« I Have to Run Errands | Main | Tomorrow's Columbus Appearance »
May 21, 2007
Mark Helprin: Great Writer. Copyright Thinker? Not So Much
The Internets are having a spasm about writer Mark Helprin's suggestion in the New York Times that copyright ought to be permanently invested in the author/creator, i.e., intellectual property ought never go into the public domain. Helprin uses a rather naive comparison of intellectual property to physical property to make his argument, which is surprising since I know Helprin is smarter than that. But this is a problem with being overridingly ideological in one's political life, as Helprin is; it requires one to say and do silly things. I admire Helprin immensely as a writer, and rather somewhat less as a political thinker (although his arguments are always nicely written). I like to read his opinion pieces; I just don't agree with them very much at all.
In this particular case, there are a lot of folks merrily swinging away at why Helprin has got this one completely wrong, so I'll not go into detail about all of this. I will say, however, that one of the great flaws in Helprin's argument is that it's not at all provable that eternal private control of a copyright is to the benefit of the works in question, in terms of their ability to be part of the public life of the nation.
Let me give an example here. As many of you know, I've gotten offers for the movie rights to some of my books. Does this mean that the producers who are interested in the movie rights to my book want to make a movie from my book? Not necessarily. In some cases the producer in question may be trying to produce a movie similar in story/theme to my book, so in buying the rights to my book, he's getting rid of the competition (since then no one else can make a movie from my book). Yes, it's not cheap to do this (although you might be surprised), but it's a lot cheaper than having to compete with a similarly-themed movie.
Another scenario: A movie company buys the rights to the book as a favor to a big star it wants to have act in other films; making a movie from the book isn't the intent, making a bankable star happy is. It's a bauble to give to the actor. I can name all sorts of other reasons why movie rights get sold that have absolutely nothing to do with making movies, but you get the point.
In Helprin's formulation, the value of a copyright resides in monetizing the content the copyright represents. In the real world, however, there's also value for the copyright holder in manipulating copyrights in ways that have nothing to do with the content itself. And not just for monetary gain but for ideological gain -- honestly, now, if there were some way for certain fundamentalist groups to get hold of the copyright to Darwin's Origin of the Species, don't you think it would be worth it for them to do it to control access to the information within? (Of course, Origin of the Species is already in the public domain. But then again, if we're talking about revamping the entire of copyright law to provide for eternal copyrights, why not auction off the copyright benefit for material previously in the public domain? There's money to be made there, not unlike the money the government makes auctioning off the electromagnetic spectrum, ostensibly held in public trust by the government, to private interests). Now, perhaps Helprin is under the impression that an author's heirs would be loathe to give up copyright for anything other than the purest of motives, but you know. Wave enough money in front of people and you'll get what you want.
What would happen, almost inevitably, is that copyrights of any value (positively, negatively or ideologically) would be secured by a few large private repositories, who would jealously police any new content they believed infringed on their copyright portfolio. One suspects that most of these repositories would also be publishers themselves, who would publish on terms advantageous to them (i.e., works for hire and/or assignation of copyright to the publisher after the death of the author). If you don't think it would happen, look at the actions of media companies today and the content protection groups they fund.
Yeah, I'd just as soon avoid all that. I don't mind making my heirs work for a living, I don't like the idea that one day the rights to my work might be owned by people who have no interest in the works themselves, and I like the idea that after I'm dead and don't need the money, that my work goes out to the public in a diffuse, decentralized way. So, naturally, I vote for keeping the public domain aspect of copyright right where it is.
Posted by john at May 21, 2007 03:15 PM
Trackback Pings
TrackBack URL for this entry:
http://www.scalzi.com/mt2/mt-tb.cgi/4700
Comments
Steve Buchheit | May 21, 2007 03:31 PM
"What would happen, almost inevitably, is that copyrights of any value (positively, negatively or ideologically) would be secured by a few large private repositories"
Heck, most people would make the argument about the music industry, but I'm going for something in my field. That argument about copyrights going into the hands of the few is happening right now in commercial photography and the two heavy hitters are Corbis (a Bill Gates Company) and Getty Images.
