Creating stuff is hard, especially in a fast-paced world like ours. It takes time, effort, and inspiration to make something new and valuable. The things we create – writings, inventions, theories, artwork, ideas, and so on – are natural to share and we do. We talk about our ideas and show people our inventions. We put our art in showcases. The more valuable the creativity is, the more anxious we are to share it because of the impact it can have. Other people are similarly inclined to share the results of creativity. Naturally, creators want their work to be shared – and they want to be remunerated for the significant time and effort that went into their creativity.
Once something has been created, it's relatively easy to duplicate it. This bothers many creators because duplication typically means that they will not be recognized or remunerated for their work. But copying is simply too rewarding: relative to the effort required to create, the effort to copy is so small that people naturally tend to wait for others to create so they can use the things others have created. As a result, people are motivated to not create; instead, they hope that others will create so they may benefit.
In an attempt to correct this perverse incentive structure, many governments create a notion of intellectual property, which treats ideas as the property of their originators. Intellectual property laws typically prohibit people from selling, distributing, or claiming works without the creator's permission. These laws, when implemented intelligently and enforced effectively, ensure that authors get credit and payment for their works – assuming, of course, that there is a demand for the works.
If creativity were a simple thing, our discussion would end here. But no one creates in a vacuum. Every piece of creativity depends on countless other innovations. If we simply protected creators' rights as described, we would make creativity prohibitively expensive – the time and expense of identifying all prior art and then securing permission to use that prior art would be astronomical. Also, all creativity could be stifled by a single creator who doesn't permit his or her work to be used. This could get particularly difficult in the case of orphaned works, whose creators cannot be identified.
Accordingly, most notions of intellectual property are limited to a period of time. When that time expires, the inventions or writings enter the public domain; in other words, the ideas become public property that everyone is allowed to use freely, although credit is still given to the originators of the work. The intent seems to be to allow monetization for a long enough period of time to be effective but to allow works that are part of our collective consciousness to be freely used as the basis for new creativity.
This compromise is incorporated into the Constitution of the United States of America: Congress has the power to give exclusive rights for a limited period of time to authors and inventors. The cited purpose is to promote progress. So, in the United States, we have patents to protect inventions and copyrights to protect most other types of creativity. They protect works for a few years, after which the works become public property and can be used freely. In the united states, copyright restricts the act of reproducing a written or artistic work because it's relatively easy to enforce and selling copies is the traditional way that copyright owners have monetized their work.
The times have changed, though. It is much easier to copy digital works than physical media, which means that it is much more difficult to enforce traditional copyright. The mere act of consuming digital media makes copies of it, so the idea of restricting copies is a little strained. Most significantly, there are countless legitimate reasons a consumer might copy digital media that don't apply to traditional media.
Digital media can be consumed on all sorts of devices: phones, tablets, computers, TVs, and more. The device that is best suited for some content at one moment may not be at the next moment. For example, I may prefer to read eBooks on my laptop or on my TV. When I'm flying, I may prefer to read on my phone. This is even more true in the case of movies, as DVDs and Blu-ray disks don't travel well. The process of "ripping" a movie off of a disk to store it on a laptop or some other device is easy but may not be permitted by copyright law. The alternatives to space shifting (copying media from one device to another) are to buy additional copies in different formats or to go without.
Buying another copy of digital media doesn't make any sense. A consumer gets no additional physical media with such a purchase (and if they do, the cost of the media is trivial), so there's no manufacturing cost to justify the additional expense. And copyright is about protecting intellectual property – but the intellectual property is exactly the same. The copyright owner has produced no additional material to justify charging the consumer again, especially because the task of creating the additional copy is trivial for a consumer to do for himself or for herself.
The world has changed. The media we consume have changed. It's time to change the way we think and the way we legislate about them to catch up with the times.
First, the rate at which we create things is increasing dramatically and yet we have ever longer copyright terms. Lengthening copyright terms may be the easiest way to limit creativity. Only those with sufficiently large portfolios or sufficiently capable lawyers can afford to create. Everyone else must live below the radar, hoping that nothing he or she writes happens to look like something penned by someone with a legal team. We need to reduce copyright terms. A work of art can enter the collective consciousness in a matter of days. It should be accessible to the public for further creativity in a comparably short period of time. As a compromise for the content creators, I suggest only cutting copyright terms back to what they were when they were first implemented in the USA: 14 years.
Second, we need to revise the way we think about this "property" and the way we protect it. Instead of preventing the act of copying, which is both impossible and detrimental to consumers, we should think about copyright protecting access to a work. If I've bought a legitimate copy of a book, I really have purchased unfettered access to it. I can read it whenever I want. I can lend it to a friend and that friend can have my right to access it temporarily. And I can give it away or sell it if I like. This is not about physical goods; it's about access to intellectual property (significantly, the terms of sale of most digital media deny consumers the right of first sale).
Third, we should consider if we even want to view it as property anymore. The purpose of copyright law is to create an incentive to create. The particular guarantees we have traditionally given to authors are not necessarily the best way to accomplish this goal. We could come up with a system of taxes on the consumption of media and cash rewards for creating things. Or we could guarantee that authors get credit for their work and allow consumers to pay them what they think the work is worth without legal coercion – but with a culture that agrees that it is unacceptable to consume media without paying for them, except perhaps to try them out.
I'm not certain that I know exactly what the solution is, but I am sure that we need to change the way we think about intellectual property. Reality has outpaced the law and its enforcement. There are reasonable things we can do to improve both our enjoyment of life and the creativity of our whole society. So let's talk about it, decide on a course of action, and make some changes.
