I recalled a remark from the discussion on the anti-DMCA list (I found the post―it was made on June 5, 2003):
“Take copyright away and guess what? Somebody is going to undercut YOU in price because they can make cheap copies, and thus, YOU won’t make any money at all!” “YOU” refers here to an author who spent a number of years writing a novel.
What is the answer to the above assertion? I want to start my deliberations on the subject from yet another quote:
“If art teaches anything (to the artist, in the first place), it is the privateness of the human condition. Being the most ancient as well as the most literal form of private enterprise, it fosters in a man, knowingly or unwittingly, a sense of his uniqueness, of individuality, of separateness―thus turning him from a social animal into an autonomous “I”. (Joseph Brodsky, Nobel Lecture, 1987).
Joseph Brodsky’s ideas about art give us directions for further analysis. If a work of an artist is some kind of private enterprise, it is one of different nature than a regular business. Its “business” is to foster a sense of uniqueness in humans. When we regard art as art, we MUST take into account its nature. We MUST remember and take it seriously that art is not determined or driven by rewards or punishments, profits and losses. On the other hand, we know that regular business is possible and does go on around arts. That tells us we probably can put art on the same scale as business. But we should do it seriously, shouldn’t we? Talking about business we must take into account and apply to the subject laws, which are natural for business. Thus we have to determine what in an artwork, where and when may be traded and what, where and when must be shared, must go freely.
If we uphold this approach, if we try to follow the very nature of our subject, then there is a hope we will get most in terms of creativity and business at the same time. If we uphold this approach there is a hope to resolve and forget all of the problems caused by mixing subjects of different nature by and within the monster called “exclusive rights.”
“Somebody is going to undercut price”―what is so tragic about this when we talk business? It is a simple question. What is the honest answer to it? The normal answer is OK. There are few more as simple questions, which also require honest answers. Say, what about all other business areas? If I am going to do publishing myself, I have to be ready to compete with others and fight for my market share. Is this yes or no? If I am not going to do business myself and sell my work to a publisher, how does copyright help me? Does it or does it not, really? I hinted probably not once―I am not satisfied with the commonly accepted speculations about exclusive rights, no matter for how long those have circulated around.
Three Options to Govern Culture
In order to find out what is going on and what could be going on in Reality, I framed three options to analyze: no regulation at all, current type of regulation and possible ideal, and corresponding to the nature of the subject regulation of cultural affairs. These are:
This means there is neither copyright nor any other specific regulations for cultural affairs working at all. There was a historical precedent pretty close to these conditions. In Jacobinian France, for a short period of time, which ended in 1793, all royal publishing privileges were abolished. Aside from that particular case, individual printing privileges were granted by the royalty in the pre-copyright era.
A universal publishing monopoly. It is the ownership, similar to the private property, which is imposed onto cultural phenomena. This regime was introduced despite public outcry in Great Britain in 1710.
In short, it is a universal right to attribution for individual authors. This regime has never existed thus far, although its partial and twisted implementations have occurred.
Method of the Research
As a method of the research, I analyze the situation of a writer, who is looking for a publisher. We will put the writer in different possible scenarios in his quest up to its resolution. It is my understanding that neither genre or kind of art nor historical time nor any other technicalities play major role in the reality we are going to scrutinize. Said scenarios, in their essential features, can be equally applied to any creator at any time in any area of human activity. Regarding fundamental points, it would be all the same for a music composer, or painter, or inventor, or any other creator in the eighteenth or twenty-first or thirtieth century. Obviously, all mentioned and countless other cases differ in detail, but details and nuances are not our first priority here. I will put my writer in the eighteenth century in order to simplify scenarios.
Once again, I want to find out what is going to happen if cultural affairs are not regulated by a specific law.
An author has to shop for a publisher. If he never found one this is end of story.
Suppose he did find a publisher. He can conduct preliminary negotiations before letting his work go.
Suppose he got some result. For instance, in case the work is accepted, the author will be paid such and such. If the sum is considerable, we get a happy ending in the very beginning.
If the publisher wants exclusive rights, he may pay more to buy the author’s loyalty. Naturally, exclusive rights are effective until the work is published only because with no regulation in the field, anyone can use it after publishing.
If the publisher does not want exclusive rights, the author may bring the manuscript to another one right away and get paid by both. He has to have more than one copy in this case.