Brian | May 21, 2007 03:34 PM
Re: Bible, with all but the original Hebrew, Aramaic & Greek, I figure you'd be wrangling the copyrights to the various translations. IANAIPL, so I haven't the foggiest if that's the case, but it seems that it'd be the most workable approach.
nisleib | May 21, 2007 03:40 PM
Scalzi says: I vote for keeping the public domain aspect of copyright right where it is.
What is this voting nonsense of which you speak? You are a dictator! No voting!
Personally I like the thought of all writing being controlled by a small number of large repositories. With all those ideas and all that great writing they are sure to be wise and benevolent, right?
Besides, then someone could TELL me what to read, wouldn't that be easier than having to go out and find quality writing on my own? I know "freedom" is supposed to be a good thing but I spend so much time trying to figure out what to read next I think it might be easier if the choice was made for me while I watched Survivor and ate cheesy poofs.
John H | May 21, 2007 03:41 PM
I used the Bible as a convenient example -- it's by no means the only example. You could also look at any works published by long-dead authors, such as Aristotle or Plato. Finding all the living descendants of an ancient historical figure would be next to impossible...
Brian | May 21, 2007 03:44 PM
Ahh right, sorry, John H. I think Scalzi was addressing material like that with "...why not auction off the copyright benefit for material previously in the public domain?"
Would probably work logistically, but yeah... 's all a pretty terrible idea no matter how you slice it.
JC | May 21, 2007 03:45 PM
I vote for keeping the public domain aspect of copyright right where it is.
Now we just have to allow works to actually go into the public domain. The copyright term has gotten longer and longer over the years. It's currently author's life plus 70 years, IIRC. If Congress keeps this up, we will manage to have both finite term copyright and works which make it to the public domain. *sigh*
JJS | May 21, 2007 04:05 PM
Re: Bible copyright
Recent translations do have copyright notices in them. Or at least my Good News Bible (aka Today's English Version) and my New King James Version both do. This makes me presume that all or most modern translations and paraphrases will be similarly protected.
Matt | May 21, 2007 04:13 PM
Sorry for the threadjack - any more info on the signing in Columbus tomorrow? The tour date entry still has most of the info as TBD. I'm considering coming down from Cleveland, and would like to have my info straight. Thanks!
TransDutch | May 21, 2007 04:18 PM
I like the idea that after I'm dead and don't need the money, that my work goes out to the public in a diffuse, decentralized way. So, naturally, I vote for keeping the public domain aspect of copyright right where it is.
I vote for returning it to Death+50. Many nations have that, and it's certainly sufficient. There's no reason for an individual's heirs to be making money off of the works for more than fifty years.
Scott Elyard | May 21, 2007 04:21 PM
"And not just for monetary gain but for ideological gain -- honestly, now, if there were some way for certain fundamentalist groups to get hold of the copyright to Darwin's Origin of the Species, don't you think it would be worth it for them to do it to control access to the information within?"
No, and I'm actually somewhat surprised to see you make this argument.
Assuming copyright is revamped as postulated, acquiring the rights to The Origin of Species would grant them absolutely nothing, since the information in the book has been duplicated and superceded scientifically many thousands of times over already.
But even assuming it had not, the value would be nil since it is the results, not the text, which are duplicable (even setting aside the fact that purely Darwinian evolution is superceded by the modern synthesis). Johnny Scientist need only publish something which replicates the results--with citation--advocating slightly different terminology to circumvent trademarks &c.
E.g., the medical literature (rather innocently) actually uses different nomenclature to describe evolution by natural selection. They use the word evolution less often.
This doesn't really contradict your point, however, nor would I suggest they wouldn't at least try, since it's obvious to all that there is much they try that has no legal value whatsoever.
Scott Elyard | May 21, 2007 04:26 PM
All that is required to secure a new copyright on text not, say, in English, is to perform a new translation and copyright that. This happens all the time (to the benefit of non-French speaking Verne readers everywhere, for example).
TransDutch | May 21, 2007 04:34 PM
All that is required to secure a new copyright on text not, say, in English, is to perform a new translation and copyright that. This happens all the time (to the benefit of non-French speaking Verne readers everywhere, for example).
