Last week was a busy time, so I got behind in my blogging. As is often the case, by the time I can get around to finishing a piece, the point I intended to make has been made. As is also often the case, I’ll go ahead and make it anyway.
Scott Turow, Paul Aiken and James Shapiro last week argued in the New York Times that without copyright, we would have had no Shakespeare. Or at least that’s what the framing of the article was meant to imply. Reading carefully, what they argue instead was that without money, Elizabethean writers would have had no reason to create as much cultural work than they did, that until there was a business model that rewarded performers and writers for their work, the kind of exuberant creativity we seemingly all treasure today would have been impossible. Copyright, as the authors vaguely acknowledge, came later. (You have to know that Shakespeare wrote before 1709 to fully pick up on that acknowledgement.)
This is a pretty classic example of the use of historical analogy as sleight-of-hand, rather than as an investigative tool. Turow, Aiken and Shapiro mean us to understand that copyright was a necessary cause of the possibility of profit that they suggest fueled the work of Shakespeare, and therefore that copyright as we have it today is an equally necessary condition of the continued creation of cultural work. They’re undone by their fatal attraction to the iconic name of Shakespeare, however. If that’s where they want to start the story, the analogy actually undercuts their case.
The dramatic explosion of entrepreneurial cultural creation that they associate with copyright began two hundred years before the first copyright law. Shakespeare, Marlowe, Jonson, made their living without copyright. What came before copyright was the printing press, a new technology that permitted dissemination of printed texts and images on an unprecedented scale, at unprecedented prices.
Authors made a living in the post-Gutenberg era not by creating works of intense personal originality, but by cheerfully rummaging through the works of classical, Christian or other earlier authors and stealing plots, characters, passages. Nostradamus was a bestseller partially because he grabbed whatever he could find that sounded interesting or impressive from both obscure and well-known texts. Shakespeare was a master at this kind of remixing, but so were many of his peers, well-known or otherwise. Early modern printing and creating was quite lucrative, and not just because of Bibles and plays. Pornography was another big profit stream, advice and almanacs, political pamphlets, a whole range of familiar kinds of works flourished.
So why copyright? What did copyright (in English law) do? It secured profits for publishers by protecting their investment, and allowed them to regularize their payments to authors as a result. This was an important development and it had many long-term consequences, some of them very positive. But it was not responsible for making writing and creating profitable, nor was it responsible for the early modern explosion in printing, publishing or for that matter inventing or scientific study. The Royal Society was not Edison Labs, and much of what we celebrate about science and technological innovation today owes far more to the former than the latter.
If you want to work by analogy, you’ve got to take the whole thing on board. If you do that in the case of the financial incentives for cultural and technological innovation, the conclusion can’t be a resounding defense of the copyright regime as we know it. The only way you can use history to prove that the immediately pre-Internet copyright regime was the best of all possible worlds is by using the 1980s as an analogy, at the highwater mark of global legal enforcement of its powers and the most elaborate policy framework clarifying its reach combined with some balance of profitability between most cultural industries and cultural creators. Go back to the early 20th Century and not only do you find many cultural industries substantially unfettered by copyright, you also often find publishers and owners utterly in control and many artists impoverished and cheated out of even meager earnings.
In the end, that’s what most writers, artists, and publishers over a certain age are really looking to: the last great business model. It’s hard not to sympathize with them, or to ignore the fruits of that model. In publishing, for example, many writers had just managed through lengthy collective struggle to secure many rights that their predecessors had been cheated out of.
Early modern European print culture does indeed suggest that money had a lot to do with stimulating a huge wave of cultural invention. It also suggests, however, that there is more way than one to skin a cat. Authors and publishers would be better served trying to figure out a new business model than to equip their old one with more weapons and power.
It may well be that in a new business model, less money will be made, or that it will be spread among more people. Rather than a few professional photographers making large salaries, thousands of amateur photographers making small ones. Rather than a few novelists making large salaries, more novelists making a bit of money. This is about the shift from tournament economies to something flatter and more distributed.
This last point is especially important considering Turow, Aiken and Shapiro’s apparent appreciation for the way that early modern print culture widened the range and volume of cultural creation. If there’s one thing that new media have demonstrated, it is that the old culture industries dramatically underestimated the creative capacity of the world around them, and relied far too much on closed-shop networks to determine whether a work was worth publishing or producing.
If the culture of the future has more people producing cultural work for smaller personal payments, then that says less about what has to happen to copyright and more about what has to happen to the world of work in general. It’s possible to imagine a world where a good deal of what we read and watch comes from creators whose main jobs involve something else. For that to be a hopeful vision, we have to imagine that all work will be less about a crazed pursuit of even more extractive productivity, that we will leave space for many people to have several working lives in parallel to one another, to personally diversify our revenue streams. Which would also, by the way, be pretty close to the early modern habitus that Turow, Aiken and Shapiro claim to treasure so very much.
It’s also worth considering what kind of cultural work might be impossible to undertake in a 21st Century distributed business model because of its very high overhead. In those cases, maybe the protection of very aggressive copyright might still be an important incentive to take that kind of financial risk. Note, however, that this is a very different and more focused idea. Not, “Protect copyright at all costs, indiscriminately”, but “What kind of work requires expensive up-front investment, has great social importance, and runs strong risks of not making its money back in the marketplace whether or not it’s protected by copyright?” Viagra doesn’t pass that test, and neither does Avatar. Before we refocus copyright regimes to this class of cultural work, we’ll all want to rethink what actually does belong in this category.
Shakespeare is a bad example, because he was a shareholder in the company that exploited his creative work. Other playwrights in his period did much worse, since they had no continuing rights in what they wrote. They accepted what payment they could get for selling their copy. Writing wasn’t profitable prior to effective copyright (which is actually much later than the passage of Queen Anne’s law).
It is, of course, true that people write whether writing is profitable or not. And profitable writing is often worse writing (see, for example, Dan Brown).
I think the point is that payment was available, that a model of profit-from-cultural-work was coming into being in early modern print culture. More people wrote in post-Gutenberg print culture than before, and money was part of it. It’s true that the creators of such work didn’t get much from initial performances or distributions and nothing later. In that sense, copyright was an answer to a problem. But it was first and foremost the publishers’ answer, secondarily one for authors.
IIRC, Viagra was originally developed to address a different umm symptom, so is probably a patently bad counterexample.
Good point, but it’s the intellectual property regime that follows which is more my concern.