On the role of copyright in literate society

(drawing heavily from James Boyle's excellent book, The Public Domain)

Copyright corresponds to no natural law; it is an invention of modern, capitalist democracies to achieve a balance of public and private interests through trade regulation—the granting of a temporary monopoly.

Creating a monopoly in this way generates scarcity—and thus the conditions for a simple market where you wouldn't have had one normally because the cost of making copies is so low (meaning "low" with industrial means, and "near zero" with digital). Generating scarcity makes a market for intellectual property that is something like what we have for real property. But note that achieving this parallel requires the legal fiction of "property" provided by copyright.

Boyle makes the case for a free market of intellectual production on the grounds that we cannot (and should not) in advance define what will prove to be valuable or desirable; instead we want a decentralization of decision making (as opposed to it being done by the state). This sets up a "feedback mechanism" says Boyle, "a self-regulating cultural policy." (Boyle is an American, obviously, but the same thing holds in Canada; our state-sponsored cultural policy still relies heavily on the free market to decide its general contours.)

But this is far from straightforward. The oft-cited incentive of monetary return is only part of why people create things. People create for fame and status, for love, for political ends, and so on. Furthermore, the ongoing right to exploit a work commercially—that which copyright most straightforwardly provides—is itself only part of the financial picture. The point here is to not allow this to be a totalizing model of creation equating with property. This was never part of the rationale of copyright law.

Similarly, the value generated by the creation, distribution, and reception of works is certainly not reducible to the value of the right to make copies. To make such an equation is to ignore not just the creator's market position in time, but also the public or social value that is realized by creative works actually reaching an audience.

Boyle argues rather that copyright's "temporary monopoly" is properly applied when it is needed in order to fix the balance between public goods and private incentives. The public good that comes from the ability to make cheap copies may not suffice to offset the expense of creating the thing in the first place; this is why we have copyright law.

Orphan Works

We encounter a different situation where the cost of creating a work is in the past, or well amortized already, and copyright then serves to simply stand in the way of cheap copying. This describes the problem of "orphan works." Orphan works are roughly those works for which the copyright term exceeds any practical utility of the copyright. Orphan works are an acknowledged problem in various jurisdictions. Many commentators note that an enormous swath of 20th-century culture falls into this category: still under copyright, but out-of-print, with unlocatable rights holders. The drive to longer copyright terms makes this problem worse.

This brings us to the Google Book Search Settlement Agreement.

That the original suit filed against the Google Book Search program was initiated by the US Authors Guild is somewhat ironic. The original claim—on behalf of authors and their legitimate intellectual property—was that scanning and indexing the content of these books did not constitute fair use; Google claimed that it did. A court ruling on the case would have either found in Google's favour or decided against.

If the court found in Google's favour, we would have a significant precedent governing both the applicability of the (American) fair use exemption to online search engines as well as a potential way of stepping through the orphan works problem. A ruling against Google would have been at least clear; the orphan works problem would remain outstanding and still be looking for a solution.

But because the case was settled out of court, there is no such ruling one way or the other. Instead, the Authors Guild and AAP have essentially licensed Google to pursue its book search program (and to 'monetize' the content so long as rights holders get a cut). But in doing so, the Orphan Works issue has been effectively rolled almost entirely into Google's purview. Google will now have free rein to sell access to such works, without compensating anyone. The terms of the Settlement Agreement (i.e., not a precedent-setting court ruling) are also such that there is considerable practical disincentive to any parties setting up a competing program to Google's, since they would have to reach their own settlement with rights-holder organizations. This places access to an enormous chunk of our collective cultural heritage solely in Google's hands.

Google Book Search need not be opposed by individual authors or publishers on the grounds that Google violates their copyright—as the Authors' Guild and the Writers Union of Canada suggest, the proposition made to individual rights holders is actually pretty reasonable. But it does need to be opposed by society at large, on the grounds that Google ends up with too much copyright exclusivity.

Recall that copyright is a temporary grant of monopoly. It is to be tolerated in order to encourage the enterprise of creators. But the monopoly that results from this settlement does no such thing; rather, it consolidates enormous power over the access to cultural works in the hands of a single corporation, who is then free to create business models as it sees fit. This is not a scenario that is friendly to a vision of civil, democratic society.

Brewster Kahle, founder of the Internet Archive, wrote last week in The Washington Post:

Google would get an explicit, perpetual license to scan and sell access to these in-copyright but out-of-print orphans, which make up an estimated 50 to 70 percent of books published after 1923. No other provider of digital books would enjoy the same legal protection. The settlement also creates a Book Rights Registry that, in conjunction with Google, would set prices for all commercial terms associated with digital books.

Broad access is the greatest promise of our digital age. Giving control over such access to one company, no matter how clever or popular, is a danger to principles we hold dear: free speech, open access to knowledge and universal education. Throughout history, those principles have been realized in libraries, publishers and legal systems.

The ironic point is that there is nothing of this in the agreement which Google is making with you, the individual author. Neither will choosing to "opt out" of the agreement make any difference to this issue. Copyright exists to seek a balance between individual and public interests. We have, over the decades, become very articulate on the private side, and the Settlement Agreement that authors confront is a relatively straightforward instance of this: an exchange of rights for money. There are armies of lawyers well versed in this kind of transaction, not to mention rights-holder associations and even individual creators with well developed sensibilities about when they may be getting ripped off.

But as a society we are woefully ill-equipped to address the public side of copyright; nowhere do we have the opportunity to "opt out" of the Settlement as a society. The best we have currently is that US Department of Justice is reportedly investigating it as an antitrust issue—which strikes me as clear evidence of our inarticulateness on the issue; the US DoJ being a pretty blunt instrument for such a nuanced issue.

Here is a case where the right thing to do clearly cannot be reached by appeal to self-interest alone; this issue requires public discourse and a public response. Indeed, it is the very grounds of public discourse that are at stake.

Further Reading:

James Boyle. The Public Domain Yale University Press 2008. Available online (Creative Commons licensed) at http://yupnet.org/boyle/

Brewster Kahle. "A Book Grab by Google." The Washington Post. May 19, 2009. http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051802637.html

and while you're at it:

Clay Shirky. "Newspapers and Thinking the Unthinkable" Blog post, March 13, 2009. http://www.shirky.com/weblog/2009/03/newspapers-and-thinking-the-unthinkable/