Goodbye “Incentive.” We Hardly Knew Ye.

“Copyright Is About Incentives, Not Protection” — techdirt.com
“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.

On copyright and the authorship of Anne Frank

This op-ed was originally published in Quill & Quire, Canada's magazine of the book trade.

Recently, The New York Times published a short article detailing what really should be a non-story: an additional time-limited term of copyright protection for The Diary of Anne Frank (known in some editions as The Diary of a Young Girl) is being asserted by the Anne Frank Fonds, the Swiss foundation granted these rights by Anne Frank’s father, Otto. The AFF believes it can extend a waning copyright term by recognizing the book’s compiler, editor, and prologue-writer as a co-author of the commercial text. It’s a legally interesting and elegant option for keeping a commercially viable work active and able to continue the good work it’s been doing now for many decades.

Since copyright is often measured using the lifespan of an author (plus a number of years to allow for effective estate bequests), co-author status for Otto Frank would extend copyright on the book another 35 years (the number of years Otto Frank lived past the horrendous death of his child). After that extension term, in 2050, the original commercial text would then enter the public domain.

Does this legal manoeuvre threaten your understanding of Anne Frank’s story or legacy? Does it mean you will not be able to access The Diary of Anne Frank? No, neither.

The fact that the AFF currently owns copyright to the commercial text of The Diary of Anne Frank means one thing and one thing only. If you want to publish your own version of the commercial text, you need to get a license to do so from the AFF. On its website, the AFF provides a helpful email address (info@annefrank.ch) for those wishing to obtain a license. Revenue generated by licensing of the text is used to further the goals of the AFF.

What are the goals of the AFF? Again, from its website: “Its aim is to represent the legacy and the family, and to make the diaries and works by Anne Frank accessible to the general public. All income from the copyrights of the diaries is used for educational or charitable projects.”

According to the Times, about $1.5 million in licensing revenues is distributed annually to charity.

Access, charity, education. All good, yes? Well, not if you listen to the increasingly angry and blustering anti-copyright crowd. A number of strident voices have been raised against the AFF’s plans for term extension, making startling accusations. The Times article details a few of the objections from that corner.

Agnès Tricoire, a French lawyer critical of the AFF’s term-extension, suggests the AFF may have been lying for years about the book’s authorship. Another lawyer, University of Amsterdam scholar Stef van Gompel, seems to imply the AFF intends to extend their control over the text “for all eternity.” Some folks are so upset at the idea of term extension they have threatened to defy the law and upload unpermitted copies of the commercial text to the Internet.

Is all this upheaval and upset the fault of copyright law? So we’re told, rather breathlessly.

Mike Masnick of techdirt, one of the web’s more prolific copy complainers, discusses the Anne Frank story in techdirt’s “Copyright-term-stupidity Dept.” Under a headline featuring the word “copyfraud,” Masnick writes, “Thanks to copyright law, the Foundation that holds the copyright on the book is now trying to add [Frank’s] father’s name as a co-author,” and then, in case we didn’t quite get that this is about copyright law, he adds “all because of copyright law.” Like Tricoire, Masnick questions the honesty of those at the AFF, writing, subtly, “they’re liars.”

Self-styled copy-fighter Cory Doctorow, writing two days before Masnick, also calls this incident a “copyfraud,” and he, as well, questions the honesty of the AFF, saying one of the AFF’s claims is “manifestly untrue.” After getting the extension end-date wrong by 20 years, Doctorow goes on to suggest the AFF’s term extension is part of a “20th century vogue for extending eternal exclusive rights,” picking up van Gompel’s inaccurate claim to “eternity” in the copyright extension. He then widens his thesis, getting very dramatic and populist in his objection, saying, “There is an undeniable cost to affording ownership to ideas.”

Let’s stop and pause right there for a moment.

This is a rare instance in my experience of rabid copy-fight rhetoric when I actually agree with Doctorow. There is indeed an undeniable cost to affording ownership to ideas, and if that’s what copyright law does, then I agree we have a real problem.

Except that’s not what copyright law does. Copyright does not protect ideas. It protects the unique expression of ideas. There’s a difference between those two things. Anyone writing about copyright who does not understand this incredibly important distinction has no business writing about copyright.

