Should We Abolish Copyright? From Intellectual Property to a Creative Commons | Tom Nicholas


Hi, my name is Tom. Welcome back to my
channel. Today, I want to talk a little bit (or actually for a fairly long time
but I think it’s worth it) about copyright and intellectual property.
They’re topics which draw in all of the intersecting subjects on which my
channel tends to focus; there’s a little bit of politics, philosophy, art and
aesthetics. What I want to consider in particular, however, is whether the
existence of copyright and intellectual property is a good thing for our society
and our culture or not and whether we might benefit from abolishing both
altogether. Now, unlike when I make most of my videos, I began writing the script
for this video pretty uncertain of what my final argument would be. I was driven
instead by a slightly more vague sense that the concept of intellectual
property holds something of a strange place in the popular imaginary in the
present. A couple of months ago, Katy Perry and her co-writers on the 2013
song Dark Horse were found by a federal court in the United States to have
infringed on the intellectual property of Christian rap artist Flame by
supposedly copying a 16 note bass riff from a song called Joyful Noise that he
had released in 2008. And pretty much every journalist who reported on this
story did so with a sense of astonishment. On this website, indeed, a
musicologist called Adam Neely made a fantastic video pulling apart the notion
that such a small number of notes could be owned exclusively by anyone. That
particular event, however, was only really the latest in a long line of
controversies surrounding how copyright law operates in the present day. In
addition to concerns that the present system might encourage claims of
intellectual property infringement in cases where the similarities between one
work and another which is said to have copied it might seem very slight,
frustrations regularly seem to flare up on this website surrounding what’s known
as the “fair use” or “fair dealing” doctrines which, in theory, allow for the
use of material protected by copyright for the purposes of commentary or
critique. I have possibly only watched one Let’s Play video in my entire life
but even I became aware of the controversy surrounding
Nintendo’s clamping down on such uses of footage of their games—something that
they’ve since changed their tune on. Ultimately, however, I think both these
episodes point to a broader shift in our perception of artistic and cultural
works in which we increasingly no longer really view such works as something that
can (or perhaps more importantly should) be owned at all. That’s not to suggest
that we no longer consider cultural works (whether that be video, games, films,
books or whatever else) as something that we should pay to experience. Many people
voluntarily part with a portion of their hard-earned cash to support those who
create things that they like on a regular basis. My incredible Patrons—he
says seamlessly working in a brief plug— such as J Fraser Cartwright, who
recently became one of my top supporters by visiting patreon.com/tomnicholas, would still be able to watch my videos without handing over any
money whatsoever. Yet they and anyone else who supports an artist or creator
of some description on Patreon or Ko-Fi or similar recognize that creating
videos or the like takes time and resources and so voluntarily decide to
help to meet some of those costs. Many of us also subscribe to streaming services
such as Netflix or Spotify. Nevertheless, the exchange which occurs when we pay to
access films and music through a subscription service is clearly very
different from that which dominated in previous decades. Where previously one
might have bought a film or album either physically or digitally, the new
normal is one far less predicated on the notion of ownership.
Now, it’s worth highlighting that the issue of the ownership of intellectual
property in the sense that Flame apparently owns that bass riff and
Nintendo own Super Mario Odyssey as an artistic work is separate and
distinct from that of the shift in the way that we pay to access films, music
and other artistic works. Yet I think the manner in which both infer an
increasing skepticism towards the notion that anyone
can or should have exclusive ownership over a piece of art or culture
fascinating. And it’s that thread of an idea on which I wish to pull today. For,
if our perceptions surrounding the possibility of owning an artistic or
cultural work truly have shifted in the way that I’ve just suggested, then it
begs the question: why don’t we just do away with copyrights and intellectual
property altogether? In order to discuss intellectual property and copyright in
any great depth it’s important that we first have a solid understanding of what
those things are and for us to be able to distinguish between them. As the
Oxford English Dictionary has it, then, intellectual property is ‘property […] which
is the product of invention or creativity, and does not exist in a
tangible, physical form’. Intellectual property comes in a number of forms.
