Creative Incentives Without Intellectual Property Protection

[It’s been a while since I’ve written anything, which is not for the want of subjects to write about – Israel, Ukraine, Surveillance Laws, and I’ve been thinking about my community land trust project a lot too. Anyway, tonight I got into a discussion about intellectual property, and more specifically about copyright and patents. I do not support either, but my interlocutor was someone connected with the creative arts and so copyright of artistic works was the focus, and specifically how I must be an evil philistine because I thought creatives should not have special protection for their work. So what follows started off as an attempt to explain my position better…and turned out somewhat longer, so here it is as a blog post]:

Look, I get it. I really do. Artistes want to be able to make a living from what they do, and so they should. And nor do I support or encourage fraud, or theft (both breaches of any type of property rights I can conceive of), nor plagiarism and passing off (which are also ethically wrong and already professional suicide with or without copyright).

But I have problems with the idea of “intellectual property” rights, meaning here particularly copyright, but similar arguments apply to patents (though to a much lesser extent Trademarks).

For a start, in order to protect one alleged property right, say the particular order of words that makes something “your” novel, intellectual property rights infringe another right, my right to do what I want with my property, specifically my copy of “your” novel (but by extension other items of my property – perhaps the tools I might use to copy some of your work were I so inclined). And the contract that may easily be argued to have been entered into by seller and buyer the first time round seems to lose a little weight if, for example, I simply find a copy of the book someone left on a park bench. Even less so if the cover and any mention of your name is missing from it.

Then there’s the issue of time – if something were “real” property, the right would be perpetual at least whilst there was a rights holder (or heirs and assigns) to claim the rights and property over which they wanted to claim their rights. But both patents and copyrights have time limits, and those time limits change (almost always upward, which if you think about it is a little odd, especially in the case of patents – where actually the salience of new knowledge is always falling, so you would expect the trade off between development time and protected time to be falling). This artificial time-limit alone proves the previous paragraph’s argument – since it is a politically conferred set of rights if at all, it *must* by definition serve to alter the balance between competing rights claims.

There are also difficulties about what is not included amongst copyrightable or patentable “creations”, many people create (or discover) things that obviously or by quirk of the law cannot be protected, or whose output is not ultimately monetised by them – people drawing a salary for producing artistic or technological works that are then protected by and for the employer’s interests, academics, salaried screenwriters etc.

So much for (some of) the philosophical/legal arguments against IP, but I would also argue that the actual effect of them is to stifle creativity, rather than incentivise it. Yes, a small number of artists can become relatively wealthy (and an even smaller number eye-wateringly so), but with the way in which IP favours ever larger rights holders, I argue it concentrates our spending on arts on the relatively few such artists who get picked up and promoted by the biggest media conglomerates, leaving relatively less discretionary arts spending available for discovering new artists.

All the while this process has been destructive of culture, diluting, homogenising it through mass production and promotion (this is not meant to be snobby – it’s just saying “there are thousands of brilliant bands out there but because of the way IP works all the effort is focussed on One Direction and these thousands of poor buggers never get out of the Saturday night pub circuit as a result”). Whilst under the Statute of Anne it was motivated by concern that authors were not being paid by printers, publishers and distributers, often IP law has become the way in which rights are traded away from the creators in favour of the middle men (I think here of this heartbreaking telephone call between Buddy Holly and his agent)

So my case against IP is the same as that of classical liberals, and, generally, the working class, such as existed, throughout the 18th and 19th centuries – that it is artificial, impinges on others’ rights, and actually works against creators in favour of middle-men/rent-seekers. I’m on the side of the vast bulk of creatives who are not earning enough from their efforts to support themselves, because of the system, not despite it!

Are there alternatives? I think there are. You just need to be equally “creative” about how you finance and conduct a creative project. In ways that other businesses have to.

I don’t know why people scoff at the idea of patronage funded arts: academics’ research output is funded by patronage (they have a job); fine artists often work on commission; jobbing musicians are privately hired; public works of art funded by tax. Let’s face it, even the highest rewarded of the minstrelati seem to love the opportunity to play privately for the great and the gilded.

