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Source link: http://archive.mises.org/9273/authors-beware-of-copyright/

Authors: Beware of Copyright

January 21, 2009 by

When an author signs a publication contract, insofar as it contains strict and traditional copyright notices, he is pretty much signing his life away. It used to be that the publisher would maintain control only so long as the book is in print. Today, with digital printing, this means forever: your lifetime plus 70 years.

During this time, you can’t even quote significant portions of your own writing without permission from the publisher, and you could find yourself paying the publisher for the rights. You can’t read your own book aloud and sell the results. You certainly can’t give a journal a chapter.

You could try to be sneaky and change the text a bit, right? Wrong. They’ve thought of that. You will own and control new matter but the old matter is still the private possession of The Man.

What if the publisher isn’t marketing your book? You can yell and scream but they don’t have to answer. In fact, most publishers have a system for dealings with authors. It’s called voice mail. Emails go unanswered.

You are done for. You sold your soul and you can’t get it back. Not within your lifetime. Your creation, which copyright is designed to protect, is now the possession of someone else. This follows the trajectory as laid out in Michele Boldrin and David Levine’s smashing new book Against Intellectual Monopoly.

As they explain, this racket began in the 17th century when government instituted the idea of ownership of ideas, precisely so that the government could crush ideas it didn’t like. Only approved authors got the stamp of approval. Same with art. But then the authors and creators rose up and demand their rights in the 18th century, and the copyright idea was transferred from government to private parties, who were then in a position to crush competitors. In the 20th century, this changed again, when the right was transferred from individuals to corporations.

In the digital age that exists simultaneous to the most tyrannical copyright laws ever, this is creating an intolerable situation that amounts to a form of involuntary servitude. Creators write and paint and watch corporate interlopers doom their work to obscurity. The creator hoped to make a dent in the universe but only sees his material land in the recycle bin of history.

Yes, it is done by contract–contract backed by the power of the state. So why do authors put up with it? Mostly because it is a convention, and they haven’t known about alternatives. Also, they are bribed by the ego-exploiting promise of royalties that never arrive.

The practical effects can be devastating. There is, for example, a book on Austrian business cycles that was published some years ago, and it is print from an academic house, but in print only in the most technical sense. It is essentially unaffordable for anyone but a state-fund library with an inelastic demand curve.
The Mises Institute wants to bring it back in paperback and make it affordable. Nope, can’t happen. The publisher says that it will do it for us, at a very high price with virtually no discount. They are in their legal rights to do this.

Of course it makes the whole project completely unviable. No deal. The authors are cornered. There is nothing they can do. There is nothing we can do. A great Austrian book, written over the course of ten years, is consigned to the dusty shelves of a handful of libraries, for at least another 70 years.

This is only one case of a hundred that I’ve seen. It is even worse when the author is dead. The publisher may or may not have handed back the rights to the manuscript. Those rights may or may not have been transferred. They may or may not have been handed on in the will or perhaps they are part of probate.

Yes, a potential new publisher can hunt this down to find out who among 6 billion potential owners actually controls rights to this manuscript. A lawyer is always glad to spend vast amounts of your money doing research. He may or may not come up with an answer you can trust. Meanwhile, you have spent the equivalent of a first print run.

Most potential publishers will say: to heck with it. Again, you have failed to be immortalized by your work. This goes for artists and musical compositions and even recordings of your band or voice. Thanks to federal law since the 1980s, all this material is bound up in a thicket of law, and this thicket will not evaporate for more than one hundred years.

This is what the “intellectual property” of copyright has wrought.

So I say to all authors: please look at your contracts. Don’t sign your life away. Publish on the condition of Creative Commons. Claim your rights back as a creator and an author.

How does this work? You have to copyright your work if only to prevent others from claiming copyright and thereby binding all other living persons, including you, from publishing it. Once you claim copyright, add that it is published under the Creative Common License 3.0. This rids your manuscript or song or painting of copyright’s provision of doom: the requirement that only one institution can control it.

