David Bellos
Subject: What is Wrong with Copyright?
Bio: Author and Professor of Literature at Princeton
Reading: Who Owns This Sentence?: A History of Copyrights and Wrongs is here
If you’d like to share your thoughts on this episode, consider sending a message to @larrybernstein on Substack.
Transcript:
Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein. What Happens Next is a podcast which covers economics, politics, and law.
Today’s topic is What is Wrong with Copyright.
Our speaker will be David Bellos who is a Professor of Literature at Princeton. David has a new book entitled Who Owns This Sentence?: A History of Copyrights and Wrongs. I am interested in learning from David the rationale for Copyright. Is the term of 95 years for most copyrights too long? And should we be looking to extend copyright to such things as fashion or should we be restricting its application to derivative works?
I also want to understand how AI will upend copyright and intellectual property.
Buckle up.
David, please begin with your opening six-minute remarks.
David Bellos:
My co-author Alexandre Montagu is a distinguished alum of Princeton's Department of Comparative Literature where I teach, but he then trained as something sensible. He became a lawyer specializing in intellectual property. Alex said you ought to be teaching your students about copyright because it is the framework for publishing in books and the history of Western culture. He challenged us to integrate a history of copyright into the teaching of literature.
What we wanted to do was to explain what copyright is, where it comes from, why it's so dependent on some very strange twists and turns, and to get people thinking about it.
I was struck by how ignorant even people in the publishing industry are about copyright. My own literary agent who deals with copyright all the time had no idea when copyright was invented or how it developed or why there are translation rights. Even people in professions that deal with copyright seem not to have a view of its history and development.
The view that we have come to is that that the copyright legal framework constrains cultural production today and significantly impoverishes the public domain. That's the point of the book.
Larry Bernstein:
What is the purpose of copyright?
David Bellos:
It doesn't have an underlying rationale because so many things have been added to it. Copyright law includes semiconductor chip design, computer programs, pop songs, novels, they're all encompassed under this huge ramshackle structure. It is only because of the history of how it got to be that way. And not because anybody sat down and devised a rationale as to why the products of the human mind should be treated as properties.
I'm happy to argue with people who say, no, no, no, copyright reflects a deep underlying truth because I'd like to challenge them to tell me what that is.
Copyright law has been changing every few years, everywhere, all the time. It's never settled down. And today it's in a state of particular turbulence and it's very difficult to know what its next step should be because you can't really work out much of a logic behind it.
Larry Bernstein:
Who is encouraging the expansion of copyright?
David Bellos:
The big stakeholders in copyright are proprietary software companies, big venture capital firms that own Universal Music Group, which owns about 30% of all the music you hear. Big venture capital firms like Getty who has acquired rights to the photographs of a very large number of images, and entertainment companies that make movies. The governments of the EU, UK and U.S. since their economies draw huge benefits from the rest of the world from licensing. They're behind not reforming copyright but making it even stricter. There is very little space for speaking on behalf of the general public interest to have easy access to all the cultural products that exist.
Larry Bernstein:
Will AI upend copyright?
David Bellos:
The writer of a book doesn't have any control over what people do with the ideas that are as free as the wind for everybody to use. So why shouldn't a machine do that as well? So that's one side. The other side of the argument is, in order to do that, the machine must make copies of those works and copying the works is an infringement of copyright and therefore must be licensed and paid for. I know that some publishers have licensed their copyrights to some AI firms who want to try and be proper about it.
AI would add massively to the amount of non-copyright material out there. How would you operate a system where anything written by a human creates copyright automatically? The moment you write it down, anything you write on a napkin is copyright in your name, whether you register it or not. This is one of the sillier sides of it, but anything produced by your computer is not copyrighted. It's a nightmare. I don’t know how we would navigate it.
Larry Bernstein:
How has public opinion changed about copyright over the ages?
