End the Archaic Argument That Copyright Is Only for the Rich
Intellectual property (IP) laws are ever-evolving and adapting. Copyrights, in particular, are vital for content creation and creative industries to thrive, especially in the digital age. Yet, anti-IP advocates repeatedly (and wrongfully) assert copyrights are archaic, irrelevant in the digital era, and designed for the rich—or, more specifically, for large corporations—to keep creators poor through litigation. Some assert creators should return to an even more archaic form of remuneration: patronage. But a pure-patronage system devoid of copyright gives way to censorship, keeps creators poor, and harms industries and jobs.
A recent article in the Cambridge Independent reviews a new book, Walled Culture, by author Glyn Moody. This book doubles down on the anti-IP community’s specious copyright claims. Although this post does not attempt to rebut all the misleading assertions presented throughout Walled Culture, it tackles some of the most egregious ones addressed in the Cambridge Independent article.
Predominantly, Moody asserts copyrights are irrelevant in the digital age, as if the Internet is something new. But claiming that technological advancements somehow render creators’ rights moot is itself an archaic and harmful notion. Moody further claims copyright laws are “‘throttling’ the potential of the Internet” and that reverting to a patronage system will solve creators’ woes. These anti-IP claims ignore the historical evolution of copyright laws, the role of licensing, and data evidencing IP’s enablement of individuals and small-to-medium enterprises (SMEs) to capture value from their creative content. Though a few creators (to their credit) use alternative ways to support their work and livelihood, copyright laws are a centralized mechanism offering all creators compensation opportunities. Yet, Moody and other anti-IP zealots seem to believe an ancient “rewards” system is better than a proven mechanism for all creators to make a living from their work.
Moody’s nonsensical promotion of a patronage system as a forward-thinking substitute for copyright is self-contradictory in many ways. First, it ignores the role of the subscription-based model many copyright-intensive industries currently utilize. Second, it reintroduces a form of censorship that may harm independent, indigenous, and marginalized creators. Third, it destroys vital income streams, such as royalty rights, and requires creators to “live off exposure” until they garner enough attention. Finally, without copyright protection, creators risk the widespread sharing of their works without any remuneration or credit, regardless of whether or not they have patrons.
Perhaps the most bizarre (and uninformed) assertions Moody makes involve the journalism and fashion industries. Again, he propagates the idea of a patronage system for journalism in response to what he calls “the Google-Facebook duopoly.” The problem with Moody’s argument—that this system could sustain good journalism—is that the industry already operates on a (patron-supported) subscription-based model. To wit, Moody points to the fashion industry to support the notion that copyright is unnecessary for creativity to flourish—a sector heavily reliant upon IP.
The patronage or subscription model takes on many forms. While some content producers only offer snippets of their works for free, others offer certain pieces for free; some limit how consumers access content, such as tiered subscriptions for print, online, or app access. Still, others provide all available content for free, offering subscribers other types of perks in return, such as ad-free reading.
But unlike other copyright-intensive sectors, such as film and television, that successfully utilize a subscription-based model, journalism struggles to adapt to the digital age. As ITIF wrote, the digital economy has forced many industries to reevaluate their business models, and the news industry is no exception. The journalism industry needs to find new ways to adapt, and a patron system is not new.
Before the Internet boom, classified ads were a significant source of revenue for newspapers. With the introduction of cheaper alternatives, like Craigslist, newspapers lost this lucrative revenue stream. However, the misleading narrative remains that online platforms like Google and Facebook are singularly responsible for the news media’s economic challenges. Various legislative proposals—particularly the Journalism Competition and Protection Act (JCPA)—seek to protect the digital news industry from the “big business” boogeymen. But, just like Moody’s anti-copyright argument, the JCPA is less than useful.
If the journalism industry, or any copyright-intensive industry for that matter, gave up all copyrights in hopes of surviving on subscriptions alone, consumers would have little to no content to consume. Without copyright protection, individuals and companies alike could legally share free and unlimited copies of any articles or works they access. Thus, rather than driving traffic (i.e., potential subscribers) to news sites based on snippets of articles featured in searches, Moody’s anti-copyright model reduces the number of patrons a subscription service might have.