What happens after the publishing? This depends on the acceptance of the work by the public. Generally, the author gets more and more exposure as long as other publishers use his work. And they do it while it brings any money. Simultaneously, they all promote the author even if they don’t mean to.
Does second-hand publishing bring any incentive to the author? It can do so. For example, if a publisher wants to be branded, he may pay the author so that the publisher will be the author’s announced sponsor. Will any publisher do this? Some will; for this marketing idea isn’t worse than any other one.
If the author is well-accepted, his next work will be sold for a greater price. Publishers will compete for the ability to get the next one first hand. Being the first in this environment means being a brand.
What if the very first publisher robs the author, say, does not give any written promise, take the work, and publish it under some other name? This does change situation but not much. If the first stolen work brings considerable money, the second one will not be stolen but bought because other publishers will intervene in order to get it. Thanks to Self-tuning, that is to say, thanks to the no-exclusive-rights situation, it will become known sooner or later who is the real author with all corresponding consequences for the author, the publisher-thief, and the entire artist and publishing communities.
As soon as this variant brings bad reputation to the thief, he must take it into account. Also, the author may turn to a court and sue the publisher under civil law. This will be a matter of proof and money but still is possible. For example, the author could have another copy of the work and a witness he had it before bringing the work to a publisher. Such measure may effectively secure the work from stealing.
Now suppose the first work does not bring money, which means the author hasn’t got any popularity. In this case, the entire story starts over with his next work.
Making the first summary, let us stress that as long as this model creates a highly competitive situation, publishers have to fight to develop brand names. A publisher may achieve this by: (a) trying to always be the first; (b) trying to offer the best in terms of quality-for-price to the public; (c) trying to sponsor authors instead of making appearances as a lover of free rides. This should bring another layer of incentives to authors.
It is noteworthy that as far as all works are accessible for all publishers, success of an author depends on his talent only. On the other hand, if an author lacks talent, it is not for us to worry about his failures.
Actually, I used to think that the Self-tuning model was much worse than it appears now. It looks like it could bring up fairly self-tuned market that is very challenging for all parties. It is unlikely that any work of art may disappear unnoticed in this environment. The overwhelming spectrum of quality and prices must grow.
A Historical Excursus
The Self-tuning model is based entirely on contractual law, so eventually, publishers, after getting considerable economical power, may (and history says they do) plot to contract authors and conduct publishing in a copyrightlike manner. That is, they would try to secure their portfolios and thus revenues for some time. The next step will definitely be an attempt to make it universal and to have a government backing this so to strip authors’ abilities to dictate conditions. This is what had happened in Great Britain and concluded in the Statute of Anne in 1710.
Before that, for about two hundred years, the Crown resisted the demands of licensed scribes to limit the freedom of printing and restrict the spread of the printing presses. In 1710, the Crown was eager to get rid of anonymous pamphlet writers, so the government’s desire for effective censorship met with big publishers’ desire for easier money, and that mutual interest brought about the Statute of Anne. It is even more interesting that actually the same law (in its basic features: fourteen plus fourteen years of limited printing monopoly) was later adopted in the U.S. in order to provide “the progress of science and useful arts.”
The question is, how could the same mechanism work in such contradictory directions―to back monopolies for big guys and, at the same time, to provide incentives for the smallest ones, those “starving artists”?
Through centuries and countries, publishing monopolies have definitely proved to be practical for governments and big publishers. The pretext being upheld that it is to protect authors, promote creativity, develop culture, education, etc. Has this ever been proved to work in reality? There have been a lot of speculation but not any proof.
Publishing Monopoly a.k.a. Copyright
What I am going to do now is copy the above text and make changes to it when necessary to stress the differences between two models. I shall number the changes in parentheses.
Well, an author has to shop for a publisher. He may never find one and thus end of the story. There is no difference with the Self-tuning in this regard.
Suppose he did find a publisher. He may conduct preliminary negotiations before letting his work go. There are no differences so far.
Suppose he got some result like in case the work is accepted, then the author will be paid such and such. Happy ending in the very beginning. No differences as of yet.
If the publisher wants exclusive rights or monopoly for the printing within the legal term, here is the first difference with the Self-tuning model (1). He may pay more.