David Bellos:
Well, it was certainly involved in the 18th and 19th centuries big time. But today somebody needs to raise a voice and say, hang on, there is such a thing as the public domain. Copyright arose initially to create a public domain, that is to say, to limit the control that publishers held over books, which were the primary form of cultural expression at that time. It's been turned on its head and people don’t realize they've been turned back into 17th century peasants where everything belongs to the monopolists. The law in this sense has reversed itself. It's just that eternity is now called 95 years. But as far as I'm concerned that's the same thing.
Larry Bernstein:
There is a conflict. We want to have ideas that are free and be able to use ideas, words, and photos as we wish. But we also want to create incentives for artists to generate new ideas and beautiful things.
David Bellos:
It is probably futile to say copyright should be providing creative people with an income because it manifestly doesn't do that anymore. It produces stars who earn a lot and the vast mass of other writers must not give up their day jobs. The star system we have had for a couple of centuries and it runs right through our culture. And maybe you can't reform copyright or that it didn't have to work with a star system.
Don't you think it's silly that everything anybody writes or creates automatically creates a property? You don't have to register it. It doesn't have to be of any quality or interest.
Larry Bernstein:
It is interesting that the copyright system needs to be constantly adjusted as our technology changes. A copyright holder sued Google for using material on YouTube, and Google won. The essence of the decision is that the burden of proof is on the copyright holder to find the violation and then inform Google who will then owe money to the copyright holder. This seems reasonable. What gives me comfort is that we adapt to new technologies, and if something goes awry, then legislation or court decisions will find a reasonable solution.
These technology companies have us check a box to use their services. It seems its purpose is to prevent abuse by commercial enterprises on the technology platforms and no individual person I know has ever gotten into any trouble by checking a box.
David Bellos:
Well, I don’t know whether you should be worried by the fact that on your Facebook account, you by checking that box, have ceded all monetizable derivative uses of your posts to Facebook but have retained your copyright, which means basically you are responsible; Facebook is not responsible, but you no longer have the right to translate, publish, circulate, charge for, do anything with that post. Facebook has those rights. You've just signed your end user license agreement. I don't know whether it's sinister or practical. Facebook doesn't want to be the owner of copyrights, but it just wants to make money out of you. Okay, fair enough. And you get the pleasure of using Facebook for free as a result.
Larry Bernstein:
Facebook uses your post to maximize its profit. But when your post blows up, the creative improves his brand and can extend the ideas potentially into a profitable derivative work.
I want to pin you down. You think that 95 years is too long for enforcing copyright. What is the optimal time scale for copyright protection?
David Bellos:
It is not that I don't want to compensate anybody for anything. That's not the thing. I want to free stuff up. Things should be made available. There's no public interest argument whatsoever for tying up the reproducibility or the reuse of the work of authors who aren't even there apart from the money. So, my view would be the same as that of Victor Hugo that ownership and control of a work of art in whatever medium should last to the creator's dying day and then stop. There may be special circumstances in premature death, accidental death, but you can take out insurance policies.
Larry Bernstein:
Taylor Swift created a song catalog and sold it to a music publisher, and then recently rereleased nearly identical songs without violating copyright. How does that work?
David Bellos:
In 2018, US Congress passed a Music Modernization Act, which subtly changed the rules about the copyright of the recording of the music, not about the copyright of the music, but about the copyright of the recording of the music. I'm sure that Taylor Swift's action, which followed immediately upon the coming into effect with this new law, is connected just as the spate of sales of song catalogs by Bob Dylan and Bruce Springsteen over the past few years is the direct consequence of that Music Modernization Act. So that's why I say copyright is constantly changing. It is not fixed law. It is law that's being adapted to suit particular lobby groups as we go on. And that's why I would like a broader public to have some voice in all of this because that Music Modernization Act was passed exclusively to benefit a particular set of recording companies and nobody noticed.
Larry Bernstein:
How much plagiarism are you seeing in your Princeton classroom?