Likewise, Moody’s reliance on the fashion industry to support the notion that copyright is unnecessary misses several key points. Copyrights protect graphic designs, textile designs, and certain logos, and many designers rely on trademark rights, especially trade dress, to protect their works. Despite Moody’s claims that IP is irrelevant in the digital era, fashion icons from Nike to Hermès utilize multiple forms of IP protection in both analog and digital settings.
Neither journalism nor the fashion industry supports Moody’s anti-copyright argument. Rather, they prove creative industries greatly rely on IP, especially copyright.
Patronage Gives Way to Censorship
Under the traditional patronage system, creators would find a wealthy and influential person, family, or religious institution to support them financially. Essentially, the patron provided a salary or stipend to the creator in exchange for their work, operating more as a work-for-hire institution than the current system that rewards creators for independently created expressions.
The ability for creators to obtain patronage was limited by their connections and the patron’s wealth, status, influence, and preferences. Additionally, patronage subjects creators to censorship based on their patron’s whims. Thus, the patronage system—unlike the modern copyright system—solely benefited the rich and influential at the expense of creators and the poor.
Certainly, every market-based system relies on consumers’ preferences, and many independent creators and marginalized voices only garner small portions of the market. But while some governments seek ways for marginalized voices, such as indigenous peoples and people of color, to reach broader audiences, Moody calls for a system that could silence them further. Although he notes, “The real challenge is locating the people who love your work and will pay you in advance,” Moody unconvincingly asserts, “Past work generates future commissions,” irrespective of copyright. How he expects creators, especially marginalized voices, to acquire patrons, reach broader audiences, and prevent the misappropriation of their works without copyright is a mystery.
Over time, the idea of copyrights evolved from censorship to freedom of expression. Prompted by the introduction of the printing press, England’s Licensing Act of 1662 gave the Stationers’ Company the authority to censor publications, but this law (rightfully) lapsed in 1695. The Statute of Anne followed in 1710, establishing the first copyrights for authors, a public domain, and the concept behind the first sale doctrine. This provided the foundation for all future copyright laws and a system that efficiently supports creative content development.
Patronage Keeps Creators Poor
Deeply rooted in the fight for freedom, the founding fathers improved upon the Statute of Anne and provided for copyrights in the U.S. Constitution, specifically for creators to maintain certain controls over their works. These rights enable the freedom of expression and provide creators the right to choose if they want to receive compensation (i.e., whether a work is subject to creative commons) and how they intend to achieve this (that is, through patronage, independent distribution, large-scale distribution, etc.).
However, the anti-IP doctrine outright denies creators the choice to decide these things for themselves. Those who simply use another’s creative works should not be allowed to demand creators relinquish their rights and ability to choose solely so users may gain unfettered and free access to content and information. Yet, this unconstitutional attack is exactly what anti-IP advocates incessantly (and wrongly) claim is for the benefit of society and creators alike in the digital age.
Moody asserts that reverting to a voluntary patronage system devoid of copyright could provide a living wage for creatives. Citing the rise of crowd-funding, he claims, “Creators worry about people sharing their work without paying when they could be concentrating on using their past work to obtain funding for future work.” In other words, Moody believes creators should use non-copyrighted, pre-existing work to garner enough attention to make a living based on consumers’ generosity. Although some modern creators utilize a form of patronage, it is supplemental to, not a replacement for, copyrights. Despite noting that creators worry about the uncompensated and illegal sharing of their works, Moody unfoundedly suggests creators “would be happy to make their work available copyright-free because they work with ‘an eye to securing a place in the artistic pantheon.’” Such statements favor a few exceptional creators over continued content creation and idea sharing.
Furthermore, the patronage model Moody proposes dismantles economically vital copyright-intensive industries in favor of individual creators relying on the generosity of consumers who frequently seek free content. According to Copyright Industries in the U.S. Economy: The 2020 Report, copyright-intensive industries employ more than 5.7 million Americans, offer higher wages, outpace the rest of the U.S. economy in real growth, and outperform most major U.S. industry sectors in foreign sales and exports. These industries and their workers (both creators and non-creators) are at stake if policymakers accept Moody’s ridiculous and contradictory claims.
The loss of copyright protection also removes certain rights and income streams for creators, predominantly moral rights and royalties. Under U.S. law, the copyright concept of moral rights protects creators against the “distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” In other words, without copyright protection, anyone can use a creator’s work to promote themselves or their agenda, regardless of whether the creator wants their work associated with that individual, business, or enterprise.
