View from the IP Hall of Fame: The crisis for creators in the digital age

Copyright laws no longer offer sufficient protection to creators, whose only chance of success may be to find a patron of their work

For more than two centuries, writers, composers and artists in the West have sustained their livelihoods through copyright and authors’ rights. These rights came into being as a result of the democratisation of western society brought about by the French and American revolutions. Before that, few creators of works of theatre, music and art were able to rise above poverty, unless they enjoyed the patronage of the church or the nobility. Peter Shaffer’s 1979 play Amadeus is a brilliant portrayal of this system. The play describes the dependence of Wolfgang Amadeus Mozart on the patronage of the Austrian court and the intrigues he faced in sustaining that patronage against the machinations of the less talented and jealous Antonio Salieri. The play is a tragedy – not only because it concludes with Mozart’s early death in near poverty, but because it portrays one of the most brilliant composers of all time reduced to sycophancy in order to make a living.

In contrast, copyright gave creators in the 19th and 20th centuries the ability to be paid by reaching larger audiences with differing tastes. They were no longer constrained by a system which regularly imposed limitations demanded by a narrow-minded aristocratic patron.

The last two centuries have witnessed not only a flowering of democracy, but also an explosion of human creativity. This has coincided with a technological revolution which gave creators the ability to develop new forms and genres of creative art capable of reaching all economic classes and appealing to a kaleidoscope of tastes. However, I fear that the era of respect for the rights of creators may be drawing to a close. Copyright law has been the foundation on which creative artists built their careers and lives, but copyright is undergoing an existential crisis. Technology has turned against artists.

Not long ago, the author-user relationship described the relationship of authors to those who traded in their creative works. Members of the wider public had no expectation of any use of a copyrighted work other than by purchasing a book or cinema ticket. However, now billions have instantaneous access to copyrighted works, which has created an immense constituency of users who believe that they have the right to unlimited, free access to any content on the Internet. This in turn has had an impact on the attitude of law makers. In some countries, self-described ‘pirate’ parties have significant representation in national parliaments. In 2012, efforts to pass the Stop Online Piracy Act in the US Congress ground to a halt after Wikipedia, Google and thousands of other websites coordinated a service blackout. The act’s defeat is but one example of populist opposition to copyright being inflamed by Google and other Silicon Valley giants, which have used their deep pockets to litigate against authors and to lobby legislatures for weak copyright laws. Their litigation and legislative strategies are backed up by the cadre of intellectuals and public interest groups, some funded by Silicon Valley, which make up the so-called ‘information should be free’ movement.

After the initial shock, publishing, music, film and broadcasting companies which trade in creative works have responded by developing new business models tailored to making licensed content more easily available online, while consolidating into a handful of giant multinational media conglomerates to match Silicon Valley’s investment in technology and capacity to litigate. These conglomerates span borders and industries, and have united publishing companies, film and music producers, broadcasters and cable and satellite service providers into single entities. Regretfully, the creative artists who make the entire sector possible have found themselves left out in the cold.

Media giants are striking ever more onerous deals when negotiating for rights, with the result that authors receive an ever smaller piece of the pie. Authors’ bargaining power is weakened when they try to sell paperback and hardcover rights separately, differentiate between domestic and international distribution or participate in derivative uses, such as turning a book into a film script. In the United States, writers and illustrators who contribute to magazines and periodicals are often asked to cede authorship itself as a precondition to receiving work by signing work-made-for-hire contracts. The rise of music streaming services has reduced the opportunities for songwriters and composers to receive performance or music publishing royalties. As well as this, few can police massive, unlicensed downloading through the onerous notice and takedown provisions of the US Digital Millennium Copyright Act.

Creators find themselves facing a painful choice: they must either give in and accept reduced compensation from a conglomerate or give their works away for free. While posting content on YouTube or making it available under a Creative Commons licence may win fame, readers or an audience, it does not pay the bills.

And so, as a practical matter, we have returned to the days when a patron is necessary to finance creative work. This means upfront, one-time payments from powerful media conglomerates or charity or government funding. Copyright and authors’ rights increasingly have little meaning for creators in the 21st century. Sadly, we have entered the post-copyright era.

Bruce Lehman was director of the US Patent and Trademark Office from 1993 to 1998. He is chairman and president of the International Intellectual Property Institute, Washington DC, United States

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