The Music and Book Killers

by Jeffrey A. Tucker

Copyright law is a just another bogus modern institution we can and should do without, just like the income tax and central banking. International copyright only came to exist in 1891 – it was the result of lobbying not by authors but by publishers! – and has steadily tightened over the century to the point of maniacal absurdity today: thanks to the U.S. Congress, an article you write today is under copyright protection until 70 years after your death.

It is of absolute urgency, for the sake of saving the literary and artistic creations of our time and the future from oblivion, and for the sake of human liberty, that the whole rotten system be smashed. The argument to that effect is crystallized and made super compelling in the fifth chapter of Against Intellectual Monopoly by Michele Boldrine and David Levine. The chapter is pithy, thorough, dead on in its practical analysis, and deeply radical. It is the perfect illustration of why I think this is one of the most original and compelling books on economics in a generation.

Copyright is a subject replete with mythology. People toss around junk legalisms that they pick up on the street while knowing nothing about the facts or the law. They imagine that copyright is important for protecting rights, even though the practical reality is that it is a killer of ideas and a rights violator on a massive scale. Indeed, something must be done to crush this institution before it brings the creative and literary arts to a grinding halt.

As mentioned in earlier pieces, copyright originated as a kingly permission to publish what was politically correct. The privilege passed to individual writers in the 19th century but didn't stay there long: the publishers inherited the right through contracts, and they now use that right to rob writers, musicians, artists, and consumers of what Jefferson considered to be inalienable.

Did the internationalization and institutionalization of copyright actually achieved its stated aim of promoting literary work? There was no increase in copyright registrations as a percentage of the population between 1900 and 1950, despite the double lengthening of the copyright term. So much for the great outpouring of creativity in literature and music.

In 1998, the Sonny Bono/Mickey Mouse Copyright Term Extension Act ("the biggest land grab in history") boosted copyright by 40 percent but with what effect on incentives to produce? None, so far as anyone knows. But the publishers and moguls who pushed for this nonsense are surely happy so they don't have to work harder and can continue to live off the royalties of their long-dead predecessors.

Actually, what that 1998 legislation did was provide a massive boost for authors to find ways out of the chains of copyright. The development of Creative Commons, and other tools, followed because it is ever more obvious that copyright is at war with the digital age. And thanks goodness for that. But in the meantime, copyright in the 20^th century has accomplished horrible evil.

Large swaths of the literary output of the last fifty years, for example, now lie buried in the vaults of large publishers who neither print them nor permit them to be printed absent some huge fee; nor will they return rights to the author. Nor will the publishers allow them to be posted. Getting them back in print is a very expensive and time-consuming operation.

In my own work at the Mises Institute, I've encountered a dozen such cases myself, and while most individual cases offer some possibility of a fiduciary workaround, economic considerations on the margin effectively drive these works off the market. Meanwhile, the greatest thing that could ever happen to an author is for his or her works to enter the public domain but that only happens if you wrote your book before 1963 and the copyright was mercifully not renewed.

Here is a test case brilliantly conceived of by Boldrine and Levine. The works of Edgar Rice Burroughs are right on the fence of the copyright law. Some are out of copyright. Some are in. They compared the circulation between them.

At the time of writing, the books out of copyright were everywhere in print, online, and in stores. In contrast, the books in copyright were all out of print. This is not an accident. In this way, copyright serves as a tax on production, so of course it results in less not more.

The same is true of innumerable authors, including many classically liberal authors. The world is highly fortunate that they published with marginal firms that failed to renew their copyrights after they expired. Otherwise, their works would be unavailable. It is in fact tragic that Hayek himself had major publishers who renewed many copyrights, because that fact alone has caused them to be tethered to the point of limiting Hayek's own influence.

What the 1998 act did was put tens of thousands of titles under copyright that would otherwise have been open to the world. All this was done to protect the work of one company – Disney – which ironically made its fortunate by making movies based on public domain stories! The authors here further point out that large companies have no incentive to bring back into print the titles for which they own copyright because they don't want them to compete with their new hardback titles. It really is a form of legal suppression of literary work going on here, made possible only by the state's law, and it is an outrage. A vast swath of the literary output of the West of the last 50 years has been kidnapped by private parties with the legal approval by the state.