Ahh, but you aren't allowed to (commercially)translate something without the permission of the copyright holder until that work enters the public domain. And for that permission, they are allowed to charge any fee.
"Literature is the secretion of civilisation, poetry of the ideal. That is why literature is one of the wants of societies. That is why poetry is a hunger of the soul. That is why poets are the first instructors of the people. That is why Shakespeare must be translated in France. That is why Molière must be translated in England. That is why comments must be made on them. That is why there must be a vast public literary domain. That is why all poets, all philosophers, all thinkers, all the producers of the greatness of the mind must be translated, commented on, published, printed, reprinted, stereotyped, distributed, explained, recited, spread abroad, given to all, given cheaply, given at cost price, given for nothing." -- Victor Hugo (Translation is from a Nottingham Society edition, 1914 I believe, but in the public domain regardless, so you're free to put it on a tshirt and sell it. Otherwise, you wouldn't be.)
archipunk | May 21, 2007 04:37 PM
Wave enough money in front of people and you'll get what you want.
Three words: Winnie the Pooh
John Scalzi | May 21, 2007 04:41 PM
Scott Elyard:
I think you're underestimating the desire particular groups would have in owning a copyright of Origin for symbolic purposes, as well and controlling the specific language Darwin uses. Certainly it wouldn't change the fact of evolution, but it would change how it is discussed if, say, the actual text of Origin were taken off the market in new editions.
Lou | May 21, 2007 05:24 PM
Is it an apocryphal story that Lucasfilm registered the term "Nazi" as a trademark for the Indians Jones films?
I can imagine a publisher holding the rights in perpetuity and also claiming a work is always in print due to POD. It's like Marshall Mcluhan's worst nightmare.
will shetterly | May 21, 2007 05:32 PM
John H, a couple of years back, I sort of answered you with The People Who Owned the Bible.
Fans of copyright should note that you don't need to have the law on your side to stifle the use of a copyrighted property you own. All you need is the money to hire the lawyers to make the legal contest so expensive that few people can afford to challenge you.
John Scalzi | May 21, 2007 05:38 PM
Lou:
Clearly you missed out on last week's contrempts with Simon & Schuster, as they are now planning to do that very thing.
Scott Elyard | May 21, 2007 05:41 PM
I don't really think so. For starters, how would this attempt to control scientific dialogue actually be more widely perceived?
Second, any ancillary high they get from owning the rights to OoS will likely be ameliorated by the realization that copyright ownership does not extend to citations. I can cite any work without even quoting from it. I.e., OoS would continue to be cited. For their actions to have any actual bearing on how the work is discussed, that control would have to extend to any and every journal which publishes scientific papers. See point above.
Third, since the results are duplicable, it would only take a few months for numerous authors to propose alternative terminology and nomenclature to fill the sudden void. So, yes, their ownership would affect how Darwinian evolution is discussed. But not in any way that would be meaningful, even in the short term. Once OoS is removed from print, functionally equivalent work would step in and fill the void.
Unlike taxonomic nomenclature, something so basic to the biological sciences would likely see very fast standardization and adoption.
They may well have to buy the body of Lamark's work in order to influence Darwinian evolutionary biology, and then Darwin's and Mendel's work, Crick and Watson's work, &c., &c.
Even if such a wide swath of cross-referenced and influenced work were to become suddenly unavailable due to some incredibly well-funded cartel bogarting the rights, substitutions would emerge like dandelions in short order by specialists who make use of the work.
So I can more easily see this blowing up in their faces, rather than seeing any actual stymying of reseach or any political points being scored. At best, they'd have won themselves a way to temporarily distract scientists. But then, they already do that every time they get elected to a school board somewhere and try something stupid.
Perhaps a better example would be the copyright status of certain works of L. Ron Hubbard being used to squelch criticism? This has actually happened, and demonstrates how effective copyright can be as a means to silence dialogue.
John Scalzi | May 21, 2007 05:44 PM
No, I still like mine just fine (I think you have too optimistic a viewpoint re: the effects of removing a foundation text). Although I think the L. Ron one is a good one, too.
Andrew | May 21, 2007 06:00 PM
How do you assign copyright to the Bible, for instance?
