Originally published in Jim Baen’s Universe, Vol 1 Num 2, August 2006
I want to continue my discussion of copyright, which I began in last issue’s column, before turning my attention to the issue of so-called “Digital Rights Management” itself. The reason I want to do so is because what lies at the heart of DRM is one set of answers to a few simple questions:
1) What sort of protection do authors require, to make sure that they can and will keep engaging in their labor?
2) Why do they need a particular sort of protection, as opposed to another?
3) For how long do they need it?
I’ll address the first two of these questions in this column, and the third one in the next.
Let’s start with the first one, whose answer is obvious. If you don’t figure out a way to pay people to do labor such as writing fiction, one of two things will happen:
- a) Some potential writers won’t do it at all.
- b) Most will, simply because they feel a personal urge to do so. But, because they can’t make a living as authors, they will—certainly on average—never get all that good at it.
The second point, by the way, is much more important than the first. The number of people who set out to become writers for the purpose of making money is miniscule, and always has been. To be blunt, only a moron would take up being an author as a way to make a living, much less a good living. As careers go, for all but a tiny percentage, it is either impossible altogether except as a part-time occupation, or pays dismally and erratically even if you can manage to do it full-time.
I know a lot of authors, and I’m an author myself. I do not know a single one who set out to be an author because they thought it was a smart way to make money. Even some money, not to mention enough to live on. As far as that goes, setting out to be a professional author is one of worst careers you could choose.
Instead, they set out to write because they wanted to write, period. Getting paid was more important to them as a mark of success in terms of reaching an audience, than for the money itself—at least initially.
This fact has led some people to the conclusion that paying authors is unnecessary at all. This silly notion is particularly cherished by the “information wanna be fwee” crowd of pseudo-libertarians. “Good writing,” they argue, “is driven from the heart.” Grubby stuff like paying authors money simply prostitutes the noble art itself. (This is invariably their justification for engaging in willful and flagrant violations of copyright.)
Leaving aside issues of simple fairness, the notion is silly for what ought to be the most obvious reason of all. Whatever else it may be—call it “sublime literature” or anything downwind of that—writing is first of all a craft. A particularly difficult craft to learn, at that, as anyone who sets out to write learns very quickly.
Writing is like acting. Every literate person can write, just as any person—literate or not—can act. It does not thereby follow that they can do it well. That’s a different kettle of fish entirely. Almost everybody has a cousin or whatever who can provide fairly good family entertainment at barbeques with their jokes or voice impersonations or antics. That doesn’t mean they could make a living as a stand-up comic.
Doing something well requires two things. First, it requires an aptitude—or talent, if you prefer—for a particular sort of work or activity. Secondly, it requires practice.
This fact, so obvious to everyone with regard to almost anything else, often gets ignored when it comes to writing. It’s amazing to me how many people have the screwiest ideas about writing. They seem to think that a person just sits down one day and, effortlessly, starts churning out good prose.
Well . . . yes, there have been a few individuals here and there who seem to have managed that feat. But “few” is the right word. The most common pattern, by far, is that it takes a person long hours—years, more often than not—before they learn how to write well enough that many other people want to read what they’ve written.
There’s an old saw in science fiction—I’ve forgotten who first came up with it—that says you have to write a million words of crap before you write anything worth reading. That’s a bit of an exaggeration, in my opinion. At least for me. I’ve gone back through my personal history and added it all up, and I can now strut around and say very proudly that I managed to start writing pretty good stuff after writing only (by my best count) about 400,000 words of crap.
But whether it’s a quarter million or half a million or a million words of crap, there are almost no writers who’ve managed to start writing well without a lot of practice, false starts, and a learning experience. Nor does that end once they start getting published. Almost all writers continue to improve with practice, for a period of many years after they start getting published.
In short, in writing as in every other field of human endeavor, professionals are—on average, understanding that there are always some exceptions—better than amateurs.
Period.
Yes, yes, yes, there are always some exceptions. In any field of work, there are a few amateurs who are better than most professionals. To give one example, every year there are a few graduating amateur college athletes whom everyone knows are already better in their sport than most professionals—which is precisely why they get offered big contracts to “turn pro.” But even then, every such extremely gifted amateur has to go through a sharp and steep learning curve before they really perform as a top professional athlete. And many never manage to make the transition at all.
And they’re only individual exceptions to the rule, anyway, they’re not the rule itself.
The rule is simple:
Put the best college football team on the field against any professional football team, and the pros will win at least nine times out of ten.
The same goes for writers.
