Off-topic: Copyrights and Piracy

Piracy and copyright are topics close to my heart. In fact, my day job is in music publishing (digital, physical, and distribution). A recent post over at The Journeyman’s Toolbox provoked some thoughts on the topic of piracy. Reading through my blog, you’ll rightly come to the conclusion that I believe strongly in the importance of the creative process and sharing ideas and knowledge. I hope you find this slightly-off-topic discussion interesting. Back to circuits soon.

Rafael’s conclusion (see link above) that piracy often boils down to availability is a good one supported by research from NGOs and industry groups. Technology has spread across the planet faster than either secure distribution platforms or ethical/legal understanding of copyrights. In short the demand (for legal IP) is there, but the supply often is not. Today’s big challenge lies in the ‘flatness’ of the digital world and transitioning from piracy culture to one that supports creator rights. 

The forefathers of today’s copyright law (Statute of Anne in UK, US Constitution, Berne Convention) drew a direct line between authorship and ownership, progressively strengthening the rights of the creator. The idea was/is that creators need some financial incentive to create and protecting the right to (e.g.) reproduce or license a work gives original creators an exclusive commercial advantage. Technology, like copyright, has moved in the direction of empowering individuals through universally accessible distribution platforms (YouTube, WordPress, etc).

However, ethics and regulation have not kept pace with technology. As a result, we see continuous violations of copyrights without practical mechanisms for authors to combat it. Education is also lacking as users often have no idea they are violating someone else’s rights when they share, borrow, or download protected works. Finally, there is the question of consumer access to legal channels, the presence or absence of digital services or payment standards. These are practical drivers of pirated content that may eventually be solved with better services and updated laws (consider for a moment the pace of technology and the average age of legislative representatives).

In the USA, the SCOTUS asks four questions in weighing copyright/fair use cases: what is the purpose and character of the use, what is the nature of the underlying copyrighted work, how much is used in relation to the whole, and what effect does it have on the market for the work? It is this last point that is often most salient. Where pirated content is available and legal content is not, it is hard to blame the ‘pirate’ even if they are technically breaking the law. Pleading ignorance is an understandable excuse, though the platforms benefiting from the content and traffic (not the individuals themselves) should be held to a higher standard when it comes to copyright education and oversight.

Setting aside these practical factors, we are left with ethical issues. Specifically, many take the ethical stance that piracy preserves or democratizes culture. This is a common theme in copyright discussions that appeals to emotion, but it contains critical missteps in logic. The most fundamental flaw here is that copyright covers expression, not underlying ideas. Culture is not a library of distinct units (expressions); it is a collective understanding of society and the world (ideas). Copyright does not privatize ideas and therefore does not seek to regulate or control culture.

Dissolving copyrights as a legal/financial mechanism in order to declare artistic works public domain suggests that culture and monetization are mutually exclusive. While there might be some productive discussion with regards to copyright duration, the idea that author protection could be abandoned and result in a positive impact to the creative market ignores basic realities of survival and specialization. Today’s public domain cornerstones like Beethoven, Mozart, da Vinci, or Shakespeare would not have existed or endured to be appreciated without the contemporary financial support of patrons (i.e. monetization). Predictable and protected incentives, not spontaneous generosity or exposure, are required to liberate and motivate the creative spirit. 

Most worryingly, the piracy-for-culture argument assumes that no better solution to the practical problems (availability, education) can be had. In that way, piracy stands in the way of commercial/civil services that could serve the same public function without violating the rights of original creators (a win-win). Personally, I’m happy to see more subscription-streaming services (Spotify, etc) become available; even if they are not perfect, they are a step in the right direction. There is no denying though that these services compete with (intentional and unintentional) piracy for the hearts and wallets of would-be consumers.

While I empathize with the cultural demonetization viewpoint, it ignores too much economic context and history to hold up under the scrutiny of real life. Consuming culture is a two-way transaction for artists and audiences alike. Lofty ideals muddled with the vulgarities and economics of reality make art evocative and visceral. How can I ask an artist to put his blood down on paper if I’m not willing to open up my pocketbook in return?

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