Inventions (whether mechanical, biological, chemical or in the form of software) and
designs such as a company logo can all be forms of intellectual property. These
exist within a slightly differently legal system, however, and so, today, we’ll
largely be leaving these to one side. Instead, we’ll be focusing solely on what
are often referred to as “artistic works” which includes books, films, music, video
games and other cultural works, all of which can also be forms of intellectual
property. Copyright, by contrast with intellectual property, refers to the
systems of laws and statutes which exist to protect the rights of an owner over
the piece of intellectual property that they own. The video that you are
presently watching, for instance, is my intellectual property; I conceived of and
created it and thus, in most nations, am granted by copyright law the exclusive
right to do what I like with it and, perhaps more importantly, to seek
recompense against anyone who encroaches upon those exclusive rights. The same
would be true if this video have been created by a group of people or a
company—although, again, for simplicity’s sake I’m gonna mostly discuss
things in terms of individual creators today. As most countries have it, my
ownership of this video gives me the exclusive right to make copies of and
give access to this video to others either for free or for commercial gain. I
also have the right to sell or transfer my exclusive rights of this video to
another party—although, again, we’re gonna leave that thing to the side for
one day. The most important aspect of copyright law, however, is this fact that
it is an exclusive right and thus, should anyone else copy or distribute this
video without my blessing, whether for financial gain or not, they would be
infringing on my intellectual property rights as articulated in copyright law
and I would be able to take legal action against them. What it actually means to
own this video, however, is slightly more difficult to explain. See, it’s not
just the mp4 file that your computer is currently displaying that I own. Instead,
it’s slightly more abstract than that. If you were to download the script for this
video, say, and to recreate all or part of it yourself then you would still be in
breach of my intellectual property rights. Although you wouldn’t have copied
the video file itself you would have still have copied the expression of
ideas contained within. The counter to this is that I only own the ideas
contained within this video in the specific form that they are expressed
here. As the UK government puts it on their website, ‘an idea alone is not
intellectual property. For example an idea for a book doesn’t count, but the
words that you’ve written do’. In short, by making this video, I don’t now own the
concept of a video about whether copyright should be abolished or not nor
even the argument that I make within this video—whatever that turns out to be.
You or anyone else are free to make a video to
the same end. You would only be infringing on my intellectual property
rights once you begin to use the same sentences or filming and editing choices.
If you’re finding all of this highly confusing then you are not alone.
And things are made a touch more complex by the existence, in most countries, of
the “fair use” or “fair dealing” doctrines which I referred to a moment ago. These
enshrine in law the right for someone to use a certain amount of someone else’s
intellectual property for certain reasons. The United States Code, for
example, states that ‘the fair use of a copyrighted work for purposes such as
criticism, comment, news reporting, teaching, […] scholarship or research is not
an infringement of copyright’. If you were to create your own video on a similar
topic and, as part of that video, include an extract from this one in order to
tear my argument to shreds for example, theoretically you would not be
infringing upon my intellectual property. As we saw in the example of Nintendo,
however, in practice things are not so simple. What counts as criticism, comment,
news teaching or research is very much open to debate and, as it stands, whether
a particular use of copyright material counts as fair use or not can only ever
definitively be decided by the courts. As a result, if Nintendo, who presumably have
a small army of lawyers on retainer, asked you to take a video down then, in
most cases, if you don’t also have a small army of lawyers on retainer, you’re
likely to simply fold and take that video down. A lot of the frustration that
people have with copyright law, to my mind, stems from these kind of vagaries, uncertainties and inconsistencies. The fair use doctrine, for example, seems
to hold out an opportunity with one hand whilst, through not providing a
definitive articulation of what counts as fair use and not and thus reliance on
costly court cases, taking it away with the other. The Katy Perry scenario,
perhaps even more troublingly, points to a lack of certainty in the law as
to what counts merely as ideas and thus isn’t copyrightable and what counters
expression and thus is. I’m not convinced that this just points to a problem with
copyright law as it is presently constituted
however. Instead, I think it points to the difficulty of applying concepts of
ownership which initially developed around physical property to the realm of
ideas and creativity. For, while it seems relatively easy to identify what a
physical object is and thus to legislate its ownership, art and creativity are far
more nebulous. I think it’s useful here, then, to take a step back and to consider
the concept of property more broadly. In particular, I think is useful to compare
