Copyrights & Copywrongs
Ethical Considerations
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Copyrights exist so that a person who creates a new work (song, picture, story, etc.) can derive some profit from it. After a period of time, the rights to the work are supposed to go to the public (public domain) so that everyone can benefit from it and to encourage people to produce new works.
This should result in an equitable relationship - the creator gets something back for her effort, and eventually the public gets the ability to use the work freely as part of their own, new creations. Everyone wins and everyone is happy because the moral rights of all parties are respected. At least, that was the situation until large corporations entered the picture.
The Constitution of the United States gives Congress the power to encourage "the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Basic laws in other nations do something similar, and it is important to note that Congress here is not required to do this; rather, if it is done it must be for limited times. It should also be noted that the institution of copyrights exists as a means to an end (promoting the progress of science and arts), not as an end in itself or even as a means to enrich creators, much less corporations.
The first Congress created a copyright law which provided exclusive reproduction (copy) rights to creators for 14 years, renewable for another 14 years. This time period has been gradually extended more and more through successive generations of legislators. In 1998, the House and Senate passed the "Copyright Term Extension Act (CTEA)" which extended protection from the life of the author plus fifty years to life of the author plus seventy years.
For works made for hire, protection was extended from 75 to 95 years, thus giving corporations like Disney another 20 years of control over their works. This is significant because, without the extension, many early 20th century creations (including early cartoons under Disney control) would soon enter the public domain and be available to everyone.
So, what's the problem? For one thing, this represents a creeping abridgment of the Constitution. On January 15, the Supreme Court ruled in Eldred v. Ashcroft that the CTEA was constitutional. This can effectively stop anything created after the 1920s from ever entering the public domain because Congress can just keep passing extensions. So long as the extensions never actually say "forever," that can be their actual effect.
More important, perhaps, is that this represents an abridgment of the moral relationship between artists and society. A common model of the relationship between artists and society is that of creation and consumption: artists create and society consumes, so artists merit far-reaching protections from the society that benefits from those creations. This, however, is too simplistic because the actual relationship is much more reciprocal than is portrayed.
In point of fact, society as an abstract entity spread out over time and space plays a significant role in the creation of art. All artistic production is essentially derivative because we all learn from what we read and see. We are all influenced. When we create something, that creation comes partly from us and partly from that which influenced us. An excellent example of this would be J.R.R. Tolkein's masterful works; he is the author of his books, but his books wouldn't be possible without the culture and history he was able to draw from.
At the same time, artists themselves also benefit from the production of art - not just the final product, but from the act of production as well. People create because they enjoy creation - that's part of what art is all about. There is no simple, single line of benefit flowing from creator to society as if the artist were simply performing a job which merited payment and without any further relationship involved.
Copyrights must expire and artistic works must return to the society which helped create them in the first place. This is a deontological a reason for limited copyrights because the society which helped create a work deserves, eventually, to acquire control over that work. There is also a strong utilitarian reason which justifies works moving to the public domain: it helps in the production of new works.
We need look no further that Disney itself to see why this is true. Many of the works widely regarded as Disney's greatest are not simply derivative of early work, but in fact make open and explicit use of the creations of earlier generations of artists: The Little Mermaid, Snow White, and others were all originally written by others and then adapted by the Disney corporation for film. Had they still been under copyright, where would Disney be today?
It is a bit hypocritical that Disney wants to retain copyrights over films which were only created because of literature which was in the public domain. In other words, Disney wants to keep others from doing exactly what allowed Disney to become so big and so popular. In theory, corporations are allowed to exist for the benefit of the public - but how, exactly, are actions like these supposed to benefit anyone but Disney?
There is another objection to all of this which is partly utilitarian and partly deontological: as large corporations exert more control over copyrighted material, the ability of others to create new, derivative works will necessarily decrease. The only possible effect of this is the stagnation of culture over time, and that benefits no one - except, perhaps, for the large corporations who continue to exert ownership over what little of "culture" is left.
Moreover, there is the odd possibility that current culture might be reduced in diversity. How could that happen? Formats for storing data change and the ability to read old formats is gradually lost. Even now there exists massive amounts of information on data tapes which no one can read. In 100 years, will any machine be able to read our current CDs? Probably not. That's not so bad for data which has been transferred to the new media (like Elvis recordings), but what about data which isn't popular enough for the copyright holder to afford - or even bother - transferring (Vanilla Ice)?
What happens is that it effectively ceases to exist, and in some cases it would be as if the data - artistic creations - had never existed. Some may argue that it would be better if Vanilla Ice's music had never existed, but the point is that the diversity of our culture will be seriously reduced, and that is not a good thing. This sort of material should continue to be available for people to use, and that is exactly what would happen if it were allowed to enter the public domain.
Some defend the Supreme Court's ruling by arguing that allowing copyrights to expire would have cost large corporations hundreds of millions of dollars - but this completely ignores the question of whether large corporations should have the right to continue making that money off these works in the first place. In fact, such losses will occur if copyrights are ever allowed to expire, so does that mean that they really should be permanent? As explained above, that would be both unethical and unwise.
Unfortunately, some seem to throw both ethics and wisdom to the wind and argue that copyrights should be permanent! Copyright protection lasts only 50 years in European Union countries, meaning that recordings made in the early- to mid-1950's are starting to enter the public domain in Europe. This, in turn, will allow any European recording company to release albums of that music. Neil Turkewitz, the executive vice president international of the Recording Industry Association of America, refers to such releases as "piratical products."
They aren't piracy according to European laws where they are released, so Turkewitz must be alluding to some "higher law" according to which artistic creations cannot morally be reproduced by anyone other than the corporations which own them. His argument? Well, he doesn't offer one - indeed, no one has offered an argument as to why copyrights should be permanent instead of temporary, while there are very strong arguments as to why copyrights must be limited and temporary - for the benefit of all.
The Supreme Court decision may have been technically correct, although there is something problematic in allowing Congress to engage in actions which result in a practical abridgment of the Constitution, even if that abridgment isn't written out. Regardless, the decision is ultimately immoral because the CTEA was itself immoral, tearing through a moral relationship and moral contract between artists and society which is necessary for cultural development. Corporations benefit, but everyone else - including the artists - loses.
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