If the publisher does not want exclusive rights or the author does not want to relinquish all of his rights, he can bring the work to another publisher and get paid by both.
What happens after publishing? This depends on acceptance of the work by public. Author gets exposure depending on his (one!) publisher’s marketing efforts and abilities (2). This is the second difference with the Self-tuning model. The next work may be sold for a greater price if the first one got famous. In the latter case, publishers will compete for the ability to get the next one first. On the other hand, the publisher, having exclusive rights is interested to promote the work, no matter how talented it is (3).
There is another circumstance brought in by legally enforced printing monopoly―having secured portfolio for some prolonged time (initially for fourteen plus fourteen years, about one hundred years today), a publisher may not be interested in buying another book (4). Or he may buy it not for publishing but to prevent competitors from doing this (5) In any case, this is exactly what publishers fought for: to make their life easier at the expense of public and this is how the printing monopoly turns around and strips authors of possible income instead of providing it. The latter phenomenon fires back on an author in yet another aspect. The author having been condemned to sell a work to a single publisher has to take this in consideration and thus make adjustments to the work. This trend plainly undermines creativity (6). The last feature of the copyright-driven environment is of specific interest because it directly contradicts proclaimed goal of exclusive rights.
What if the very first publisher robs the author; does not give any written promise; takes the work and publishes it under some other name? This does change situation because having exclusive rights the publisher has much more ability to provide that no one ever learns who the real author is (7).
However this variant can bring bad reputation to the publisher-thief, so he must take it into account. The author may turn to a court and sue the publisher under the copyright law (8). But again, if stealing is not proven, the author lost his work forever while within the Self-tuning, he may just compete with the publisher-thief. Anyway, a law suit is always a matter of proof and money, and in this respect, there is no difference between models.
Another new feature is the following. Remember, by the very nature of art we, the audience, develop personal relations with a work of art. We noted earlier these relations are, in fact, very similar in nature to those with real people. The differences are only in the consequences of the relations. When it comes to the access to some wanted work of art, generally speaking, there is no substitute available. If you want to read the Bible, then you want to read the Bible; if you want The Lord of the Rings, then you want The Lord of the Rings. It is a personal matter. Yes, in practice, if you cannot get the artistic work that you want, you may find some “substitute,” but this would hurt like losing and finding a substitute for a friend. That means a publishing monopoly on a single book is, in fact, a monopoly that is as effective as if this book were the only one on the market. Thus, copyright allows the raising of the prices to the maximum level possible (9). Like with a casual monopoly, this feature stays in the way for public access to distributed works in terms of price and thus badly affects markets.
A quite unexpected development within the copyright-driven environment is promotion of actual plagiarism (10). Plagiarism cannot survive within the Self-tuning because the public is very sensitive to it, and no publisher would like to risk his brand while all original works are at his disposal. This is not the case within the copyright-driven environment. It is very tempting here to get and sell something similar to a well-selling work. In order to do so, one only needs to provide some measured formal differences with the example to follow. What is it if not plagiarism? Interestingly enough, another publisher would prefer to buy described plagiarism instead of something really new with an uncertain projection for sales. Hence, we have one more blow to creativity caused by publishing monopoly a.k.a. copyright.
Yet another lovely consequence of copyrights is that publishers try to influence audiences in order to conserve a current level of perception of arts (11). Having secured a portfolio for years, a publisher wants to make sure all of it would be salable as long as the monopoly lasts. Publishers just need to restrain the development of public tastes. Thus, they must try to retard the promotion of new ideas, new aesthetic approaches to arts, new kinds of arts, new genres, and so forth. This trend must bear some inertia in it―while investing money in the retardation and conservation of public development, publishers are driven to get new works to fit the picture thus contributing again for the third time in the suppression of creativity.
Now let’s get back to the author. Suppose the first work does not bring money, which means the author hasn’t got any popularity. The entire story starts over with the next work. However, this would be harder for the author to start over in the environment poisoned by publishing monopolies―publishers having backed by their portfolios would not want to risk for the author, which had not succeeded already. It wouldn’t matter if he was misunderstood genius or one which just failed to convince a powerful publisher to market his work.