Simple. Give it to me. I'd be happy to administer the distribution of royalties for a small fee...
Lis Riba | May 21, 2007 06:02 PM
In the real world, however, there's also value for the copyright holder in manipulating copyrights in ways that have nothing to do with the content itself. And not just for monetary gain but for ideological gain
Are you familiar with James Joyce's grandson?
In 2004, the centenary of Bloomsday, Stephen threatened the Irish government with a lawsuit if it staged any Bloomsday readings; the readings were cancelled.He's also suppressed other research by forbidding people to quote his grandfather's materials, and destroyed some letters under his stewardship.
Cat Vincent | May 21, 2007 06:31 PM
Lou:
"Is it an apocryphal story that Lucasfilm registered the term "Nazi" as a trademark for the Indians Jones films?"
Not apocryphal. I remember seeing NaziTM on the box of Indy Jones toys. Lucas also tried that with 'Laser' on Star Wars toys...
Karen | May 21, 2007 06:48 PM
I found Helprin's article significant not so much in the argument it makes but rather in the fact that it explicitly acknowledges that repeated retroactive copyright extensions are infinite copyright in all but name. The very same bit of analysis was made (unfortunately unsuccessfully) in Eldred in an effort to declare the latest extension unconstitutional.
I wonder how many more extensions it will take before that argument carries the day?
Corby K | May 21, 2007 07:05 PM
In the book 1984, which I am sure we are all familiar with, the government changed whatever they wanted in state-approved books and newspapers, and retroactively did so. They did this for two reasons, to control and shape information for their own purposes, and to begin the process of limiting language so people will be unable to form coherent thoughts of rebellion.
By copyrighting these texts, it's a (logical fallicy) slippery-slope to being able to change these texts retroactively. Not that they would be able to, but the temptation is there.
While I have my own thoughts on evolution (just using this as the example, since John posited it), I certainly know the value of having these texts available for perusal. If the Christian church was somehow able to copyright these types of works, whether or not Science would be able to reproduce or re-observe the Origin of Species would be irrelevant, since the church would only be acquiring these copyrights to quash these ideas, and certainly would not stop with Darwin. Money, as they say, talks, and buying a politician is certainly not new - getting a rider on a bill to do nefarious things isn't either.
Maybe that sounds paranoid, but hey, That was kinda the point, from how I read it.
Lou | May 21, 2007 07:26 PM
No I didn't...
Scott Elyard | May 21, 2007 07:28 PM
"(I think you have too optimistic a viewpoint re: the effects of removing a foundation text)"
Optimistic? Maybe. But that's just not the way the scientific literature works. Removing Mendel's findings from the view of the public would not greatly affect the way Watson and Crick's work is discussed or applied. No domino effect is in place here: once published, the djinni is basically out of the bottle for good.
There might be some propagandistic value in claiming control over something they believe more relevant than it is, but given the way people in this country react over far more minor things, I suspect the removal of OoS would likely be a purely Pyhrric victory.
Slightly pertinent to this discussion is the fact that most papers published in peer-reviewed journals are very much copyrighted. So where results are duplicable, copyright as it stands is apparently not a significant impediment to progress.
Lou | May 21, 2007 07:36 PM
I mean I didn't miss it. I was kinda making a point.
John, I think you touched on this on your Google talk.
I see copyright law de-volving back to a Victorian type of thing where the actual work itself is freely distributed. Back then it was because of lax and developing copyright, now we've got digital mass communication.
In both cases, the value of the work is less in the intellectual property itself, it's in the performance. Back then: Writer as rock star (think Tennyson on tour vs. Poe Self-destructing).
Today you'll have movies buying up rights for any of the reasons John has already mentioned, or you'll Be on-stage performing ( ala Google).
In both cases, the value of the work will be less in the copyright than in the revenue streams it then generates.
Crunchbird | May 21, 2007 07:45 PM
For a fascinating and extremely dark take on the extremes to which the protection of intellectual property rights might be taken in the future, I highly recommend K.W. Jeter's novel Noir. Its vision of freelance licensed-to-kill copyright enforcers is downright chilling, and yet it somehow becomes less ridiculous with each passing year.