Again, the beneficiaries of the law are not authors and not musicians and artists. Musicians themselves typically earn far more from concerts than royalties. So the conventional theory is wrong: copyright doesn't inspire creativity. These musicians would work and create without it; in fact, no one has a greater incentive for abolishing the current system than creators.

For 2000 years, the core of musical creativity was the emulation and elaboration on existing musical forms, with composers both competing with each other and cooperating in a communal way toward advancement. They depend most heavily on sharing information. If this is stopped, culturally significant creativity is seriously impeded. Copyright shut the cooperative process down at the turn of the 19th century.

Today, serious "classical" composers have to keep returning to public domain material like folk songs to make variations on themes. The music of the 20th century is largely off limits. Meanwhile, the search for originality has created bizarre forms of music within the conservatory culture, none of which has sticking power in the culture at large because it is illegal to imitate it.

This whole scenario represents a radical attack on the very essence of cultural advancement. The repeal of copyright would result in a huge outpouring of great music that uses popular music in a variety of different forms. Composers would be unleashed to write, ensembles could perform and record, and musicians of all sorts would produce with glorious new creativity. As it is, they live in a caged world in which lawyers determine what they can write, play, and record. If you understand this, you can see why musical forms have taken such a huge tumble in the last 100 years, while creativity has taken place only in sectors that eschew copyright, such as jazz and independent rock.

As for recording, the effort to prevent file sharing has been a disaster for artists. Again, this resulted from special-interest legislation. The tethers are so tight now that many bands are reduced to refusing any recording contracts at all, merely so that they can distribute their own music the way they want to. This has been proven again and again to be compatible with huge sales. The best selling CDs of last year were also the ones available for free download.

Whenever this subject comes up, unthinking people toss around crazy bromides. "You mean you want to allow anyone to just steal anyone's work? Why would anyone bother to write a book or write a song."

These kinds of questions reflect what happens to our thinking in a time of statism; we can't imagine how freedom would work. We do not, for example, ask similar questions about other sectors.

"If you allow the private growing of vegetables, why would anyone bother to start commercial farms or open grocery stores? If you allow people to cook at home, why would anyone open a restaurant? If you allow people to just share recipes, why would anyone become a master chef? You would allow just anyone to steal the idea of a tomato or a sauce or a fancy dish that took years in culinary school to create?"

These questions only sound stupid to us because we don't have existing laws covering these topics. Somehow everything works out. Because we have copyright, we can't even imagine how we could get along without it. And yet we see many examples around us. Public domain works are hugely popular and firms profit from selling them, and they are more prevalent than copyrighted works.

What I find striking is that copyright operates today by state-authorized theft of creativity by large firms. Writers and composers and bands permit themselves to be looted of their own right to distribute their own work. Composers work years on a piece and then give up the results to some business corporation in exchange for their right to publicly hum the tune they wrote. It is astounding, and wholly nonviable. 

Fortunately, the free market is finding a workaround to evil copyright laws in the form of Creative Commons and other institutions. In this way, at least there is a path to freedom for us, whereas the same can't be said of patent laws.

Finally, let me say this: I know that I've written many articles on this book and this live blog of this one chapter is long, but the truth is that I've barely scratched the surface here. This one chapter has far more to offer, but I'll end for now.

One last note: do not write me with some smarty pants remark about how, if we are serious, the Mises Institute should allow anyone to publish our books. All our new works, insofar as it is possible, will be published with a Creative Commons license as a matter of signed contract with authors. As for this article, please "steal" it. That goes for anything I write. If you can sell it and make a buck, good for you. If you become a millionaire, shame on me for not thinking of it first.

February 2, 2009

Jeffrey Tucker [send him mail] is editorial vice president of www.Mises.org.

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