The story of Anne Frank is monstrously tragic and sad, and yet hugely transformative. Because that story was turned by Otto Frank into a unique expression called The Diary of Anne Frank, it is very unlikely that humanity will ever forget the name Anne Frank, or the lessons her story implants in every reading brain. I believe that outcome is an exceptionally good thing emerging from a deeply bad thing through the transformative power of expression and art. Such transformation is rare, and I’m willing to generously accept that the good agency of the AFF in keeping this work of art accessible and commercially alive has helped immensely with that process.

So why all the hyper-emotional quibbles over a simple term of copyright? Why the claims of fraud and lying? Why the embarrassing, misplaced outrage full of incorrect assertions about the law and, you know, what century it currently is?

I encourage everyone to examine the actual facts behind this story, and then ask themselves if indeed some terrible injustice is being perpetrated “all because of copyright law.” I can’t imagine anyone honestly concluding so.

The facts, as I understand them:

1. Is Anne Frank sole author of her diary?

I should think so. That’s a standard feature of diaries, no? But that diary and the book created from that diary are two different things. The first edition of The Diary of Anne Frank was published as Het Achterhuis (The Back House), and is clearly a work of creation that would not have happened without the agency of Otto Frank. Adding him as co-author to that work has no effect whatsoever on Anne’s actual diary.

2. Is the AFF controlling Anne Frank’s ideas?

No.

3. Is The Diary of Anne Frank currently inaccessible?

No. Go to the library. Go to a bookstore. Order a copy online.

4. Will it be less accessible if its copyright is extended?

No. See above.

5. Can one access Anne Frank’s original diary?

Yes. It is on display at the Anne Frank House in Amsterdam.

6. Can I write about Anne Frank without asking for permission?

I’m doing so right now.

7. Is it impossible for someone to take the lessons of Anne Frank and create new work?

The many (many!) films, television mini-series, plays, academic papers, etc., created about Anne Frank since the publication of The Diary of Anne Frank suggest otherwise. For instance, a dear friend of mine, writer and actor, Carol Lempert, wrote After Anne Frank, a one-person show documenting her own tormented history of learning about Anne Frank, and then playing her and other characters from her life on the stage over a 30-year career in acting. After Anne Frank has played to stellar reviews at Fringe festivals, off-Broadway in New York City, and around North America. Yes, disputes and even legal wrangling sometimes occur where several works build upon a common story, but the idea that such disputes only damage culture does not compute. If that were true, these other Anne Frank works would not exist, and they do. Lempert’s play asks the question, “Who owns Anne Frank?” I suggest that very play’s existence proves we all own the idea of Anne Frank, collectively, even before the rights to that one specific commercial work expire.

8. Will some uses of The Diary of Anne Frank require a license?

Yes, until the copyright term ends. And the money from those licenses will go to charity.

9. Is it fraud to add a co-author credit to a book many years after its publication?

I don’t know, but it seems clear that everyone knew Otto Frank provided substantial creative work for the original book. Official co-author status will be a matter of legal interpretation. Whether or not Otto Frank requested a co-author credit in his lifetime is completely beside the point of asserting co-authorship now to benefit from term extension. Any claim that AFF lied about his co-authorship before seems entirely constructed. What possible benefit would there be from attempting such a lie when the elements of the co-authorship claim – curating, editing, writing a prologue – were common knowledge?

9. Will The Diary of Anne Frank be protected by copyright into eternity?

Of course not.

10. What is gained by spreading exaggerated and almost incoherent claims of misconduct about copyright in this instance?

If you ever find out, please let me know.

5 Seriously Dumb Myths About Copyright

To celebrate World Book and Copyright Day, I wrote this essay on Medium. Rather unexpectedly, it immediately attracted thousands of reads from around the world, and became a Medium Staff Pick in less than 24 hours.

 

5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating

Every year around Shakespeare’s birthday, which has also been declared World Book and Copyright Day, I see articles popping up here and there repeating some howling inaccuracies about the legal and economic concept of copyright. I get it — copyright is complex and, frankly, not all that gripping. Also, there’s that free culture movement that says all sorts of truthy-sounding things about how copyright might just be a bad thing. And we’re pro-freedom, right? On the other hand… Shakespeare!… plus all those still-alive authors I love to read, and who need to make a living.

How is anyone supposed to do the work of truly understanding copyright?

