Cash or copyright or real creativity?

Cross posted from The Conversation

by Dan Hunter, Dean, Swinburne Law School at Swinburne University of Technology

Imagine you were asked to write a law that encouraged creativity. What would it look like? Whatever your answer, it’s pretty clear that it wouldn’t look like copyright.

Which is weird, right? Because copyright is supposed to be the law that spurs creativity. The problem, it turns out, is that the central features of copyright are directly opposed to the things that support creativity.

Creativity is a tricky thing to understand, and we have very little insight into what animates the creative spark and why some people are more creative than others.

But one thing we do know about creativity is that a really good way to make people less creative, is to pay them. A series of studies by Edward Deci and Richard Ryan Teresa Amabile, and others, have shown that primary school kids don’t learn to read if they’re paid to, artists produce their worst work when they’re commissioned to produce it, and people get worse at solving puzzles if you reward them for successful solutions.

The reason for this? Creativity is closely linked to motivation, and humans become creative when they’re internally motivated by curiosity or interest or desire. They get demotivated — and less creative – when you introduce money into the equation.

We always say that the copyright system supports creativity and artists. But copyright’s foundation is about the allocation of economic rights that are bought and sold. It’s a system that’s built on money, and copyright doesn’t even require that an artist or author be attributed as the creator of their work — which is strange since many artists accept that they won’t make much money, but every artist wants to be recognised as the creator of their own artwork.

So copyright is a legal system built on a premise that tends toreduce creative output, rather than increase it. And that’s even before we consider all of the problems that occur when commercial interests seek to extract the maximum value from their copyrights.

This isn’t to suggest that artists shouldn’t be able to eat. It’s just that if you were designing a system to maximise creativity then you wouldn’t tie creative output to cash like we do with copyrights.

So what would you do? Well, you might provide enough money for artists to live, but not tie it directly to the output, by providing grants or public subsidies or the like. Researchers at MIT showed a few years ago that a good way to encourage creativity is to provide long-term funding, rather than short term reward.

You would make sure that the best work of artists were supported, so you would expand the significance of prizes that award large amounts for very creative work. And you would almost certainly require some kind of requirement of attribution of a work, so that even if artists didn’t get paid, they would at least get their name in lights.

The other thing you would definitely do? Encourage a huge diversity of creativity, of all different sorts, without any expectation of commercial gain.

And of course that’s exactly what the internet does: from LOLcatsYouTuberstweeting and fan fic, to whatever the new, new thing is going to be, the internet provides the medium of creation and distribution of a huge range of amateur material.

Not amateur in the sense that they don’t know what they’re doing — no, “amateur” in the sense that the people doing it are doing for the love of it, not for the creativity-depleting cash.

Maybe, just maybe, a few of these these amateurs will find a huge audience and be able to cash in. Like E.L. James, whose 50 Shades of Grey was originally a Twilight fanfic. Or the fabulously successful Silo novel series by Hugh Howey. Originally self-published, it’s since been printed in numerous countries, has been optioned by Hollywood, and is the basis of a writing stellar career. Howey has embraced the possibilities of the internet and has encouraged an entire community of authors to reuse his material in all manner of interesting ways.

But they didn’t start out this way, they started out doing it because they couldn’t help themselves: they were human and so they had to create.

We shouldn’t think that copyright is the only way, or even the best way, to encourage creativity in our society. Thanks to the internet, we are at the beginning of a brand new understanding of what other possibilities might work better.

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  1. iN this one paragraph is the diagnosis of the malady which is Australia today.
    “The reason for this? Creativity is closely linked to motivation, and humans become creative when they’re internally motivated by curiosity or interest or desire. They get demotivated — and less creative – when you introduce money into the equation.”

    The persons who built this Nation were not blindsided by money, but were motivated primarily by just going a proper job. Think Reg Ansett, Lindsay Fox, RM Williams, Tom Cole and many many others.

