The Nameless Horror

Let's talk copyright

Yesterday, someone happened across a Green Party policy document online that called for a maximum 14 years’ copyright protection and the UK’s literary internet collectively shat the bed.

Now, the Greens haven’t covered themselves in glory here, claiming the document is not the manifesto but a vague “wouldn’t it be nice if” wishlist and can therefore be ignored, that the document is out of date (link lost somewhere), or that it was probably meant to be “life plus 14 years”. It’s either lying or a disorganised mess, or both. (And knowing lefty/hippy groups and how cliquey and riddled with a lack of internal communication they can be, I could well believe a little from Column A and a lot from Column B.)

It’s a policy that is about as likely to be implemented (requiring, as it does, the UK to leave the Berne Convention and the party to somehow survive the massed hostility of every media outlet and format in the country) following a Green majority in Parliament as having a Green majority in Parliament in the first place, so on the “realistic threat to authors’ livelihoods” scale it’s somewhere around the “asteroid wipes out all life on earth” mark.

It’s also wrong to say, “The Green Party is trying to shaft authors!” If you do, you’re clearly overestimating how important authors and books in general are. Talk about copyright and file-sharing and most people will jump to music, movies, and software/games, probably in that order. I wish, as an author and someone who loves both reading and writing, that it wasn’t so, but as much as most people enjoy an occasional book, and as much as avid readers do exist in comparatively small numbers, books are a minor feature in the great cultural smorgasbord of modern life. Based in part on the academic work behind it, I very much doubt books crossed the minds much of those who wrote that very, very short policy note.

That said, as a medium, books - with a wide array of sometimes complex subsidiary and derivative forms - are heavily affected by rights laws. And greatly reducing copyright length is an interesting question, as a thought experiment at least.

The policy is based on a genuinely interesting - if dry - academic paper by Rufus Pollock from 2007 (age worth noting, given its content). In it, he effectively tries to plot a relationship, based in part on (the limited available) empirical data and in part on complicated maths and assumption, between copyright protections/term length, the cost of production of cultural work, the amount of cultural work produced, and works’ relevance and persistence over time, in relation to the changing digital world as it was eight years ago, never mind now, with the aim of identifying the level of copyright protection that maximises the level of art production in all media.

There are, having read it, some issues with the theory that I can see. Firstly, and most importantly, that of visibility over quantity. Treating art as a single volumetric thing ignores the ability of individuals within the mass to be noticed. Anyone at all familiar with self-publishing, in particular, and publishing in general knows exactly how much of a problem this is. In terms of the maths in the paper, you’d need to allow for longer for creators to have their work recognised, and to be paid for it. (The paper notes the assumption that creators won’t incompletely exploit their work’s commercial capacity, recognising it as a flaw at least.) Secondly, that of quality over quantity. While you can talk about broad average cultural impacts and values, there’s clearly - even allowing for subjective tastes - peaks and troughs there. Even 50 Shades, which, love it or hate it has certainly had an impact, is a world above the thousands of shambling, malformed creations apparently written by a six-year-old after a week’s unfettered access to Dad’s DVD collection that lurk in the lower reaches of Amazon’s sales rankings. When you prioritise volume, you risk expanding the shitcano.

Both of those things are, I would think, impossible to accurately quantify in a formula, but both would push the year limit higher. In the paper’s conclusions, it suggests 15 years - and very definitely not “life plus 15” - as the rough centre of the probability distribution, the peak of the bell curve where you can begin to be more confident than not of things being better, but that 30 years is the point of 95% certainty of this term or less being an improvement on the current situation (with smaller changes being progressively more likely to be improvements as the low change reduces negative impacts).

(I suspect that “30 years” would have caused far less consternation, for what that’s worth.)

There are a couple of commonly-shouted objections to reduced term of copyright. Let’s get into those, at least to my way of thinking, right off the bat.

So HBO could have told George RR Martin “14 years? Yoink!” and made Game Of Thrones without paying him.

No, they couldn’t, as I understand it. The change would affect UK law, not US, where his work, which is also copyright there (I imagine), would still be protected. It could be made and broadcast in the UK, but no further. In addition, with the later books being more recent, they’d potentially run into legal issues with regard to character and context anyway, and it’d certainly stunt their ability to continue the series to its conclusion.