If you don’t believe me, when it comes to writing, take a look—your choice—at either the list of Nobel Prize winners for literature or any bestseller list. You will quickly discover that well over 90% of the authors on any such list are professional writers, not amateurs. And, if they do have a “principal” occupation other than being an author, it’s usually one that is either closely connected to writing or, one way or another, allows them a great deal of time to work as a writer.
In his speeches on copyright—from which I will be quoting throughout these essays—Macaulay put it this way:
You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.
From there, Macaulay goes on to discuss the advantages of copyright over patronage. I will deal with that issue in a moment. But, for now, let me stick to the point at hand.
Which is simple: The fundamental purpose of copyright is not to pay authors. It is to make sure that society gets as many good books written as possible. Or, to put it another way, paying authors is a means to an end, not the end itself.
Immediately, some authors will raise an objection. “I work like anyone else, dammit. So I should get paid!”
Well, of course. But why should you get paid by copyright? Any form of labor should be renumerated, to be sure, or you have slavery. But work-for-hire (as the practice is called in publishing) takes care of that obligation just fine.
For those of you who are not writers and are wondering what “work-for-hire” means, it means exactly what most of you do for a living. You go to work every day, for which you get paid (as a rule) a sum of money determined by the length of time you work, adjusted for whatever level of skill you bring to the labor.
Why should writers get paid any differently? Why, to put it another way, should a writer be entitled to a share of the money earned by his or her product, when a waitress or a truck driver or an accountant or a steel worker is not?
When I was a machinist, I was paid by the hour. Let us say, for example, that I made a shaft to be used in a machine making parts for automobiles. I got paid for the work I did. But I did not get “royalties” which constituted a share of the sales eventually earned by the auto manufacturer because they used my shaft (among a multitude of other parts) to make their product.
So why should writers get royalties?
Well, there’s an answer, but it’s a bit complicated. First of all, it’s because intellectual labor that can be easily reproduced poses a particular set of problems for remunerating the creator. Writers cannot, as painters and sculptors typically do, sell their actual product. A sculptor will spend weeks or months on a particular piece of art, and then sell that individual work to an individual customer. Once the sale is made, the piece of art is owned by the customer, not the sculptor—and, sure enough, sculptors do not get royalties.
But an artist can do that because the concrete, material object he or she produced has a value of its own. A piece of text, such as a novel manuscript, has no such value. (I leave aside the small collectors’ market, which couldn’t possibly support most writers—and wouldn’t exist anyway, if books weren’t published.)
The value of text is in the ability to reproduce it many times over for a large audience. But that same ability to be easily reproduced creates the problem. In a nutshell, if a “legitimate” publisher can reproduce the text, so can (theoretically, at least) anyone else.
Which, in fact, was exactly the situation in the English-speaking world prior to the institution of copyright. (I’m using the history of the English-speaking world with regard to copyright because I’m most familiar with it. But you could find a similar historical pattern anywhere.) Plays produced by Shakespeare or Ben Jonson could be produced by anyone who wanted to. The authors got their money—which was damn little—by selling the manuscript to a producer and then letting the producers fight it out over which one could put on the most popular performance.
That worked . . . badly, but well enough, so long as most literature took the form of plays and there was not yet a very well-developed publishing and distribution industry. The cost of putting on a play was and is very high, and the cost of obtaining the manuscript was a small part of it. That entry-level cost eliminated most potential chiselers.
As for poetry and other forms of literature, they were either produced by the author at his or her own expense, or paid for by a patron.
The first real copyright law in the English-speaking world was the so-called Statute of Anne, adopted by the British Parliament in 1709. That statute—which didn’t actually take effect until 1710—vested authors with a legal monopoly of the work for a period of 14 years after it was copyrighted.
Why were authors given the monopoly instead of publishers? The reason is simple: somebody has to have the copyright, or society has no option except to rely on patronage. The problem with using work-for-hire as the basis for paying authors is that it won’t work unless publishers have the ability to establish copyright—or you simply push the problem back a step. And, that being so, the British parliament (very correctly, in my opinion) decided that it was fairest to give the monopoly to the ultimate producer rather than to a middleman.
What’s necessary to understand, however, is that at every step of the way the basic consideration was society’s interest. In the absence of any over-riding social imperatives, authors and publishers have no more “right” to a legal monopoly than anyone else does. To put it another way, copyright does not exist simply to enable authors to make a living—which could and can be done several other ways—but to make a living in a way which is most beneficial to the society as a whole.
You can’t ever lose sight of that framework.
The value of copyright, as Macaulay put it very well, is that while it is an evil, it is less evil than any of the alternatives. The only real alternative is patronage—public or private—and those have well-known drawbacks. Almost any form of patronage runs at least the risk that whoever the patron is—public or private—it will be the patron who determines what does and does not get produced. The advantage to copyright is that, at least potentially, it gives the author the ability to find his or her own market for the work.
