Friday, June 20, 2008

Gender and Copyright

A powerful metaphor employed to argue that authors should have extensive control over the works they create is the metaphor evoking the relationship between an author and the author’s works as that of a parent-child, called the creation-as-birth metaphor. The metaphor is used in many areas besides copyright. Here are some examples:

Our nation was born out of a desire for freedom
Her experiment spawned a host of new theories
Your actions will only breed violence
He hatched a clever scheme

And most on point:

Her writings are products of her fertile imagination

The creation-as-birth metaphor posits an intimate connection between what an author creates and his or her work. It would therefore be a violation of the author’s very person to use his to her work without permission. Feminist legal writers have explored the personhood metaphor as it is used in copyright. Professors Ann Bartow and Rebecca Tushnet have done excellent work in the areas, as have others, see e.g., Symposium on Feminism and Dualism in Intellectual Property, 15 American University Journal Gender Social Policy & Law (2007); Malla Pollack, Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United States Copyrightable and Patentable Subject Matter, 2 William & Mary Journal of Women & The Law 603 (2006). See also Christine Battersby, Gender and Genius: Toward a Feminist Aesthetic (1989), and Richard Swartz, “Patrimony and the Figuration of Authorship in the Eighteenth-Century Literary Property Debates,” 7 Works and Days 2 (1989) for a discussion of the gendering of authors as males.

In asserting the birthing metaphor as a justification for a strong copyright regime, proponents of the metaphor hearken back to pre-copyright days, since for any metaphor to work in a new context, it has to be based on pre-existing associations. The birthing metaphor is quite ancient. In his “Symposium,” Plato had Diotima describe poems created by Homer and Hesiod as their intellectual children, even greater than actual children.

Daniel Defoe spoke of his book as the “Brat of His Brain. For Defoe, the brain was regarded as the womb of thought, See Walter Pagel, “Medieval and Renaissance Contributions to Knowledge of the Brain and Its Functions,” reprinted in The History and Philosophy of the Brain and its Function 95 (Poynter ed. 1958), thereby metaphorically overcoming the obvious biological objection to Defoe metaphorically birthing anything, but raising other issues, which Mark Rose has explored in his fascinating article, Mothers and Authors: Johnson v. Calvert and the New Children of Our Imagination, 22 Critical Inquiry 613, 622 (1996).

Is there a gender difference in how we react to copyright proposals? The recently introduced and highly controversial Canadian copyright reform bill, C-61, provides a surprising look at this, thanks to a survey done by AngusReid Strategies (see here). The survey shows significant regional, age, and educational differences:

Canadians are clearly divided on the proposed changes, with 45 per cent of respondents supporting the amendments, and another 45 per cent rejecting them. One-in-ten (10%) are undecided.

Regionally, British Columbia (52%) and Alberta (48%) show the most resistance to amending the Copyright Act , while Quebec (53%) and the Atlantic Provinces (50%) are the most encouraging of tougher copyright infringement laws. In turn, Manitoba and Saskatchewan (21%) house the most respondents who are unsure on the issue.

The large disparity among respondents in each of the different age and education groups is particularly interesting. The survey reveals that a majority of Canadians over the age of 55 and those with a high school diploma or less are clearly in favour of the amendments to the Copyright Act. Sixty-one per cent of older Canadians support the new changes, while only 23 per cent of those aged 18 to 34 and 47 per cent of those aged 35 to 54 feel the same way.

Canadians with a high school diploma or less are also very supportive of the stricter laws—55 per cent say they support the anticipated changes, compared to 40 per cent of those with a college or technical school diploma and 40 per cent of those with at least one university degree.

Michael Geist points out another result in his blog: “Men oppose the legislation 49 to 33 percent, while women are split 31 - 29 in favour with the largest number (40 percent)


Lloyd Shugart said...

Does the survey point to a real and deepening issue, Is that issue the change in morality of society? When Thomas Jefferson penned the constitution, his belief was that most were moral, and the laws should address the same.

