Copyright's True Origins

There is one group of people not shocked by the record industry's policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers, which today includes record companies. But now that the Internet has given us a world without distribution costs, it no longer makes any sense to restrict sharing in order to pay for centralized distribution. Abandoning copyright is now not only possible, but desirable. Both artists and audiences would benefit, financially and aesthetically. In place of corporate gatekeepers determining what can and can't be distributed, a much finer-grained filtering process would allow works to spread based on their merit alone. We would see a return to an older and richer cosmology of creativity, one in which copying and borrowing openly from others' works is simply a normal part of the creative process, a way of acknowledging one's sources and of improving on what has come before. And the old canard that artists need copyright to earn a living would be revealed as the pretense it has always been.

None of this will happen, however, if the industry has its way. For three centuries, the publishing industry has been working very hard to obscure copyright's true origins, and to promote the myth that it was invented by writers and artists. Even today, they continue to campaign for ever stronger laws against sharing, for international treaties that compel all nations to conform to the copyright policies of the strictest, and most of all to make sure the public never asks exactly who this system is meant to help.

The reward for these efforts can be seen in the public's reaction to the file-sharing lawsuits. While most people agree that this time the industry went too far, the error is mainly treated as one of degree — as if the record companies had a valid point, but had merely resorted to excessive force in making it.

To read the true history of copyright is to understand just how completely this reaction plays into the industry's hands. The record companies don't really care whether they win or lose these lawsuits. In the long run, they don't even expect to eliminate file sharing. What they're fighting for is much bigger. They're fighting to maintain a state of mind, an attitude toward creative work that says someone ought to own products of the mind, and control who can copy them. And by positioning the issue as a contest between the Beleaguered Artist, who supposedly needs copyright to pay the rent, and The Unthinking Masses, who would rather copy a song or a story off the Internet than pay a fair price, the industry has been astonishingly successful. They have managed to substitute the loaded terms "piracy" and "theft" for the more accurate "copying" — as if there were no difference between stealing your bicycle (now you have no bicycle) and copying your song (now we both have it). Most importantly, industry propaganda has made it a commonplace belief that copyright is how most creators earn a living — that without copyright, the engines of intellectual production would grind to a halt, and artists would have neither means nor motivation to produce new works.

Yet a close look at history shows that copyright has never been a major factor in allowing creativity to flourish. Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors.

The arrival of the Internet, with its instantaneous, costless sharing, has made that business model obsolete — not just obsolete, but an obstacle to the very benefits copyright was alleged to bring society in the first place. Prohibiting people from freely sharing information serves no one's interests but the publishers'. Although the industry would like us to believe that prohibiting sharing is somehow related to enabling artists to make a living, their claim does not stand up to even mild scrutiny. For the vast majority of artists, copyright brings no economic benefits. True, there are a few stars — some quite talented — whose works are backed by the industry; these receive the lion's share of distribution investment, and generate a correspondingly greater profit, which is shared with the artist on better than usual terms because the artist's negotiating position is stronger. Not coincidentally, these stars are who the industry always holds up as examples of the benefits of copyright.

But to treat this small group as representative would be to confuse marketing with reality. Most artists' lives look nothing like theirs, and never will, under the current spoils system. That is why the stereotype of the impoverished artist remains alive and well after three hundred years.

The publishing industry's campaign to preserve copyright is waged out of pure self-interest, but it forces on us a clear choice. We can watch as most of our cultural heritage is stuffed into a vending machine and sold back to us dollar by dollar — or we can reexamine the copyright myth and find an alternative.

The Surprising History of Copyright and The Promise of a Post-Copyright World