Copyrant!

This policy announcement from The Greens on copyright law spurred a bit of a twitter conversation with my learned colleagues @deldridgewriter and @Duncan_Gates - this is such a mahoosive conversation though, I thought I would blog it out here. I read a lot on this for my play from 2006, The Kiss, which touched on law and property and ideas and a salmon roulade recipe and other things, so a) I know some stuff, b) I don’t expertly know some stuff, and it’s stuff from a few years ago that might be out-of-date and I might have got it all wrong anyway, so caveat emptor. This is also one of those areas that lapses quickly into crazy idealism - but I really think the crazy idealism in this case is important to hold up as a mirror to reality, because reality has some blemishes on this score.

First some ground rules and background:

  1. THE GREEN’S POLICY WILL NEVER HAPPEN. It just won’t, not in this political landscape. Copyright and IP are global issues, and there are massive global interests in copyright far bigger and better resourced than the Greens or anybody else challenging copyright. The Greens’ policy is a bit vague and woolly here anyway, like many of their policies, BUT it’s great that the debate has arisen. Like I say, you have to imagine possibilities to make possibilities.
  2. INTELLECTUAL PROPERTY AND COPYRIGHT ARE NOT QUITE THE SAME THING and the difference is key. IP, covering processes, concepts and physical implementations of ideas has to be actively protected through patent law. I’ve seen Dragon’s Den, that patent thing is important. Copyright, of texts, artistic works, images, is automatically in force on the creation of the work. (This is a the grey area that causes issues with software I guess. Code is the extensively written-down encapsulation of very abstract concepts.) This means that the burden of copyright enforcement DOES NOT lie with the creators, but with anybody seeking to use a work, be it referencing it, re-mixing it, reprinting it. The Internet is a massive copying machine (as any single computer is actually - it works by constantly making copies of everything), so in the digital age it looks like copyright holders are desperately trying to hold back the tide - an appearance that suits many large interests.
  3. UK COPYRIGHT LAW for ‘literary, dramatic, musical or artistic works’ is:
    70 years from the end of the calendar year in which the last remaining author of the work dies. If the author is unknown, copyright will last for 70 years from end of the calendar year in which the work was created, although if it is made available to the public during that time, (by publication, authorised performance, broadcast, exhibition, etc.), then the duration will be 70 years from the end of the year that the work was first made available.
    This has some interesting implications for more obscure work from the first half of the twentieth century. Since the burden is on publishers to establish copyright (and not economically worth their while), many works from a certain period will just not be re-printed, and once the remaining copies of them are gone, they’re gone. Also the fact that copyright exists from the time an artist’s death (presumably a protection of artists’ families) means that whole bodies of work lapse into the public domain at once. For instance, brace yourself for lots of ‘exciting’ new translations and productions of work by Bertolt Brecht in 2026.
  4. The Statute of Anne in 1709 (pic above) consolidated a certain amount of government control over publishers, and established copyright terms of fourteen years’ protection for an author’s work, along with another fourteen years if the author outlived that. The Copyright Act of 1842 replaced it with lifetime protection plus seven years, or forty-two years after publication, whichever was longer. Copyright legislation worldwide then has gradually extended its terms over the years (often curiously in line with how close Mickey Mouse is getting to the public domain.) There is lots and lots of interesting stuff to read on copyright, the moral cases and the history and so on. I personally recommend the work of Lawrence Lessig on this.
  5. IF SOMEHOW THE GREENS WON by some amazingly weird electoral fluke where everybody in the UK thought ‘I’ll vote Green for a laugh, nobody else will do that’, and they enacted this policy, and in some kind of crazy global delusion, all governments did the same - ALL BETS WOULD BE OFF. Any kind of hypothetical discussion of copyright changes has to carry with it the idea that it would be a massive economic disruption that would initially destroy many large corporations, which would lose most of their property overnight. The ripples through the rest of the economy would be akin to taking these corporations’ actual HQ buildings and dropping them in a lake.

All that said… it is an interesting thought experiment to explore what might happen if the terms did roll back to fourteen years. Let’s have a look at it in my field, playwriting, and imagine what that world would be like.

  1. DEAD WRITERS WOULD LOSE THEIR COMPETITIVE EDGE. Certainly, at the moment, dead writers do seem to have it all sewn up. They’re cheaper, won’t argue with director or designer appointments, won’t quibble with artistic choices, and won’t turn up awkwardly at rehearsals. (Admittedly it would be a LOT more disruptive if they did.)
  2. YOU WOULD BE COMPETING WITH YOURSELF. Your early works would be much cheaper to put on, and could be put on without you really having any say-so. But would that incentivise theatres to put on less new works? That would be really weird. Is theatre inherently historical, and pretending at relevance at the moment? Or would this new theatre have to put its money where its mouth is and treat new work as the proper investment (and thus return) that it would be? Basically, no, I don’t think theatre would stop doing new plays, that would be silly.
  3. HOWEVER, THE VALUE OF NEW PLAYS WOULD CHANGE. If, as we’re presuming, the change in copyright creates a rush of revivals and reassessments, then you are competing artistically with your younger self artistically, as much as economically. What would that do?
  4. THE VALUE OF YOUR NAME WOULD CHANGE. Any production is very financially risky, responsible theatres have to consider this in programming. Any certainties they can cling to are great. Since that’s often going to be a matter of past successes, a bankable name inevitably creates a virtuous circle for the successful, and all power to them. The corollary of this is that revivals of recent work by lesser-known playwrights are inherently risky. Now, this is not to say that currently AD’s don’t chance their arm on revivals - they do, and that’s great, and it means royalties for writers who might really need them. But should this be a ‘brave’ thing for a theatre to do, to ‘bestow an honour’ upon those playwrights that have influenced the current generation? What if it was the normal order of business, what would that do to the current writing landscape?
  5. PLAYWRIGHTS WOULD EARN MUCH LESS. As opposed to the riches they earn now. Ahem. I don’t know, I think the economic landscape would be so altered in our hypothetical universe, it’s hard to gauge that against anything approaching reality. I would estimate that for the vast majority of writers now, the bulk of their income from playwriting-related activity is probably from, let’s say, physical presence (ie. teaching, workshop-leading, development-attending and so on), and in many cases the actual bulk of their actual income is from non-playwriting-related activity. So go figure.

OK, I’m running out of steam at this point, but I intend this just as a provocation, really. Like I say, never going to happen. So there’s not too much harm in imagining what might, is there…?

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