He railed against monopolies because they were used by immoral people(kings and the kings men) to take advantage of the common people, and society at large. He believed that moral people stood to protect all. Also society had a way of enforcing morality, because communities were small, and what others in that community thought, determined how each interacted with the other. To be shunned by the members of your society was at that time. a punishment that most respected. There was a need for law & punishment(public flogging in the square stockade) to effectively deal with those who lacked morals, and respect of others properties. The number of these laws & punishments have grown in time in responses to address the needs.

I am of the age that I was required(my family moral) to address anyone other than a close family member or friend by Mr/Mrs/Ms, when I was a child, this lasted well into my teens. My dad told me this was a sign of respect, of others. When I was 8, I found a wallet in a pay phone booth that had over $200.00. The first thing I did was take it to my parents, which they promptly took me to the local police station to turn it in. A week later I received a phone call from the owner of that wallet, along with grateful thanks, and a reward of $10.00. To this day I still feel that great reward of my parents actions, and I'm not talking about the $10.00.

In this day and age of Freeriding, society loses. As an example, go back to small town America. the public domain was the public right of way, parking was free. Then demand for parking required restrictions, cities started putting time limits on parking, freeriders ignore these time restrictions, then cities started enforcements of time limits by citations, and parking meters, freeriders continue to ignore, cities increase citation fees. Now I live in Seattle, I just came from a meeting with a city counsel member on parking issues. The 2008 city budget, list income from parking meters as 18 mil., and income from parking enforcement as 20 mil. Total of city police enforcement by citation is 471,524 this include all traffic including dwi,speeding, parking etc, the total of parking citations is 385,582 this is 81% of all citations, put another way the city receives over a dollar in fines for every dollar in parking fees. Costs of enforcements, is capital investment of 2 mil. in pay stations, and about a 1 mil. in salaries for meter maids.

I think society is losing in the bargain of copyrights because of increased Freeriding, as a result of moral loss.

William Patry said...

Dear Mr. Shugart, I do not think good manners or morals are a thing of the past or that those, like us, who grew up many decades ago have a monopoly on such things. Nor do I think Mr. Jefferson believed that the Constitution embodied his own views of morality. If it did, it would include owning slaves, and fathering children with them.

My almost 7 year old twins, for example, address others in the manner you describe, so all is not lost. I question too your views that there is any moral element to the current debates over copyright; many, including those in the music industry place the blame on the industry's failure to give consumers what they wanted, and hear I mean, wanted to buy. iTunes, which has sold 5billion songs proved that people will pay.

On July 2, 2001 Napster was shut down. Following the shutdown, it took the record labels almost two years to finally offer consumers their own subscription services, PressPlay and MusicNet, services that were failures, in large part because each service only offered songs from its label owners. There was no one site where consumers could go to in order to get the particular songs they want: consumers of music do not have label brand loyalty: consumers do not say: “I want a Universal Music Group song, or a Warner Brothers Music song.” Rather, they have performer loyalty. Consumers will say, “I want the new songs by this or that group or performer.” Any site that is based on the wrong loyalty, as PressPlay and MusicNet were, is doomed to fail.

RIAA’s former President Hillary Rosen admitted that after the shutdown of Napster and the refusal of the music industry to offer any alternative, “That’s when we lost the users. Peer-to-peer took hold. That’s when we went from music having real value in people’s minds to music having no economic value, just emotional value.” Despite this awareness, the music industry did not turn around and finally offer for sale to consumers what consumers wanted to buy (and iTunes’s success), but rather the industry chose to file over 20,000 lawsuits against consumers, including suits against minor children, grandparents, and severely disabled people. In Warner Records, Inc. v. Larry Scantlebury, the defendant died before the litigation had proceeded very far. Upon learning of his death, the RIAA “asked the Court for a 60-day stay to allow the family to ‘grieve’, after which it stated it intended to take depositions of the decedent's children.” That doesn't seem very moral to me.

Lloyd Shugart said...

Mr. Patry,

First I am not deluded in belief that morals equals manors or the vise versa. Nor do I believe that ones own morals should be the rule of others. My family were staunch abolitionist at the dawn of this great country. They had different ideas about many issues confronting society then, yet they only sought to empress their ideas around freedoms due all of man, certainly not implicating that all should live as they did, in all ways.

