John Degen Loses Argument Against Straw Man

April 23rd was the anniversary of the deaths of Shakespeare, Cervantes, and Garcilaso de la Vega, and in celebration, UNESCO has declared that day World Book Day. It is also called “World Book and Copyright Day,” but I don’t think the term is appropriate, since none of those authors’ works were ever under any form of copyright.

Someone who does think the term is appropriate is John Degan. This should not be any surprise: Degen is an outspoken copyright maximalist. He is currently Executive Director of The Writers’ Union of Canada, and Chair of the International Authors Forum; he was formerly Executive Director of the Professional Writers Association of Canada, and Communications Manager for Magazines Canada.

So, Degen decided to write an article called 5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating. Here’s the first problem with that article: nobody in the media is actually repeating the “myths” he’s supposedly debunking. Here’s the second problem: all of the “truths” that he uses to debunk these “myths” are misleading, one-sided, or flat-out wrong. Even when he’s arguing against his own straw man, he loses.

If you actually know the facts, then you’ll realize that what Degen is arguing against are not “myths” about copyright. They’re actually inconvenient truths.

Truth #5. Copyright Can Hinder Artistic Expression

This is the incovenient truth behind “‘Myth’ #5: Artists Feel Restricted by Copyright.” His “truth:” “Professional, working artists who respect their own work also respect the work of others.”

Notice the hidden agendas here. First, he restricts the discussion to “professional, working” artists – the kind of artists his organizations represent. This reflects an elitist attitude, common among copyright maximalists, that the “creative class” consists solely of people who have signed publishing deals. If you attempt to be creative outside that class, you don’t count. Second, he equates “respecting the work of others” with “respecting copyright law.” This, of course, is truly bogus; artists have copied from other artists since before copyright existed (including Shakespeare). Usually, the copying is itself a form of respect – even though it would be considered infringement today.

Degen knows this, because his real target is remix culture, which he seems to think is limited to “anti-copyright crusaders.” He raises two points against this movement, both of which show his utter disregard for it:

  1. “Remix culture was not invented by the Internet.” This is true, but a straw man argument, because nobody that I know claims it was (at most, people claim that the Internet makes it easier). He rightly points out that “original works of art have been referencing and remixing other original works of art since the dawn of… well, art.” What he fails to mention is that many of these works would be unlawful under current copyright law (at least, here in the U.S.). As merely one example, the Bridgeport Music ruling effectively eliminated de minimis use for sound recordings, meaning that albums like the Beastie Boys’ License to Ill or Public Enemy’s It Takes A Nation Of Millions… may be unlawful if they were created today.
  2. “There’s a difference between creative remixing and uncreative copying […] and it’s a line professional artists are happy to have defined by law.” He would have a point if copyright did not also cover derivative works, which by definition are not “uncreative copying.” In fact, copyright law does not make any distinction whatsoever between “creative remixing and uncreative copying.” Either you’re infringing or you’re not; there’s no “creative infringement” vs. “uncreative infringement” under the law.

He might reasonably have brought up fair dealing at this point (Canada’s version of U.S. fair use doctrine), but he doesn’t. And that is because he is has never done anything but argue against fair dealing; here is one of many examples.

Truth #4. Copyright Is Nothing Other Than Harm to the Public Doman

This is the truth behind “‘Myth’ #4. Copyright Harms the Public Domain.”

His “debunking” of this “myth” opens with one of the biggest whoppers I’ve ever seen:

First of all, there is no “public domain” without copyright. By definition, the cultural public domain consists of those works of art and expression that have for one reason or another fallen out of copyright protection. You can’t really have one without the other.

This is absolutely, flat-out wrong. By definition, the public domain consists of those works that are not actively covered by copyright. They may have “fallen out” of copyright (due to the term expiring). The author or publisher may not have met the specified statutory requirements (this is why Night of the Living Dead is in the public domain). The work may not be “copyrightable” (facts cannot be covered by copyright, which is why Rural Telephone lost in Feist v. Rural). Or the work may never have been covered by copyright regulations (e.g. government works are not covered by copyright, so are in the public domain).

The public domain doesn’t need copyright to exist; it is simply the unregulated state of artistic works. Copyright statutes regulate that state, by removing certain rights from the public, and granting them (initially) to authors exclusively. If copyright statutes did not exist, all works would be in the public domain.

He follows up one whopper with another:

Secondly, can we please stop conflating copyright with a lack of access? Anti-copyright activists are weirdly proud of how they “liberate” books into the public domain when copyright terms end.