Actually, I used to think that the copyright model was not as bad as it appears now. It looks like it completely disrupts a Self-tuning market; applies pressure on a creator’s mind to give up to tastes of the now-well-defended publishers; at least three times compromises creativity; and promotes actual plagiarism. Its important feature is that any work of art may disappear unnoticed, regardless of how talented it is. High prices must overwhelm the book/art market and undermine its development.
The last trend brings in tensions in the industry and spurs up attempts to extend the initial monopoly even further in order to restore vanishing profits. Actually, such attempts come forward even before markets shrink or regardless. As long as the idea of monopoly is considered to be the right one, holders should fight to always extend it.
The copyright trick amazes me more and more. It badly affects culture and civilization in many ways while helping big publishers to make business easier. What is funny is that “easier” does not mean more profitable here but rather opposite!
I want to explain (actually, to repeat) some of the guidelines to this really simple model. We saw the Self-tuning model provides a pretty good framework for culture and culture-related market development. Still, there is some uncertainty in terms of the author’s well-being because there is some room for dishonesty to exploit―an attribution is not required here (it is the exact situation of works in the public domain). Thus, it seems (just seems!) to make sense to provide backing by society for culture so that cultural phenomena would be treated according to the “law of nature” of culture. I assume the following:
- The main law of nature causing cultural development is ultimate freedom.
- There cannot be an owner to a cultural phenomenon.
- The only thing which can be owned is a material thing with a cultural phenomenon inscribed in it.
- Cultural equivalent of physical stealing is lying.
- Cultural phenomena is produced in an individual mind or in free communication of individuals.
- Culture, while being governed according to its nature, will pay back in infinitely greater degree to an author, publisher, and the entire society than under the current laws.
Hence, the main features determining the Authoright approach are:
- No entity of any kind may control or regulate in any way copying, sharing, distribution, all and any public use of an idea, work of art or any other cultural phenomena. First and foremost, there must not be any restrictions in artistic acquirement of a work of art. In short, the creation of derivatives or any other reuse of a work.
- Every author has an eternal and unalienable right for attribution.
- An author may sell his works, not rights.
- A publisher or any other entity may pay an author for the right to be named his/her sponsor. The amount is the matter of negotiations.
- No company, organization, or a group entity of any kind and nature beyond the actual author(s) may be considered an author for any creative work.
- The source (publication) of a work must be attributed to in every public use of the work.
- Any sponsor of an author or a single work or a single publication deserves proper attribution.
The full text of the Authoright put in the Addendum.
What I am going to do now is to copy the copyright model text and make changes to it when it is necessary to reflect Authoright specifics. The differences with the Self-tuning model will also be noted. I shall number all the specific features of the model in parentheses.
Like within the other two models, an author has to shop for a publisher. He may never find one and thus end of the story.
However, we have to note now this kind of “end” is essentially less probable here (and within Self-tuning as well) than in the environment poisoned by publishing monopolies―as far as it is much more difficult to secure a monopolized portfolio for considerable time, it is vital for a publisher to be first in finding a new work or discovering a new author (1).
Suppose the writer did find a publisher. He may conduct preliminary negotiations before letting his work go.
Suppose he got some result. For instance, in the case the work is accepted, then the author will be paid such and such. Happy ending in the very beginning. However, it is noteworthy that this kind of end is more probable here than having publishing monopolies in place. An author and his new work are much more valuable assets now for many reasons (2). Firstly, because he is free to bring his work to as many publishers as he wants. Secondly, because only individual authors can claim authorship. Thirdly, because the best way for a publisher to develop a brand is to get the work firsthand.
If a publisher wants exclusive rights, (until the work is published) he may pay more. The same story happens within other models. Differences lie in time frames only, and this affects publishing only. We saw that copyrights bring nothing good in here.
If the publisher does not want exclusive rights until the moment of publishing, the author may bring it to another one and get paid by both. Again, this is not likely to happen under copyright just because it is against copyright-driven “common sense.”
What happens after publishing? This depends on the acceptance of the work by the public. Anyway, the author gets more and more exposure as far as other publishers may use his work. And they do it while the work brings any money. Thus, the entire competing publishing community promotes the author (3). If a second-hand publisher wants to be branded, he may pay the author in order to be the author’s announced sponsor (4). These two features have a more powerful effect within Authoright compared with Self-tuning because attribution is mandatory here. More importantly is that an author is really free to create now, has no necessity to adjust to anyone’s taste but to his imaginary interlocutors only. Having his name protected by law and the work promoted by the entire publisher community, the author knows that he will be judged by the public for his work and thus talent only (5).
