Goodbye “Incentive.” We Hardly Knew Ye.

“Copyright Is About Incentives, Not Protection” —
“Really?” — this essay

Those critical of long copyright terms (short copyright terms, any copyright terms at all really), love to haul out the word “incentive.” In fact, I have found those most interested in weakening and/or eliminating copyright just love to position that particular law as strictly an incentive program (examples here, here and here). This stems, I gather, from copyright’s mention in the US Constitution as intended to “promote the progress of science and the useful arts.” The thinking goes like this — our collective society incentivizes creators to individually create in order to help our collective progress. Full stop.

Of course, all copyright is not US Copyright. There are many different systems of copyright around the globe, with different named motivations. Most of those motivations are not about incentive, strictly speaking; rather they are variations on the theme of protection to be found in the Universal Declaration of Human Rights (UDHR), which states:

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Furthermore, the idea that because incentive is stated in one country as onegoal of copyright, it is therefore the only goal of copyright, is troubling logic. Copyfight crusaders seem to love this troubling logic, as it helps them to be more dismissive of the law. Once copyright is rhetorically constructed as incentive-only, the anti-copyright activist can then just keep asking “where’s the incentive in that?” whenever copyright’s widely accepted protective nature is discussed.

So, for instance, modern copyright protection on created works lasts for a period of time beyond the scope of an author’s lifetime (in most of the world right now, the term is 70 years past the death of the author). Hating on this feature, anti-copyright folks like to say things like “Copyright is an incentive to create new works. A dead author will never create a new work, so where’s the incentive in having a term of copyright that lasts beyond the death of the author?” It’s a remarkable piece of circular reasoning: Copyright is only incentive. This is not an incentive. Therefore this is not copyright.

Now, I’ve already shown how copyright is actually widely accepted as protection (the word “universal” in the UDHR certainly suggests a consensus on this point). At best, we might say copyright is both protection and incentive. I like to think of it as a great big helping of protection with a small side-plate of incentive. Here’s why.

The protective nature of copyright allows creators to treat their works as a non-physical form of valuable property in order to realize, as the UDHR states, moral and material interests. That protection can indeed act as incentive to create new works.

“Hey, I made some money from this one protected work; perhaps I will make some more money if I make more work.”

But what if an author stops at one work, and refuses to be incentivized into creating new work? Does that author lose the protection on her first work? Not in any copyright system I’m aware of. Therefore, copyright is a protection first, and an incentive second (if at all).

On to the big existential question. Can we incentivize the dead?

I don’t know, as I’ve never been dead. What I do know is that we provide protection for many, many forms of property beyond the life of that property’s owner. We call that protection “inheritance.” I’ve yet to meet anyone, not even an anti-copyright activist, willing to give up the right of inheritance for all property at the moment of death. That’s because we accept wills, bequests and inheritance as fair and reasonable rights for both the living (the person making the will) and for those left after the living are no longer living (the heirs).

Extended copyright terms follow a similar logic, and no circular reference to incentive will ever change that logic. Copyright protected works can be remarkably valuable. That value is a form of property, and we extend copyright terms past the death of the author in order to allow the author to leave said value to her heirs. If incentive comes into play at all in extended copyright terms, the incentive acts upon the living author to create yet more valuable property that can then be protected in her estate. In other words, we probably do incentivize the dead — we just do so before they actually stop breathing.

Understood? Good.

Go Copyright!

John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2000 professional authors. He is also Chair of the International Authors Forum, which represents over half a million professional authors worldwide. Read his most popular Medium article: 5 Seriously Dumb Myths About Copyright The Media Should Stop Repeating.

This article is one of a growing series of pieces I am writing in response to some of the silly yet pernicious illogic in free-culture arguments against copyright. My aim is to raise copyright discussion out of the abstract muck of free-culture theory, and bring it back onto the dry land of pragmatic reality. Please share widely if you agree with the aims of this project.