Incentivizing Creativity

Got into a juicy argument today in my Information Law & Policy class over the idea that dismantling the copyright system (bear with me) will prevent artists from making money off their works. This is the classic “incentive” argument in copyright law, which states that a limited time of monopoly ownership over information is necessary in order for the creator of the work to profit from it. In other words, I am Stephen King, I write The Stand, I get to reap the profits from it as long as I’m alive. Otherwise I might never write anything. (I’m ignoring the “creators will create no matter what” counter-argument because I think it’s kind of insulting; it may be true, but that doesn’t mean people should create out of pure artistic love and not get paid for it.)

So we have two ends of the spectrum here. Either copyright disappears, or copyright enforcement continues on its current path.

So let’s fiat first that copyright disappears. Poof. So how does Mr. King make money off this work?

All of a sudden, everyone can produce copies of The Stand and sell them. I’m unsure whether the costs to rival producers are really worth this effort, as I can already go into any used bookstore in the world and buy The Stand for about $3 US. Likewise, Lessig’s Code 2.0 is Creative Commons licensed, but nobody else has bothered to put it out as a book, as the printing and distribution cost is much higher than creating a wiki or a PDF.

But King could use the book as an incentive to get fans to pay for different kinds of work. For example, a patronage model to write chapters of a novel, an audiobook read by him, an autographed copy, or tickets to see him lecture. Maybe Stephen King t-shirts.

If Stephen King was, say, a tenured professor, he might write articles for free (as all professors do) and edit a journal for free (as some professors do, although few journal editors get paid) because this would enhance his reputation (or social capital) which, along the line, would convert to economic capital (tenure, a better appointment, a fancy chair).

(This is also analogous to IBM working on open-source software in order to charge the big bucks for software consulting.)

King could also create an edition that’s worth paying for due to its materiality. One of my friends just showed me the new Creatures box set – it’s beautiful and elaborate and definitely geared towards fans only. I could easily pirate a copy of it off my favorite private tracker, but a “real” fan will want the extras.

So let’s look at the other end of the spectrum. Continue using public resources (courts, police, etc.) to enforce copyrights.

King is a superstar, so he probably does get money from every sale of his work. But it’s not likely that your average small band fighting to get notice from their record company is really pulling in huge amounts of royalties. The effort that the record company might put out enforcing their copyright might not actually enhance the profits that the small band sees.

Instead, the small band would probably do better for itself going the OK Go route and writing MySpace messages to local promoters.

We also need to remember that it will only get easier and cheaper for people to get digital copies that are DRM-free. Right now, BitTorrent setup really does require tech savviness and a knowledgability about private trackers, search engines, et cetera. But that’s likely to change with sites like Oscar Torrents that are aimed squarely at your average Joe, if Joe is a reasonably smart fifteen year old.

Let’s say King decides that all of his work will be in some sort of magical DRM format that is extremely difficult to crack. Every time you open one of his books you have to key in a code, and without this code you can’t read the book.

Even if I heart King like nobody has ever hearted King before, this is going to piss me off. I’m likely to choose one of the many entertainment options that is not purposely crippled, or I’m going to get content from an author who’s giving it away for free to promote her work (like Cory Doctorow), or I’m going to find a pirated copy that is cracked. If you charge users for content, you have to make it better than what they can get for free. DRM is not better. It’s worse.

The model where the “incentive” for creativity is “selling your work to a big corporation who will dole out a tiny percentage of the profits to you” doesn’t work for anyone except big corporations. I defy anyone to look at the current climate in which people, far from only creating things for money, will create things that are ILLEGAL (mashup albums, parody trailers, etc.) and could get them fined enormous amounts of money just for fun, fame, or notoriety. There are plenty of ways to make money off creative works that don’t involve this model. Let’s not insult creators by propping up dead business models in the name of protecting artistry.

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