I offer this short list of seriously dumb copyright myths to help you through the clutter of free culture bunkum. Hope it helps:

Myth #5. Artists Feel Restricted by Copyright

Right… and cyclists feel restricted by bike paths. Drivers feel restricted by the network of roads and highways. Pilots feel restricted by lift and drag.

Truth: Professional, working artists who respect their own work also respect the work of others. Ask one — you’ll see.

Anti-copyright crusaders love to shout about remix culture and how copyright aims to stop it. Real artists understand:

a) Remix culture was not invented by the Internet. Original works of art have been referencing and remixing other original works of art since the dawn of… well, art.

b) There’s a difference between creative remixing and uncreative copying. That’s a line all professional, working artists recognize by instinct, and it’s a line professional artists are happy to have defined by law.

Myth #4. Copyright Harms the Public Domain

First of all, there is no “public domain” without copyright. By definition, the cultural public domain consists of those works of art and expression that have for one reason or another fallen out of copyright protection. You can’t really have one without the other.

Secondly, can we please stop conflating copyright with a lack of access? Anti-copyright activists are weirdly proud of how they “liberate” books into the public domain when copyright terms end. The Little Prince fell out of copyright protection almost everywhere but France at the beginning of this year. Was it more difficult to find, obtain or read a copy of The Little Prince before January 1st, 2015 than it is now? Are the French suffering culturally because the book — one of the most popular books in the world — is still protected where it was written, and income is still flowing to the estate of the brilliant man who wrote it?

Truth: Just because a work has its economic and moral interests protected by law, this does not mean it’s unavailable to those who wish to access or use it. Works outside the public domain are simply still economically alive, which means folks still believe they’re worth being economically alive. In other words, there’s a functioning economy for cultural works. That’s a good thing, right?

Myth #3. Copyright is an Attack on Artistic Freedom

I have been a working, professional writer for close to thirty years. I’ve felt my artistic freedom threatened by a great many things — state censorship, all manner of fundamentalisms, Internet bullying and shaming… to name but a few.

Copyright law is not on that list, and it will NEVER be on that list. The very foundation of copyright is the insistence that if I create an artistic expression, I own that artistic expression. And if I own something, you best believe I will protect it from those who want to impose their restrictions on it.

Truth: My right to own and profit from my free expression is part of the Universal Declaration of Human Rights. Enough with the Orwellian doublespeak about copyright attacking my rights. Copyright IS my right, dammit.

Myth #2. Copyright Costs Consumers

In a recent, weakly researched piece on copyright, Canada’s National Post published without challenge the claim that copyright term extensions for music in Canada will cost “the public billions of dollars in the long term.”

Well, duh. We call that “the economy.”

You know what else will cost the public billions of dollars in the long term?

a) all jobs

b) the continuation of human existence

c) time

Truth: Paying artists for works we want to consume is how we have a cultural economy. As long as we live in market-based economic systems, the exchange of money for works, goods and services is going to be an essential mechanism. Oh well.

Myth #1. Copyright only helps Corporations

This is the whopper of anti-copyright mythology.

Anti-copyright activists love to invoke the specter of “big content” in their relentless drive to weaken artists’ rights. They claim protections under copyright really only help the bottom lines of huge corporations who grab rights from working artists. As a working artist, I am concerned about my contract terms with large corporations, absolutely — but at least there is a contract. The existence of a contractual offer for my rights means my right of ownership is being acknowledged and respected. I sure don’t remember being offered a contract for the use of my work when it was pirated online.

Guess who profits the most from this ridiculously inaccurate and misleading line of anti-copyright reasoning — giant corporations who have built a business model on free content.

Truth: Say what you want about large media corps, publishers, music and film companies, etc. — they’ve made way, way more of a tangible contribution to the livelihoods of the working artists I know than Google ever intends to.

There you have it. I hope this quick list has helped my friends and colleagues in the media who may be hurrying to file a story on World Book and Copyright Day. Here’s a final, simple, rule of thumb for writing about copyright.

If you want to understand how a working artist feels about copyright, talk to an actual working artist.

The last time I checked, ivory-tower legal-theory departments and digital-utopian advocacy groups were not the best places to look for actual working artists.

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 currently represents close to half a million professional authors worldwide.