This House believes that all literature, art, photography, film and music should be released under Creative Commons licenses

Creative commons licenses are a kind of copyright license that gives people the right to use, share, and expand upon artists’ work. They offer users of content significant protection against accusations of copyright infringement and are even believed by advocates to offer artists greater flexibility and profit potential than traditional copyright. Detractors on the other hand worry that they serve only to erode artists’ control of their work and their potential to earn income from it because of its dissemination into the public space. As it is a new field, the full legal ramifications and doctrines of creative commons licenses remain in contention.

Copyright is certainly not universal. For much of history ideas have been fair game to whoever could make use of them. The state would grant rights and monopolies on a case by case basis but this was as a reward or in return for benefit to the state not based upon inherent ideas of ownership. The invention of the printing press however meant that ideas could potentially travel much faster and made copying a work considerably easier so increasing demands for protection for the creator of a work. The first form of copyright statute was adopted in Venice in 1517 governing printing licences and from 1545 Venice also prohibiting publication of an author’s work without permission in an attempt to prevent abuses in the printing trade. It stated “it has been decreed that in future no printer in this city of ours shall dare to print or to sell printed copies of any work… if it is not made clear by original document… that the author of the work, or his immediate heirs, are content and desire that it should be printed and sold.”[1]  Copyright has also always been used by governments to control information.[2]

The first modern copyright law that gives rights to authors is generally considered to be the Statute of Anne from 1710. It was enacted because printing without consent was causing writers “very great detriment and [leading] too often to the Ruin of them and their families” to prevent this the author “shall have the sole right and liberty of printing such Book and Books for the term of One and twenty years” with the act was enforceable with fines.[3] Since this time copyright has become much broader and the length has often been increased. The system has gone worldwide but is now under threat from the internet and the ability to easily share things it brings.

The role of the state is still key in copyright as it is the only possible enforcer. But the increasing unenforceability of copyright has led to calls to alter the dynamics of copyright in the context of art which could mean forcing artists to release their work under creative commons licenses.

This debate examines the various arguments for a new regime of artistic property rights, in which a new baseline would be creative commons licenses rather than more traditional, stricter copyright protections.

[1] Venetian Decree on Author-Printer Relations, Venice (1545), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org, http://copy.law.cam.ac.uk/cam/tools/request/showRepresentation?id=representation_i_1545

[2] Green, Jonathon, and Nicholas J Karolides. 2005. The encyclopedia of censorship. Rev. ed. /. New York: Facts On File.

[3] Statute of Anne, London (1710), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org, http://copy.law.cam.ac.uk/cam/tools/request/showRepresentation?id=representation_uk_1710

 

Title 
Intellectual property is a legal fiction created for convenience in some instances, but copyright should cease to be protected under this doctrine
Point 

An individual’s idea only truly belongs solely to them so long as it rests in their mind alone. When they disseminate their ideas to the world they put them in the public domain, and should become the purview of everyone to use. Artists and creators more generally, should not expect some sort of ownership to inhere in an idea they happen to have, since no such ownership right exists in reality.[1] No one can own an idea. Thus recognizing something like a property right over intangible assets is contrary to reason, since doing so gives monopoly power to individuals who may not make efficient or equitable use of their inventions or products. Physical property is a tangible asset, and thus can be protected by tangible safeguards. Ideas do not share the same order of protection even now because they exist in a different order to physical reality. However, some intellectual property is useful in encouraging investment and invention, allowing people to engage their profit motives to the betterment of society as a whole. To an extent one can also sympathize with the notion that creators deserve to accrue some additional profit for the labour of the creative process, but this can be catered for through Creative Commons non-commercial licenses which reserve commercial rights.[2] These protections should not extend to non-commercial use of the various forms of arts. This is because art is a social good of a unique order, with its purpose not purely functional, but creative. It only has value in being experienced, and thus releasing these works through creative commons licenses allows the process of artistic experience and sharing proceeds unhindered by outmoded notions of copyright. The right to reap some financial gain still remains for the artists, as their rights still hold over all commercial use of their work. This seems like a fair compromise of the artist’s right to profit from their work and society right to experience and grow from those works.

