Copyright and Creativity, Again

Vanessa Tuckfield kicked off a discussion for World Copyright day on Networks (may require login, sorry). She cites the role copyright plays for Disney and quotes a speech from WIPO director Kamil Idris.

My response...

Um, wow. So much here I disagree with.

I'll begin by linking to my paper 'Copyright, Ethics and Theft' to give readers an alternative perspective on the issue.

And I'll begin by grappling with this year's theme: encouraging creativity.

The presumption - and we see it shared once again in Kamil Idris's address, is that copyright encourages creativity. "Encouraging creativity – rewarding the creative, innovative talents on which our world and our future are built – these are the ends which intellectual property serves."

But it seems to me that the preponderance of the evidence suggests otherwise. The evidence seems to be that creative people will continue to create no matter what. It is certainly clear that millions of people - bricklayers, chefs, landscape artists, people working for Microsoft - create even though they do not enjoy any intellectual property as a result of their work. McDonalds, which enjoyed neither a patent on the hamburger nor copyright on the word 'hamburger', nonetheless managed to go on and create an empire worth billions of dollars.

It is indeed arguable that copyright (and other forms of intellectual property) stifle creativity. That was certainly the intent, for example, behind Blackboard's recent lawsuit against Desire2Learn. In the world of fashion design, where creativity abounds, people are encouraged to copy each other. But in the world of popular music, where people (like 'My Sweet Lord' George Harrison) get sued, artists refuse to listen to each others' work with the result that we have slid into the bland depths of boy bands, cover tunes, and American Idol. With such a miserable offering (and a huge decline in the number of titles offered) no wonder CD sales have declined! (I mean, seriously - did you rush out to buy Paris Hilton's new album?)

As I argue in my article, copyright is essentially a means of allowing people to take what they've borrowed from elsewhere (like Paul Simon did in 'Graceland') and stamp the lable 'theirs' on it. Virtually nothing is completely original, but copyright acts as though the whole work was. It allows people to stead from the ideas, culture, language that we have all created in common and to lable it their own.

The Disney Corporation is a good example. It is very well documented that Mickey Mouse was copied from a Buster keaton character. That's the way it was back in the early days of Hollywood, when strong copyright protection would have kept culture locked into places like London and Paris, and would have prevented the Americanfilm industry from talking off at all.

As Lessig points out, "
the catalog of Disney work drawing upon the work of others is astonishing when set together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), /Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), /Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), and The Jungle Book (1967)."

I have nothing against Disney's practice here. "Rip, mix, burn." That's how Disney built his empire. And that same freedom should be allowed the creative artists of today, instead of the lockdown society in which they must toil.


  1. I agree completely, but this message is not getting out. We have to keep repeating it and get it into the mainstream media as well. The average person does not understand what is at stake here.

  2. Indeed, there is much at stake. What we need to stop endorsing the term "Intellectual Property". It's a useless term except in lawyer-speak. Further, we need to stop arguing for or against copyright. The discussion really needs to take place on the spectrum of restrictions that copyright grants an author. This is why the creative commons has been somewhat effective. The question really shouldn't be - "Copyright or no copyright?" After all, if one licenses their work with a CC-BY-SA license, it is copyrighted and arguably encourages creativity AND rewards the author (getting one's name known is an essential though indirect means of garnering income). A better question is "All Rights Reserved or Some Rights Reserved?" And of course, once the language shifts to SRR instead of ARR we've made considerable gains in most cases. Of course, there are issues even in the SRR spectrum but given that all works are not equal in nature this is just a fact we have to deal with.

  3. I agree, Stephen - when intellectual property laws are wielded as agressively as they have been in recent times, it demonstrates an urgent need for reform - perhaps a complete rethink - of the whole system.

    In a world where new content and knowledge is created faster than the world has ever seen before, patent and copyright laws have retained - and in some jurisdictions extended - the length and scope of their application to a point where they don't just protect the interests of the owners of content, but stifle and smother the creation of new content and creativity.

    In effect, intellectual property law sets up false walls to openness, influence, and exchange, that only benefit the big corporations who have the money to pay for expensive I.P. registrations. It does nothing for new players or small companies, who can't afford the tens of thousands of dollars it takes to "protect" their own innovations.


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