New Worlds: Copyright and Intellectual Property

(This post is part of my Patreon-supported New Worlds series.)

Intellectual property may seem like an odd topic for wrapping up a discussion of the literary arts, but there’s a sense in which it feeds directly out of the printing press. Copyright is one of the types of intellectual property, and it literally governs the right to make copies of a work; as the rise of digital technology has shown, the easier copies are to make, the more complicated copyright gets.

But let’s back up and look at the whole picture.

(First, though: in these essays I generally try to draw my examples from multiple places around the world, but I’ll say up front here that my knowledge on the subject is pretty much limited to the West. If there are interesting forms of proto-IP elsewhere in history and the world, I’m not familiar with them, and I welcome details in the comments!)

Intellectual property is kind of a weird concept. Physical property is easy to understand; it’s alienable, meaning that it can be transferred to someone else’s ownership, after which you don’t have it anymore. But inalienable things (like love or legal rights) aren’t lost by being shared. Ideas are inalienable . . . and yet we speak of them as if they can be owned and controlled. Which is a huge paradigm shift! How do you “own” something intangible?

The answer is, you invent a legal and social construct. This is generally said to begin with the Statute of Monopolies (for patents) in 1624 and Statue of Anne (for copyright) in 1710, though in looking those up I find there are a few earlier precedents: sixteenth-century Jewish law granting a bit of publisher-based copyright, and even a claim of a sixth-century BCE Sybaritic Greek law granting a one-year patent for “any new refinement in luxury.” But those early forms notwithstanding, the concept of IP is a fairly recent one in our history.

Why come up with such a thing? The rationale underpinning IP types like patent, trademark, and copyright is that by treating ideas as property and protecting someone’s right to that property, you make it easier that person to profit from their intangible labor. When they profit, they’re more able to support themself with that labor, and that means they can spend more time doing it, so that on the whole we wind up with more inventions, more stories, more useful ideas.

Take my own career. I’m a full-time novelist, because copyright means that DAW Books can’t take a look at my success with the Memoirs of Lady Trent and decide to get in on that action by publishing their own edition and keeping all the profits for themselves. I own the copyright to that series and have temporarily licensed the right to reproduce the text to Tor Books; Tor in turn has ensured their own profits by stipulating that the license is exclusive, i.e. I’m not allowed to sign a similar agreement with anyone else until our own agreement lapses. (With exceptions for things like foreign translations, etc. — there’s a reason contracts get complicated.)

In the days before copyright, it wasn’t impossible to make a living from creative work, but it was a good deal more difficult. If you wrote something that took off in popularity, very little other than public shaming prevented someone else from plagiarizing it — and I’ve seen that in action, reading Elizabethan-era literature about criminals and vagabonds, some of which reproduces verbatim text from earlier works in the genre. The same goes for patents on inventions: if you built a better windmill or method of smelting ore, anybody who figured out how it worked could build their own, with no credit or payment to you.

The flip side to this is that IP rights are mostly intended to expire. (There’s a semi-exception for trademarks and service marks: as long as you continue actively using those marks and paying the fees to maintain them, they’re yours. And these also have an older heritage, with the earliest legislation requiring thirteenth-century English bakers to stamp their wares, so you could tell who might be selling adulterated bread.) Most governments that implement intellectual property laws also recognize that in the long run, society benefits from having these ideas leave private ownership and become common property. That’s why we have the public domain: creative works that now belong to us all. The computer mouse was first patented back in the 1960s, but that’s long since expired, which allows for more competition in the marketplace as different manufacturers produce their own versions. The protectionism offered by IP fosters innovation for a while, but eventually you get more innovation by removing that protection and letting everybody play with the idea.

Intellectual property is a worldbuilding issue not only because it affects how characters who engage in creative work can support themselves, but because it changes how people think about ideas. Here in the SF/F world we’re all familiar with the phenomenon of “Tolkien clones”: the slew of epic fantasy novels with a motley crew of heroes led by a wise old magic-user, questing to find and/or destroy a magical macguffin. When one of those crops up nowadays, there’s a general reaction of, “ugh, another one — don’t you have any new ideas?”

But novelty is a very specific value, and one that wasn’t always so important. In the study of folklore, no ethnographer says, “ugh, another version of the Sleeping Beauty tale type — don’t you have any new ideas?” It’s natural for story types to spread, morphing as they go, but remaining ultimately identifiable as being a variant on a known trope. Shakespeare didn’t invent his plays out of brand-new cloth; he borrowed heavily from the history and fiction of his day, and yet we still hail him as a genius. The value of his work is in the execution and the smaller alterations from the source, rather than the fundamental freshness of concept.

I firmly believe this is because of IP. When ideas become property, then they can be stolen, and Robin Hood notwithstanding, thieves aren’t generally admired. We still have some room for imitation, of course; we call it “inspiration” or “homage” or “borrowing” (there’s the language of property again). But novelty becomes much more valuable in an environment like ours, because then the idea is really yours, instead of someone else’s. And that’s also a function of the marketplace: as copyright supports the florescence of ideas, sometimes it’s easier to make your living by finding a new corner in which to set up your booth, rather than competing directly against all the other people selling the same type of idea.

And when we’re speaking of copyright particularly, this has a lot to do with copying technology. Nowadays the subject has become fraught not only because it’s easy to pirate digital books, music, movies, and more, but because the nature of digital media makes it so that even reading a book, listening to music, or watching a movie creates a copy — in your device’s memory. Copyright was never meant to govern the consumption of media, but now consumption technically entails copying, blurring that line. Or what about making backups of your library? Or consuming media on different devices that all belong to you? Digital rights management (DRM) is one attempt to deal with situations the original concept of copyright never envisioned, and we’re still scrambling to find good solutions — legal or social — to the complications that have resulted.