[1] Fitzgerald, Brian and Anne Fitzgerald. Intellectual Property: In Principle. Melbourne: Lawbook Company. 2004.

[2] Walsh, K., “Commercial Rights Reserved proposal outcome: no change”, Creative Commons, 14 February 2013, http://creativecommons.org/weblog/entry/36725

Counterpoint 

Although ideas are not tangible intellectual property generally, and copyright in particular, is far from a fiction. Rather it is a realization of the hard work and demiurgic force that sparks the generation and fulfilment of artistic endeavour. The property right assigned over these things to their creators is a very real one that recognizes their fundamental right over these works as owners, and the right to profit from them. The artist must have the right to prevent even non-commercial use of the idea if it is to maintain its value and so retain for the creator the ability to commercialise it. These protections are critical to the moral understanding of all property and must be rigorously protected, not eroded for the benefit of some nebulous notion of social good.

Title 
The default of total copyright is harmful to the spreading of information and experience
Point 

Current copyright law assigns too many rights, automatically, to the creator. Law gives the generator of a work full copyright protection that is extremely restrictive of that works reuse, except when strictly agreed in contracts and agreements. Making Creative Commons licenses the standard for publicly-funded works generates a powerful normalizing force toward a general alteration of people’s defaults on what copyright and creator protections should actually be like. The creative commons guarantees attribution to the creator and they retain the power to set up other for-profit deals with distributors.[1] At base the default setting of somehow having absolute control means creators of work often do not even consider the reuse by others in the commons. The result is creation and then stagnation, as others do not expend the time and energy to seek special permissions from the creator. Mandating that art in all its forms be released under a creative commons licensing scheme means greater access to more works, for the enrichment of all. This is particular true in the case of “orphan works”, works of unknown ownership. Fears over copyright infringement has led these works, which by some estimates account for 40% of all books, have led to huge amounts of knowledge and creative output languishing beyond anyone’s reach. A mix of confusion over copyright ownership and unwillingness of owners to release their works, often because it would not be commercially viable to do so, means that only 2% of all works currently protected by copyright are commercially available.[2] Releasing these works under creative commons licenses will spawn a deluge of enriching knowledge and creative output spilling onto the market of ideas. It would mark a critical advancement in the democratization and globalization of knowledge akin to the invention of the printing press.

[1] Creative Commons. “About the Licenses”. 2010. http://creativecommons.org/licenses/

[2] Keegan, V. “Shorter Copyright Would Free Creativity”. The Guardian. 7 October 2009. http://www.guardian.co.uk/technology/2009/oct/07/shorter-copyright-term

Counterpoint 

There are many ways to correct for the dearth of some works on the market such as orphan works. By simplifying copyright law, reducing lengths of copyright and more robust searches for legal provenance can all help correct for the shortfalls without eroding an important part of law and material rights. Or indeed the law might be revised simply to free works that have unclear ownership from copyright by default. Creators should retain, no matter how annoying it may be to would-be enjoyers of their work, control over their artistic output. Artists’ creations are fundamentally their own, not the property of the state or society.

Title 
The creative commons is a more effective means for artists to build and expand their reach and markets than traditional copyright licensing arrangements
Point 

The nature of the internet and mass media on the 21st century is such that many artists can benefit from the freedom and flexibility that creative commons licenses furnish to them. Wider use by other artists and laymen alike helps artistic works “go viral” and to gain major impact that allow the artist to generate a name for his or herself and to attain the levels of earnings conventional copyrights are meant to help artists generate but that ultimately hamstring them. A major example of this is the band Nine Inch Nails, which opted in 2008 to begin releasing its albums through the creative commons.[1] Creative commons licenses are so remarkable because they can be deployed by artists to expand their markets, and to profit even more from their greater recognition. After all, the artists still retain control of the commercial uses of their work and are guaranteed under creative commons licensing regulations to be credited by users of their content.[2] Giving undue artistic and distribution control to the artists through constricting and outmoded copyright may mean less significant reach and impact of the work. The state should thus facilitate the sharing by mandating the distribution of art of all kinds under creative commons licenses.

