as criticism, comment, news teaching or research is very much open to debate and, as it stands, whether a particular use of copyright material counts as fair use or not can only ever definitively be decided by the courts. As a result, if Nintendo, who presumably have a small army of lawyers on retainer, asked you to take a video down then, in most cases, if you don't also have a small army of lawyers on retainer, you're likely to simply fold and take that video down. A lot of the frustration that people have with copyright law, to my mind, stems from these kind of vagaries, uncertainties and inconsistencies. The fair use doctrine, for example, seems to hold out an opportunity with one hand whilst, through not providing a definitive articulation of what counts as fair use and not and thus reliance on costly court cases, taking it away with the other. The Katy Perry scenario, perhaps even more troublingly, points to a lack of certainty in the law as to what counts merely as ideas and thus isn't copyrightable and what counters expression and thus is. I'm not convinced that this just points to a problem with copyright law as it is presently constituted however. Instead, I think it points to the difficulty of applying concepts of ownership which initially developed around physical property to the realm of ideas and creativity. For, while it seems relatively easy to identify what a physical object is and thus to legislate its ownership, art and creativity are far more nebulous. I think it's useful here, then, to take a step back and to consider the concept of property more broadly. In particular, I think is useful to compare and contrast the emergence of notions of property as it pertains to ideas and creativity with the development of the same around tangible, physical things. The side benefit of doing so is that it might encourage us to take a slightly more critical view of physical property. Yet what I'm primarily interested in is exploring the extent to which our concept of intellectual property borrows from our concept of physical property and how using the same set of ideas for both might not entirely make sense. In switching our focus briefly to tangible, physical forms of property, it's useful to distinguish between a few different forms of property as they exist in the present day: personal property, private property and communal property. Let's begin with the first two. Now, in our everyday usage, we might be used to using the terms personal property and private property fairly interchangeably. In most broadly Marxist and anarchist schools of thoughts, however, these terms have distinct meanings. As Bhaskar Sunkara explains, the phrase personal property refers to 'things meant for private consumption'. The various bits of stationery on my desk, for example, the food in your kitchen and most consumer goods (such as TVs or sound systems) would be, in almost all cases, personal property— your reason for owning them is solely so that you can personally use them. Private property, by contrast, refers to 'things that give the people who own them power over those who don't'. Sunkara continues that 'the power created by private property is expressed most clearly in the labor market, where business owners get to decide who deserves a job and who doesn't'. To give a further example, we might consider a house that is owned by a landlord purely for the purpose of renting it out. In that scenario, the house gives the landlord a considerable amount of power over the person who lives in it; they can impose restrictions on what they can do in the house or periodically increase the rent. Whether or not something is private or personal property is thus predicated on whether or not it engenders a social, economic or other power relationship between the person or people who own it and those who don't. Indeed, many things can be either personal or private property depending on circumstance. Your personal computer on which you play video games or surf the web, for example, is clearly personal property. If that very same computer was given to you by your employer for you to complete your work on, however, it would be private property because your continued right to use it is contingent on you remaining employed in that job. Indeed, often employers will actively prohibit employees from using such company-owned devices for anything other than work. And if it's these relationships that define whether a piece of property is personal or private, then it stands to reason that intellectual property can never be personal; the exclusive rights that are bestowed upon the creator of an artistic work (whether that creator is an individual or a company) create a power relation between the creator and anyone else who might want to make use of that copyrighted work. Let's leave aside personal property then and instead focus on our final form of property: communal property. Communal property refers to anything that is owned in common by multiple people and thus which more than one person has a right to use. Few examples of truly communal property exist in the present day. Much of the time, we might experience streets and pavements as though they were communal property—administered by the state yet which we all have a right to use. Nevertheless, anyone who's ever found themselves at a demonstration or protest will quickly have discovered the