The next work will be sold at a greater price if the first one got famous. In the latter case, publishers will compete for the ability to get the next one first hand. It is important to underline that having no possibility to secure some prolonged portfolio, publishers must be really fast to grab any new work to use. This is important in terms of incentives for authors (6).
Now what if the very first publisher robs the author, will not give any written promise, take the work and publish it under some other name? This changes not much. If the first stolen work brings considerable money, the second one will not be stolen but bought because other publishers will intervene in order to get it.
This variant, on the other hand, brings a bad reputation to the Publisher―thief, so he must take it into account. Now the author may turn to a court and sue the publisher under Authoright law (7). However, this difference between Authoright and copyright is not essential. We just have to remember that under Authoright, an author can sue for the stealing of the name only. The important point is that even if stealing happened but is not proved, the author may just compete with the publisher-thief (8), which is one more advantage to compare with copyright.
Now remember, we were discussing, not once, that by the very nature of art we, the audience, develop personal relations with a work of art. We know these, in fact, are the same as those with real people. We remember the difference is only in consequences of the relations. We also remember that when it comes to the access to some wanted work of art, there is no substitution available by definition. We already concluded that because of that, a printing monopoly on one book allows the right’s holder to raise the price as if this book was the only one on the market. This is absolutely impossible within the Authoright environment, where a work of art is accessible for everyone to copy and publish since the very moment it is published (9).
We also remember another quite unexpected development within the copyright model, which is the promotion of actual plagiarism wrapped in hypocrisy. Having copyright, it is very tempting to promote something similar to a well-selling work with some formal differences. This absolutely makes no sense within the Self-tuning and Authoright models because the public is very sensitive to plagiarism, and no publisher would risk his reputation while all original works are at his disposal. Thus, while copyright promotes plagiarism and compromises creativity, Authoright promotes creativity and makes plagiarism impossible. It spurs the natural drive to get original works in everyone (10).
Authoright makes baseless another absolutely unacceptable consequence of copyrights―publishers’ motivation to restrain the development of audiences (11). As far as they cannot secure any portfolio for a period of time greater than the one necessary to prepare a work for publishing, a publisher has no interest in stagnating of public taste. On the contrary, because in this environment everybody is chasing after the new, it is necessary to have a public capable of understanding the new. It would be in the publishers’ best interest to push the public to learn, to develop understanding of aesthetic principles and so forth.
Now suppose the first work does not bring any money, which means the author hasn’t got any popularity. The entire story starts over with the next work then. Another start is likely to be easier in the Authoright environment, where the publishers and the public are in an ongoing hunt for new works and authors (2).
After all, the only thing which really matters within Authoright is an author’s talent.
Similarities and Differences Between Three Models: Summary
In general, the Authoright model comprises the advantages of both the Self-tuning and the copyright models while bearing none of their disadvantages:
1. Under the Authoright, like under the Self-tuning model, an author is more likely to find his first publisher if he is unique. And vice versa, (unlike under the copyright) an author is less likely to find the first publisher if he repeats after someone else.
2. Within Authoright, like within Self-tuning, an author is a more valuable asset in general terms to compare with copyright and thus always has a chance to get paid better from the very beginning.
3. Unlike any other environment it is impossible, under Authoright, for any entities but the individual authors of the work to claim authorship. This specific feature gives the author another push into the very center of all culture-related businesses.
4. Like within the Self-tuning model, authorighted work gets promoted by the entire competing publishing community while under copyright, the promotion of a work is restricted to the good will and real abilities of one or somewhat limited number of publishers and other public users of the work. Moreover, under Authoright, the promotion of a work automatically means promotion of its author and entirely depends on his talent.
5. Similarly to the Self-tuning environment, an author may sell his authorighted work either literally fixed in some media or in the form of sponsorship as many times as he gets. However, within the environment poisoned by publishing monopolies, he is actually condemned to one time or otherwise limited sale. Regarding sponsorship, any entity may call itself an author’s sponsor if it provides agreed-upon incentives to the author. This can happen to an author in any environment but cannot be considerably useful within copyright for two reasons: firstly, because the quantity of business and other public usage of a work of art is extremely limited; secondly, because rights’ owner is usually in full control of the work use and may not be interested in promotion of any sponsor. It may be useful under Self-tuning but in a lesser degree than under Authoright because of differences in the attribution requirements.