[1] Anderson, N., “Free Nine Inch Nails albums top 2008 Amazon MP3 sales charts”, arstechnica, 7 January 2009, http://arstechnica.com/business/2009/01/free-nine-inch-nails-albums-top-2008-amazon-mp3-sales-charts/

[2] Creative Commons. “About the Licenses”. 2010. http://creativecommons.org/licenses/

Counterpoint 

Choosing to release one’s work into the viral market may be a shrewd business and artistic move, or it might not. All of this depends on the individual artist and the individual work. Nine Inch Nails both has the money that they can afford to take the risk and the name recognition that means they can be sure some fans will purchase the music, this is not the case with most artists. Thus the decision can really only be made effectively and fairly by the artists themselves. Trying to usurp that choice through a state mandate only serves to undermine the artist’s creative vision of how he or she wishes to portray and distribute their work to the world. 

Title 
The costs of monitoring copyright by states, artists, and lawyers far outweigh the benefits, and is often simply ineffective
Point 

The state incurs huge costs in monitoring for copyright infringement, in arresting suspected perpetrators, in imprisonment of those found guilty, even though in reality nothing was stolen but an idea that, once released to it, belonged to the public domain more or less.[1] Furthermore, the deterrent effect to copyright piracy generated by all the efforts of the state and firms has proven generally minimal. In fact, the level of internet piracy of books, music, and films has increased dramatically year on year for several years, increasing by 30% in 2011 alone.[2] This is because in many cases copyright laws are next to unenforceable, as the music and movie industries have learned to their annoyance in recent years, for example ninety percent of DVDs sold in China are bootlegs while even western consumers are increasingly bypassing copyright by using peer to peer networks.[3] Only a tiny fraction of perpetrators are ever caught, and though they are often punished severely in an attempt to deter future crime, it has done little to stop their incidence. Copyright, in many cases, does not work in practice plain and simple. Releasing works under a creative commons licensing scheme does a great deal to cope with these pressures. In the first instance it is a less draconian regime, so individuals are more willing to buy into it as a legitimate claim by artists rather than an onerous stranglehold on work. This increases compliance with the relaxed law. Secondly, the compliance means that artists are given the vocal crediting under the license rules that gives them more public exposure than clandestine copying could not. Ultimately this adaptation of current copyright law would benefit the artist and the consumer mutually.

[1] World Intellectual Property Organization. “Emerging Issues in Intellectual Property”. 2011 http://www.wipo.int/about-ip/en/studies/

[2] Hartopo, A. “The Past, Present and Future of Internet Piracy”. Jakarta Globe. 26 July 2011. http://www.thejakartaglobe.com/bytethis/the-past-present-and-future-of-internet-piracy/455291

[3] Quirk, M., “The Movie Pirates”, The Atlantic, 19 November 2009, http://www.theatlantic.com/magazine/archive/2007/06/the-movie-pirates/305886/

Counterpoint 

It may be costly and sometimes ineffective to police copyright, but that does not make them any less of a right worth protecting. If artists or firms feel that they might benefit from fighting infringers of their rights, they should have the right to do so, not simply be expected to roll over and give in to the pirates and law breakers. The state likewise, has an obligation to protect the rights, physical and intangible, of its citizens and cannot give up on them simply because they prove difficult and costly to enforce. Furthermore, the ensuring health of the economy is a primary duty of the state and this means aiding its domestic businesses and one of the ways it does that is by acting to enforce copyright both internally and if possible externally.

Title 
Artists have a fundamental property right over their creative output
Point 

Whatever the end product, be it music, film, sculpture, or painting, artistic works are the creations of individuals and a property right inheres within them belonging to their creators. An idea is just an idea so long as it remains locked in someone’s mind or is left as an unfinished sketch, etc. But when the art is allowed to bloom in full, it is due to the artist and the artist only. The obsession, the time, the raw talent needed to truly create art is an incredible business, requiring huge investment in energy, time, and effort. It is a matter of the most basic, and one would have hoped self-evident, principle that the person who sacrificed so much to bring forth a piece of art should retain all the rights to it and in particular have the right to profit from it.[1] To argue otherwise would be to condone outright theft. The ethereal work of the artist is every bit as real as the hard work of a machine. Mandating that all forms of art be released under a creative commons license is an absolute slap in the face to artists and to the artistic endeavour as a whole. It implies that somehow the work is not entirely the artist’s own, that because it is art it is somehow so different as to be worthy of being shunted into the public sphere without the real consent of the artist. This is a gross robbing of the artist’s right over his or her own work. If property rights are to have any meaning, they must have a universal protection. This policy represents a fundamental erosion of the right to property, and attacks one sector of productive life that is essential for the giving of colour to the human experience. This policy serves only to devalue that contribution.

