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Saturday, Dec 23, 2006, 6:47 pm

Copyright Protects Individual Creators, Not Corporations; Why Is This So Hard To Grasp?

By Brian Zick

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Nancy Scola at MyDD makes a brief argument in favor of changing copyright law. She refers to legislation sponsored by Rep. Rick Boucher, the Digital Media Consumers' Rights Act, which according to its author "restores the historical balance in copyright law," and "reaffirms Fair Use." In support of the bill, Scola says "that our current regime of content-control is structured to benefit centralized authority, and not the rest of us in the trenches."

The first problem here is a serious failure to actually explain the fundamental character of copyright protection, and the not-really-so-complex array of issues which surround it. Boucher's bill may well have merit, but the legislation is not some sweeping reaffirmation of the Fair Use exception as implied, but a rather narrow set of adjustments to clarify - and arguably rectify - technological issues that are tangential to copyright protection. The bill proposes to address questions arising from the Digital Millennium Copyright Act, having to do with methodologies of digital replication, and proper labeling, not on any substantive alteration to copyright law, or Fair Use, overall.

And while I don't think Scola is purposefully misleading, her assertion that copyright law "is structured to benefit centralized authority" is simply false on its face. Copyright protects the labor of individual authors and creators. The Constitution explicitly declares that Congress shall have Power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It does not provide copyright protection to "corporations" or "record companies" or "publishers," or any other "centralized authority."

This is a monumental mistake in identity. Scola uses the simple example of theft - stealing a CD from a record store - to lament the ease with which copyright protection proponents explain their position. But she misleads her readers (no doubt unintended) by neglecting to point out that the Motion Picture Association (MPAA) and the Recording Industry Association of America (RIAA) "with their very big footprint on Capitol Hill" - and who are obviously well known to serve at the behest of movie studios and music corporations - lobby to protect the copyright of individual musicians, authors and artists. The corporations enjoy a contractual benefit for profit. But, unless explicitly transferred by an individual copyright holder, the actual copyright protections per se do not belong to the companies.

Beyond that, it is also not clear precisely who Nancy means by her reference to "the rest of us in the trenches." She devotes a significant portion of her post to the travails of documentary filmmakers, and the expense of producing work which incorporates copyright protected material, which in turn results in obstacles to her viewing pleasure. Whether she means the filmmakers or the audience, though, makes little difference. She's essentially claiming there is somehow an entitlement to the work of copyright holders which need not be compensated at market value.

The stunning myopia of Scola's reason might be more apparent if, instead of movies, she were to make the same argument in favor of enjoying the uncompensated labor of Nike shoe makers, by arguing that labor organizations fighting to provide deserved compensation to workers are the ones who have a "big footprint on Capitol Hill" which they use to deprive the public of their entitlement to shoe pleasures. In that case, it is rather well understood that the shoe company is not the same thing as the workers who actually make the shoes. But those who assail copyright persist in confusing management with labor.

It is true, obviously and of course, that the lobbying of the MPAA and RIAA benefit movie studios and recording companies. But those benefits are derivative of the actual protection provided to the individual artists and musicians whose labors are employed to produce their film and musical products.

It's a mistake to frame the debate as a dispute over copyright protection. The sins of the movie studios and record companies are sins separate and apart from copyright. It is well and good to battle corporate exploitation. (Copyright holders are commonly abused by the corporations for whom they provide profit.) Copyright protection is in effect a form of labor law. So it is really really bad to focus blame on copyright protections, which safeguard the value of labor by individual worker/creators.

It's the sense of entitlement that totally eludes me, however. And why should documentary filmmakers in particular be exempted from the laws of supply and demand? I mean, if the argument is really over who should enjoy a discount on prices paid for merchandise, why should filmmakers enjoy special status? And it is particularly insulting to the authors of the material to which folks like Scola feel entitled, that they should forego their deserved earnings just because the fans like it so much??!!

It is not unusual for artists to be approached by viewers attracted to their work, who express the desire to acquire a piece of the given artist's work for themselves. And, "since the artist must love her/his work," the opportunity to provide some more of "what they love" is offered by the admirer, the compensation being limited solely to "the artist's pleasure in the creation of the work" - the artwork to be handed over otherwise freely to the person offering what they sincerely believe to be a generous reward - providing the artist with some wholly presumed "joy." No money is offered, mind you, because that is seen to be crassly disparaging of the artistic merit. People claim to "love" art, but they don't like to have to pay for it. And they rationalize their wish to avoid payment with total horseshit justification.

This is the other side of the coin occupied by right-wing crusades against the National Endowment for the Arts. Some years back, Dick Armey once appeared before a hearing on NEA funding, wherein he told the cloying story of a painting he received from a young crippled boy, artwork which he proudly displayed on his office wall. The story was told as a means to substantiate Armey's contention that he "loved" art. And it served as his demonstration that artists are motivated to create by desire, not by money, and furthermore to provide funding for artists would be an insult to their creativity. In other words, art is a wonderful thing, just not worth paying for.

It's distressing enough that conservatives disparage the value of artistic creativity. It's infuriating when allegedly liberal minds think artists don't deserve the compensation they've earned. It's clear Scola doesn't see she's denigrating the value of the work she professes to enjoy. But neither did Dick Armey.
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