Authors Do Not Create Content In A Vacuum... So It's Too Bad Copyright Often Pretends They Do

from the on-the-shoulders-of-giants dept

The website Copygrounds, which has been interviewing various people involved in various copyright issues, has an interview with the always interesting Henry Jenkins (who we've quoted a few times in the past). The whole interview is worth reading, but I wanted to call attention to one key part, when the interviewer asks Jenkins about the European concept of "moral rights," which the US has explicitly rejected:
The current American system rewards authorship rights to corporate owners at the expense of both consumers and authors. The European tradition rewards moral rights to authors at the expense of the rest of the culture. Neither represents the most desirable system, in part because both falsify the actual conditions of authorship. Authors do not create value in a vacuum. All writers are already readers who are processing elements of their culture as the raw material for their own expressive and intellectual output, and in turn, their work becomes the raw materials for the next phase of creative expression.
That line: "Authors do not create value in a vacuum," is a good one, and deserves to be repeated. So much of the debates we have on copyright and related issues seems to center on this belief that they do. In that patent realm, it's the whole "flash of genius" concept, but it certainly applies in copyright as well. The system is designed as if people are creating things entirely from scratch, rather than pulling from the culture around them to put it together in new and creative means. Disney, of course, is famous for taking old stories and making them new again, and yet it refuses to let others do the same to its works. Authors do not create value in a vacuum. And, of course, it goes beyond the idea that authors are building on what's come before. The value piece is often added by the readers themselves, and how they interact, mold and share the content that has been created. Authors do not create value in a vacuum... but we've built up laws and institutions that seem to assume they do.


Reader Comments (rss)

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  •  
    identicon
    Anonymous Coward, Oct 20th, 2010 @ 8:01pm

    If authors are so original, then why don't they just make up their own words to use?

     

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      MrWilson, Oct 20th, 2010 @ 8:22pm

      Re:

      Even *when* authors make up their own words to use, in fact, even their own languages, they still base them off of pre-existing languages. Even the concept of making up a new language isn't a new idea.

      Even J.R.R. Tolkien, who was famous for the depth of detail to which he went to make his writing seem authentic, based his fictional tongues on dead languages that he found fascinating.

      Read the Wikipedia entry for more details: href="http://en.wikipedia.org/wiki/Languages_of_Arda

       

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    justok (profile), Oct 20th, 2010 @ 8:16pm

    Authors do not create value in a vacuum...but, boy, do some of them suck!

     

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    MrWilson, Oct 20th, 2010 @ 8:26pm

    One of my favorite examples of "Authors do not create value in a vacuum" is Star Wars. George Lucas borrowed from classical mythology, the Old West, World War II, Japanese Samurai, Templar Knights, King Arthur, Buck Rogers, and more. And he's the creator of a $15 Billion franchise.

    But beyond all that, the greatest boon to the Star Wars franchise is the imagination of its fan-base. If kids hadn't grow up imagining their own adventures as Jedi Knights, Corellian smugglers, and Rebel starfighter pilots, the franchise could have died out after the Star Wars Holiday Special and the Droids and Ewok cartoons.

     

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    Robert Boyle, Oct 20th, 2010 @ 8:42pm

    Cures and treatments

    "If authors are so original, then why don't they just make up their own words to use?"

    Real authors actually are in a vacuum, and need to get air. And right this moment, many authors have flocked over to Apple.com where they gaspingly whack their keyboard to be placed on the waiting list for a product called Macbook Compressed Air. The "Book Of Ancient Chinese Medicine Man Prophesies" state that Macbook Compressed Air can cure some of the symptoms authors that live in a vacuum experience.

    The same prophesy claims Macbook Compressed Air also cures having 100 tabs open, and has power to convert Android loyalists to iPhone, but these two theories haven't been scientifically proven yet.

     

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    Terry Hart (profile), Oct 20th, 2010 @ 9:28pm

    Examples

    What are some examples where Disney has refused to let others build off their works?

     

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    Anonymous Coward, Oct 20th, 2010 @ 10:17pm

    Re: Re: Re: Re: Examples

    "Guess we'll never know what could be done with Mickey Mouse since we'll all be fricken dead by the time copyright expires on him."

    You could always "Tweet It".