    Until this nation goes on its arse and we get money out of the reward equation we just wont be innovative, productive and competitive.
    By then we will be under the flag of someone else.WW

    • There are a lot of quite creative people in Oz. But there seems to be something about the local milieu that sends them offshore, or makes them leave their best work undone.

      It could be the nanny state atmosphere. Or the sense of tight control over everything. I used to joke to my wife that Aussies are descended from convicts AND prison wardens, and in many ways the prison warden genes still have the upper hand! 😛

    • WW,

      Consumers don’t create, that would be contrary to the programing.

      Skippy… in the corner for you!

    • E.L. James’s novel was pushed upon the public just like any product the consolidated media pushes. They just count the consignment as ‘sold’ and those become the book sales for the month. It’s the same with physical to digital music/media sales, the ‘sales’ are just internal, nobody actually buys anything to a great extent. 90% of youtube content is just plain piracy and the other 10% are letsplays, unboxings, media/game commentary, car ads (hardly creative) all owned by large youtube holding companies that all tie back to the big 5. We lost the copyright war in the 70’s and Sonny was the straw. That’s why punk died. That’s why there’s a deluge of poor ‘creativity’. It’s just all about programming the human mind now. See – Mantra.

  2. copyright laws:

    extremely complex and creative proof of “abc conjecture” – no copyright, no patent, no money, no nothing …

    Extremely stupid and non-creative lyrics:

    Baby, baby, baby oooh
    Like baby, baby, baby nooo
    Like baby, baby, baby oooh
    I thought you’d always be mine (mine)

    Full copyright protection 70 years after Justin Bieber’s death (even spoiled Bieber’s grandchildren can bet on that money)

    • Wiles’ proof of Fermat’s Theorem seems a better example, given ongoing controversy around whether or not to accept Mochizuki has proved the conjecture, and, indeed, whether or not his work is mathematics.

      Bieber’s lyrics ought not to receive copyright protection, given they appear to have been plagiarised from Machiavelli and the Four Seasons.

  3. It’s a nice idea, while straining to the general logic of a kindergarten teacher conducting a finger painting class. People will create but they also need to be paid for that time, and most artists never earn enough anyway, so they are committed to their creativity.

    The flaw in the argument is in the failure of ‘the long tail’ to actually provide enough for all that creativity to make a living. Robert Hughes said in the 1980 series the Shock of the New that there were more artists alive now (1980 then) than in all of human history. They were not going to make a living he said.

    The argument in the post commits an implicit fallacy of composition and contradicts itself somewhat. The success of a few, very few, works is always the rational lure although in most cases it’s ego, to share and disseminate one’s version of things that is the motive.

  4. I’m sorry but I call bollocks.

    I understand the argument that internal motivation is more important than external motivation. But the question is whether “creativity”, whatever that is, is the only variable that should be maximised here. To me this reads like a simplistic “maximising utility” argument.

    The article makes a stab at dealing with the equity issues by talking about grants and the like but this smacks of *gasp* socialism and while I have nothing against an appropriate level of public arts subsidy it’s no substitute for owning the results of your efforts.

    We could improve the “utility” of housing by reducing property ownership rights so that the homeless could squat in your spare bedroom. Does anyone think this is a good idea?

    The article gives examples like E.L. James and Hugh Howey but surely one of the keys to their (financial) success was that they retained some sort of control over their work. If Howey chooses to open his fictional worlds to fanfic then good for him. He still pulls royalties for his book and presumably got a big fat paycheck for having his work optioned for Hollywood. If copyright were to be reformed in some magical way, would he have gotten a cut for his work or would it have been “optioned for free”?

    I think there are some interesting sub-issues to be discussed- for example personal copyright vs corporate copyright, how long copyright should last, etc, but to me this article is just looking for an excuse not to pay people. I wonder if the authors feel the same way about corporate copyrights and patents?

