On the Progressive Use of Copyright

Some may take issue with my characterization of copyright as having a progressive purpose. Opponents of copyright strenously dispute the claim that copyright protects authors at all, and say that this is a smokescreen for the media industry’s desire to protect their business model. But we can retort with a similar charge: aren’t the attacks on copyright, supposedly in the interests of the viewing public, also smokescreens for the profitable business models of the internet distribution industry?

One such example of this disputation is in this essay by Karl Fogel, open source developer, former Google employee and founder of the advocacy organization Question Copyright. He claims that the beginning of copyright legislation with the Statute of Anne never had the interests of authors in mind at all, citing the work of one copyright scholar, Benjamin Kaplan, to conclude: “But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators.”

This essay dramatically overstates the academic consensus on the original purpose of the Statue of Anne, for obvious reasons. Legal historian Oren Bracha presents a more complex picture:

Modern scholars disagree about the exact purposes and motivating forces behind the Statute of Anne. The Statute is commonly known for embodying the moment at which authors were recognized as the proper focal point of copyright protection and for establishing authors’ legal rights and their ability to bargain for better terms in the marketplace. Many scholars espouse other views. For instance, Lyman Patterson described the Statute as primarily an attack on the monopoly of the Stationers’ Company, the London publishers’ guild, in which the figure of the author was used rhetorically as a pretext for breaking this monopoly power and regulating the book trade. Ronan Deazley, while not necessarily disagreeing with Patterson, emphasized that the Statute’s motivation was to strike a deal between the author, the bookseller, and the reading public that was designed to maximize the production and dissemination of useful books. John Feather, on the other hand, described the Statute’s purpose and effect as an attempt by the Stationers’ Company to retain as much of its power and privileges in a changed world. In this account, the author figure’s growing ideological value serviced the London booksellers, rather than the interests of the public or the authors. Which of these seemingly inconsistent accounts is right? As recently suggested by Isabella Alexander, the most probable answer is: all of them.

This makes sense to me. Things rarely have single, simple causes. But it should also be noted that Fogel’s claim that copyright was designed by distributors to subsidize distributors does not substantially affect my thesis, which is that the today’s attacks on copyright are designed by distributors to subsidize distributors. Nor am I particularly concerned about protecting authors via copyright, since in today’s content industries, many creative workers are under work-for-hire contracts and don’t earn royalties. My argument is that if undermining copyright damages the content creation industry, it puts workers in those industries at risk. It may be true that the MPAA uses author rights as an ideological pretext for retaining control over content. Nothing in my argument changes, since I freely admit that copyright functions as protectionism for the industry. The problem is that this industry employs many more workers and in more secure working conditions than what threatens to replace it.

Some, calling themselves Marxists, welcome the decommodification of culture on the internet and the creativity it unleashes, but this focus on our much-celebrated consumer rights and near-total occlusion of labor issues seems decidedly un-Marxist. It reinscribes the capitalist logic that insists we understand our fundamental relationship to the economy as one of consumers rather than workers.