That being said , I believe as they did. Yet as Mr. Jefferson recognized you can't legislate your own morals, and that morals are not in fact just ones own, but are those that the benefit the greater society.

The growing body of laws, I submit was in attempt to deal with societal needs. I don't believe that laws are proposed and created with out need, I don't ether believe that all laws are just, according to societal needs.

Certainly I don't believe that society has the right to take from a vendor because they don't like the offering or the way that it's offered. They are free to choose to seek other vendors and their products that fulfill their need, and by this method change the dynamics of the market.

As it relates to copyrights, I find the preface to this book very enlighting,M1

Mr. Patry, I have nothing but great respect for you and your work. But I feel that there is a growing disrespect for people and their properties, and the idealism that if you don't (opt-out of public domain) lock it away, that society at large is welcome to take as they please. The LA Times/Kozinski issues is a prime example

Scott said...

First of all, a few historical inaccuracies need correction:

1) Jefferson was not part of the Constitutional Convention; and had little if any direct part in its creation. He was primary author of the D of I, but not the Constitution--a document which had numerous authors.

2) The Constitution, as initially drafted, did include references to (and implicit endorsement of) slavery in quite a few places--it took a war and subsequent amendments to outlaw the practice. No mention, though, of copulating with one's slaves (whether Jefferson had children with slave Sally Hemings is disputed to this day).

Now that that is out of the way--this seems like little more than a new spin on the issue of moral rights: Do authors and other creators have a "moral "right to the fruits of their intellect? Or is copyright merely a social bargain to encourage creation? (Or some mixture in between?) And the other question--to what extent should creators be rewarded by things such as exclusivity?

William Patry said...

Mr. Shugart, I agree that one should not feel free to take something simply because you want to, or that there is any societal benefit resulting from those do. But all property, I believe, is a set of societal relationships, and not dominion over things. In the case of copyright, that is clear: it is Congress who created the right (whether property or not), and according to constitutional guidance. Calling things free-riding doesn't really advance how to achieve that goal. For example, free-riding is described by the Associated Press as applying to the copying of a headline for a story, or the copying of 5 words in a website -- which AP's guidelines say requires a payment of $12.50. AP didn't create the news event in question, and headlines are not AP's property: so who is free-riding in that case where $12.50 is demanded for something AP doesn't own? Or, take the Betamax case where those copying free over the air TV networks programs for personal use were described as free-riders?

Respect for law is important, indeed; but that also means respect for the limits on how far publicly granted rights go too. I am not saying two wrongs make a right, only that there is room for improvement all around.

Lloyd Shugart said...

Mr. Party, one day I would like to be able to refer to you other then Mr......

Agreed, (But all property, I believe, is a set of societal relationships, and not dominion over things.) certainly I don't want the debate to fall awash in the semantics of the word property. I do believe that Congress should do it's job, and that at least our US society should respect those laws that it creates. Too I feel that society should work to adjust those laws to societies benefit as a whole, but in a legal way.

I am not completely familiar with the AP headline issues...true they do not own the events of news that happens, my questions is do they have property under the laws in their choice of words that they use to define the headlines as they see them, and do they have right in their web site/papers where they exist? As far as their defining Freeriding...everyone is open to say what they want....I'm not sure how you stop people from misguiding others by their words, politicians included.

To me Freeriding is as I used in the parking analogy, where those that overstay the time limits to the detriment of the rest of society, thereby no parking available or increased cost we pay to make parking available. Radiohead's experiment resulted in many taking advantage of the experiment, which may have changed the outcome to the detriment of society.

I am going to do as Mr. Jefferson did and make a statement... I believe most creators want to share their creations with society at large, and do so willingly, as demonstrated by how quickly the world wide web has grown. My fear is that those creators will begin to lock down those creations when they feel vulnerable....and that fear is not based on the many viewing and using the work as the creators posted and intended. But when an aggregator takes those works and then uses them in a commercial way that the creator never intended, and by the by was also removed from any of the income stream.

