Copyright, culture, and democracy

Written on 26 May 2019

Did you know that Anne Frank’s diaries are still copyrighted and can’t be published without paying royalties to the Anne Frank Foundation (AFF)? The legal issues are somewhat complex, but in short:

• Anne Frank rewrote her diary with the intent to publish it after the war. Otto Frank – Anne’s father – combined and copyedited the original and rewritten versions and published the result in 1947, which is the version most people have read.

  Anne Frank died in 1945; Otto Frank died in 1980. The AFF claims that Otto should be considered an author and that the “life plus 70 years” copyright term should start from 1980, and won’t expire until 2050.

• In the United States works before 1970 have a copyright term of 95 years from the date of first publication. It was published in the US in 1952, meaning it’ll expire in 2047. This is why it was removed from WikiSource.

• The two unedited versions that Anne wrote herself weren’t published until 1986, and will remain copyrighted until 2056.

• In the Netherlands the works have been in the public domain since 2016 because pre-1995 Dutch copyright law had an exception for posthumously published works (court ruling, in Dutch). This doesn’t affect the copyright status in other countries.

I will be 71 in 2056; quite frankly I find it ridiculous that important historical and cultural works regarding one of the most profound events in recent history are copyrighted for almost three entire generations.

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The Anne Frank’s Diary case is particularly striking, but most works that make up contemporary culture and recent history are copyrighted, ranging from the full text of some laws to Martin Luther King’s “I have a dream” speech to Star Trek ^{(more, more)}. At least you can now finally sing Happy Birthday without paying royalties.

Star Trek might seem a bit silly compared to Anne Frank or MLK, but it’s “culture” just as much as The Iliad or Beowulf is, just not as old. Why should anything even remotely related to Star Trek still be copyrighted after 50 years? Why should copyright duration be life-plus-70 and not life-plus-20? Or just a fixed term of 70 years? Or 50? Or any other value?

Copyright law treats creative works as a mere tools for profit or entertainment. They’re so much more than that; they’re our culture. It shapes our society and the way we think. I’m all for paying the writer, but there needs to be a balance.

Star Trek isn’t created in a vacuum, it’s a product of the culture in which it was created. It has plenty of its own innovations, but wasn’t created out of thin air and it built upon what came before. I’m happy that its creators earned heaps of money for it, but it’s part of our culture and at some point the public interest should be taken in to account.

What I find especially objectionable about the above Star Trek examples is that it’s not even about outright piracy (e.g. downloading episodes from The Pirate Bay) but about ownership of the entire idea of Star Trek. Doing anything related to any aspect of Star Trek can be considered infringement. Star Trek is hardly unique; Nintendo has sent lawyers after Pokémon-themed parties. There are plenty more examples.

What this means is that someone claims “ownership” of part of our culture. I don’t think that any person – much less a corporation – can lay claim to the ownership of culture, but that is pretty much what they’re doing by laying claim to almost all books, films, and music produced in the last ~90 years. If we look back on history then entire eras are defined in large part by their art and culture. Future historians will look back to Star Trek and similar contemporary creative works just as we look back to The Iliad, which was merely one part of the greater “Greek Mythology Franchise” with contributions from many authors.

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Some authors have taken objection to “fan fiction”, for example George R.R. Martin and Diana Gabaldon. I have some sympathy especially for Gabaldon’s feelings regarding other people using her characters:

Characters—good characters, “real” characters—derive their reality from the person who created them. They _are_ the person who created them, refracted through the lens of that writer’s experience, imagination, love, fear, and craft. Another writer seeking to duplicate that character might equal—or conceivably surpass–the craft; they can’t touch the essence.

When you mess with my stuff, you’re not messing with my characters—you’re messing with _me_.

I don’t have a clear answer to what the best solution here is, but I do know that an extensive “life +70 years” copyright law is not it.

Were the Greek myths “fan fiction”? Are all the stories about King Arthur? They are the work of many authors set in the same “universe”. The way fiction is created has changed a lot; in the past someone would create a story (or combine elements of existing stories) and perform as a bard, with a fairly limited audience. Others would see this and copy, change, adapt.