First, note how he is flipping the script here. When works go into the public domain, it’s because that is how copyright is designed to work. But Degen suggests that it is all due to “anti-copyright activists,” and “they” are the ones who “liberate” works. Of course, nobody (“anti-copyright activist” or not) is actually making that claim.

Second, there is absolutely no question that copyright can at least contribute to the lack of access to works. He brings up The Little Prince, which has in fact been widely translated. However, he does not take into account the fact that it is in the public domain in any country with a “life + 50” copyright term. This includes Canada: it entered the public domain in his home country 20 years ago. It is also interesting that he brings up this specific book, because it is often used as a primary example of how utterly insane copyright laws can be. For more details, see The Little Prince: almost in the Public Domain.

But 99.9% of books under copyright are not The Little Prince. In fact, most books that are still under copyright are not in print at all. For whatever reason, the publisher has decided that it’s not worth the money to keep publishing those books; and solely because of copyright law, nobody else can either. And this situation is hardly limited to books.

But there is another, more obvious, way that copyright restricts access: money. Because the copyright holder has a post-publication monopoly, they are price makers; and anyone who can’t afford the price they make will be denied access to those works. In the U.S. and Canada, this burden has been mitigated by the creation of public libraries. Public libraries are explicitly granted exemptions in the copyright statutes for precisely this reason, and likely could not exist without them. But the move to e-books has allowed publishers to create a much greater economic burden on libraries, including libraries in Canada.

Of course, the situation is much more grim for people in developing countries.

The situation is also grim in academia, where students are a captive audience to massively inflated textbook prices, and university libraries are saddled with rates that are sometimes in the thousands for a single academic journal. This increases the already-high cost of attending college, and is especially problematic at a time when a lack of a college education is practically a guarantee that you’ll live in poverty.

Degen, of course, knows all about this. He is an outspoken defender of Access Copyright, an academic clearinghouse publisher that is famous for things like raising their rates by 1300%, or forcing schools to sign horrible licensing deals on a week’s notice. A bunch of schools got sick of these dick moves, and decided to opt out. Degen wrote an op-ed piece in the Globe and Mail calling this “an unprecedented attack on academic freedom.” Many of the schools rely on Canada’s fair dealing rules to opt out, so Access Copyright declared war on fair dealing. This is one of the main reasons that Degen campaigns against it.

But, let’s get back to the public domain. Degen shows his misunderstanding of it (or contempt for it) as his “truth:”

Works outside the public domain are simply still economically alive, which means folks still believe they’re worth being economically alive. In other words, there’s a functioning economy for cultural works. That’s a good thing, right?

Indeed, it is a good thing that there’s a functioning economy for cultural works. But it doesn’t stop when those works enter the public domain. In fact, it accelerates.

This is easily demonstrated by this graph:

Amazon sales by year published

This shows how many new books are sold by Amazon, according to the year they were first published. Notice the huge decline, starting around 1910? This is because works published after that date are not in the public domain. As a result, Amazon sold as many books published in 1910 as in 2000. And this phenomena is hardly a secret; articles about it have appeared in The Atlantic, The Washington Post, and many other places.

Recall that works by Shakespeare, Cervantes, and Garcilaso de la Vega have always been in the public domain. Yet there has always been a functioning economy for these books, and probably always will be. For many publishers (like Dover, Random House, or Penguin), public domain books have always been a steady source of income. This is not unique to books; many films are based on works in the public domain (e.g. the classic Disney films), as well as a ton of TV shows (e.g. Sherlock).

On the other hand, those works that are still under copyright are often completely out of print. In many cases, especially for older works, the copyright holder simply cannot be found. These are called orphan works, and they are widely recognized as a huge problem. In fact, the U.S. Register of Copyrights issued a report about orphan works in 2006. As the report notes, “there is good evidence that the orphan works problem is real and warrants attention, and none of the commenters made any serious argument questioning that conclusion.” Degen’s view on orphan works is essentially to bury his head in the sand, and pretend it doesn’t exist:

I understand the concern about orphan work theoretically, but to me that is the problem with a great deal of the worry and panic around copyright – it’s based in theory and not practice. Has there ever been a comprehensive survey of working professional creators to determine just how perilous is the problem of orphan works?