I believe in the Public Domain, and in fair use....I don't believe in stretching those in ways that congress never intended, in either direction. I think that Congress on many occasions fails in their ultimate responsibilities when they rush legislation with unresolved issues into law, or laws that are swayed by political money, and then defer to the judicial system to resolve what they were charged with doing. It is just unfair to all that are forced to participate in that resulting process, not to mention the economic and productivity it sucks from those involved. Mind you I'm not advocating putting you out of a job..hehehe

I do enjoy the wisdom of your thoughts and that fact that you so willing share with the world

William Patry said...

Thank you Mr. Shugart for helping to make the blog what I have always wanted it to be: a place where people with divergent interests can calmly and rationally discuss issues they passionately believe in. And everyone can call me Bill. I have been called Billy only by my late mother,aleha ha-shalom, and by my dear friend Hugh Laddie (otherwise known as Professor Sir Mr. Justice Laddie).

Anonymous said...

"To me Freeriding is as I used in the parking analogy, where those that overstay the time limits to the detriment of the rest of society"

I believe it more common to find corporate interests driving this the Freeriding you describe rather than consumers, when it comes to copyright. To me this definition most clearly describes the re-extensions of copyrights that have held works back from entering the Public Domain. And also the short-sighted terms of URAA where all qualifying foreign works which have become public domain in their home countries since 1996 are locked up under US copyright for around 20 more years (at least assuming there are no further extensions). Although the latter example may be more a simpler issue of incompetence rather than maneuvering.

Ann Bartow said...

Thanks for the mention, and for this post.

Anonymous said...

I get very suspicious whenever I see arguments based on Free Riding. The phrase is a wonderful predictor for extreme positions giving absolute control.

That absolute control is wanted especially for price differentiation. It is basic economics to observe different utility for different amounts of the same good. The first glasses of water which keep you alive are worth a great deal more than the last cubic feet which water your lawn. It would be very much in the interest of a water vendor to prevent people from drinking water sold for watering lawns. Selling goods limited by specific purpose serves to give all the economic utility to the seller and deny it to the buyer.

Control in copyright serves the same purpose. The powers commonly sought are to prevent resale and re-use for some purpose the goods were not sold for. We have DVDs encoded for different regions to support price differences between them. We have trade associations attempting to block people using music they bought on other devices but at least for now failing. We have computer software locked up tight as can be enforced by the software itself.

All this talk about Free Riding and Piracy is like a magician's trick directing people's eyes to the colorful flair of motion concealing the hand in the cookie jar. The Free Rider more often than not is much closer to the analogy of someone wanting to pay the price for lawn watering water and drink it. I am not so impressed with Free Riding as a social ill. I am far more impressed with the ills caused by our government assisting corporations in their quest for total control of markets especially in copyright where the monopoly is entirely government created.

Chris said...

Wouldn't that metaphor suggest we should have a copyright term of 18 years, after which time the copyrighted "baby" gets kicked out of the house to fend for itself? It seems like a lot of rights holders are afraid of having an empty nest.

Lloyd Shugart said...

My review is to determine if free-riding is good, does it increase the return to creators, and increase the bargain with society(more value)? Does society benefit from free-riding, or does it hurt society in the end?

As a member of society due you complain when standing in line or in traffic, and someone cuts to the front of the line, does it bother you, does it benefit society? Do I benefit from those that overstay the parking limits, which causes more regulation and law imposed on that parking privilege? Will creators just increase their output so that they can continue making a living, when free-riding consumes a portion of their value market, at what point will the creator exit the market?

If I create a photo that the market wants, does my copyright really equal a true monopoly, or can someone else create a photo that doesn't infringe, that will be in competition in the market of the same subject matter?

Members also produce

mixed public/private goods in which the product’s content is a public good that is

delivered to consumers in the form of a private good. Significantly however, nearly

all of these goods can easily be copied, at least in rudimentary form. These product

characteristics create strong incentives for producers and distributors of public

goods to take measure to restrict or exclude non-paying (i.e. free-rider) consumers

from legitimate markets. Absent restrictions, non-paying viewers, listeners and

users could consume public goods without making payment to the ultimate producer.