limits of those rights. Yet examples of communal property have existed throughout history. We find reference to one such form of communal property in volume one of Capital in which Marx explains that 'in England, serfdom had practically disappeared in the last part of the fourteenth century. The immense majority of the population consisted then, and to a still larger extent in the fifteenth century, of free peasant proprietors[.] They enjoyed the right to exploit the common land, which gave pasture to their cattle, and furnished them with timber, fire-wood, turf, etc'. This common land usually consisted of a village green or similar space which most people living within that particular village would have the right to use. Over the course of a number of centuries however, a process known as enclosure served to fence off and parcel up this communal property and turn it into private land. The result of this was that it was no longer possible to raise one's own cattle, say, for milk, beef or clothing or that if one did want to do so one would have to pay rent to a landowner in order to do so. Thus, property which previously engendered little in the way of a power relationship came to do so— enriching some while disenfranchising others. The analogy of land and enclosure is useful here. For the emergence of the concept of intellectual property in many ways mirrors that of private property in the form of land. See, the notion that artistic works might be considered private property is a relatively recent phenomenon. The first law resembling what we now call copyright came about with the passing of the Statute of Anne in England in 1710. Primarily centred on literary works, it granted the author of a novel or other literary text exclusive rights over that work for a duration of 14 years. A number of economic and historical trends intersected to bring about such a law. The development of the printing press, for one, meant that it was easier to distribute certain forms of artistic works and thus owning the exclusive right to do so became highly profitable. Perhaps more interesting for our discussion here however, is the manner in which an artistic movement known as Romanticism had altered people's perception of the act of artistic creation. It is during this period, suggests Isaiah Berlin, that we see the emergence of 'a passionate belief in spiritual freedom, individual creativity. The painter, the poet, the composer do not hold up a mirror to nature, however ideal, but invent; they do not imitate (the doctrine of mimesis) but create not merely the means but the goals that they pursue; these goals represent the self-expression of the artist's own unique, inner vision'. Such a perception of the literary or artistic work as the sole creation of an individual author struck by divine inspiration to create something from nothing may often seem as though it's been around forever. In truth, however, as Berlin suggests, the exceptional individual artist who pulls their creations from thin air is, as Roland Barthes had it, 'a modern figure'. Certainly, writers, composers and other artists have always been celebrated for finding novel ways to articulate or present a certain narrative or set of musical ideas, say, but prior to only a few hundred years ago, they were more likely to be viewed as grazing on an intellectual or cultural commons. The narratives, musical phrases and other creative ideas which already existed were seen as nourishing their creations and, in return, that which they created were free to nourish the work of future artists. For a great deal of history, then, art, literature, music and many more forms of culture were deemed communal property not private. Whole videos could be filled listing examples of celebrated artists who lived prior to the advent of copyright law who borrowed extensively and consistently from the work of others and who, in return, were borrowed from. As James Boyle and Jennifer Jenkins stress in Theft! A History of Music, Beethoven, Brahms and Bach all extensively rearranged and reworked the work of their contemporaries and, in turn, had their own compositions reworked by others. Shakespeare too would be considered today a career burglar with many of his greatest plays drawing their narratives directly from pre-existing works. As John Kerrigan writes in his book Shakespeare's Originality, 'Shakespeare does new things with and adds extensively to what he draws from pre-existing texts, but his originality is partly original-ity, a drawing upon originals'. Recognizing the rich history of what would today be considered intellectual property theft thus perhaps allows us to reconsider contemporary copyright law. For it allows us to see that the present system is not a given but, instead, is the result of a gradual enclosure of the cultural commons in which communal property has slowly been converted into private. It reminds us that there is another way of viewing art, literature, film and all other cultural forms not as the immaculately-conceived creation of the exceptional artist but, instead, as the result of a repurposing and reinterpreting of pre-existing ideas— and thus not as private property but communal. In order to make the case against the continuation of intellectual property as private property, however, we need to go beyond this partly aesthetic and partly moral argument. For the