Copyright is a big deal. There’s hardly a single computer user who hasn’t faced the possibility of using or creating content that infringes copyright. And it is a huge deal in the area of Buddhist texts, where many texts are protected under some form of copyright law. I’m going to make a somewhat complex argument here, so let me state my conclusions up front.
I think copyright is a bad idea. I think we would be better off without it. But regardless of whether it has certain applications in some areas, it contradicts fundamental Buddhist principles and should never be applied to Buddhist scriptures.
Why is copyright a bad idea?
The basic premise of copyright is this: that we can ensure creative incomes by legal means. The purpose of copyright is to provide a legal avenue to ensure the rights of original creators are respected. That is to say, a copyright notice is nothing if it is not an implicit legal threat. It says, if you don’t comply, you are a criminal and we will take you to court. The problem is not just that these threats don’t work, it is that they prevent us from even considering more humane and socially-based measures.
When copyright laws evolved over the past few centuries, we lived in a completely different world. Copying took effort, and it could be reasonably contained. But for the past 20 years or so, the combined effort of human ingenuity and industrial output has created billions of machines that can copy incredibly fast, and has put those machines in the hands of most of the people on this planet.
Then you say to everyone, “Please don’t use these machines for copying!” Have you heard what happened in the Garden of Eden? Let me make a huge leap and guess: people copy stuff anyway.
Have a look at how many copyright takedown notices Google gets:
Yep, that’s over a million requests every day. For one company. And see how it’s soared over the past few years, at the same time as the protectors of copyright have pushed hard for creating ever more draconian laws.
There aren’t that many bad people in the world. If the law says that millions of people are criminals, it’s the law that is wrong, not the people. Any law that is broken this often is ill-conceived.
It seems to me that successful laws are of two kinds. You either have laws that govern things that are very exceptional, only a few people do them, and they fall well outside what are considered acceptable; such as murder, theft, and the like. In such cases, you ban the thing and impose substantial penalties. But other kinds of laws govern things that most people do, or might do. It’s not so much a matter of prohibiting things because they are wrong, but managing them in the interests of the public good. I’m thinking of things like speeding tickets, or building regulations, or non-smoking zones. In such cases we try to nudge people towards a better behavior. You tweak them, making them more stringent, together with an education component, and gradually build a social expectation of acceptable behavior.
The problem with copyright law is that it tries to apply the absolutism which is appropriate for the first kind of law to something that should be managed by the second kind of law. You can’t just make people stop copying things they like. It’s never going to happen. Maybe you could make them modify their behavior, but until you give them a way of doing that it is a losing battle.
Copyright law, it is often believed, may be justified by reference to the economic reality. But if that’s the case, why do the proponents of copyright resort to falsified data to justify their positions? There are, on the other hand, multiple accounts by authors and formal studies that show that publishing books freely on the internet dramatically increases usage and has little effect on book sales.
The intended purpose of copyright is not to protect corporations, but to protect the work of creators. But here’s the thing. Before I was a monk, I was an original creator. I was a songwriter; and I lived among creative artists. For 6 or 7 years pretty much all my friends were writers, poets, actors, musicians, painters, or dancers. And I can’t recall a single time when copyright law was actually relevant to anyone. True, I made a small amount from song royalties, but it never affected our lives all that much.
And anyway, even if you, as a struggling artist, became aware of a copyright violation, what could you do about it? Take a publisher or record company to court? Good luck with that. What you’d do, if anything, is contact the alleged violator, and if they didn’t do as you asked, you’d grumble about it. You don’t need a legal system for that.
Copyright becomes relevant when you step up into the realm of corporate sponsored art. You sign a contract, giving the copyright ownership to a company. For us it was a record company, otherwise it might be a book publisher, a movie studio or whatever. Then they own the copyright, and you get a small percentage (in our case, about 10%—so much for protecting the rights of creative artists.) If there is a copyright violation, the company goes to court, because they can afford to.