Eric | May 21, 2007 08:12 PM
I think TransDutch's Victor Hugo quotation sums it up quite nicely. What seems to be happening is that we appear to have forgotten that public domain is actually the default; copyright is a compromise intended to provide authors with a monetary incentive to publish their works so that those works can eventually become public domain.
Copyright was never intended to last forever. If it did, we wouldn't have any sharing of ideas. Never mind fundamentalists sitting on Darwin or the Scientologists' policy of suing critics for infringement: imagine a world in which Shakespeare's distant heirs still held rights to their ancestor's work. No Shakespeare In The Park, no West Side Story, no Ran.
Helprin's idea isn't merely wrong: it's moronic, idiotic, it's drooling nonsense that would embarrass a vegetable with a railroad spike in his frontal lobes. It's an idea that would savagely throttle civilization as we know it (a process that's arguably already underway as Congress continues to extend copyright protections unto infinity; great authors and hacks alike can use the creations of Shakespeare, Conan Doyle, Lovecraft, et al. in new ways but Disney's mouse must be sacrosanct).
I agree with the prior poster that it's not really desirable for copyright to remain as is, although our host's expression of that sentiment is well-meant: life plus fifty is more than enough for an author's heirs to get their due (Philip K. Dick's children come to mind as people who deserve every penny they can wring out of Hollywood) while ensuring that someone's creations eventually get cycled into civilization's compost heap, to feed the hearts and minds of future generations.
Eric | May 21, 2007 08:20 PM
I see Lawrence Lessig's wiki covers many of my points - and more, and in better fashion - at the link second link Scalzi provided. (I especially enjoyed the irony that Helprin himself apparently borrowed from the Bard: get out that checkbook, Mr. H!)
Steve Buchheit | May 21, 2007 08:51 PM
Corby K mentions George Orwell, and that's strange because of what happened with his film rights to "Animal Farm."
http://www.thenation.com/doc/20000612/rogin
Yes, control of rights couldn't change anybody's interpretation or impression of the work. Just like if some evangelical church owened the copyright to OoS. That would just be to cynical.
Ewan | May 21, 2007 09:11 PM
The common error of titling Darwin's work Origin of the Species always seemed especialy pernicious to me, as it implied a targetting of evolution toward humanity that's exactly the opposite of what Darwin noted.
Slightly more on-topic is the discussion that many scientific journals and societies have been having recently with regard to copyright of scientific papers. Open-source journals are making large inroads into the business of scientific publishing, due to many of the concerns discussed here - see for example http://www.plos.org
Dana King | May 21, 2007 10:52 PM
John's Darwin example was chilling enough all by itself.
A.R.Yngve | May 22, 2007 07:49 AM
Indefinite extension of copyright might make sense if the author planned to extend his life indefinitely...
Choose an alternative:
A) Have yourself flash-frozen, preserved for 200 years, wait for the royalties to pile up... and hey presto! You're thawed out a rich man!
B) Keep yourself alive with stem-cell treatments, genetic engineering and any trick science has to offer. Die very old and very rich.
C) Travel at relativistic speeds from Earth, then back again. Collect royalties from future descendants (if they can communicate).
Eric | May 22, 2007 09:18 AM
Modern biology would survive without the Origin of Species. Nobody reads it for the scientific results these days.
But to lose the Origin of Species would be a blow to literature, and to the essayist's craft--Darwin was an excellent writer, and marshaled his arguments carefully, thoroughly and eloquently. Darwin was not only a great scientist, but a great popularizer of science.
Highly recommended.
Francis | May 22, 2007 10:52 AM
I wrote a critique of this at my blog. By far the strongest bit though is where I cut and pasted the arguments made by another author over 150 years ago. That author was Thomas Babington Macauley and his two speeches to the House of Commons on copyright utterly destroy Mr Helprin's basic idea
Clay | May 22, 2007 11:13 AM
If the Helprin argument carried the day, since every living human pretty much has at least one ancestor in common within the few millenia, the Bible, Gilgamesh, etc probably wouldn't be much of an issue. Talk about redistribution of wealth, everyone alive gets a periodic royalty check for the Bible. The gift that keeps on giving. Alternatively, the church fathers and early translators' lineages died out, and those truly are public domain.