Mind you, patronage continues to exist in publishing, and always has—a lot of it, in fact. To give some examples:
All publications by the government are paid for by the patronage (ultimately) of the taxpayer. That’s why, with the exception of some material, usually classified for security reasons—whether properly or improperly, but that’s a separate political issue I won’t deal with here—everything published by the U.S. government printing office is automatically in the public domain.
A great deal of scholarly publications are paid for by patronage—or, at least, most of the cost is borne by patrons. To give a common example, university researchers who publish a book typically retain copyright and earn some money from the book. But, with a very few exceptions, they couldn’t possibly afford to do the needed research and writing on the actual proceeds of the sales of the book. The real cost of the book is borne by the university, which pays them a salary to engage in research and writing.
To give yet another example, a great deal of political writing is paid for by patronage. That’s especially true for writing which advance opinions or proposals that are outside the accepted mainstream.
There’s nothing wrong with patronage, as such—as long as you don’t let it take over the whole show. You need copyright, among other things, as a constant check against patronage getting too restricted.
All right, let me recapitulate. So far, I’ve addressed the first two of the three questions I posed at the beginning of this essay:
1) What sort of protection do authors require, to make sure that they can and will keep engaging in their labor?
2) Why do they need a particular sort of protection, as opposed to another?
That leaves the third question, which is the critical one for the rest of what I’ll be discussing in this essay:
3) For how long do they need it?
I’ll discuss the details involved in this question in my next essay. But for now, briefly, there are two answers to this question:
First, authors need to have enough protection to enable them to be able to make a living as full-time writers.
Second, that protection has to be long enough to provide them with a motivation to write for the public, and see doing so as a possible profession.
But that’s it. Those are the only two legitimate concerns. Any term of copyright which exceeds that minimum necessary length, as Macaulay put it in the quote I cited in my last column, has no legitimate purpose. Once you cross that line, a necessary evil has simply become an evil—and the farther past that line you go, the more evil it gets.
At the onset of what I will call the “copyright era,” which began in 1709 and has now lasted almost three centuries, the term of copyright was set at fourteen years. The newly-formed United States, in 1790, adopted in its first copyright law a modification of that, which allowed for copyright to be extended an additional fourteen years if the author chose to renew it. In 1831, Congress revised the law to allow for an initial copyright term of twenty-eight years, with the possibility of another fourteen years if the author chose to renew—i.e., they made copyright last for a possible total of forty-two years.
For reasons I will argue in my next column, Congress got it . . . pretty close to right at that point. Not quite, because the extension provisions create unnecessary complications and a provision needs to be added that ties copyright to the life of the author, or you get into a different kind of problem. My own position is basically that advanced by Macaulay in his 1841 speeches—a flat 42-year period of copyright (I’d simplify it and make that just forty years), with the provision that so long as the author is alive he or she retains copyright.
But that’s for the next column. What I wanted to do in this essay is establish the basic parameters of the problem. That’s critical because of the well-known old saw about debates:
Whoever sets the terms of the debate automatically wins the debate.
The reason the parameters are critical is because what has been happening in modern society is that the terms of the debate have been steadily (and stealthily, to call things by their right name) shifted back to the terms which the “perpetual natural right” theorists tried to advance in the middle of the 19th century to undermine copyright law.
One hundred and fifty years ago, men such as Macaulay in Britain and Justice McLean of the U.S Supreme Court, torpedoed that attempt.
I’ve already introduced you to Macaulay. I’ll end this essay by giving Justice McLean his well-deserved credit. Here is a quote from his majority decision in the case of Wheaton vs. Peters, in which Wheaton advanced the argument that authors were entitled to perpetual property rights in their work:
“…since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. . . . That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.”
Always remembers that the terms of a debate are what’s critical. Copyright is about the needs of society, not about abstractions concerning “property” as such.
As before, I’ll end this essay by urging everyone to read Macaulay’s speeches. You can find them in this issue of Universe: a direct link to that article is available.
Look, folks, you may as well just bite the bullet and read the damn things. Because before I’m done, I will have quoted just about every word in them anyway. I told you at the beginning: There is nothing involved in the current disputes over copyright that Macaulay didn’t answer a century and a half ago.
If I wanted to be philosophically pretentious, I’d close by citing Santayana’s famous saw that those who remain ignorant of history are doomed to repeat it. But having cleverly cited the old saw with that disclaimer, I can put it more simply still:
For Pete’s sake, how many times do you insist on re-inventing the wheel?