With the advent of mass media things have gotten considerably more centralized. Now a single author can reach millions of people in a very short timespan. This has brought us great authors such as George R. R. Martin, but on the other hand it is robbing the community’s ability to copy, change, and adapt stories.

GRRM says we shouldn’t use a “borrowed background”, as that won’t “exercise those ‘literary muscles’”, but I think this misses the point of amateur writing. Not everyone wants to be a professional writer or spend a significant amount of time developing “literary muscles”, they just want to dabble a bit and see what happens. Not everyone who writes is aspiring to be a professional, or even to be published.

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I have no problems with people or companies earning (potentially large amounts of) money from creative works, but I do find the concept of passively collecting income merely from owning the rights troubling. Unlike labour, this does not create value. A carpenter creates value by making tables; a postman creates value by delivering something from A to B; a cleaner creates value by cleaning stuff. No value is created by extracting money from licensing rights.

The questions here are “what is fair?” and “what does it mean to ‘own’ something?” These are not easy questions, and I don’t pretend to have comprehensive answers to them. I do know it’s not as simple as “I spent time on it, therefore I completely own it”. This is essentially what Locke’s theory of property states about natural resources (land, oil, etc.) Yet this theory has also been much criticized for being overly simplistic, perhaps most poignantly by Robert Nozick, who pointed out that owning a can of tomato juice and pouring it in the sea does not entitle you to ownership of the sea.

It seems to me that this is how the modern copyright industry works. They take the natural resource of culture, add a little bit of their own labour, and then take complete ownership of the results.

Copyright is a (natural) monopoly. CBS owns the full rights to Star Trek and no one else can create a competing product. I don’t see what would be wrong with someone else creating a competing versions of Star Trek, just as there is nothing wrong with people creating competing Robin Hood adaptations or new smartphones. Personally I have been rather disappointed with recent instalments of the Star Trek franchise, and would much prefer a return to the style of the earlier Star Trek series, but I’m stuck with what CBS feeds me.

I don’t think the advent of the internet fundamentally changed anything; it’s just that it’s now much easier to share information than it was before so friction is increased. This friction exists every time technology makes sharing easier (e.g. VCRs, cassette tapes).

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That copyright is limited in the first place acknowledges all of the above issues. Why else would it be limited in the first place? No other form of ownership is limited in the same way.

The copyright industry has spent decades lobbying lawmakers. There is nothing wrong with that as such, but who lobbies for the public interest? Who pays for that? In principle, elected officials should act in the interest of the common good. In practice they often don’t. This is not out of malice, it’s just that no one can be an expert on everything and if all the arguments you hear are from lobbyist then you probably don’t have very balanced views on the matter. You just get stuck in an lobbyist echo chamber.^[1]

To make it worse, people and organisations who do lobby or advocate for public interest often do so out of idealism, with ideas that are often not very pragmatic. I think most people would be in favour of restricting factory farming in some way, but if all you hear are the most radical vegans then, well…^[2]

This leaves us with the question on how democratic our democratic institutions are if they’re so easy to influence.

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The legal defence for many Torrent sites has been to disclaim responsibility; in the 2009 The Pirate Bay trial, or MP3skull’s weird copyright page which claimed that “all music on is presented only for fact-finding listening”. This is nonsense and everyone knows it.

I find it regrettable that in many of these court cases the defence uses excuses like “we’re not hosting it”. No one is fooled by that, including the courts. By focusing on legalities and skipping the more principled arguments we’re engaging the copyright industry on their terms with their language. We’re arguing about implementation details, not the things that actually matter.

It should be phrased as an act of civil disobedience, rather than denying you broke the law. Some people have called this naïve and that it will never work in court. It probably won’t but neither does the current “we did nothing against the law” kind of defence, and this at least gives us a chance to bring these kind of arguments in the public debate (besides, you can do both type of arguments).

Knowingly breaking a law and then pretending that you didn’t break any laws is not a very good way to change anything; the lack of a good public debate has real effects beyond not changing the law: the 2019 EU copyright law is a direct response. We (“the public”) made our own bed with this. It should be clear that I’m hardly happy with the current affair of copyright, but for years we’ve stubbornly insisted that we can just ignore copyright, and every time we’re surprised that copyright holders mount a counter-attack?