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About Marie Brennan

Marie Brennan is a former anthropologist and folklorist who shamelessly pillages her academic fields for inspiration. She recently misapplied her professors' hard work to the short novel Driftwood and Turning Darkness Into Light, a sequel to the Hugo Award-nominated Victorian adventure series The Memoirs of Lady Trent. She is the author of several other series, over sixty short stories, and the New Worlds series of worldbuilding guides; as half of M.A. Carrick, she has written The Mask of Mirrors, first in the Rook and Rose trilogy. For more information, visit swantower.com, Twitter @swan_tower, or her Patreon.

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New Worlds: Copyright and Intellectual Property — 9 Comments

  1. Pingback: New Worlds: Copyright and Intellectual Property - Swan Tower

  2. Well written and leaves little to argue. Intellectual property rights, for those in the U.S., are grounded in the Constitution, Article 1, Section 8 which states in part: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [sic]

    In 2020, 90% of the S&P 500’s value was supported by intangible assets. That means 10% of the value comes from corporate America’s tangible assets such as chip fabrication units, ore smelters or restaurant ovens.

    Historically, the West understood the importance of IP and the East placed value on the ability to make and/or sell — copying someone else’s literary or technical invention, in the minds of most in Asia, was not wrong. The blackmarket copy of Natural History of Dragons or a rogue Neil Diamond (I’m showing my age) CD was OK; the value was in the printing or stamping. This is slowly changing.

    Intellectual property comes from the mind. Every one of us has the ability to create and from a policy standpoint, we must continue to provide incentive to do so. Giving the right to exclude or prevent actions by others is necessary or the incentive will collapse. Today IP, particularly patents, gets a bad rap, but one only has to watch changes in thinking around the world to know that our founding fathers had it right and we must remove our doubts on this matter. May all authors in the SF/F world be forever protected.

    • Conversely, many tribal peoples have a concept of intellectual property, although it sometimes has oddities from a Western perspective. I’ve read accounts from the Americas, from Africa, from Australia and the various South Seas islands, about cultures in which not only were songs, dances, etc. the exclusive property of certain individuals or families, but one could also own such things as spiritually-significant dreams — and someone whose efforts to gain one through the normal ceremonies had failed could effectively purchase one from another person or their heirs.

      • Mmmm, good point! And that’s an interesting counterpoint because it isn’t about the market-based benefit of being able to profit from the creative work; the value is something else entirely.

    • No, “forever protection” is dystopian horror. Patents and copyrights should *expire*, as our host says. And for copyright, rather sooner than they do now. The old regime for “14 years, and another 14 if you actively renew it” strikes me as quite sensible.

  3. Thanks, Marie, for the history of copyrights as well as the complications confronting creators today. Too many of my students insisted that everything on the internet, including ebooks, should be free. *sigh*

  4. One other thing about IP is the question of whether some rights should be mandatory licensing (which ties into the issue of orphaned works, although that’s a different issue). Here in the US, mechanical rights (the right to record a cover of a copyrighted song) is mandatory licensing. That means a band that wants to cover a song can just send notification (usually through an agency) and pay a fee according to the number of copies to be made. That means bands don’t have to worry that the rights could be tied up in a messy bankruptcy or held by feuding heirs or any of the other pitfalls of obtaining permission.

    I wrote some essays over on my LiveJournal about the possibility of having the right to make quotations be a mandatory-licensing right. Although the US Copyright Office documents refer to the process of obtaining permission as “simple,” in practice it can be anything but. Just identifying the rights-holders to older and obscure works (or works for which the rights are trapped in a messy bankruptcy) can be an extremely high first step. And even when the rights-holders are known, there’s the real possibility that they’ll be held by someone who either is unresponsive to requests or is unreasonable. There are people who are stuck ABD not because they couldn’t get their dissertation written, but because they were unable to get permission for key quotes, and paraphrasing won’t work (often because the entire argument rests upon specific turns of phrase), so their dissertation can’t be approved (because it involves putting copies on file, which constitutes publication). In the case of one particular well-known literary figure, it’s gotten to the point that aspiring scholars are warned away from specializing in him because the heir who holds the rights is known to be a horse’s behind about these things, refusing permission arbitrarily and capriciously, and the risk of ending up ABD (or have a monograph you’ve sweated over for years left in limbo) over rights is very high.

    Given that these sorts of works are not exactly huge money-makers, a good argument could be made that turning the quotation permissions process into a mandatory-licensing right would benefit scholarship and the rights-holders, because the current regime ends up discouraging people from scholarship that would put them in the position of having to track down rights-holders and negotiate permissions.

    • Ah! Thank you — I’d always wondered how covers of songs worked, but hadn’t gotten around to looking it up. As for the literary figure . . . James Joyce? I know he’s definitely one whose heirs have gotten completely rigid about refusing permissions (especially if they fear the quotation will do anything to tarnish the image of their revered ancestor), but it would not surprise me in the least if there’s more than one.

    • Sometimes we cannot get out of our own way and common sense loses to principle or dogma.

      Of the four kinds of intellectual property, perhaps two can produce good arguments for not being forced to grant a mandatory license, 100% of the time: trademarks and trade secrets. For copyrights and patents the decision should turn on facts specific to the circumstances.

      Can the potential for reputational harm outweigh pushing someone into ABD? My mind says that given the nature of the of the use – get over it. Who reads them? In our parsing and litigious society, crafting the the laws to support such thinking may be impossible, I’m sorry to say.

      There is one more way your example is differentiated from others. For “cover” and in the patent world, mandatory licensing provides consideration to the rights holder. In the ABD scenario, there is no room for that. These things are hard, unless you use common sense; but that is like pouring grease into the judicial system. As Sara says: “sigh”.

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