Now, in some cases this can be justified. For example, it’s really expensive to make a movie. You need companies to provide the financing and bear the risk. But this is a purely contingent fact, and it changes depending on technology. In the past, for example, a publishing company was needed to produce books. Gradually, technology has eaten away at the specialist services that publishers can offer. Typesetting, proofreading, design, marketing, printing, distribution: all these can now be done easily by individual authors, who can then keep full copyright control over their works. On Amazon, nearly 50% of creator revenue for genre titles is now from self-published books. So the fact that producing some kinds of creative work requires large companies and legal protection does not mean that such protection is necessary everywhere.
The notion that copyright exists to protect creators withers when you consider the devastating impact that the radical expansion of copyright has had on works whose creators have died. Here’s some background on this, from Professor James Boyle of Duke Law School:
Congress eliminated the benign practice of the renewal requirement (which had guaranteed that 85% of works and 93% of books entered the public domain after 28 years because the authors and publishers simply didn’t want or need a second copyright term.) And copyright, which had been an opt-in system (you had to comply with some very minor formalities to get a copyright) became an opt out system (you got a copyright automatically when you “fixed” the work in material form, whether you wanted it or not.) Suddenly the entire world of informal and non commercial culture — from home movies that provide a wonderful lens into the private life of an era, to essays, posters, locally produced teaching materials — was swept into copyright. And kept there for the life of the author plus 70 years. The effects were culturally catastrophic. Copyright went from covering very little culture, and only covering it for a 28 year period during which it was commercially available, to covering all of culture, regardless of whether it was available — often for over a century. Unlike Fahrenheit 451, the vast majority of the culture swept into this 20th century black hole was not commercially available and, in most cases, the authors are unknown. The works are locked up — with no benefit to anyone — and no one has the key that would unlock them. We have cut ourselves off from our own culture, left it to molder — and in the case of nitrate film, literally disintegrate — with no benefit to anyone. The works may not be physically destroyed — although many of them are; disappearing, disintegrating, or simply getting lost in the vastly long period of copyright to which we have relegated them. But for the vast majority of works and the vast majority of citizens who do not have access to one of our great libraries, they are gone as thoroughly as if we had piled up the culture of the 20th century and simply set fire to it; and all this right at the moment when we could have used the Internet vastly to expand the scope of cultural access.
That this extension of copyright is useless and harmful is not just the opinion of a few radicals. In 2002 a team of 19 economists, including 4 Nobel laureates, submitted an analysis to the US Congress on the Copyright Term Extension Act of 1998, where they concluded that, “Taken as a whole, the authors believe that it is highly unlikely that the economic benefits from copyright extension under the CTEA outweigh the additional costs.” And yet, it is still with us.
Here’s a stunning graphic that shows just how deep a hole in our culture copyright law has dug. It’s from a paper titled “How Copyright Keeps Works Disappeared”, by Paul J. Heald of the University of Illinois College of Law. This graphic shows how books published before the magic public-domain date of 1923 are far more available than those published after. Essentially, publishers make texts available for a decade or two, and then they languish unread until they enter public domain.
The proof is in the pudding. Empirical studies show that creative workers earn an average of around half the median wage, and what income there is is extremely unequal and uncertain. In a survey of 25,000 authors in the UK and Germany, authors Martin Kretschmer and Philip Hardwick of the Bournemouth University Business School wrote that, if the aim of copyright law is to provide reasonable renumeration for writers, “This study shows quite conclusively that current copyright law has empirically failed to meet these aims.” They added, “After this study, copyright policy cannot remain the same.” And yet not only has there been no reform, things continue to get worse, as in the top secret deals being forged in the Trans-Pacific Partnership.
If the law doesn’t really protect creative artists, then who does it protect? Copyright law is an instrument of capitalism, and like all instruments of capitalism, it aims to make the rich richer. Who is making all the fuss about copyright? Farmers in Kenya? Street cleaners in Manila? Bus drivers in Brazil? No, it’s the owners of massive, wealthy corporations.