    Plenty of the great masterworks of history were done for money. Bach’s Brandenburg Concertos were a job application. In fact the question of how arts have been funded in the past would be an interesting topic. Classical composers were largely “on the staff payroll” for wealthy benefactors or the church. In the Romantic era composers became more entrepeneurial and wrote for commission, for publishing rights or for public performance.

    Turning this around another way, maybe we should apply this argument to Silicon Valley.I wonder how many start-ups we’d have if people knew they were only ever going to get a stipend?

    • Turning this around another way, maybe we should apply this argument to Silicon Valley.I wonder how many start-ups we’d have if people knew they were only ever going to get a stipend?

      What, like Bach when he wrote the aforementioned concertos?

      • yes, ajotsu makes some great points and then seems not to have developed them to answer the question posed…

      • Hey I just throw the balls in the air.

        The short version:

        I find it telling that a law professor would propose eliminating copyright law for individuals and not mention corporate copyright or patent law reform. To me it smacks of a corporate land grab. It’s the creative industry’s version of trying to eliminate the minimum wage. If royalty profits don’t go to individuals, they’ll go to corporation instead.

        Someone (above or below) mentioned the Mickey Mouse copyright law- where Disney successfully lobbied to have copyright extended on MM so they could keep cashing in. At the same time, they successfully lobbied to have back-end royalties reduced. This means if other people’s music is used on TV, for example sports broadcasts such as on ESPN (owned by Disney), they no longer get royalties after a period of time if the show is rebroadcast.

    • having 100+ year copyright on Mickey Mouse clearly did nothing to motivate Disney to create new cartoon characters

    • Here’s a few places to start:

      * Copyright should be divided between “moral rights” and “commercial rights” (I believe in Europe a variation of this already occurs).
      * “Moral rights” are related to attribution, plagiarism, and the like, are automatically and perpetually assigned as part of the work’s creation and cannot be passed to another.
      * “Commercial rights” are related to protecting the commercialisation of a work. They must be applied for and be renewed frequently (say, once a year) and with the consent of the works creator(s) (i.e.: the holder(s) of the “Moral rights”).
      * The expiration of “Commercial rights” should be inversely related to the popularity of the work and the time it takes to create it. Ie: the more popular a work, or the less time it too to create, the more quickly its commercial protection expires.
      * Holders of commercial rights should have to choose EITHER legal protection from copyright OR technological protection from whatever DRM schemes they can dream up, but not both.
      * Commercial rights expire on the death of the creator.
      * Non-commercial copyright infringement should not be an offence.
      * There also probably needs to be a distinction made, and different levels of commercial protection for, different kinds of works where the opportunities for the copyright holder to commercialise are impacted (e.g.: written material vs music vs software).

      * There is an argument, I feel, that Copyright should only exist for natural persons (i.e.: corporations or similar entities cannot hold copyrights for works).

      • I like all of that but those commercial rights should expire after twenty years or death of the creator.

      • I like all of that but those commercial rights should expire after twenty years or death of the creator.

      • I like all of that but those commercial rights should expire after twenty years or death of the creator.

        I struggle to see a reason copyright protection need extend past the death of the creator.

      • Sorry. Left out some words. “Whichever is shorter”.

        I strongly believe any copyright protection based on a fixed number of years is a catastrophic mistake. I think it makes it too easy to game the system by simply changing that fixed number and it treats all works identically regardless of their type and makeup.

      • Just don’t the reason for some guy to write one book when they’re twenty and live off of it for the rest of their life.

        More than that, it seems positively harmful.

        I want Harper Lee to bag my groceries, dammit.

      • Just don’t the reason for some guy to write one book when they’re twenty and live off of it for the rest of their life.

        I agree completely. I just don’t think specific year limits are a good idea.

      • moral rights as you described exist in civil law
        commercial rights exist in civil law as well

        if we really need a copyright (i personally think not) it should last only for few years (much less than patent) because that gives enough time to sell the stuff in our “turbo culture” but it doesn’t prevents people from using similar ideas to create new work. It also prevents big corporations killing competition long after they ended creative and productive work.

        there should be part of commercial rights (at least half) that cannot be passed to another person/corporation. that way people employed with corporation would have incentive to be creative and more importantly it would quickly (after first commercially successful work) give them freedom to become independent and start working on what they think is important (not only some commercial crap for a wage)

      • Good proposal but while vested interests such as Disney exist some compromise will be needed.