In other words, it makes your creation part of the free market. It can be posted, recorded, shown, photograph, celebrated by one and all forever. Isn’t this why you create in the first place? Isn’t this what drove you to write, paint, photograph, sing, or whatever? You want to make a difference. You want credit for your work. This permits this.

Old-fashioned copyright is nothing but a form of modern tyranny in the digital age. It has no future. Bail out of this wicked institution and make sure that your work has a future too.

{ 57 comments }

Brian Macker January 25, 2009 at 5:13 pm

“Of course without IP rights, the Publisher could just publish it without your permission since you couldn’t own it.”

…and as a consequence the author is going to be very discriminating about which publisher he selects.

Without IP rights the artist doesn’t get to pick a sole publisher. His works will soon be ripped and copied by others. I don’t see how this gives any more incentive to be more discriminating than with IP in place.

Bob Schaefer January 25, 2009 at 6:04 pm

Some practical questions/examples which neither Kinsella nor Boldrin/Levine answer:

1. Assuming a world without IP, imagine I am a novelist. I submit my manuscript to a publisher. Couldn’t he sent me a rejection notice, remove my name from the manuscript, substitute his and publish my (now his) novel retaining all the profits for himself? In fact, couldn’t the same scenario be played out by anyone to whom I submit my manuscript, be he agent, editor or the secretary who opens the publisher’s mail? Though unethical, perhaps, wouldn’t these behaviors be perfectly legal in a no-IP world?

2. Assuming a world without IP, and in order to avoid the behaviors above, imagine I decide to self-edit and self-publish my novel. Couldn’t the very first person who buys my self-published book do exactly what the publisher did in my example above? In order to prevent such behavior, wouldn’t I have to flood the market with the first printing of my book in order to maximize my profits, which would entail a huge capital investment? [Obviously, the current practice of self-publishing a small number of books in hopes of attracting the interest of a major publisher would be a fool's errand in a world without IP.]

3. Is there a clear distinction between trademark and copyright? (Boldrin/Levine are vague on the subject.) For instance, imagine I formed a trademarked company the whole purpose of which was to sell my novel. Then, imagine this trademarked company published my novel under its trademark. In a no-IP world, would my trademarked company protect my rights to my novel as tangible property?

4. Speaking of trademarks and tangible property, assume a no-IP world and imagine a restaurant opens. This trademarked restaurant has a unique concept and is extremely profitable. Obviously, as in our current IP world, imitators opening under different names and trademarks would soon abound in a no-IP world. However, in a no-IP world could imitators open an exact duplicate of this restaurant with exactly the same name and trademark? If so, why? And if not, how is the trademark protection for this restaurant different from copyright protection on a novel?

5. Boldrin/Levine and Tucker seem to rely on the utilitarian principle of the greater good for the greater number when advocating the demise of IP. In a no-IP world, certain creative individuals would have to be satisfied earning a little less off of their creations in order that society at large may enjoy a faster pace of technological progress and cheaper access to a greater variety of art and entertainment. However, couldn’t this same argument be turned against the concept of private tangible property?

Imagine a time when oil is in severely short supply. Imagine a rich landholder who owns thousands of square miles of land under which lie undeveloped oil resources. For his own reasons, be they environmental or merely crazy, this landowner refuses to develop these oil resources to their full potential. Isn’t society at large the worse off for protecting this landowner’s unlimited tangible property rights? Shouldn’t society be able to limit this individual’s tangible property ownership rights to some reasonable acreage so as to benefit the greater number?

Certainly this landowner has profited greatly from the oil resources he has developed already. Like Bill Gates, he’s rich enough. Certainly he wouldn’t miss the extra income he would lose by society nationalizing a portion of his property and developing its undeveloped resources? Certainly society, as a result, would enjoy more rapid and more expanded technological progress.

What say you Kinsella and Tucker?

Elizabeth Barrette January 26, 2009 at 10:38 pm

The part of copyright that allows creative people to formalize ownership of their own work, so that others cannot claim to have produced it nor profit from it without the creator’s permission, is very useful. It’s the rest of the institution that is a disaster, for the reasons you list above.