Similarly, Moody’s system does not compensate creators for new renditions of popular songs, the use of their works in movies or shows, or radio, streaming, and other public performances of their works. Creators of hit songs, cult classics, works ahead of their time, and timeless masterpieces could never recoup the true worth of their works from subsequent royalties. Essentially, creators lose all control over their works and a significant portion of their income under a patronage system. Furthermore, Moody quite literally expects creators to live off exposure. Often in the patronage system, the popularity and dissemination of a creator’s works depended upon prolific production and their patron’s influence more than the quality of craftsmanship. Rather than relying on market forces, they must spend a lifetime constantly creating new works.
Most importantly, the loss of control via copyrights means creators lose their financially lucrative ability to license their works. Like most in the progressive economic camp, Moody blames “big business” for creators’ and consumers’ perceived woes, reiterating the anti-IP allegation that copyright is a tool for large corporations to silence all others. However, the reality is that IP-intensive industries rely on licensing—not litigation—to survive. Despite the introduction of alternative forums such as the Copyright Claims Board, litigation is expensive and almost always a last resort. Instead, most creators and innovators prefer to follow the constitution’s instructions to “promote the progress of science and useful arts” through licensing agreements. From technology transfer programs to synchronization licenses, owning IP and maintaining control over creations allows creators and innovators to loan out certain rights in exchange for compensation. This system further disseminates information and creative works while providing the initial innovator or creator with reasonable compensation.
IP Supports Numerous Industries and Jobs
Another chapter of the anti-IP playbook Moody parrots is the worn-out assertion that IP only benefits large corporations at the expense of individual creators, SMEs, and the global proletariat. As pro-IP advocates repeatedly point out, data contradicts this claim.
A 2021 joint study by the European Union (EU) Intellectual Property Office (EUIPO) and the European Patent Office (EPO) shows a strong, positive correlation between IP rights and economic performance. It states that “IP-owning firms represent a significantly larger proportion of economic activity and employment across Europe,” with IP-intensive industries contributing 45 percent of gross domestic product (GDP) (€6.6 trillion; US$7.9 trillion). The study also shows that IP-intensive industries directly or indirectly contribute to 38.9 percent of European employment. IP generates higher wages and greater revenue per employee, especially for small-to-medium-sized enterprises (SMEs).
That concords with the United States, where the Department of Commerce estimated that IP-intensive industries support at least 45 million jobs and contribute more than $6 trillion (38.2 percent of) U.S. GDP. Likewise, Statistics Canada reports 18.2 percent of all Canadian businesses hold some form of IP, predominantly trademarks. Of those IP-owners, 19 percent have a female as the primary decisionmaker, and 10.1 percent have an indigenous primary decisionmaker. Canada also boasts that 47.8 percent of businesses in the clean technologies industry and 47.8 percent in its information and cultural industries own at least one form of IP. Even the construction (10.6 percent); mining, quarrying, oil and gas extraction (9.8 percent); and agriculture, forestry, and fishing and hunting (8.3 percent) industries maintain some form of IP.
Reports from IP Key, the EUIPO, the International Trademark Association (INTA), and others also highlight these trends in Latin America. IP-intensive industries’ 2019 GDP contributions were 41.9 percent in Argentina, 47.8 percent in Mexico, 48.9 percent in Uruguay, 49.9 percent in Chile, and 55 percent in Peru. Trademark-intensive industries alone accounted for an average of 18 percent employment and a 19 percent wage premium in an INTA study of Argentina, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Guatemala, Mexico, Panama, and Peru. These figures underscore the reality that robust IP rights and protections fuel high-value-added, innovation-based economic growth in nations worldwide.
Policymakers should ignore this latest attempt to undermine IP and instead focus on ways to further enable IP’s role in the digital era. The data proves Moody and the anti-IP camp’s assertions are unfounded.
Creators, industries, the economy, businesses large and small, and more than 5 million U.S. workers rely on copyright. Meanwhile, the patronage system is archaic and irrelevant in the digital age. Policymakers must ignore these unfounded, outdated, and repetitious attacks on creators’ rights, focusing instead on updating copyright laws rather than abolishing them.