Similarly there’s nothing to scoff about crowd-funding. It’s been done, successfully. It’s a disruptive technology. I have contributed to two books, a film and a website, and in other creative output I contribute regularly to three think tanks along with hundreds of other small donors enabling them to pay contributors, not to mention a couple of off-line music recordings by local artists. A crowd-funded novel even made it onto the Booker prize long list this year. Same applies to self- or co-operative publishing, and other disruptive publishing mechanisms. Hasn’t Stephen King even done something crowd-funded? New technology makes it easier to develop networks of followers prepared to pay or otherwise collaborate for exclusivity or other benefits – from the consumer perspective, we can all be more direct patrons of the arts.

If such exclusivity or financial and technical innovation is not your bag or for whatever reason you may be dependent on mass distributed culture, on copying and distributing your work to a wide audience, introduces the risk that it will be distributed by others in such a way that you get no benefit from it. Economically this may get precious close to being a “public good” – one where me owning or using something (a copy) does not diminish the ability of others to own the same thing (another copy) and where it’s difficult to make people pay for it (because it can be endlessly copied). This makes it difficult for a would be producer to recoup the costs of production and therefore reduces his incentive to produce it. And a public good is often argued to be a justification for government action, to “correct” a “market failure”. In this case, the government action is copyright and patent law to prevent a public good situation by preventing endless copying – non-scarce goods have no value.

As any other business, one that doesn’t rely on rent, will tell you, there are other competitive advantages you can exploit to minimise the risk that someone else will nab your product before you make enough to cover its production (which is all we’re doing here – incentivising production, not making billionaires). If your chief worry is about copying, then being first to market with something is a huge advantage. As is being able to demonstrate your connection with the creator – you gain a reputation for publishing the originals, with the author, staging the first, directed/performed/read by the playwright/choreographer/composer/author herself and people will pay for that.

To guard against passing off, well we already have large scale plagiarism detectors, so protecting your property by subscribing to a database that can instantly identify you as the author/performer of something no matter who tried to pass it off as them might become the norm. It would already be a career killer now to be caught passing off someone else’s work, such a mechanism could make it much easier to detect and expose.

But actually this isn’t about how to protect the interests of the super-star creative artist, but about increasing diversity in art and innovation by spreading the reward better, by examining whether there is economic rent being accrued somewhere that doesn’t really deserve it and either getting them out of the system entirely, as with, say, disruptive self-publishing mechanisms, or making their return better reflect the value they add if any. Technology has its place here too – the switch toward electronic mechanisms of publishing and printing helps to reveal just who is adding what and whose services might be dispensed with, for example.

Even if the middle-men managed to survive this upheaval, they would likely have to work harder for their money. First to market is an advantage you get once with each product. It might last a long time, and you can eek it out with different editions, performances and so on. At some point without copyright you risk losing the “long tail” business as people care less about whether they are buying the “original” or someone else’s reprint/reproduction. So your business tends more toward discovering constant streams of new talent, with whom you can be first to market, rather than milking copyright for a few well rewarded chosen creatives.

These suggestions are of course not exhaustive. Others have suggested that copyright could be effectively replicated anyway by carefully worded contracts, so why have it enforced by specific legislation rather than just breach of contract, for instance? These are just a few suggested means of making money out of creativity without impinging on the property rights of others.

If the intellectual property system worked as people think it does, to ensure there is incentive for artists to create and innovators to invent and to see to it that the market efficiently and equitably allocates the returns to the various parties bringing something to market, there might be some point in it. But not only, I suggest, does it do neither, it contributes to the homogenisation of culture on the one hand, stifles technological innovation on the other, and creates an enormous distortion between carefully nurtured super-stars and their various hangers on at the one end and struggling creatives at the other. A situation that in my experience more usually reflects brand marketability than it reflects artistic merit!