The practical result of copyright, I allege, is to take money out of the hands of creative artists and their fans, and concentrate it in the hands of the rich, who control the means of production. Think about it: why was copyright law created in the past 300 years or so? Isn’t that the time when the printing press became used? A printing press allows mass copying of writing, but it does so at considerable expense, in terms of the physical machinery and space, but also in terms of time and experience, and carefully learned craftsmanship. When the laws were created, this served a purpose, as the capital—printing presses, distribution networks, and the like—was necessary to propagate work. So a class of company, known as “publishers”, was created to deal with these things and enable the printing and distribution of books. But now, the measurable effect of copyright law is to prevent people from accessing content. And the reason for this is straightforward: the whole idea is based on a state of technology that simply doesn’t exist any more.
Profit arises from the demand for a good whose supply is limited. In the 20th century, the supply of intellectual content was limited, and so it was a valuable commodity. Now it’s not, despite the efforts of content providers to keep it so. Information is the cheapest thing in the world; much cheaper than water. The economic thinking that underlies copyright law is deeply disconnected from the real world.
I have looked for demographic data on the economic effects of copyright law and haven’t been able to find anything, so allow me to make an unsubstantiated hypothesis. If anyone knows of some information, please let me know. But here is my thesis: the flow of money from copyright is, on the whole, from the poor to the rich; from the colored to the white; from the female to the male; from the underdeveloped countries to the developed; and from the young to the old. Prove me wrong!
If we are to retain any form of copyright law, we should develop it like the second kind of law I mentioned above, in a gradual and pragmatic way, together with an education process.
One model would be to make copyright law more like patent law. It would be opt-in, so a creator would have to make an application for copyright, which spelled out the reasons for applying copyright in this instance. If the application was successful, a percentage of earnings, say 10%, would go to the regulatory body, thus providing funding for it. This would ensure that copyright is only applied for substantive works, and works where the creator genuinely expects that they will lose more than 10% of their earnings by copying. The copyright would apply for a reasonable period, say 20 years, as is the case with patents.
As long as humans have existed, they have created. The first signs of human creative activity are nearly 100,000 years old. Creativity is an expression of the human spirit: it doesn’t belong to capitalism. No matter what you do, people will create. People all over the world are creating, writing, painting, playing music, and they couldn’t care less about copyright. Copyright law is not about fostering creativity. It is about keeping alive an economic order based on 20th century technology, which ensures that a small circle of the rich get the bulk of the economic gain from creative activity.
What about Buddhism?
You’d think that it wouldn’t need stating, but evidently it does: Buddhism is about letting go, copyright is about holding on.
Even if we can accept a case for certain forms of copyright in certain spheres of life, how should that apply to Buddhism? After all, Buddhism not merely survived, but flourished for thousands of years before copyright came on the picture. Perhaps some historical perspective is in order.
The first question, which can be dealt with swiftly, is whether copying is stealing under the Buddhist precepts. The answer is no. Stealing in Buddhism requires that the owner be deprived of something. Copying is not taking. You could argue that the creator is indirectly deprived of income, but that is irrelevant. There are plenty of ways to indirectly deprive someone of income; I could set up a rival business, for example. I might even do that out of malice, to deliberately harm you. That may not be a nice thing to do, it might even be illegal, but it has nothing to do with stealing. Of course, breaking copyright is against the law, which is a separate matter; but it is not breaking precepts.
Incidentally, many monastics, like most people in developing countries, use pirated software all the time. If copying was stealing, they’d risk falling into an expulsion offence. However, even though there is no expulsion offence for using the software, it is still often illegal. This is one of the many reasons why monastics should use Free and Open Source Software (FOSS), such as Linux. This also highlights one of the often-overlooked details of copyright history. Software is an unusual industry in that extensive copying has existed as long as the industry has. People have been using millions of pirated copies of Windows and other software as long as they have been around. Yet software companies are thriving, and making record profits.
For the Buddhist tradition, as indeed for most ancient traditions, there is no notion of intellectual property. People borrowed and copied all the time. Buddhist texts are full of cases where monks or nuns are quoting verbatim passages from the Buddha or others, and there is never an issue of ownership. That’s because the Dhamma is not about ownership. It’s about helping people let go of suffering.