[1] Greenberg, M. “Reason or Madness: A Defense of Copyright’s Growing Pains”. John Marshall Review of Intellectual Property Law. 2007. http://www.jmripl.com/Publications/Vol7/Issue1/Greenberg.pdf

Counterpoint 

People deserve recompense for their work, but the stifling force of current copyright prevents the proper sharing and expansion of the artistic canon, to the intellectual and spiritual impoverishment of all. Creative commons licenses strike an important balance, by leaving artists with the power over commercial uses of their work, including selling it themselves, while permitting it to permeate the public sphere through non-commercial channels. This is the best way to weigh these competing needs in a complex society. It is not preventing the creator from profiting from his work. It is not a total abrogation of people’s rights, but a giving over of some rights for the benefit of all.

Title 
Artists should retain the right to control their work’s interaction with the public space even if their work is publicly funded
Point 

Art is the expression of its creator’s sense of understanding of the world, and thus that expression will always have special meaning to him or her that no amount of reinterpretation or external appreciation can override. How a work is used once released into the public sphere, whether expanded, revised, responded to, or simply shown without their direct consent, thus remains an active issue for the artist, because those alternative experiences are all using a piece of the artist in its efforts. Artists deserve to have that piece of them treated in a way they see as reasonable. It is a simple matter of justice that artists be permitted to maintain the level of control they desire, and it is a justice that is best furnished through the conventional copyright mechanism that provides for the maximum protection of works for their creators, and allows them to contract away uses and rights to those works on their own terms. Many artists care about their legacies and the future of their artistic works, and should thus have this protection furnished by the state through the protection of copyright, not cast aside by the unwashed users of the creative commons. Samuel Beckett is a great example of this need. Beckett had exacting standards about the fashion in which in his plays could be performed.[1] For him the meaning of the art demanded an appreciation for the strict performance without the adulteration of reinterpretation. He would lack that power under this policy, meaning either the world would have been impoverished for want of his plays, or he would have been impoverished for want of his rights to his work. These rights are best balanced through the aegis of copyright as it is, not under the free-for-all of the creative commons license.

[1] Catron, L. “Copyright Laws for Theatre People”. 2003. http://lecatr.people.wm.edu/copy.htm

Counterpoint 

Upon entering the public arena works of art take on characters of their own, often far different than their original creators did, or could have, imagined. The art is consumed, absorbed, and reimagined and takes on its own identity that the artist cannot claim full ownership over. It is important that art as a whole be able to thrive in society, but this is only possible when artists are able to make use of, and actively reinterpret and utilize existing works. That art does, due to its origination belong more to the people, who should have access, even if the artist, like Beckett has bizarrely rigorous feelings about the work.

Title 
The lack of control over, and profit from, art will serve as a serious disincentive to artistic output
Point 

Profit is as much a factor in artists’ decision to produce work, if not more so, than the primordial urge to create. Without the guarantee of ownership over one’s artistic work, the incentive to invest in its creation is certainly diminished. Within a strong copyright system, individuals feel free to invest time in their pursuits because they have full knowledge that the final product of their labours will be theirs to enjoy.[1] Without copyright protections the marginal cases, like people afraid to put time into actually building an installation art piece rather than doing more hours at their job, will not opt to create. If their work were to immediately leave their control, they would most certainly be less inclined to do so. Furthermore, the inability of others to simply duplicate existing works as their own means they too will be galvanized to break ground on new ideas, rather than simply re-tread over current ideas and to adapt existing works to markets. Art thrives by being new and original. Copyright protections shield against artistic laziness and drive the creative urges of the artistically inclined to ever more interesting fields.