contemporary argument for the continuation of private property more broadly very rarely centers on morality but, instead, practicality and efficiency. See, if you were to ask an economic student what the goal of their specialism is they would likely respond with something along the lines of 'economics can be defined as the study of the choices people make and the actions they take in order to make the best use of scarce resources in meeting their wants and needs'. In this vein, contemporary economics tends to view the world as possessing finite resources (whether those resources be oil, apples or houses) with the goal of economics being to theorize the most efficient way of ensuring those resources get into the hands of those who need them most. The idea that concentrating the ownership of such resources into the hands of the few might lead to such an ideal distribution may, at first, seem counterintuitive. Yet the idea that private ownership is preferable to communal ownership for reasons of efficiency and practicality has strong support across the discipline. The most oft-cited source used to make this case is a 1968 essay by the ecologist Garrett Hardin titled The Tragedy of the Commons which considers the efficiency and sustainability of a piece of communal land in providing those who use it with food. 'Picture a pasture open to all', wrights Garrett, 'it is to be expected that each herdsmen will try to keep as many cattle as possible on the commons'. Assuming the society in which these herdspeople live is stable and somewhat peaceable, he argues that 'the rational herdsmen concludes that the only sensible course for him to pursue is to add another animal to his herd. And another; and another.... But this is the conclusion reached for each and every rational herdsmen sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit—in a world that is limited. Ruin is the destination to which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons bring ruin to all'. In short, Garrett argues that the consequence of communal ownership of this metaphorical field is its devastation; each of the herdspeople attempt to graze as many cattle as possible and, eventually, all the grass is gone and the land is useless. Converting that land into private land, he posits, averts such a scenario. For, he argues, if you have stewardship over just your piece of land, you're more likely to be wary of over grazing it and to ensure that it remains useful to you for as long as possible. Garrett's arguments, and those made by economists in his wake seeking to refute the practicality of communal forms of ownership, rely on a number of assumptions which I would suggest aren't quite as solid as he would like to think. Indeed, in 2009, Elinor Ostrom was awarded the Nobel Prize for Economics for demonstrating that the communal ownership of land can be both sustainable and efficient and has been proven to be so in practice in numerous real-world scenarios. Nevertheless, even if Garrett's argument did bear out in its entirety it would still provide little rationale for private property rights as they relate to intellectual property. For the Tragedy of the Commons argument is predicated on scarcity—that simply doesn't apply to creative works. The existence of the Star Wars fan film Darth Maul: Apprentice, for instance, doesn't displease the resource of Darth Maul—it was still possible for Disney to make use of the character in Solo: A Star Wars story and it remains possible for other fans to make use of the character in other pieces of fan fiction and fan films. From an efficiency or practicality standpoint, then, the application of concepts of private property which emerged in relation to physical property simply don't cohere when applied to intellectual property. In fact, to my mind, restricting the ability of anyone other than the original creator of a work (whether an individual or a corporation) is less efficient than not doing so for we're placing false limits on what can be achieved within our culture. The argument that copyright law helps to ensure a better distribution of copyrighted material becomes even weaker when we take into account the increasing lengths of copyright terms over the past few centuries. For where the Statute of Anne granted authors exclusive property rights for just fourteen years after that work's creation, successive national laws and international treaties have extended copyright laws to a staggering degree. In the United States and the European Union, copyright law currently considers an artistic work private property for the entire life of the author plus 70 years after their death. In Mexico, it's a full 100 years after the creator has died. And we can talk at great length about how ridiculous it might seem that, until 2015, Warner Brothers were earning around two million dollars a year from the song Happy Birthday to You—a revenue stream they were only denied due to the efforts of filmmaker Jennifer Nelson who took the company to court to prove that the song was actually in the public domain. Yet things are just as troubling on the other end of the spectrum. For, many works which are still under copyright yet which are deemed not to be profitable assets by their owners are likely to not be made available to the public at all. Numerous books, films and sound recordings which publishers and distributors