and contrast the emergence of notions of property as it pertains to ideas and
creativity with the development of the same around tangible, physical things. The
side benefit of doing so is that it might encourage us to take a slightly
more critical view of physical property. Yet what I’m primarily interested in is
exploring the extent to which our concept of intellectual property borrows
from our concept of physical property and how using the same set of ideas for
both might not entirely make sense. In switching our focus briefly to tangible,
physical forms of property, it’s useful to distinguish between a few different
forms of property as they exist in the present day: personal property, private
property and communal property. Let’s begin with the first two. Now, in our
everyday usage, we might be used to using the terms personal property and private
property fairly interchangeably. In most broadly Marxist and anarchist schools of
thoughts, however, these terms have distinct meanings. As Bhaskar Sunkara
explains, the phrase personal property refers to ‘things meant for private
consumption’. The various bits of stationery on my desk, for example, the
food in your kitchen and most consumer goods (such as TVs or sound systems) would
be, in almost all cases, personal property— your reason for owning them is solely so
that you can personally use them. Private property, by contrast, refers to ‘things
that give the people who own them power over those who
don’t’. Sunkara continues that ‘the power created by private property is expressed
most clearly in the labor market, where business owners get to decide who
deserves a job and who doesn’t’. To give a further example, we might consider a
house that is owned by a landlord purely for the purpose of renting it out. In
that scenario, the house gives the landlord a considerable amount of power
over the person who lives in it; they can impose restrictions on what they can do
in the house or periodically increase the rent. Whether or not something is
private or personal property is thus predicated on whether or not it
engenders a social, economic or other power relationship between the person or
people who own it and those who don’t. Indeed, many things can be either
personal or private property depending on circumstance. Your personal computer
on which you play video games or surf the web, for example, is clearly personal
property. If that very same computer was given to you by your employer for you to
complete your work on, however, it would be private property because your
continued right to use it is contingent on you remaining employed in that job.
Indeed, often employers will actively prohibit employees from using such
company-owned devices for anything other than work. And if it’s these
relationships that define whether a piece of property is personal or private,
then it stands to reason that intellectual property can never be
personal; the exclusive rights that are bestowed upon the creator of an artistic
work (whether that creator is an individual or a company) create a power
relation between the creator and anyone else who might want to make use of that
copyrighted work. Let’s leave aside personal property then and instead focus
on our final form of property: communal property. Communal property refers to
anything that is owned in common by multiple people and thus which more than
one person has a right to use. Few examples of truly communal property
exist in the present day. Much of the time,
we might experience streets and pavements as though they were communal
property—administered by the state yet which we all have a right to use.
Nevertheless, anyone who’s ever found themselves at a demonstration or protest
will quickly have discovered the limits of those rights. Yet examples of
communal property have existed throughout history. We find reference to
one such form of communal property in volume one of Capital in which Marx
explains that ‘in England, serfdom had practically disappeared in the last part
of the fourteenth century. The immense majority of the population consisted then, and to
a still larger extent in the fifteenth century, of free peasant proprietors[.] They
enjoyed the right to exploit the common land, which gave pasture to their cattle,
and furnished them with timber, fire-wood, turf, etc’. This common land usually
consisted of a village green or similar space which most people living within
that particular village would have the right to use. Over the course of a number
of centuries however, a process known as enclosure served to fence off and parcel
up this communal property and turn it into private land. The result of this was that
it was no longer possible to raise one’s own cattle, say, for milk, beef or clothing
or that if one did want to do so one would have to pay rent to a landowner in
order to do so. Thus, property which previously engendered little in the way
of a power relationship came to do so— enriching some while disenfranchising
others. The analogy of land and enclosure is useful here. For the
emergence of the concept of intellectual property in many ways mirrors that of
private property in the form of land. See, the notion that artistic works might be
considered private property is a relatively recent phenomenon. The first
law resembling what we now call copyright came about with the passing of
the Statute of Anne in England in 1710. Primarily centred on literary works, it
granted the author of a novel or other literary text
exclusive rights over that work for a duration of 14 years. A number of
economic and historical trends intersected to bring about such a law.