It should be obvious why he takes this attitude: if his premise about copyrighted works “being economically alive” were true, there would be no orphan works problem. So, he pretends there isn’t. But even if works aren’t orphaned, the mere fact that they are more likely to be out of print shows that his entire premise is wrong.

Public domain works have always been a massive part of the economy for cultural works. What they are not is a requirement that this economy’s wealth be funneled exclusively to copyright holders. Since this is Degan’s only stake in the economy for cultural works, it’s no surprise that he ignores everything else. He knows where his bread is buttered.

Truth #3. Copyright Can Harm Artistic Freedom; It Is Not A Human Right

This is the incovenient truth behind “‘Myth’ #3. Copyright is an Attack on Artistic Freedom.” He starts out with this anecdotal fallacy:

I have been a working, professional writer for close to thirty years. I’ve felt my artistic freedom threatened by a great many things – state censorship, all manner of fundamentalisms, Internet bullying and shaming… to name but a few. Copyright law is not on that list, and it will NEVER be on that list.

Well, good for him, but he is not most artists. Perhaps instead we should ask Negativland, whose records (and their entire label) were destroyed because of ridiculous copyright claims. Or we could talk with Nina Paley, whose experiences trying to make Sita Sings The Blues led her to become an outright copyright abolitionist. Or we could ask Dan Bull, whose song got taken down from YouTube when a DMCA claim was used to silence his criticism of Lord Finesse. And I personally have known a few artists who could not get their LP’s pressed, because they contained samples.

Of course, many artists won’t have experiences as bad as the above. But an all-too-common complaint is that they are forced into shady deals with publishers (or labels, or studios). This is because publishers collectively have a monopoly on the market, and can act as gatekeepers between the artists and the public. This monopoly is driven by copyright. I’ll have more to say about this below.

Degan continues with another statement that is just plain wrong: “The very foundation of copyright is the insistence that if I create an artistic expression, I own that artistic expression.” This is absolutely not the foundation of copyright. The foundation of copyright is that the public benefits from artistic works. Copyright is granted as an incentive to create and distribute those works.

This fundamental misuderstanding of copyright also leads to this falsehood:

My right to own and profit from my free expression is part of the Universal Declaration of Human Rights. Enough with the Orwellian doublespeak about copyright attacking my rights. Copyright IS my right, dammit.

The “human right” he is referring to is enumerated in Article 27 of the U.N. Declaration of Human Rights. It is part of a trio of documents that, together, define the International Bill of Human Rights. Here is the actual text of the Article, in full:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Like most copyright maximalists, he conveniently ignores the first half of the Article. It’s obvious why: that part explicitly says that the interests of the public in an author’s work are at least as much of a human right as the rights of the authors themselves.

Moreover, the authors of the Bill explicitly said that the second human right is not copyright. They did this in the general comments for the International Bill of Human Rights: “It is therefore important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1 (c).” And recently, UN Special Rapporteur Farida Shaheed delivered a statement that explicitly condemned this falsehood: First, intellectual property rights are not human rights. This equation is false and misleading.” (Emphasis in original. Incidentally, the whole report is well worth reading.)

Truth #2. Copyright Costs Consumers

This is, verbatim, what Degen calls a “myth.” But he doesn’t even attempt to debunk it – instead, he simply justifies it. The impetus for this “myth” is an article called Change to copyright law in federal budget ‘a really bad idea’ as critics worry about threat to artistic freedom. The “billions of dollars” quote comes from Michael Geist’s post, The Great Canadian Copyright Giveaway: Why Copyright Term Extension for Sound Recordings Could Cost Consumers Millions. Geist relies on multiple studies, from multiple countries, to support his claim.

Degan does not even attempt to debunk or deny that claim. His response? “Well, duh. We call that “the economy.””

Except it’s not “the economy.” In a working economy, when you pay for something, you get something in return. In the case of copyright, the public pays, and in many cases it gets absolutely nothing in return. This is especially the case with copyright extensions: the public pays billions of dollars, and they get no new works. Worse, they lose their rights in those works that should have been in the public domain. This is not “the economy,” it’s simple theft.

Here is his “truth:” “Paying artists for works we want to consume is how we have a cultural economy. As long as we live in market-based economic systems, the exchange of money for works, goods and services is going to be an essential mechanism.”

This is true, but completely irrelevant when discussing copyright. Nobody – not copyright reformers, not copyright abolitionists, and especially not me – believes that artists shouldn’t get paid for the work that they do. But an artist doesn’t need a post-publication monopoly to get paid. After all, no other type of worker on the planet gets a monopoly on their labor that lasts for decades after the labor is finished. Yet work still gets done, and workers still get paid.