Even with more recent works, Chaucer or Dante or Petrarch, etc probably have a few million descendants to one degree of sanguinity or another. Paine, Voltaire, etc probably have at least a few thousand. So the royalties get spread out pretty far, and acquisition of exclusive (or even majority) rights is implausibly difficult.
Ugh. The loss of Rosencrantz and Guildenstern are Dead is enough to stop this in its tracks.
Lis Riba | May 22, 2007 11:31 AM
Other people have pointed out that Mark Helprin's previous writing includes a retelling of Swan Lake, a novel titled Winter's Tale and and a short story "On 'The white girl' by James Whistler"
Chris B | May 22, 2007 02:25 PM
John was hungry. He loved fresh bread. Like the Little Red Hen he grew some wheat, harvested it, ground it into flour, made some dough and baked it.
Chris was hungry too. He offered to help eat the bread. John declined. Chris threatened, "If you don't give me the bread then I'll hit you."
At the trial, the judge found Chris guilty of trying to steal John's bread. The judge explained that, as a general rule, it's a Bad Thing to threaten to use force against someone else unless you are defending yourself against someone who threatened you first.
Chris wrote a poem of forgiveness and recited it to John.
John really like the poem, and told Chris that he was going to recite it to other people.
Chris thought he could make some money off John. Chris said, "You can't recite my poem unless you give me $10."
John replied, "I never agreed to that. I won't pay you."
John recited the poem to some friends who agreed to pay John $10 for the performance.
Chris found out and threatened John again. "If you don't give me that $10 then I'll hit you."
At the trial Chris was asked, "Did John threaten you first?" Chris answered, "No, but he repeated what I said." The judge laughed at such a poor excuse and found Chris guilty of trying to steal John's money.
Chris wrote another apology poem. This time he asked John, "If I recite this poem then will agree to pay me $10 each time you recite the poem to other people?"
John agreed.
And so Chris and John, through voluntary cooperation, made money writing and reciting poems.
Scott | May 23, 2007 09:56 AM
I think your story needs a rewrite. The modern cinematic audience is going to need something stronger than a threat of violence with a rock.
Maybe an extended fantasy sequence where Chris pummels John into a variety of messy shapes, only to be snapped out of it by getting pantsed by John. Or perhaps, instead of a rock, if Chris threatens John with space lasers. Space Lasers are cool.
Chris B | May 23, 2007 12:12 PM
I knew I was missing something. Space Lasers are cool, but Laser Cats are even better.
Mike Crichton | May 24, 2007 12:40 AM
Scott Elyard: Maybe a better example would be neo-nazis acquiring the rights to "Anne Frank's Diary", or white supremacists and MLK's "I have a Dream" speech.
Scott Elyard | May 25, 2007 03:21 AM
Mike Chrichton: those work, too.
"The loss of Rosencrantz and Guildenstern are Dead is enough to stop this in its tracks."
Tom Stoppard's fans are legion. We will stop at nothing to put a stop it, pulling out even all the stops. Not even Helprin will stop stopping our stoppage.
Eric: you know, I hadn't even considered that. But that is certainly true. And should this doomsday scenario of Helprin's come to fruition, that would put the kibosh on derivative works like this. And that would be an abomination.
Scott Elyard | May 25, 2007 03:28 AM
Mike: forgive the typo made in your last name. Sorry.
Ewan: PLOS rocks, but what I really really really want is an all-digital archive of the stuff that's been out of print for decades. With figures and reconstructions offered in high-enough resolution to satisfy certain artists' needs.
Living not very close to a major university library has a few distinct disadvantages.
Post a comment.
Comments are moderated to stop spam; if your comment goes into moderation, it may take a couple of hours to be released. Please read this for my comment moderation policies.Preview will not show paragraph breaks. Trust me, they're there.
The proprietor generally responds to commenters in kind. If you're polite, he'll be polite. If you're a jackass, he'll be a jackass. If you are ignorant, he may correct you.
When in doubt, read the comment thread rules.
John H | May 21, 2007 03:31 PM
I think retroactively removing works from the public domain would be undoable. How do you assign copyright to the Bible, for instance?