The development of the printing press, for one, meant that it was easier to
distribute certain forms of artistic works and thus owning the exclusive
right to do so became highly profitable. Perhaps more interesting for our
discussion here however, is the manner in which an artistic movement known as
Romanticism had altered people’s perception of the act of artistic
creation. It is during this period, suggests Isaiah Berlin, that we see the
emergence of ‘a passionate belief in spiritual freedom, individual creativity.
The painter, the poet, the composer do not hold up a mirror to nature, however ideal,
but invent; they do not imitate (the doctrine of mimesis) but create not
merely the means but the goals that they pursue; these goals represent the
self-expression of the artist’s own unique, inner vision’. Such a perception of
the literary or artistic work as the sole creation of an individual author
struck by divine inspiration to create something from nothing may often seem as
though it’s been around forever. In truth, however, as Berlin suggests, the
exceptional individual artist who pulls their creations from thin air is, as
Roland Barthes had it, ‘a modern figure’. Certainly, writers, composers and other
artists have always been celebrated for finding novel ways to articulate or
present a certain narrative or set of musical ideas, say, but prior to only a
few hundred years ago, they were more likely to be viewed as grazing on an
intellectual or cultural commons. The narratives, musical phrases and other
creative ideas which already existed were seen as nourishing their creations
and, in return, that which they created were free to nourish the work of future
artists. For a great deal of history, then, art, literature, music and many
more forms of culture were deemed communal property not private. Whole
videos could be filled listing examples of celebrated artists who lived prior to
the advent of copyright law who borrowed extensively and consistently from the
work of others and who, in return, were borrowed from. As James Boyle and
Jennifer Jenkins stress in Theft! A History of Music, Beethoven, Brahms and
Bach all extensively rearranged and reworked the work of their
contemporaries and, in turn, had their own compositions reworked by others.
Shakespeare too would be considered today a career burglar with many of his
greatest plays drawing their narratives directly from pre-existing works. As John
Kerrigan writes in his book Shakespeare’s Originality, ‘Shakespeare
does new things with and adds extensively to what he draws from
pre-existing texts, but his originality is partly original-ity, a drawing upon
originals’. Recognizing the rich history of what would today be considered
intellectual property theft thus perhaps allows us to reconsider contemporary
copyright law. For it allows us to see that the present system is not a given
but, instead, is the result of a gradual enclosure of the cultural commons in
which communal property has slowly been converted into private. It reminds us
that there is another way of viewing art, literature, film and all other cultural
forms not as the immaculately-conceived creation of the exceptional artist but,
instead, as the result of a repurposing and reinterpreting of pre-existing ideas—
and thus not as private property but communal. In order to make the case
against the continuation of intellectual property as private property, however, we
need to go beyond this partly aesthetic and partly moral argument. For the
contemporary argument for the continuation of private property
more broadly very rarely centers on morality but, instead, practicality and efficiency.
See, if you were to ask an economic student what the goal of their
specialism is they would likely respond with something along the lines of
‘economics can be defined as the study of the choices people make and the actions
they take in order to make the best use of scarce resources in meeting their
wants and needs’. In this vein, contemporary economics tends to view the
world as possessing finite resources (whether those resources be oil, apples or
houses) with the goal of economics being to theorize the most efficient way of
ensuring those resources get into the hands of those who need them most.
