18 October 2005

An IP Hangover

This morning's news brought some real strangeness on the IP/publishing front. First up, there's a remarkably ignorant article in the International Herald Tribune proposing an end to copyright as "no longer needed."

Copyright was once a means to guarantee artists a decent income. Aside from the question as to whether it ever actually functioned as such—most artists never made a penny from the copyright system—we have to admit that copyright serves an altogether different purpose in the contemporary world. It now is the tool that conglomerates in the music, publishing, imaging and movie industries use to control their markets.

Joost Smiers and Marieke van Schijndel, "Imagine a World Without Copyright " (08 Oct 2005) (so I'm a little behind in my reading). Let's see, now.

  • Whether "most" artists ever made a penny from the copyright system begs the question: Did "most" artists (whether this includes just painters or whatever) ever produce works for which the copyright system has supported a market? The Smiers/van Schijndel assertion provides a warrant for their conclusion if, and only if, it is read as "most artists who attempted to comply with and exploit the copyright system never made a penny from the copyright system"—and then only to the extent that this (a) represents a binary valuation; and (b) assumes that the only means of support for "most artists" was sale of their copyrighted works (a demonstrably false proposition).
  • That the system can be, in large part, warped in favor of a particular constituency does not mean that the system is unfixable. Granted, Big Media abuses the system. So, however, do some "users" (hi there, Mr Fanning!).
  • Later in the article, the authors assert (paragraphing removed for clarity):

    What then, do we think, can replace copyright? In the first place, a work will have to take its chances on the market on its own, without the luxurious protection offered by copyrights. After all, the first to market has a time and attention advantage. What is interesting about this approach is that this proposal strikes a fatal blow to a few cultural monopolists who, aided by copyright, use their stars, blockbusters and bestsellers to monopolize the market and siphon off attention from every other artistic work produced by artists. That is problematic in our society in which we have a great need for that pluriformity of artistic expression.

    Here, then, is the problem. It is not with "cultural monopolists," but with the identity of those cultural monopolists. The authors confirm that this is a matter of the identity of those who (admittedly) benefit the most financially from copyright later in the article.

In the end, Smiers and van Schijndel make an untenable assumption: That the market itself will preform an adequate "editorial function." Hogwash. The real problem with art—and the reason that extra-short copyright terms are inadequate—is that its value can seldom be judged accurately with immediacy. William Gaddis's The Recognitions is an excellent case in point. Only when republished fifteen years after initial publication did it garner much critical attention—and it is now a fairly consensus choice on serious critics' lists of influential/"best" 20th-century novels. This isn't a recent phenomenon, either; Mozart essentially "rediscovered" JS Bach after he had fallen out of fashion in the early 18th century.

What I find most disturbing about the Smiers/van Schijndel proposal is that it attempts to blend two incompatible systems: short-term market-based success of individual works and inevitably heavy subsidies for artists. This, of course, begs one really obvious question: Who qualifies as an artist? Now we're into the Soviet Academy, Pasternak, Solzhenitsyn, Pahmut, etc. This is one area in which I am pretty radically "free market": Government has no business trying to determine what constitutes art; it can't be trusted, as the line between politics and art is very grey indeed (e.g., All the King's Men). I have no problem with NPR… as long as the government provides just a content-free subsidy. For all the problems with censorship by the market, censorship by government institutions is far, far worse.1

All too related, there's the argument about the value of "genre" in judging literary merit.2 Perhaps the best example of this was the confluence of literary awards Over Here in 1996. Two of the finalists for the NBA, including the winner, barely belong in the same bookstore as two other category-fiction works that did not even get serious consideration; and things were much, much worse with the Pulitzer and NBCC. Here is the real test, at least at the moment: See which of these works is on the syllabus in literature courses—especially upper-level courses—at flagship universities:

Finally, as a cautionary tale for authors, consider this Kenyan libel judgment. I'm no fan of Mr Morton, but it seems fairly clear from the subtext of the article that partisan politics played a major role in this particular result. I find that repugnant, dangerous, and ultimately futile. Nonetheless, this is a good example of the now-internationalized risks of publication in English.

  1. Don't kid yourselves: If one tried to delegate it to a nongovernmental authority, such as some committee of leading art critics, we'd just have to ask ourselves who appoints (and audits) the committee.
  2. This just raises one of my favorite peeves about publishing. Virtually all of what the publishing world calls "genre fiction" is in the same genre: prose fiction. A better term is "category fiction," because that emphasizes that the distinction is only for marketing purposes by using a common, English-language term. (There are, after all, only four genres—and two of them don't involve prose.)