     

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    Anonymous Coward, Oct 20th, 2010 @ 10:22pm

    Since copyright law (and patent law for that matter) does not pretend that authors create works in a vacuum, the title of this article seems off the mark.

     

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      Mike Masnick (profile), Oct 20th, 2010 @ 11:54pm

      Re:

      Since copyright law (and patent law for that matter) does not pretend that authors create works in a vacuum, the title of this article seems off the mark.

      Except that it does. Giving one person a monopoly on the idea shows that it does.

       

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        petegrif (profile), Oct 21st, 2010 @ 2:30am

        Re: Re:

        that is completely specious
        a) copyright law protects expression. If the expression is unique you have copyright. The only material issue with respect to prior cultural artifacts is - have you plagiarized them in which case you don't get copyright.
        b) patent law is much more explicit that prior art is directly relevant. You can't get a patent if it can be demonstrated there is prior art and your contribution is not novel and even if you get it because no-one detected the prior art at the time anyone can litigate to get the patent recinded.

        giving what you call a monopoly proves nothing.

         

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          Anonymous Coward, Oct 21st, 2010 @ 5:52am

          Re: Re: Re:

          WOW THATS AMAZING!!!

          So all I have to do is spend a couple million dollars in a lawsuit to prove prior art ... BEST SYSTEM EVER!

           

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          Anonymous Coward, Oct 21st, 2010 @ 6:06am

          The difference between theory and practice

          The difference between theory and practice is greater in practice than in theory.

          In theory, it works like you described and everything is fine. In practice...

          a) There is something called "derivative works". Even if your expression is unique, if you based it on someone else's (and since authors do not work in a vacuum, it is hard to completely avoid it), you can be sued and lose. And how much is needed for something to be a derivative work? Is the same story retold from the point of view of the antagonist a derivative work? Is a different story on the same universe a derivative work? Is a completely independent story but with similar characters a derivative work?

          The current tendency seems to be taking an expansive view on "derivative works", meaning that in the end you get an almost monopoly on a particular idea.

          Also, plagiarism is copying something and passing it off as your own, not just copying something.

          b) First, you can get a patent if there is prior art. You can even get a patent if someone else has a patent on it (there was a famous case of it, I cannot recall if it was RSA or LZW). And litigation to get the patent rescinded is very expensive, so it is not a practical option.

          And even if the patent is valid, other people do not work in a vacuum. They would like to make small improvements to your patented work - except that they can't. The theory is that they would simply license the patent; in practice, the patent owner often will not want to license, wants unreasonable conditions, it is too expensive (even if a single patent is not expensive, it is not uncommon to have to use hundreds or thousands of patented techniques to manufacture something), or they simply do not know about the patent (with millions of patents, written on a code which needs a lawyer to decipher, and with scope which is only really decided after litigation, it is simply not possible to know which ones apply).

          It is no wonder patents create a monopoly, and often several overlapping monopolies, generating extremely wasteful amounts of litigation.

           

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        Anonymous Coward, Oct 21st, 2010 @ 8:50am

        Re: Re:

        Neither copyright nor copyright law embrace "ideas". In fact, at the "ideas" stage neither Title 17 nor Title 35 even come onto play since the former to apply requires expression fixed in a tanglible medium, and the later requires at least a conception, i.e., a complete and operative form of an invention that must subsequently be reduced to practice either actually or constructively.

        Can "ideas" per se possible be eligible for enforcement under some legal theory? In very limited instances the answer may be "yes", but this is a matter generally within the scope of contract and unfair competition law, laws that are divorced from federal copyright and patent law.

         

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          Mike Masnick (profile), Oct 21st, 2010 @ 10:21am

          Re: Re: Re:

          Neither copyright nor copyright law embrace "ideas". In fact, at the "ideas" stage neither Title 17 nor Title 35 even come onto play since the former to apply requires expression fixed in a tanglible medium, and the later requires at least a conception, i.e., a complete and operative form of an invention that must subsequently be reduced to practice either actually or constructively.

          I love it when lawyers stubbornly insist that the law says something so the damned reality before their very eyes can be ignored.

           

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            Anonymous Coward, Oct 21st, 2010 @ 12:01pm

            Re: Re: Re: Re:

            Try to secure a copyright on a work that has not been fixed in a tangible medium of expression.

            Try to secure a patent on an invention that has neither been conceived nor reduced to practice.