And they certainly don’t need to get paid for decades after they’re dead. Rent and food may cost money, but pushing up the daisies is free.

Truth #1. Copyright Primarily Helps Corporations

Naturally, Degen spins this into an absolute. His myth: “Copyright only helps Corporations” (emphasis added). Nobody is saying this, of course. What most critics of copyright are saying is that the primary beneficiaries of stronger copyright laws are rights holders, and rights holders – especially of popular works – tend to be large corporations.

This is unquestionably true, especially in music (my field of interest). For instance, numerous studies have determined that extending copyright on sound recordings would primarily benefit major record labels: the Gowers Review (PDF), the Bournemouth Statement (PDF), and the IViR report (PDF). This is not surprising, since three major corporations control 73% of the recorded music market, and 65% of the music publishing market. The situation is not much better in film, where the top six major corporations control 84% of the market (as of 2014). In book publishing, the Big Five publish about two-thirds of the books in the U.S., at least according to the New York Times. The situation is slightly better when you examine the global market, or when you only consider ebooks, but not by all that much. Keep in mind that these companies have often acted as a cabal, fixing prices to their favor, requiring DOJ anti-trust investigations into music labels and book publishers.

This is really common sense. The one thing I like about copyright is that it grants artists something valuable that they can leverage when they make deals with publishers, studios, or labels. But by the time works of art actually reach the public, the copyright monopoly has been transferred to those same publishers (and labels and studios). And because they hold the monopoly on multiple works, they have far more bargaining power, especially when the publishing (&etc.) companies are consolodated. The end result is that these publishing companies, now multinational corporations, collectively control the entire artistic market.

In the long term, this makes the copyright held by artists much less valuable as a bargaining tool. A post-publication monopoly is not worth much if you can’t get your works to the public, and historically speaking, the middlemen that do this (radio stations, record stores, etc.) simply won’t deal with anyone other than corporate rights holders. Or, if they do, it will be on far less favorable terms than they give to corporations. They usually have little choice in the matter; they have to swim with the big sharks in order to remain in business.

The end result is that corporate rights holder have all the bargaining power, and the artists have little or none. It is hardly surprising that this situation leads to the exploitation of artists – and nobody can argue that this hasn’t happened, and isn’t still happening.

That power imbalance is due almost entirely to copyright law. So, while copyright grants artists a bargaining chip, the monopoly that copyright creates acts to nullify it. Whether professional artists end up with a net benefit is a matter of opinion. But to creative people who are not “professionals” – who will never enter into bargaining agreements with publishers – I have no qualms saying that the enclosure of the artistic market is a net negative.

Degen, of course, does not consider the enclosure of the media markets, and doesn’t even mention amateur creators. Instead, he trots out the usual bogeyman: piracy. “I sure don’t remember being offered a contract for the use of my work when it was pirated online.” As if the only people who could possibly be interested in copyright reform are those dirty, dirty pirates.

He also brings out the other stupid bogeyman that all copyright maximalists target: Google. “Say what you want about large media corps, publishers, music and film companies, etc. – they’ve made way, way more of a tangible contribution to the livelihoods of the working artists I know than Google ever intends to.” Of course, Google has made way, way more of a tangible contribution to actual creative expression than any large media corporation – merely by the fact that they let anyone publish online.

And, of course, Google has nothing to do with most copyright reformers. Nor do most Internet companies. But that’s certainly not how Degen frames it: “Guess who profits the most from this ridiculously inaccurate and misleading line of anti-copyright reasoning – giant corporations who have built a business model on free content.” Of course, neither Google, nor any other “giant corporation,” has ever “built a business model on free content.” (Google, for its part, has paid out over $1 billion through Content ID.)

You know who else may profit from this “misleading” line of reasoning? Small companies – the kind that can’t drop $50 million to create ContentID, or spend millions fighting copyright lawsuits that drive you out of business even if you win.

And also public libraries. And universities. And consumers. And anyone who publishes public domain works. And Internet users. And developing nations. And… well, pretty much everyone who is not a well-funded copyright holder, or the rare artist that actually gets money from them.

Degen’s article has nothing to do with debunking copyright “myths.” It has everything to do with spreading pro-copyright propaganda. It is dishonest, and it is wrong. I sincerely hope that nobody out there believes what he is selling.

Especially not creative artists.

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