The idea that concentrating the ownership of such resources into the
hands of the few might lead to such an ideal distribution may, at first, seem
counterintuitive. Yet the idea that private ownership is preferable to
communal ownership for reasons of efficiency and practicality has strong
support across the discipline. The most oft-cited source used to make this case
is a 1968 essay by the ecologist Garrett Hardin titled The Tragedy of the Commons
which considers the efficiency and sustainability of a piece of communal
land in providing those who use it with food. ‘Picture a pasture open to all’,
wrights Garrett, ‘it is to be expected that each herdsmen will try to keep as many
cattle as possible on the commons’. Assuming the society in which these
herdspeople live is stable and somewhat peaceable, he argues that ‘the rational
herdsmen concludes that the only sensible course for him to pursue is to
add another animal to his herd. And another; and another…. But this is the
conclusion reached for each and every rational herdsmen sharing a commons.
Therein is the tragedy. Each man is locked into a system that compels him to
increase his herd without limit—in a world that is limited. Ruin is the
destination to which all men rush, each pursuing his own best interest in a
society that believes in the freedom of the commons. Freedom in a commons bring
ruin to all’. In short, Garrett argues that the consequence of communal ownership of
this metaphorical field is its devastation; each of the herdspeople
attempt to graze as many cattle as possible and, eventually, all the grass is
gone and the land is useless. Converting that land into private land, he posits,
averts such a scenario. For, he argues, if you have stewardship over just your
piece of land, you’re more likely to be wary of over grazing it and to ensure
that it remains useful to you for as long as possible. Garrett’s arguments, and
those made by economists in his wake seeking to refute the practicality of
communal forms of ownership, rely on a number of assumptions which I would
suggest aren’t quite as solid as he would like to think. Indeed, in 2009,
Elinor Ostrom was awarded the Nobel Prize for Economics for demonstrating
that the communal ownership of land can be both sustainable and efficient and
has been proven to be so in practice in numerous real-world scenarios.
Nevertheless, even if Garrett’s argument did bear out in its entirety it would
still provide little rationale for private property rights as they relate
to intellectual property. For the Tragedy of the Commons argument is predicated on
scarcity—that simply doesn’t apply to creative works. The existence of the Star
Wars fan film Darth Maul: Apprentice, for instance, doesn’t displease the resource
of Darth Maul—it was still possible for Disney to make use of the character in
Solo: A Star Wars story and it remains possible for other fans to make use of
the character in other pieces of fan fiction and fan films. From an efficiency
or practicality standpoint, then, the application of concepts of private
property which emerged in relation to physical property simply don’t cohere
when applied to intellectual property. In fact, to my mind, restricting the ability
of anyone other than the original creator of a work (whether an individual
or a corporation) is less efficient than not doing so for we’re placing false
limits on what can be achieved within our culture. The argument that copyright
law helps to ensure a better distribution of copyrighted material
becomes even weaker when we take into account the increasing lengths of
copyright terms over the past few centuries. For where the Statute of Anne
granted authors exclusive property rights for just fourteen years after
that work’s creation, successive national laws and international treaties have
extended copyright laws to a staggering degree. In the United States and the
European Union, copyright law currently considers an artistic work private
property for the entire life of the author plus 70 years after their death.
In Mexico, it’s a full 100 years after the creator has died. And we can
talk at great length about how ridiculous it might seem that, until 2015, Warner
Brothers were earning around two million dollars a year from the song Happy
Birthday to You—a revenue stream they were only denied due to the efforts of
filmmaker Jennifer Nelson who took the company to court to prove that the song
was actually in the public domain. Yet things are just as troubling on the
other end of the spectrum. For, many works which are still under copyright yet which are
deemed not to be profitable assets by their owners are likely to not be made
available to the public at all. Numerous books, films and sound recordings which
publishers and distributors don’t deem it worth spending money re-releasing thus
sit locked up in vaults being enjoyed by no one. I hope to have so far shown that
strong arguments for abolishing copyright law exist from both a
creative or aesthetic standpoint and also from one of efficiency and access.