don't deem it worth spending money re-releasing thus sit locked up in vaults being enjoyed by no one. I hope to have so far shown that strong arguments for abolishing copyright law exist from both a creative or aesthetic standpoint and also from one of efficiency and access. Nevertheless, even if you are totally on board with my argument thus far, there remains a pertinent and vital problem to be solved. For, even if we agree that the creative process is not one of an artist drawing inspiration from thin air but instead the result of their grazing on an intellectual or cultural commons, that doesn't mean they don't deserve to be compensated for their work. The argument is solely that the creative process is different; not that it is in any way less remarkable. As a child, for instance, I loved Disney's Robin Hood. And I was very aware that neither its plot or characters were wholly original. Nevertheless, I still appreciated what those who had been involved in creating the film had done with those characters and stories. Reconceptualizing the creative process, then, doesn't mean devaluing it. By extension, the last thing we would want would be for the abolition of copyright law to lead to artists not getting paid for their labor. This is perhaps the aspect of abolishing intellectual property that I have the fewest answers for. Yet, in recent years, such questions have increasingly had to be asked. The Internet has made sharing copyrighted works without paying the creator or creators of that work incredibly easy. Unlike in previous eras in which copying a film book album or the like would often result in a lesser experience of that work, the sharing of digital files has also made it possible to freely share copies of a work that are every bit as good as one acquired legitimately. Whether copyright is abolished or not, then, creatives of all stripes are increasingly having to seek methods of earning a living beyond simply trading off their exclusive rights over their creations. Of course, we could posit some fairly idealistic solutions to this problem. We can envisage a fully automated society in which work is a thing of the past and in which all who wish to are able to pursue their creative impulses without worrying much about how to pay the rent. In the short term, however, more modest solutions might be required. There is a lot of potential in platforms such as Patreon. Its success in the present is certainly limited with only 2% of creators on the site making more than the US minimum wage during 2017. Yet I think it's slowly shifting how we view the economics of cultural production and I've been genuinely shocked (in a good way) with how many people are willing to part with their hard-earned cash to support those who create stuff that they like. The issue of an alternative economic model which might enable artistic and cultural works to continue to be made is just one of many issues surrounding abolishing intellectual property and copyright law that I don't think it's possible to solve within the course of a single video. Yet I hope to have pointed to some of the gaping flaws and inconsistencies in our present system and foregrounded some alternative lenses through which we might view art and culture. As to whether we should abolish copyright in its entirety: I'm not certain. The idealist, the artist and the critic in me wants to say yes. But the realist recognizes that it is a massively complex area. Nevertheless, I think the rise of the Internet has made many of the drawbacks to abolishing copyright almost unavoidable. For, even if copyright laws remain on the statute books, it is becoming increasingly difficult to enforce them. Whatever your own thoughts on the matter, I hope this video has perhaps challenged some preconceptions and maybe sparked some new ideas and I look forward to continuing some of those conversations down below in the comments. If you've made it this far then thank you so much for watching what I think is gonna be my longest video to date. I promise not to make a habit out of it and will aim to be back with some slightly snappier content soon. Thanks once again to Ash, to Michael V Brown and to J Fraser Cartwright, my top patrons over on Patreon. If you would like to join them in supporting what I do here and download copies of the scripts for these videos etc, then you can head over to patreon.com/tomnicholas and check all that out. Other than that, however, liking this video or sharing it on the web somewhere always really helps in spreading the word. With that out of the way, however, thanks once again for watching and have a great week!
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Channel: Tom Nicholas
Views: 73,245
Rating: 4.9068494 out of 5
Keywords: copyright, intellectual property, copyright claim, intellectual property law, intellectual property rights, creative commons, commons, intellectual property crash course, intellectual property examples, dark horse vs joyful noise, forms of property, forms of property ownership, forms of intellectual property, personal property vs private property, copyright term, copyright youtube, tom nicholas, what the theory, what the theory?, neoliberalism, fair use, political discourse
Id: HsNVKetbFDY
Channel Id: undefined
Length: 32min 43sec (1963 seconds)
Published: Wed Oct 02 2019
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