[A2k] Re: Copyright Should Encourage Derivative Works

[Mark Harris]

Lea Shaver wrote:
> --
> [ Picked text/plain from multipart/alternative ]
> This idea is actually what makes me a bit unsatisfied with the term "users
> rights" -- it suggests that we can neatly divide the world into "creators"
> and "users" and that the two categories have opposing interests/rights,
> which need to be balanced against each other.
>

The terms are correct, but they don't encapsulate an individual - they
describe the roles that they fulfill in the "knowledge transfer". Thus,
for example, one can be a creator of music at the same time as being a
user of other creators' music.

> That framing obfuscates the collaborative nature of most creativity.
> Especially in a digital era, almost all of us are both creators and users,
> and I suspect our interests in creation and use are more aligned (in favor
> of openness) than the conventional account of users vs. creators assumes.
>
Only if you regard the terms as exclusive and defining of individuals. A
farmer has to eat. Does it make him less of a producer when he becomes a
consumer? Of course not.

At the same time, there are people that will only consume, lacking the
impulse to create. "User" is still not a pejorative label - it is merely
a description of activity.

> We need rhetorical framings that don't buy into the idea that artists need
> to be protected from the public, and newspapers need to be protected from
> bloggers, and professional songwriters need to be protected from amateur
> musicians trading guitar tabs.
>

Yes. I agree with you. However, these rhetorical framings need to be
acceptable to all - difficult enough - and understandable by everyone
from theoretical academics to down-and-dirty politicians, which is an
even bigger ask.

> Instead, the law should promote an environment enabling all of us to be
> creative. I think the human rights frame's emphasis on cultural
> participation and inclusion can do that. I also like the phrase "freedom to
> innovate."
>

Actually, to some respect it does, at least in theory. We all have an
opportunity to create. What the current law does (in most Western
countries, at least) is restrict what others may do with your creation.
As others have noted, however, once you publish something, however
informally or formally, it doesn't belong to you alone anymore, but to
everyone it touches. Copyright, from the Statute of Anne on, has sought
to ensure that the creator has first opportunity to gain profit from the
act of creation in the hope that it will encourage further acts of
creation. It doesn't guarantee the creator a living, which is what a lot
of people arguing "property rights" seem to get hung up on. It only
offers the chance to make some money, the amount (or even, fact) of
which will be determined by the market for the work.

This is why I (and, I think, RMS, but I don't claim to speak for him)
denounce the use of "intellectual property" as a term of art - by it's
existence, it promotes the concept that creative works can be owned by
an individual entity and inherently accedes to the maximalist view. So,
you lose the argument before you start.

If you want a rhetorical framework that will lead anywhere except
courts, start there. Reframe the concepts of copyright, trademarks and
patents so that they are fair to all, and will work in the 21st century
now that scarcity is itself scarce (in the digital world, at least).

Actually read what Stallman has to say instead of gut-reacting that he
must be wrong because he is Stallman (not directed at you, Lea, but to
others on this list). Put aside your distaste for his rhetoric (which,
even he may admit, can be a little extreme at times) and concentrate on
the content. I believe that RMS has come as close to "getting it" as you
can, along with Mike Masnick (www.techdirt.com) and Larry Lessig.

Cheers

~mark