Depending on the intensity and pervasiveness of free riding, these problems

could serve to reduce, if not eliminate, a producer’s overall return on investment.5

Over time, lower returns could lead to the production of fewer original products,

the production of lower quality products, or both.

Steven said...

Mr. Shugart, your arguments on free-riding (while extremely eloquent), are based on the presumption that creators have a permanent right to any work derived from their own, which the government then abridges.

If you instead begin with the opposite viewpoint (that the government abridges the public's right to create and distribute derived works), the period during which the government will assist creators in hunting down offenders is that of limited free-riding for authors. While certainly not a foregone conclusion, this position is the historical one held by the U.S. Supreme Court, enshrined in the Constitution, and well supported by the arguments of Lord Thomas Macaulay. I would, therefore, assume this to be the default, in which case you would begin by arguing against it.

All legal history aside, I have many friends who are amateur artists, some of whom believe very strongly that authors should hold by default powerful moral rights to the expression of their works. I would suggest that these feelings are partially stimulated by publishers' propaganda in support of longer copyright terms. (The reverse argument would be that the desire for "free stuff" leads the rest of us to accept the Constitutional view of copyright.)

Whatever the individual position, I believe that a strong understanding of the real and moral motivations behind each view of copyright is extremely important, even requisite to the debate. Otherwise, it's very easy for one side simply to pidgeonhole the other as immoral and greedy - completely halting intellectual progress and destroying any sort of common ground.

As an ending point, I'd like to mention an integral way old-fashioned decency comes into play here: by treating other persons' works kindly, the community will likely open the closed box of an author's mind further, and conversely, an author who releases their own work to others is more likely to be allowed past other creators' no-trespassing signs.

Anonymous said...

Our society as a whole does not get the most benefit by having the most creative works. We get the most benefit by a combination of the most works and the most use out of those works. While strengthening the monopoly granted by copyright may increase the incentive to make new works and that may in turn increase the number or quality of those works doing so also has the inevitable effect of diminishing the use people get out of them. A stronger monopoly and greater control for the publishers means less people get less use.

If benefit to our society as a whole is the justification then the optimum amount of copyright power is less than would be optimal for publisher's profits. The publishers may call it Free Riding but it is not their interest copyright is intended to serve. It is our society as a whole.

Lloyd Shugart said...

Steven, nothing in my thoughts nor writings express the idealism of permanent right. All ad hominem arguments aside. The delicate balance is in fact, what gives the most back to the public at large.

Intellectual Productions of the mind were protected at common law, before statues, by societal respect, and the shear cost and capital investment of duplication, and also by true monopolies by Kings, and Kings men. Those true monopolies are what our constitutional drafters railed against. Yet they recognized the value in securing the right to intellectual productions, "Thin Monopolies".

It's hard to argue that the rights created by the bargain were not in fact the economic engine that propelled the industrial world. Yet as Bill said "But all property, I believe, is a set of societal relationships, and not dominion over things." We have no moral right to our real property nor personal property, we have a bargain such as in real property "the right to quiet enjoyment" fenced by statue, that protects that right.

The most "Public Benefit" comes from the most works AVAILABLE, that doesn't mean the most unfettered rights to copy. Intellectual advance is propelled by standing on the works that came before, to see farther, not a regurgitation of the same works. Abridgements of those existing works that are used in accordance, as learning tools are what round out that bargain. The failure to make secure the right will in fact lead to less productions, as creators will not continue to produce, nor make available what is produced.

This in my mind would then lead to a situation where creations are a production of large well capitalized corporations. This results in fewer rights holders, aggregating more properties. Where competition and price slide to antitrust issues.

I am a prime example of the insecurity of intellectual production rights in this day and age. As a professional photographer, I have created thousands of images, while I have thousands of published, I have 100-1 unpublished. I have yet to make available on the internet my unpublished works. While I may or may not be the next Man Ray, or some iteration, this demonstrates the failure of the bargain on both sides. The public does not get access to the works and I don't get a remuneration of my efforts. If you think I'm the only independent creator in this state you be wrong.