The Dhamma was felt to be, if anyone’s, the Buddha’s. The Buddha encouraged his students to teach the Dhamma in their own language; so that, from the earliest days, the Dhamma existed in multiple translated forms, all of which were considered to be the words of the Buddha. When the texts were later translated into Chinese and Tibetan, they continued this tradition, regarding these texts as “the word of the Buddha” in exactly the same sense as the “original” scriptures (which were themselves translations from one Indic dialect to another).
However, in modern times agreements such as the Berne convention ruled that translations should be considered to be original creations. I think this is a mistake. I’ve done original writing, and I’ve done translations, and they are very different kinds of things. You can, for example, get a computer to do translation, albeit poorly, but no computer can write a meaningful original article.
Be that as it may, it is clearly contrary to the entire Buddhist tradition. And needless to say, no-one thought to consult Buddhists about this. It was a law made in Europe by some rich white men, who were not even thinking that their acts might affect an ancient spiritual tradition from the East. Yet this law has been adopted by many Buddhists who use it to control how translations are made. No longer are Buddhist scriptures regarded as the “word of the Buddha”, but as the property of individuals, or more likely, of corporations. This tendency is found mostly among western translators; Asian translators mostly stick closer to the original spirit, although they sometimes use restrictive licences of various forms.
Not only are translations regarded as owned by individuals, even the original texts are frequently subject to copyright claims. You’d think that a millenia old text would be pretty firmly in the Public Domain, but apparently many publishers of original texts don’t think so. Going beyond the extremely broad scope of copyright law, they publish licences with their texts, sometimes “releasing” them under various Creative Commons licences. But you can only licence something that you own, and you can’t just go around claiming to own something that you don’t. To make such a claim is, or it should be, illegal. (Since copyright law is written almost entirely to protect the interests of content providers, it is not clear to what extent such a claim is fact illegal. But the principle is clear enough.)
The basic justification for copyright is that if we don’t copyright things, creators won’t get compensation, and the work will not be done. This is a dubious argument in the creative industries generally, since not only, as we have seen, is there no real evidence that copyright ensures a decent living for artists, but because artists are not motivated primarily by money.
This is even more applicable to Buddhism. No-one translates Buddhist texts for money; which is a very good thing, because if you did, you’ll be pretty disappointed. We—the monastics, academics, institutions, or private individuals—who do the work of translation do it out of love. There are vast quantities of translations that have been done and simply put out there, with no attempt at getting recompense. And even in the minority of cases where works are published commercially, the translators, and the many assistants who made these works possible, typically don’t get any income from them. Given this, it seems to me that the best way to produce high quality translations is to make our work freely available, so it can be copied, adapted, and improved. If funding is needed, for example, if someone wants to take time off work to complete a translation, we should rely on the Buddhist culture of dana, which has supported the maintaining and spreading of the texts for so long.
When I suggest that we shouldn’t use copyright on our texts, people say, but how do you stop them being misused? I just don’t get what the problem is. Does anyone really think that there are hordes of malicious people waiting out there to do awful things with Buddhist texts?
If, by some remote chance, someone does do something malicious with my work, such as, say, passing it off as their own, I’ll contact them and ask them to stop. If they don’t, I’ll rely on the power of peer pressure. I’ll write about it, and let people know that there’s a scam afoot. The perps will fade away soon enough. I’d never take someone to court for anything like that, so why issue an empty threat?
To me, it seems that this concern betrays a deeper misunderstanding of what copyright law is all about.
Copyright is not something that you can claim or not claim. It exists by law because you made a creative work. By operating under copyright law you are saying that anyone who violates this law is a criminal, and is potentially subject to very large punishments.
What I am suggesting is that this should not be a legal matter. We should dedicate our works to the Public Domain, via Creative Commons Zero or similar. That doesn’t mean that you necessarily support and encourage anyone to do anything they like with your work. It means that whatever someone does, you will not treat them as a criminal. If you don’t like what they do, contact them and ask them politely to stop. If you would like to issue some guidelines for use, do so. You can ask people to give proper attribution, or to not change anything, or to not use for commercial purposes. But you don’t have to make a legal issue out of these things.
