Over the last week, a couple of twitterers I follow expressed the opinion that fans don’t have a right to the art they want. Alyssa Rosenberg said “You don’t have a right to HBO.” i.e., that you can’t just steal content because HBO won’t stream it on the internet. And Dan Kanemitsu, in reference to people creating unlicensed manga translations for the Kindle, said that “Having material available quickly & cheaply is not a right.”.
I understand where Alyssa and Dan are coming from, but I think the language of rights here is misleading. In this context, I think it’s worth remembering why we have copyright in the first place. According to the Constitution, copyright is established “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.”
In other words, the purpose of copyright is not to protect creators. It’s to encourage artistic creation.
One of the main ways it encourages artistic creation, of course, is by giving creators exclusive rights to their creations, so they are encouraged to create them. But it also gives society rights by limiting the extent of creator control. In other words, public domain and fair use and access to art are not just a gift; they’re central to how copyright is supposed to work.
Or let’s put this another way. Think about the Beastie Boys’ “Paul’s Boutique”. The Dust Brothers jacked a lot of samples for that album, most of which they didn’t clear. Did they have the right to do that? Weren’t they just being entitled jerks, thinking they could just walk off with other people’s beats?
Of course, you could argue that having access to HBO or manga isn’t like having access to beats. After all, who’s going to make art out of HBO or manga?
The answer is that lots of people might. A video artist might want to use HBO clips in her piece; a writer might want to read a manga translation to inspire fan fiction. For that matter, reviewers or academics might want to write critical pieces about them. If critical writing is creative (and it is) then how philosophically are such writings different from Paul’s Boutique?
The issue here isn’t that all people have the right to steal any art they want. Rather, the point is, again, that the language of “rights” is a poor way to think about society’s investment in the availability of art.
I think it might be more useful to think of copyright in terms of competing interests. Society has an interest in protecting individual creator monopolies in copyright. It also has an interest in allowing other people access to those creations.
We try to balance those interests in various ways. Currently, we do it by having really restrictive copyright laws foisted on us by our corporate overlords…and rampant and easy piracy made available by the internets. This is not an ideal system in any sense and for many reasons. But would it really be improved if consumers all at once and instantly accepted that they had no right to art, and ceased their infernal piracy? If by “would it be improved?” you mean “would it encourage more creativity?” — then, no, I don’t think that the end of piracy, mash-ups, fan fiction, and more restricted access to art would give us a better, or for that matter a more moral, creative landscape.
I want artists to get compensated for their work. But I wish we could find a way to do that which recognized that society has an interest in making art available to everybody — not least because that “everybody” includes creators.