It also ignores the effect they’d have if they did that. Martin’s books are so popular that someone wants to make a major TV series out of them. This means that they are popular enough to have a lot of fans, and he has a very high profile. If they made a series without paying him, in an era where the Twitter mob is just itching for an injustice - especially a corporate injustice - to chase, what would be the result? What would the reputation hit do to HBO’s business, its customer base, advertisers, share price, whatever? Reputation is important, and will only become more so.

But I’m not George RR Martin. A movie studio could steal my story and I couldn’t do anything!

Again, you’re probably overestimating. Why would someone want to make a movie out of your shitty book? Slightly more seriously and less deliberately antogonistically, how would they even become aware of your book in the first place, and if they did, is there anything, currently, to stop them stealing the story anyway?

Because the answer is: nothing. So long as they don’t use the characters (and if your book is a relative unknown, they lose no commercial heft by filing all the names off) or any of the text, copyright doesn’t stop that happening anyway. For instance, a US TV series had an episode that happened to be effectively the same as Mark Billingham’s Sleepyhead. They didn’t use the text - and copyright protects only the form of expression of ideas, not the ideas themselves - so there was nothing legally that could be done. Likewise, there are movie production companies whose entire output is quick, cheap copies of whatever the next big movie is going to be (there’s a reason that United 93 and Flight 93 both exist). They lift the idea, but not the original material, and copyright does nothing to stop this, and people write for and act in these films as a way of either paying the rent or getting enough credits to score something better.

The thing which does stop outright copying of any story a major studio likes, and the reason they’d be unlikely, even with reduced copyright term, to make your book into a film without paying you, is that they have to work with screenwriters and actors, both of whom have unions likely to frown on unpaid material lifting, and that they rely on press coverage to give them exposure. A repeat of Siegel and Shuster in the modern era - “movie company stiffs hard-working, poor writer” - would be catastrophic, and I can’t imagine a profits-worried studio wanting to run the risk when, even today, rights purchases generally represent small outlays overall.

(I’d probably be more worried if I were a musician; Tarantino would never have to license a song again.)

This just benefits major corporations!

Debatable, as I’ve just argued. If they’re willing to take a PR hit or don’t give that much of a crap, perhaps. But corporate interest is only likely to come your way in the first place if you’ve already been a huge success (just as minnows don’t have to worry about sharks), and even if you haven’t, as I’ve just pointed out, there’s nothing to stop them stiffing you under the current regime already.

This is like making (X Product) for 14 years and then being told you have to let anyone have it! We’ll go bankrupt!

For starters, no. It doesn’t stop you charging money for X Product, it just means other people are free to do so (or give it away) if they wish. Secondly, if you’re worried about business as a primary concern and you only make one product for 14 years - whether that’s one book or one design of novelty toilet roll holder - your business plan is very, very bad. And even then, you’ve had fourteen years of exclusive sales of that one thing. That’s not exactly indentured servitude to the braying masses.

Older writers will be denied royalties that they’d rely on for retirement.

Possibly so, though not guaranteed at all. That writer will still be able to sell their work, just no longer exclusively. And in what other industry is this consideration even a thing? And if you’ve banked on receiving income for past works to see you through your old age, chances are you’ve sold enough for that to happen regardless, even if the hypothetical law wasn’t grandfathered (as it would be; other changes in the past have been as far as I’m aware, and there’d be no other sane way to tackle it), and if you haven’t, you need a pension anyway. Don’t get me wrong, I’m very well aware writing as a profession is very poorly paid (if you even write as a profession in the first place, as opposed to having a day job as well, you’re doing well), and I think supporting the older generation is both important and worthwhile, but it’s also something that’s far more to do with broader political economics than royalties to older writers. Old plumbers don’t get a cut of pipework laid in the years before their retirement. Somehow, they have to survive too.

So, what’s the benefit of a reduced term?