David Bellos:
Well, it doesn't happen very often at Princeton. There's been a lot of panic over the use of Chat GPT. But Chat GPT doesn't work for a term paper. I had one submitted in December for a course I was teaching that sounded peculiarly bland and inconclusive, but it was a well-formed paper and it had many quotations in it from the works under discussion. And I noticed I didn't remember exactly those. And so, I looked them up 13 of them and they were attributed to the authors in question, which she was supposed to be discussing, but they didn't have a page number.
All 13 of them were extremely good pastiches of those books, but they weren't actually in the books. And then we realized that for copyright reasons, Chat GPT when you prompt it to write an essay about Othello, it will quote Othello-like sentences. So, the student body has got the message. You can't use AI to write literature essays. Maybe you can use it to write computer science essays, but that's their problem, not mine.
Larry Bernstein:
My grandfather wrote his memoirs about his escape with my grandma and my mom from Nazi Europe. I rewrote and shortened the book entitled The Maquis Connection to read like a thriller. I copyrighted the book. I would love if others used any of the material in the book. That said, I would not want someone to use it in a way that would harm my grandfather’s image or do something antisemitic. My point is that there are non-monetary reasons that maybe copyright could protect the use of material.
David Bellos:
In France, you would have no worry because the right to protect the integrity of the work is yours and it will be your children and your grandchildren's and you could certainly sue to have any work that infringed the integrity of your work withdrawn from the market. The U.S. does not formally recognize moral rights. You would have a hard time in the US particularly with First Amendment free speech rights in quashing a parody, for example, of your work that you felt to be antisemitic or disrespectful to your grandfather. But it'd be slam dunk in France. Not too difficult in the UK.
Larry Bernstein:
The fashion industry does not have copyright protections. As a result, smaller innovative fashion artists complain that knock-off brands imitate their work almost immediately and underprice them. Should copyright be expanded to fashion?
David Bellos:
The fashion industry has been trying to get that legislation passed for 20 years and it keeps failing. And there are the contrarians within the fashion industry who say the lack of IP protection is what makes it lively and a fast-changing industry. And frankly, I have no idea which side is right. I just want to point out that there are areas of creative life in the US that seem to survive without copyright protection. And it's not the case that copyright protection is absolutely required for a creative industry to thrive. In the European Union, fashion is protected by design registration, and maybe it's no surprise that some of the biggest fortunes in Europe are based on fashion copyrights. LVMH owes its wealth to its copyrights in fashion which can't be copyrighted in the US and that's why it's based in Paris.
Larry Bernstein:
Copyright is protected across the world because of the Berne Convention which is an international treaty. Under the terms of the agreement, each signatory country agrees to treat its citizens equally to citizens of other countries who are included in the Berne Convention. Therefore, if country A has a 10-year copyright and country B has a 50-year copyright, then citizens of country A and B get 10-year copyright in country A and citizens of both countries get 50-year copyright in country B. I think the genius of this design is that each individual country can innovate and have its own laws without international conformity. All you need to do is treat everyone equally in your country. Tell us about international copyright protection and the Berne Convention.
David Bellos:
The Berne Convention was an extraordinary achievement. There were at that time very few international organizations. Unlike today when there are thousands of them. Nobody quite knew how to structure them or how to create a sphere of activity where there would be a fair playing field beyond national jurisdictions. And the only real model they had was the Red Cross that had been founded in Geneva in 1864, just 20 years before. And in between, there were two others, the Universal Postal Union and the International Telegraph Union, all of which had settled in Switzerland because believe it or not, Switzerland was really cheap in those days. It was quite a poor country.
The Berne Convention took the Red Cross as its model. There was the American Red Cross and the British Red Cross and the French Red Cross, et cetera. And they had to fit into the laws of their own countries, but they would abide by a set of joint rules established in Geneva about the treatment of medical personnel and war wounded. Getting an actual intergovernmental treaty was way beyond anything they could envisage. And so, the Berne Convention's idea, as you say, is that the contracting parties would not be obliged to change their national legislations, but to treat each other's nationals equally within their jurisdictions. That if you were a French writer published in the UK would in the UK have the same rights as a British writer.