The internet now stands at the door to increase the value of the intellectual production bargain to both sides. It is capable of divesting the few from holding the many. It can provide the vehicle for the independent creators to hold and offer to the Public it's works, or it can lead to the few aggregating the many. Security to the creator is at the base of it all.

Lloyd Shugart said...

Insecurity example 2

I have a published image Rolling Stone mag, of Chris Cornell & Sam Perkins, including my copyright and attribution. Fan site member uploads image after scanning, tells everyone check out my new scan I just uploaded, by the by copyright cropped off(now potentially an Orphan Works). Lloyd cruising the net, lands upon a commercial music site, I find this image used as a branding image on the home page, no copyright/attribution.

I contact the web master alert him to the fact that, the image is my copyright protected image. His response, oh we always clear rights to copyright images. My response is that I do not have any agreements with his company authorizing such use. He then says well it can't be copyright protected because we found it on the net. I inform him that he must take it down or have his company contact me, in which case I'm more than willing to help them secure a proper license. Next contact, he says oh we aren't infringing because the image isn't on our server, and that they are only pointing to the image on someone else's server.

Sure enough I check the properties of the image, and it's pointing to another server, I follow the link to the server, and find the fan site, along with the forum posting to the message about the upload of the image. I contact the web master at the fan site, send a copy of the forum posting showing his member post. Tell the web master that I am more then happy to issue a license to use the image no charge as long as they do not use it in a commercial way, provide my copyright notice/attribution, and in some way use the various tools available so that other sites can't use the image. I get an email from the web master stating that he took the image down. I replied that it wasn't my intent for him to take the image down, just use as per the license I offered, he never responded back.

The moral of the immoral act is the Public was deprived, the bargain with society failed.

Lloyd Shugart said...

After reading and reflecting on the story at digital native. I wonder is it morals that are changing or is that society is changing so fast, that we can't instill in those coming up those values that help people to make decisions based on fairness?

What is fairness now and how will it change in the future? Do we accept it as the new moral code? How will it translate to the many additional laws of society that we all depend on?
To speak more generally (and not simply about German youth), teenagers at large don’t have an understanding of copyright and ownership of digital goods. They want to share, want to mix, and want to edit. They can’t understand why it is not okay to go to Wikipedia, print a page, and use it for a speech. Anyway, that’s how they still do it. Most of their created presentations are totally or partly rip-offs and plagiarism. But teachers – especially the older ones – simply fail to discover them, and so it’s not punished, and there are no consequences for the students. Although they know it’s illegal, they do it, just because they can and because they know nothing else. Besides the school-related illegal sharing, there are of course downloading and sharing of songs, movies and other stuff. I don’t know whether that is because students do not have the needed money for buying every interesting movie or just because those things are too expensive.

Lloyd Shugart said...

Society was developed on principle of those that came before

Yet more to ponder...Bill, I promise I won't ride this to the ground...I just wanted to circle back to my original point.

But I do question what the effects on society are and really will be?

The average digital music player carries 1,770 songs, meaning that 48 per cent of the collection is copied illegally. The proportion of illegally downloaded tracks rises to 61 per cent among 14 to 17-year-olds. In addition, 14 per cent of CDs (one in seven) in a young person's collection are copied Illegal copying in some form is undertaken by 96 per cent of 18 to 24-year-olds surveyed, falling to 89 per cent of those aged 14-17.

Nearly two thirds copy CDs from friends, and similar proportions share songs by e-mail and copy all the music held on another person's hard drive, acquiring up to 10,000 songs in one go.

William Patry said...

Lloyd, I like to let horses find their own way back to the stable

Lloyd Shugart said...

Bill, thank you for providing the forum.

I think you have been schooled by some wise characters...

One thing I remember poignantly from a scout master "the best way to learn is to teach"

Also from an old sea pilot, that a ship in distress is better left to it's own long as she's far enough away from shore, and you remembered to batten down the hatches, not to mention that she was sea going to begin with. He told me that more ships have been lost due to the pilot thinking he knew all, and was incapable of mistake.