Good question, and harder to answer. In the Pollock paper, they talk about the ability for others to adapt or build upon existing works (citing Shakespeare and the numerous versions of his plays, conversions into other media, and adoption of the plots into other stories as the prime example, though remix/cover/samples in music would also apply), and the freer availability of valuable cultural work to enrich society. Worth noting, too, is that moves to lengthen the term of copyright in the past have largely been driven by large corporations (halloooo, Disney) who want to be able to keep milking the same exclusive cash cow forever and ever, not, largely by individual creators.

The idea behind copyright, as it is at present, that a work’s creator has the right to exploit it commercially for enough time to be properly recompensed for its creation, but that after a while, as art, as something intended for public appreciation in a way that, say, a slab of delicious bacon isn’t, it should become freely available for society to enjoy and make use of (note that I mean “free” as in “freedom” not as in “price”). A sort of very long form ransom model for creative work, a reciprocal arrangement that reflects the fact that art requires an audience, and that art does not exist in a vacuum, that we all to some extent stand on the shoulders of others and we should be willing to take our place in the great human pyramid after a while. Shifting the time limit, as per the paper, recognises that the speed and ease of commercial exploitation is greater in the modern era than at any other time, that the volume of “locked” work is growing ever-greater, and that consequently some adjustment might be to everyone’s benefit.

I don’t have a problem with that in principle. As a worker of any sort, I like to be rewarded for what I do - just as I like eating and having somewhere to live. If I’ve worked on a book, I like to be paid for it. But if I wanted to keep it and its benefits solely to myself, I’d keep it locked in a drawer. By actively seeking readers, I’m already trying to share it on some level. Once I’ve covered what it cost me to write - in time, food and rent - I don’t feel the need for the right to be paid for it in perpetuity. If people want to, hey, great. But I’m happy for that to be a choice, and I’m happy not to treat the world around me like it might be about to shiv me in the ribs at all times. When I self-published all my once-Penguin novels I put them under a Creative Commons license allowing people to share them or create derivatives, so long as no money was involved. I doubt anyone’s ever noticed or given that much of a shit about it, but it’s there.

Other writers are obviously far more worried about their work. “So, what, after 14 years anyone could do anything with your books? Or they could write other stories with your characters? And I wouldn’t get paid a penny? Creators have a right to control what happens to their work!” etc. I can sympathise with that. And there are writers - and other creative types - who drive themselves nuts at the thought of fan fiction and the like (however free-to-read it is) and people messing with their stuff because no way would Gandalf ever get his thang on with Ivor the Engine.

That’s a harder one to argue, because it’s purely a matter of perception. I would say that if you’ve published via the traditional process, you’ve already ceded some control and allowed some outside input simply through being edited (and sure, we all get a veto, but in reality it’s a process of give and take), packaged, marketed and scheduled. We’ve said to someone else: sure, you can call some of the shots, but you pay us and you get us an audience. Since in theory all that happens at copyright’s end is that we’ve been paid and now that society that paid us gets to have its say, the process isn’t, perhaps, a world apart.

And how many of those writers, horrified at the thought of badly-formated free versions, awful knock-offs, a movie studio producing a film without paying them a bean, other people carrying on that series in a way that they hate, how many of them have watched an adaptation or derivation of Shakespeare and loved it? How many love a bit of Beethoven of an evening? On my Easter break I saw the last night of Treasure Island, a story I’ve never given much time to, at the National Theatre, and it was surprisingly great (worth a review of its own if it hadn’t finished its run and I had the time; first time I’ve seen more than a kid’s panto at the theatre in years, and it was astonishing). Robert Louis Stevenson and his heirs didn’t get a penny for it. I don’t think anyone should feel bad about that, 130-odd years after it was published.

And how many of those writers would support copyright in perpetuity, from creator through their estate to their successors? Without perpetual copyright, at some point all these terrible fears will be realised. Would it be merely a case of “over my dead body”?

Copyright is a complex issue at the best of times. While the original policy suggestion that sparked the row is a mess (or at least needs to be more than a couple of lines so that the hypothetical mechanics can be explained), and while everything I’ve said in this vast sea of text could be horribly wrong and easily pulled to pieces, I do think it’s a discussion worth having, and worth having in a way that avoids kneejerk responses from any side.