[1] Greenberg, M. “Reason or Madness: A Defense of Copyright’s Growing Pains”. John Marshall Review of Intellectual Property Law. 2007. http://www.jmripl.com/Publications/Vol7/Issue1/Greenberg.pdf

Counterpoint 

Few artists ever see much profit from their work anyway, many choosing the life of bohemian squalor in order to keep producing art rather than taking up more profitable pursuits. Vincent van Gogh sold almost nothing, but his drive to create never abated. No doubt the true artists will continue to feel the urge to create under this policy, and the loss of a few marginal cases must be weighed against the massive losses to art in general, such as the huge curtailment of exploration of and response to existing works, which are often artistically meritorious in their own right, and also the rendering unavailable of much of the artistic output of the world. 

Title 
Artists often rely on copyright protection to financially support themselves and their families
Point 

Artists as they are often not paid for anything else may rely on their creative output to support themselves. This is certainly no crime, and existing copyright laws recognize this fact. Artists often rely wholly on their ability to sell and profit from their work. This policy serves to drain them of that potential revenue, as their work is shunted into creative commons, and available to all. Artists often also have families to support, and putting the added financial burden on them of stripping them of their copyright only serves to further those problems as they exist. A robust system of copyright is a much better protection to struggling and successful artists alike who like all talented individuals seek to assuage their material wants. Artists cannot live on appreciation alone. With much less secure copyright many would have to find other work. 

Counterpoint 

Artists rarely make all that much money in the first place, and a great many only work as an artist part time. More importantly, they can still profit from their art, since they retain exclusive commercial rights to their work. Oftentimes they will actually benefit from operation under a creative commons license because it provides wider dispersal of their work, which builds a broader name and market for their work.

Bibliography 

Anderson, N., “Free Nine Inch Nails albums top 2008 Amazon MP3 sales charts”, arstechnica, 7 January 2009, http://arstechnica.com/business/2009/01/free-nine-inch-nails-albums-top-2008-amazon-mp3-sales-charts/

Venetian Decree on Author-Printer Relations, Venice (1545), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org, http://copy.law.cam.ac.uk/cam/tools/request/showRepresentation?id=representation_i_1545

Statute of Anne, London (1710), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org, http://copy.law.cam.ac.uk/cam/tools/request/showRepresentation?id=representation_uk_1710

Catron, L. “Copyright Laws for Theatre People”. 2003. http://lecatr.people.wm.edu/copy.htm

Creative Commons. “About the Licenses”. 2010. http://creativecommons.org/licenses/

Doctorow, Cory. 2013. “Copyright wars are damaging the health of the internet.” The Guardian. Retrieved March 30, 2013 http://m.guardiannews.com/technology/blog/2013/mar/28/copyright-wars-internet

Fitzgerald, Brian and Anne Fitzgerald. Intellectual Property: In Principle. Melbourne: Lawbook Company. 2004.

Gillespie, Tarleton. 2007. Wired shut : copyright and the shape of digital culture. Cambridge  Mass.: MIT Press.

Greenberg, M. “Reason or Madness: A Defense of Copyright’s Growing Pains”. John Marshall Review of Intellectual Property Law. 2007. http://www.jmripl.com/Publications/Vol7/Issue1/Greenberg.pdf

Hartopo, A. “The Past, Present and Future of Internet Piracy”. Jakarta Globe. 26 July 2011. http://www.thejakartaglobe.com/bytethis/the-past-present-and-future-of-internet-piracy/455291

Keegan, V. “Shorter Copyright Would Free Creativity”. The Guardian. 7 October 2009. http://www.guardian.co.uk/technology/2009/oct/07/shorter-copyright-term

Quirk, M., “The Movie Pirates”, The Atlantic, 19 November 2009, http://www.theatlantic.com/magazine/archive/2007/06/the-movie-pirates/305886/

Torremans, Paul. 2004. Copyright and human rights: freedom of expression, intellectual property ... Kluwer Law International.

Walsh, K., “Commercial Rights Reserved proposal outcome: no change”, Creative Commons, 14 February 2013, http://creativecommons.org/weblog/entry/36725

World Intellectual Property Organization. “Emerging Issues in Intellectual Property”. 2011 http://www.wipo.int/about-ip/en/studies/

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