We recently wrote about Julian Sanchez's video explanation of how culture
is often a more important part of remix culture than the remix itself. That is, the act of sharing an experience with others is often the key to culture, and those that focus on the content alone often seem to miss this aspect of it, which explains why they often seek to limit the ability to share that culture through copyright. Of course, as with any such debate, when supporters of stronger copyright fail to have significant reasoning for how to counter such an argument, they tend to fall back on the "but it's not art" or "if that's the type of creativity that we get from remixing, we're better off with out it" types of arguments. That is, they begin to focus on the subjective quality of the content, not realizing that such content often isn't directed at them as a target audience, and the people it is directed at, who do enjoy it, really don't care what they think.
Julian has now built on that discussion, first pointing out how obnoxious it is to denigrate these works of art, when nearly all artwork comes from similar derivative processes, but then taking it a step further to point out how the creative process is evolutionary
Current intellectual property law frowns on "copying" as opposed to mere "influence." If I write and record a song that is manifestly influenced by the sound of the Beatles, that's just how culture works; if I remix or reperform a medley of their songs, that's infringing. One way to think about the distinction is to ask how much mutation of the original work has occurred in my head before I send it out into the world. We can imagine my sitting with a guitar playing "Taxman," beginning by improvising new lyrics, and gradually altering the melody until I've produced a song that is sufficiently transformed to count as an original work, though perhaps still a recognizably Beatlesesque one. I'm free and clear under copyright law just so long as I only record and distribute the final product, which consists of enough of my own contribution that it no longer counts as a "copy."
Implicit in this model is the premise that creativity is fundamentally an individual enterprise--an act of intelligent design. Yet so much of our culture, historically, has not been produced in this way, but by a collective process of mutation and evolution, by the selection of many small tweaks that (whether by chance or owing to some stroke of insight) improve the work, at least in the eyes of the next person to take it up. Perhaps ironically, this is the kind of evolutionary process by which myths evolve--myths of life breathed into mud, or of Athena springing full-grown from the head of Zeus. Our legal system now takes these evolved myths as its paradigm of creation.
In the past, we've frequently made the point when it comes to innovation, inventing and patents that innovation is a process
, rather than a single burst. In fact, innovation is an ongoing process that never ends. And yet, patents treat innovation as a once-and-done "flash of genius" sort of thing, despite little evidence that innovation ever happens this way. Effectively, this is the same argument that Julian is making, but for content, rather than innovation. And it makes a lot of sense. The problem that we've seen with patents, where sticking monopoly rights and privileges into the middle of that process leads to hindering the forward progress of that process by limiting how others can continue the innovation, can also apply to content and copyright:
The Romantic model of creativity as an individual act of genius excludes the form cultural creation has taken throughout most of human history, and the legal regime best suited to promote and incentivize individual acts of creation on the Romantic model may be quite hostile to the aggregative process of creation on an evolutionary or peer-produced model. The law says, in effect, that we will protect creativity that occurs all at once, in one brain, or at least as the upshot of a planned and organized effort--but at the cost of forbidding the individually derivative elements of distributed and spontaneous creation.
The point of all of this becomes clear quite quickly, once you think about it. We often have copyright defenders in our comments make a statement like: "please show me any new content that is actively hindered by copyright." But, of course, that's trying to show a negative. How do you show the content that wasn't created? But what Julian is pointing out is that so much content really is an iterative, derivative, transformative process, but the monopoly rights put forth by copyright law effectively hinder that process in the false belief that creativity and content creation is separate from such a process, but springs fresh from the minds of geniuses, without acknowledging the fact that they are merely building on the works of those before them.
Content creation is an evolutionary process. Stifling evolution through blocking important mutations via copyright law creates a loss for society and culture, and doesn't seem to "promote the progress" at all.