Copyright Is Indispensable For Artists, They Say; But For All Artists, Or Just Certain Kinds?

from the copynorms-matter dept

One of the central “justifications” for copyright is that it is indispensable if creativity is to be viable. Without it, we are assured, artists would starve. This ignores the fact that artists created and thrived for thousands of years before the 1710 Statute of Anne. But leaving that historical detail aside, as well as the larger question of the claimed indispensability of copyright, a separate issue is whether copyright is a good fit for all creativity, or whether it has inherent biases that few like to talk about.

One person who does talk about them is Kevin J. Greene, John J. Schumacher Chair Professor of Law at Southwestern Law School in Los Angeles. In his 2008 paper “‘Copynorms,’ Black Cultural Production, and the Debate Over African-American Reparations” he writes:

To paraphrase Pink Floyd, there’s a dark sarcasm in the stance of the entertainment industry regarding “copynorms” [respect for copyright]. Indeed, the “copynorms” rhetoric the entertainment industry espouses shows particular irony in light of its long history of piracy of the works of African-American artists, such as blues artists and composers.

In another analysis, Greene points out that several aspects of copyright are a poor fit for the way many artists create. For example:

The [US] Copyright Act requires that “a work of authorship must be “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.” Although “race-neutral”, the fixation requirement has not served the ways Black artists create: “a key component of black cultural production is improvisation.” As a result, fixation deeply disadvantages African-American modes of cultural production, which are derived from an oral tradition and communal standards.

The same is true for much creativity outside the Western nations that invented the idea of copyright, and then proceeded to impose its norms on other nations, not least through trade agreements. Greene’s observation suggests that copyright is far from universally applicable, and may just be a reflection of certain cultural and historical biases. When people talk airily about how copyright is needed to support artists, it is important to ask them to specify which artists, and to examine then whether copyright really is such a good fit for their particular kind of creativity.

Follow me @glynmoody on Twitter or Mastodon.

Originally published on the Walled Culture blog.

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Comments on “Copyright Is Indispensable For Artists, They Say; But For All Artists, Or Just Certain Kinds?”

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Chris Mouse (profile) says:

Re: Re:

Actually he does have a valid point. If the requirement for a permanent recording creates a racial bias to copyright, how can copyright be changed so as to eliminate the permanent recording requirement, yet still have it possible to prove infringement in court?

Alternatively, is there another way to re balance copyright so as to eliminate the racial bias? Perhaps removing or altering the Public Performance section of copyright so that performing a derivative work is no longer infringing on the original copyright.

Anonymous Coward says:


This is, in fact, what the copyright lobby has been arguing for. Because they simply can’t be bothered to apply for the permits, registrations or warrants when it comes to enforcing the laws they demand. But I suspect that’s not what you were getting at when you tried writing your gotcha.

CauseOfBSOD (profile) says:

Re: Re:

Yeah, and I just know that a law like this, that reduces the burden of evidence even further on the claimant will only cause harm in the long run.

The US copyright system is already heavily biased in favor of the claimant. Further reducing the burden of evidence like this will only cause harm, and basically make the copyright lawsuits become as commonplace as copyright claims on YouTube.

While the inherent racial bias in the current system is a valid problem, lowering the burden of evidence is not a solution.

Anonymous Coward says:


Try proving that you wrote a work, especially if the fixed form is digital. Noe, even if you are the only ‘performer’ in a video, prove that you recorded, and not a person claiming they hired you and made a recording. At it roots, copyright had an whoever has the manuscript is the copyright holder, noting that when a manuscript was sold th copyright was sold with it.

Anonymous Coward says:


What, like streaming?

It’s definitely harder to find a stream archive from Twitch or “unarchived” streams on Youtube, but people DO record the damn things.

As for accusations, that depends of what kind of accusation is being thrown.

If it’s one of those “monetization” policies, yes, it’s possible to prove some sort of infringement, even under the jurisdiction of choice (and yes, your choice of jurisdiction can be INTERNATIONAL).

Americans are lucky to have fair use as a “shield”.

Wyrm (profile) says:

This is an example of implicit bias through design.
It might not have been intended as biased (benefit of the doubt included here), but cultural norms made copyright inherently more favorable towards certain forms or genre of art that are more common in the culture that created copyright in the first place.
Nothing wrong at first, but the problem is that the system never even attempted to change in order to account for other cultural models when it became apparent that they were excluded by their very nature.

Modern copyright actually accentuated these issues as it was expanded and became less balanced in scope and duration, leaving aside modes of expression that it doesn’t cover and even encouraged appropriation by non-authors.

I never really thought of it that way, but it’s just one more item to the long list of reasons copyright is in dire need of reform. Maybe a whole re-write from scratch at this point.

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