The Internet is making more alternatives viable. For some time now, I’ve been studying and practicing cyberfunded creativity. Instead of selling material to an editor or gallery owner or whatnot, creators market it directly to their online audience. There are many different models in effect — some use subscriptions, some use donations, and so forth. Audience interaction tends to be high.

You can read discussions about this on the LiveJournal community “Cyberfunded Creativity” including links to some popular projects:
http://community.livejournal.com/cyberfund_creat
If you want to see an example in action, drop by “The Wordsmith’s Forge” for the monthly Poetry Fishbowl (click “fishbowl” or “poem” tags for previous samples):
http://ysabetwordsmith.livejournal.com/

Elizabeth Barrette January 26, 2009 at 10:39 pm

The part of copyright that allows creative people to formalize ownership of their own work, so that others cannot claim to have produced it nor profit from it without the creator’s permission, is very useful. It’s the rest of the institution that is a disaster, for the reasons you list above.

The Internet is making more alternatives viable. For some time now, I’ve been studying and practicing cyberfunded creativity. Instead of selling material to an editor or gallery owner or whatnot, creators market it directly to their online audience. There are many different models in effect — some use subscriptions, some use donations, and so forth. Audience interaction tends to be high.

You can read discussions about this on the LiveJournal community “Cyberfunded Creativity” including links to some popular projects:
http://community.livejournal.com/cyberfund_creat
If you want to see an example in action, drop by “The Wordsmith’s Forge” for the monthly Poetry Fishbowl (click “fishbowl” or “poem” tags for previous samples):
http://ysabetwordsmith.livejournal.com/

Dmitry Chernikov February 12, 2009 at 7:07 pm

Bob, that’s a wonderful question you ask in #1. Consider scientific and scholarly papers. Scientists are most interested in disseminating their work far and wide, free of charge. (Many would probably agree to pay journals to publish their stuff.) That’s how they gain their fame and glory. Yet the kind of theft you describe never happens. So, there is a difference in receiving credit and recognition for your work and retaining the right to copy your work. Even if there is no copyright, and anyone can copy your novel, there may still be strict laws governing the attribution of credit. Therefore, the publisher might be able to publish a novel and give you nothing, but he won’t be able to deceive the public about who authored it.

Stephan Kinsella January 30, 2010 at 10:31 am
Jacob Lovell March 3, 2010 at 6:21 pm

Bob:

1) Sign a contract with whomever you submit the work to to not make copies or distribute it in any way. If they don’t want to sign the contract, don’t deal with them – deal with more reputable publishers. If they do sign the contract and break it, sue them for breaking the contract for the amount specified in the contract itself.

2) Yes, someone could do that, which takes time and effort. But you’re failing to consider empirical examples of where copyright-free material was published and where the first publisher still benefited from simply being the first publisher. Further, you could trademark your book (which, unlike copyrights or patents, is considered a form of fraud if used by the non-owner) and only deal with people who only sell trademarked copies of your book, and help persuade others to do the same – this is similar to what the NCAA does with officially-branded school goods (look at the holographic stickers they use). If retailer has a reputation for peddling non-official goods, then voluntary sanctions can be used against it to convince it that it needs to play by whatever rules society thinks appropriate – all without violating the non-aggression axiom.

3) You don’t seem to know the difference between copyright and trademark. Trademarks are used to clearly identify the producers of the good, whereas copyrights are on the goods themselves. Trademarks have no intrinsic value.

4) No, because you’re committing fraud against the customers at that point, which is in violation of the non-aggression axiom. You cannot purport to provide a specific service and not do so. This is, however, unlike the current IP world where trademark violations are considered trespassing upon the owner of the trademark and not the consumers who are mislead.

5) Probably, which is why I base everything off of the non-aggression axiom and generally ignore utilitarian arguments. It’s nice if the right thing to do leads to everyone being better off, but that’s just a side effect, and the right thing to do is the right thing to do regardless.

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