6. On the other hand, even within the Self-tuning, an author’s name gets protected at least two times. Firstly, unwritten, academiclike attribution standards develop. Secondly, it is in the best publisher interest to attribute a work to its known author. A stealing may happen, as we discussed it, at the very first public appearance of an author. Still, there are certain protection abilities out there. Needless to say, the same works under the Authoright.
7. Under the Authoright, similar to the Self-tuning environment, the more talented an author is and thus the more unique, the more he gets promoted. However, within the environment poisoned by publishing monopolies, the author is pushed to follow well-selling examples.
8. Under the Authoright, like under the Self-tuning, an author is free and encouraged to create truly new work in any and all meanings of the word. On the other hand, the author meets no restrictions to learn from others. To the contrary, under the copyright regime, an author must adjust himself to the tastes of a limited number of publishers in an increasingly greater degree and, on the other hand, is limited to learn and build upon the works of others. Shortly, the author is pushed into naivety and plagiarism.
9. Similarly to copyright, an author can protect his name under the Authoright using the special law of the mandatory attribution while under Self-tuning, he has to use nonspecific laws. This feature does not amount to a huge advantage but just makes it easier to protect the author’s name. As I said earlier, it is likely that unwritten rules will emerge and work like they do in academic environment, and this will actually nullify importance of this feature.
10. Under the Authoright, similar to the Self-tuning, if a publisher steals an author’s name, the author can still compete with the thief. On the contrary, under copyright, a work, if stolen and is not recovered in the court, is lost forever.
11. Like within the Self-tuning environment, under the Authoright markets are flooded with works of art with a spectrum of content, quality, and prices. Under copyright, market development is limited at least two times: firstly, by direct regulation by publishers and secondly, by monopolistic prices.
12. Within the Self-tuning and the Authoright environments, a work gets promoted by all of the publishers willing to do it. It gets exposed regardless of the economic and other abilities of specific publishers. Within the copyright environment, exposure of a or work really depends on one publisher who bought it. Hence, the author is naturally forced to look for a big publisher, which means that copyright enforces regular monopolies also, not only culturally based ones. This trend once again fires backwards on the author to bow to the taste of that big publisher in order to be published, promoted, sold, and paid. Thus, an author’s dilemma in the copyright-driven environment really is: “more money means less creativity.”
13. Similarly to the Self-tuning, an author is discouraged to conduct plagiarism under the Authoright while he is encouraged to do so under copyright. Within no-publishing-monopolies environment, where all works are accessible for all publishers, the publishers are naturally driven to go after the best and have to get it by all possible means. Oppositely, under copyright, a publisher secures his portfolio for some prolonged time. This portfolio is the real essence of the entire copyright business. Here, a big publisher may invest big money into the promotion of a work. A small one is tempted to follow; he will try to buy something similar to secure his profits. There is no urgent need to find the best for anybody because the only urgent need is to find or order something somewhat different from a bestseller and to monopolize it. That is, as I said it not once, plagiarism is encouraged. It reveals itself in false diversity when the market is flooded by many talentless works following some greatly promoted ones as examples. We have to emphasize this: greatly promoted works, not the best ones, stage examples to follow.
14. This also addresses the current situation regarding derivatives. While a real creator’s freedom to build upon earlier works is suppressed under copyright, a plagiarist can very easily measure the level of formal differences and follow all necessary formalities with permissions in order to be published. On the contrary, building upon work of others while being a natural way of culture development is flourishing under the Authoright and Self-tuning as well.
15. Under the Self-tuning and the Authoright, publishers are interested in public development while under copyright publishers are interested in public retardation.
An amazing outcome of all the analysis performed here can be summarized as that every positive speculation about copyrights (and I understand all the same applies to patents and other exclusive rights) look somewhat rational on the surface and work in the exactly opposite direction in reality.
The Authoright-driven environment, in very general terms, creates highly competitive, aggressively growing markets with the common intention towards the novelty, providing market/competition-driven incentives to authors and publishers. The most general point here is that cultural affairs are governed according the very nature of culture. Because of that culture, intensively develops.