Nevertheless, even if you are totally on board with my argument thus far, there
remains a pertinent and vital problem to be solved. For, even if we agree that the
creative process is not one of an artist drawing inspiration
from thin air but instead the result of their grazing on an intellectual or
cultural commons, that doesn’t mean they don’t deserve to be compensated for
their work. The argument is solely that the creative process is different; not
that it is in any way less remarkable. As a child, for instance, I loved Disney’s
Robin Hood. And I was very aware that neither its plot or characters were
wholly original. Nevertheless, I still appreciated what those who had been
involved in creating the film had done with those characters and stories.
Reconceptualizing the creative process, then, doesn’t mean devaluing it. By
extension, the last thing we would want would be for the abolition of copyright
law to lead to artists not getting paid for their labor. This is perhaps the
aspect of abolishing intellectual property that I have the fewest answers
for. Yet, in recent years, such questions have increasingly had to be
asked. The Internet has made sharing copyrighted works without paying the
creator or creators of that work incredibly easy. Unlike in previous eras
in which copying a film book album or the like would often result in a lesser
experience of that work, the sharing of digital files has also made it possible
to freely share copies of a work that are every bit as good as one acquired
legitimately. Whether copyright is abolished or not, then, creatives of all
stripes are increasingly having to seek methods of earning a living beyond
simply trading off their exclusive rights over their creations. Of course, we
could posit some fairly idealistic solutions to this problem. We can
envisage a fully automated society in which work is a thing of the past and in
which all who wish to are able to pursue their creative impulses without worrying
much about how to pay the rent. In the short term, however, more modest solutions
might be required. There is a lot of potential in platforms such as Patreon.
Its success in the present is certainly limited with only 2% of creators on the
site making more than the US minimum wage during 2017. Yet I think it’s
slowly shifting how we view the economics of cultural
production and I’ve been genuinely shocked (in a good way) with how many
people are willing to part with their hard-earned cash to support those who
create stuff that they like. The issue of an alternative economic model which
might enable artistic and cultural works to continue to be made is just one of
many issues surrounding abolishing intellectual property and copyright law
that I don’t think it’s possible to solve within the course of a single
video. Yet I hope to have pointed to some of the gaping flaws and
inconsistencies in our present system and foregrounded some alternative lenses
through which we might view art and culture. As to whether we should abolish
copyright in its entirety: I’m not certain. The idealist, the artist and the
critic in me wants to say yes. But the realist recognizes that it is a
massively complex area. Nevertheless, I think the rise of the Internet has made
many of the drawbacks to abolishing copyright almost unavoidable. For, even if
copyright laws remain on the statute books, it is becoming increasingly
difficult to enforce them. Whatever your own thoughts on the matter, I hope this
video has perhaps challenged some preconceptions and maybe sparked some
new ideas and I look forward to continuing some of those conversations
down below in the comments. If you’ve made it this far then thank you so much
for watching what I think is gonna be my longest video to date. I promise not
to make a habit out of it and will aim to be back with some slightly snappier
content soon. Thanks once again to Ash, to Michael V Brown and to J Fraser
Cartwright, my top patrons over on Patreon. If you would like to join them
in supporting what I do here and download copies of the scripts for
these videos etc, then you can head over to patreon.com/tomnicholas and check
all that out. Other than that, however, liking this
video or sharing it on the web somewhere always really helps in spreading the
word. With that out of the way, however, thanks once again for watching and have a great week!

One Reply to “Should We Abolish Copyright? From Intellectual Property to a Creative Commons | Tom Nicholas”

  1. Thanks for watching! If you've enjoyed this then please do considering subscribing and/or sharing the video with a friend. And, of course, if you want to support what I do here, then I'd love it if you'd consider supporting me on Patreon at http://patreon.com/tomnicholas

  2. For everyone dissatisfied with capitalism.
    Here's the compromise between communists and capitalists.
    Its called Georgism.
    Google it, its essentially a smarter tax that only targets landowners because in Georgism the land is not private property and can only be rented, not bought.

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