            Ideas are not protectable (except in some circumstances under, perhaps, law such as contract law) under either copyright or patent law.

            If you can show me a copyright on an "idea", as opposed to a "work", I will certainly reconsider my comment...but this will likely be a bit difficult since by definition an "idea" is something that is does not exist in any tangible form.

            If you can show me a patent on an "idea", as opposed to an "invention", I will certainly reconsider my comment...but this will also likely be a bit difficult to do since be definition "conception" commences the "inventive process" and "reduction to practice" concludes it.

            There are circumstances where a copyright or a patent can present issues, but "ideas" is not one of them.

             

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        JEDIDIAH, Oct 21st, 2010 @ 10:12am

        It's the perpetual ownership that's the problem/indicator.

        No. It's not the monopoly that shows this notion that authorship exists in a vacuum. It's all of the one sided extensions to copyright that keep on happening that benefit "proprietors" to the detriment to the rest of society.

        It's this notion of "ownership" in perpetuity that shows a clear disregard for the fact that creative works are collaborative and derivative in nature.

         

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      petegrif (profile), Oct 21st, 2010 @ 2:24am

      Re:

      agreed

       

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      alexbasasa, Oct 21st, 2010 @ 5:51am

      @ 12

      It does pretend authors create in a vacuum when it doesn't protect our right to a public domain that isn't a hundred years old!
      As copyright duration is extended and extended we loose free access to the culture of the twentieth century and loose an important fuel for our creativity.
      I'm not very much into Mickey Mouse, but take for instance Jazz music. It thrives on building on copyrighted songs. I'm sure many many Jazz musicians "go illegal" in order to make a living from their art, they couldn't possibly clear all the rights. Copyright is not protecting these creative people's side of the debate.

       

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      alexbasasa, Oct 21st, 2010 @ 6:13am

      @ 12 pt 2

      Beethoven's works are in the public domain. I can get them for free on IMSLP or buy cheap editions (it's nice to have real life scores). They cost about $10.

      One of the greatest works of the Twentieth century is Messiaen's Turangalīla Symphony. The score costs about $150 (I was actually glad to check again for this post, it used to cost $300!).

      I would love it if copyright lawmakers acknowledged that creative people need a healthy public domain. Which is what they seem to be totally ignoring.

       

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    Felix Pleșoianu, Oct 20th, 2010 @ 11:38pm

    Preaching to the choir

    I couldn't help but write about this myself, not long ago, in the context of game design (shameless plug). I also can't help but wonder if it's going to convince anyone who isn't already convinced. Not that it's impossible, but it's so rare I sometimes lose hope.

     

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    petegrif (profile), Oct 21st, 2010 @ 2:23am

    This argument is fallacious.
    a) of course they don't create in a vacuum. nothing is so created. so reductio ad absurdum nothing can be created.
    b) copyright does not protect the ideas - some of which, or precursors of which were indeed floating around - but the expression. And the expression was not floating around. 'Catcher in the Rye' was indeed written in a time and place but it didn't just fall off a tree.

     

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      Mike Masnick (profile), Oct 21st, 2010 @ 5:08am

      Re:

      This argument is fallacious.

      Your understanding may be, but the argument is sound.

      a) of course they don't create in a vacuum. nothing is so created. so reductio ad absurdum nothing can be created.

      That statement is, of course, meaningless, and has nothing to do with what I wrote.

      b) copyright does not protect the ideas - some of which, or precursors of which were indeed floating around - but the expression. And the expression was not floating around. 'Catcher in the Rye' was indeed written in a time and place but it didn't just fall off a tree.

      Interesting example. Since a US court recently banned entirely unique expression in the format of an unofficial sequel to Catcher in the Rye. Seeing that decision, I'm at a loss as to how anyone can still claim copyright law only protects expression and not ideas.

      Lawyers love to hang their hat on the idea/expression dichotomy, which sounds so good in theory. The reality is that there is no such thing.

      The point remains. Copyright is based on the idea that works are created wholly from an individual's own genius, and then protects it.

       

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    Terry Hart (profile), Oct 21st, 2010 @ 2:59am

    It's "assumed" that authors do not create value in a vaccuum. Is there less creation now then at some time before? Are musicians making less than before? Is the movie industry making less than before? How has increased copyright duration effected this? Has there been a noticeable dropoff in creativity since the CTEA? Have we seen less new works, or less revenues since the Sonny Bono Act?