I used to go along with the norm, thinking that it was the right thing to do. So I published my works under restrictive Creative Commons licences. But as I’ve learned more and my understanding of copyright has improved, now I don’t claim anything. I think if someone wants to do something with my work, great. Alexander Duncan of Chroniker Press took my Theragatha translation and made a nice printed edition: it’s terrific, buy one if you like! Markus Echterhoff of DhammaTime just made some modifications to my Open Sanskrit font, itself derived from Open Sans. Cool, download and use it.
Which brings me back around to something I alluded to earlier. Rather than relying on copyright, we should adapt the millenia-old means of negotiating usage of materials based on social interactions. And this is, once again, an area where technology has completely changed the situation. Creators can stay in touch with their audience to a degree that has not been possible since publishing was invented.
Copyright law is just bad psychology. The people who want your things are your fans. When you invoke copyright law, you are treating your fans like criminals. How do you think that’s going to work out?
The relationship between the creator and their audience is the single, irreducible fact of all public creative activity. You need a creator, and you need an audience. What you don’t need is a middle man. By making a faceless company the middle man, you distance the creator from their audience. When a fan copies a work, they don’t think they are harming the creator. They think of it as avoiding paying “the man”. If the natural creative relationship between artist and audience is restored, there will be a greater degree of respect and mutual support. This is proven by such innovations as Kickstarter, which shows that people are quite happy to pay for creative works, especially if they feel a sense of connection with the creator.
What I am suggesting is that innovative models like Kickstarter, or its Buddhist version dana.io, give us an example of how a new relationship between creator and audience can be forged. Lulu.com, the print on demand service, is another example. Rather than signing over the ownership of your work to Lulu, you retain ownership, and use whatever licence you like. Lulu is more like a contractor. You pay them for various services, basic ones like printing and distribution, and optionally for things like design and marketing. But they never own your work: you do.
Most people don’t realize it, but the internet runs on dana. Most of the servers that power the internet run on Linux, which is Free and Open Source Software. It was created, developed, and is still maintained by people who donate their work to the public good. Linux doesn’t just power the internet, it also underlies Android, and a whole range of other applications, from computers embedded in various devices, to the world’s fastest supercomputers. Why do you think the very best computer scientists in the world use Linux for their most performance-critical work? Because it’s better, obviously. Generosity is not just a nice idea, it creates better outcomes. Why? Because people do better work when you engage their positive nature than if you assume they are selfish.
Another innovative example is the TeX typesetting program developed by Donald Knuth. He released the software for free, as quality typesetting is a public good, everyone should be able to do it. And he made money by putting the detailed instructions in a book, the TeXbook, which was of course typeset in TeX. But he went further, by offering a reward for anyone who found a bug in his program. In this way he not only improved his work, he engaged a community of clever people who wanted to work with him.
There’s lots of other examples to be found. In all these cases, people found effective ways to use a fundamental principle of Buddhist psychology: that people work best when they are encouraged to do good. If you penalize them for doing something harmless, they just get annoyed.
I’ll finish this off with a quote from the author Neil Gaiman, which is a summary of his keynote for the London Book Fair 2013.
Mammals spend an awful lot of energy on infants, on children, they spend nine months of our lives gestating, and then they get two decades of attention from us, because we’re putting all of our attention into this one thing we want to grow. Dandelions on the other hand will have thousands of seeds and they let them go where they like, they don’t really care. They will let go of 1,000 seeds, and 100 of them will sprout.
… the whole point of a digital frontier right now is that it’s a frontier, all the old rules are falling apart. Anyone who tells you they know what’s coming, what things will be like in 10 years’ time, is simply lying to you. None of the experts know—nobody knows, which is great.
When the rules are gone you can make up your own rules. You can fail, you can fail more interestingly, you can try things, and you can succeed in ways nobody would have thought of, because you’re pushing through a door marked no entrance, you’re walking in through it. You can do all of that stuff but you just have to become a dandelion, be willing for things to fail, throw things out there, try things, and see what sticks.
And, by the way, I fixed a spelling mistake in that quote. One dandelion just became a little more beautiful.