Larry Bernstein:
The US signed the Berne Convention only recently, and previously the US denied copyright protection to foreigners. Why did the US behave this way?
David Bellos:
America was a standout. America was a pirate nation. America didn't recognize copyrights not only in foreign books but in foreigners. So everything could be translated into English in the United States for free. There was no recognition of copyrights in anybody but U.S. citizens. And there was also a very stringent registration process here. Copyright did not arise here on creation, but only on approval by the copyright office. And approval was often refused.
Berne grew in opposition to the big countries: America, Russia, and China, which were outside of any idea of international copyright and indeed of copyright at all until very recently. America did not join the Berne convention until 1989.
Larry Bernstein:
Patents and copyright come from the same idea but international rights followed a very different route. What happened?
David Bellos:
It is indeed very curious how copyrights and patents have a common origin in the privilege system of the early modern era. And they advanced at least in the US in parallel to begin with, two laws passed the same year, but in the mid-19th century, they diverge completely. Patents, you could really call it snobbery, that in the Victorian era is that people who tinker with machinery could get a little bit of a reward, but not too much, whereas poets like Lord Byron should have a more substantial reward. Maybe there's a class element to it of the division between the mechanicals and the poets. Or maybe it's because industry found intellectual property a great burden in the 19th century in America.
And Britain came very close to destroying the patent system entirely. It was very unpopular. Holland held out until 1910, and Switzerland wouldn't hear of patents even whilst it was the heartland of the chemical and steel industry in the 19th century. So I suppose you could say that the puny state of patent law as opposed to the gorilla monster of copyright is the different attitudes that were prevalent in the 19th century led to long delays in the establishment of patent law and in the refusal of nations to engage in anything like a Berne Convention on patents. Patents are still exclusively national. You register for patent in the U.S., it's a U.S. patent. It's valid in the U.S. If you want it to be valid anywhere else, you have to go re-register it. For all the noise that the pharmaceutical and some other industries make about the importance of IP patents, they're not a huge part of U.S. national income. Copyrights are much, much bigger.
Larry Bernstein:
I end each episode with a note of optimism. David, what are you optimistic about as it relates to the future of copyright?
David Bellos:
I do hope that somehow the revolution will come and the world will see the folly of these extremely long copyright terms. Maybe copyright could be allowed to be long, but only if it's renewed every 5, 10 or 15 years.
I also think that it is crazy to have a single law that controls the music industry, the audiovisual industry, the software industry and the publishing industry. I don’t know how many separate laws there need to be, but there certainly need to be more than one that deals with the IP issues within those industries in terms of the ramshackle attempt to use the same wordage to cover everything from a semiconductor manufacturing to the writing of poetry, which the present law does. And so those are the two things that I would like to see happen. God knows whether they will.
And I'm also very skeptical about the heritability of moral right. But that's more in the European sphere where that needs a rethink as well.
Larry Bernstein:
Thanks to David for joining us today.
If you missed last week’s podcast, check it out. The topic was President Lincoln and immigration. Our speaker was Harold Holzer who won the Lincoln Prize for his book Lincoln and the Power of the Press. Harold has a new book entitled Brought Forth on This Continent: Abraham Lincoln and American Immigration. Harold explained why Lincoln encouraged Europeans to move to the US. Many were Catholics from Ireland and Germany who were potential Democratic voters. Harold described how Lincoln successfully persuaded immigrants to fight fir the Union and support the Republican party during the civil war.
I would like to make a plug for next week’s podcast about the topic of the International Criminal Court’s arrest warrants issued against Netanyahu and Israeli military officials. Our speaker will be Greg Townsend who was an ICC prosecutor on the Rwanda and Yugoslav tribunals.
You can find our previous episodes and transcripts on our website whathappensnextin6minutes.com. Please subscribe to our weekly emails and follow us on Apple Podcasts or Spotify. Thank you for joining us today, good-bye.
Check out our previous episode, President Lincoln and Immigration, here.
What is Wrong with Copyright?