     

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      The eejit (profile), Oct 21st, 2010 @ 3:21am

      Re:

      See, authora can NEVER create value in a vacuum, because of societal constructs.

      Basil, the Great Mouse Detective is directly based on the works of Arthur Conan Doyle, who based Holmes on a colleagus of his.

      Popeye is a direct ripoff of Steamboat Willie. That fact that the characters are human does not change that.

      Snow White is a direct rippoff of the folktale.

      Shakespeare was a p[lagiarist of the highest order, and yet he's one of the most crlebrated playwrights in the world.

      Chaucer literally stole his stories frrom people and published them. Sound familiar? Look up one Gilderoy Lockhart.

      Wihtout some form of plagiarism, most of the things we have would not exist.

      Copyright durations mean that works, such as Beethoven's 5th, are NOT PUBLIC DOMAIN. It's not about the creating of the work; it's about the stifling of new, yet derivative, works.

       

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      Anonymous Coward, Oct 21st, 2010 @ 3:32am

      Re:

      The old ones that care for copyright are making less art, they don't work as hard anymore.

      The new ones trying to do something new are flourishing so you get the idea that copyright does not do the work it is supposed to do and that is to incentivize people to create more because the people who need it the most don't produce anything and the people who don't need it and even ignore it are the ones producing. When your supposedly most creative people produce less there is something wrong. Doubt it?
      Got the numbers to disprove what I just said please show it to us.

      Lets get the hundred top artists of today and compare them with the top artists of yesterday.

      Heck the daughter of Curtis Lee is a great example she did a lot less then her father but probably has more money. Curtis made around 200 movies others today make a 100 that is a drop in production.

       

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      Mike Masnick (profile), Oct 21st, 2010 @ 5:14am

      Re:

      It's "assumed" that authors do not create value in a vaccuum. Is there less creation now then at some time before? Are musicians making less than before? Is the movie industry making less than before? How has increased copyright duration effected this? Has there been a noticeable dropoff in creativity since the CTEA? Have we seen less new works, or less revenues since the Sonny Bono Act?

      Geeze. Correlation != causation. Terry, you're ruining my view on you as an intellectually honest player in this debate.

      Do you really not understand the difference between absolute advancement and the rate of advancement?

       

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        average_joe (profile), Oct 21st, 2010 @ 10:03am

        Re: Re:

        Do you really not understand the difference between absolute advancement and the rate of advancement?

        I've never heard of that. Could you break it down for us?

         

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          Mike Masnick (profile), Oct 21st, 2010 @ 4:40pm

          Re: Re: Re:

          I've never heard of that. Could you break it down for us?


          Are you serious, or are you joking?

           

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            average_joe (profile), Oct 22nd, 2010 @ 6:31am

            Re: Re: Re: Re:

            I was being serious. I think you mean the actual growth vs. the rate of growth. For example, we could have more works being created overall, but at the same time, the rate of creation per person could be decreasing. Is it something like that?

             

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      Anonymous Coward, Oct 21st, 2010 @ 5:54am

      Re:

      Yes.

       

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      Anonymous Coward, Oct 21st, 2010 @ 9:53am

      Re:

      You know, I think the important contextual factor here is the internet.

      As the internet has grown, both production and access have increased. Stronger copyright? No. The word of the law is stronger, but its actual effect on public behaviour has never been weaker. The internet has done good for the public, and done it because it has overcome the restrictions of copyright.

       

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    out_of_the_blue, Oct 21st, 2010 @ 5:33am

    X "do not create value in a vacuum" is basis of

    all justice regarding proportioning societal rewards. I'll just note that The Rich like to spread the myth that they're the source of all ideas and production, not to wander too far off topic. Also, that "corporate" ownership of copyrights is a *big* problem. The Constitution refers only to authors, not a corporate sponsor. -- Perversely, the "corporate" version is more socialist in effect than the European method. But American "conservatives" regard socialism as okay if big business is the beneficiary (Wall Street BAILOUT, for instance).

    [Since this thread was hijacked by the interogatory method, I'll mention again that a mechanical filter for number of question marks in one post, and limiting frequency of posting would be a great help here. Even if not totally effective, the effort to bypass such mechanical limits would provide valuable information in itself.]

     

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