        So Moral right goes automatically and perpetually to the author, non transferable.
        Derivitive works needs rethinking, fanfic and remix and so on should be more possible while still providing some protection of moral rights. Not sure how to plug that bit.

        Commercial rights shoudl also be automatic and proabably have to be transferable but should expire quickly. BUT allow for continuing rights to be rented from the state. i.e. if they want their control over the mouse or to keep collecting rents they should have to pay us to do so. This stops the orphan works problem and would free up a lot of commercial work below a certain threshold while still allowing the big powers to keep the things they would never give up on like the mouse.

        At the moment we can’t beat Disney so we have to allow them to have their cake.

  5. Hmmm: Is the phrase: Nurturing Creativity an oxymoron?

    Think about this in the sense that IF Necessity is the mother of Invention and Nurture is the process of providing a safe comfortable environment than Necessity is polar opposite of Nurture.

    In my business finding and rewarding Creativity are essential elements of our success formula yet even in my world it is actually Adversity that produces the most Creative solutions.

    It’s a Weird world we humans create.

  6. An interesting subject, but dealt with rather weakly in this article (fallacies abound). Copyright has nothing to do with maximising creativity; that is not to say that the two are mutually exclusive.

    There are plenty of examples of artists who have continued to generate some of their greatest, most creative work after significant financial compensation flowing from their initial success. It is patronising in the extreme to creative people to think that they should be content with the satisfaction of the act of creation while others go on to reap the financial benefits from their creativity. A good way of providing long-term funding to artists is to ensure that they actually reap the financial benefit of the work they have created, via copyright.

    If the author is in fact mostly concerned with cultivating a society/culture which encourages and values creativity above money, then that is a more fundamental issue of our entire economic structure and values; experimented with through history, never quite adequately resolved.

  7. I like to flip the argument around. Given the existence of copyright laws, and given the existence of technology where any person can send any other person GB of data in seconds and all transmissions are encrypted by default, what apparatus would one need to enforce said laws?

    The answer is ‘the same apparatus needed to implement a pervasive police state’.

    The crazy high internet speeds and encryption of everything by default are on their way.

    The form of the laws doesn’t matter, with the exception of commercial use laws. Either copyright enforcement is doomed, or it’s police state for you! The next decade will show which.

    • Interesting point LD.

      The copyright issue of “data” gets especially interesting when encryption is added especially.when Homomorphic encryption and cloud storage are combined and coupled to high availability high speed comms links it’s game over for most local law enforcement. The homomorphic data can exist on any cloud server, in permanently encrypted form yet its is manipulable, executable, searchable and different for every encryption key. What can a police state do especially if the decode only happens at the display Sure Police could force you to reveal the encrypt key but thats easily overcome by creating multiple levels of file encryption with safe and “under duress” decode keys, standard features for any worthwhile encrypt program.

      The real problem for local police is likely to be that Federal police will deny the local cops access to their breaking tools if only to prevent crooks from probing the capabilities of the Feds. Most local police are not used to dealing with misinformation and have zero experience with CI and absolutely no clue of CCI so they’re capabilities are easily probed through disinformation vectors, this is also why it’ll be impossible for law enforcement to assist in data related civil litigation such as copyright protection (its far too easily probed)

  8. gauntfaceMEMBER

    I favour artists self publishing with a ‘donate’ button. The middle men making money from art could be safely disposed of.

  9. Ultimately, Copyright isn’t going to go anywhere because so much of the future of manufacturing depends on it (ie: the designs that get fed into 3D printers).

    “You wouldn’t download a car”. Yes, I absolutely would, and hopefully, within my lifetime, I’ll be able to.