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09 February 2008 @ 12:04 pm
Copyright and Compensation  
"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." - Thomas Jefferson

This is in response to a post on jeltzz' journal, where he's asking about the current state of IP, compensation for creators, distribution, while protecting things like fair use, open access to information, etc. This idea's been banging around in my head for a while, so I thought I'd take the time to actually lay it out logically.

Firstly, IP is a bit of a useless term. The three components that make it up (trademarks, patents and copyright) all exist for different reasons, cover different things, and work by different rules. The only common denominator is that they're abstractions given the value of property. The only relevant one is this context is copyright. Patents need their own reforms, but they're totally different to copyright, and trademarks most people have no problem with.

The main issue, I think, with copyright is this. Once it's released to the public, it can be infinitely duplicated. But, people create it, release it to the public, and then require compensation. When I write a website for a client, I generally don't do it all up, make it fully functional, put it live, and then ask for my money. I know it'll take me forever to get it. I get it all ready, let them see it, and then say "When you pay me, I'll put it live".

The other problem is that, due to the current model, there's an expectation of returns continuing on forever. Again, when I write a site, I get paid whatever I charge for it, and then my business is done. Even if the people I wrote it for go on to make thousands of dollars off of my work, I'm not entitled to any of it. This is contrary to copyright. In this scenario, when the creator has finished creating, they have yet to be paid (except for the advance in the case of an author, which is, anyway, in expectation of future payment). Because their payment is only made after the work is completed, and the payment is never "finished" (especially with current copyright laws) they expect to get paid forever. Write a good book, and it is expected that you (and your descedants) should be able to dine out on the returns the rest of your life. This is contrary to any other type of work - when I do a good job, I still get my agreed-upon wage, no matter how much money the product of my labour makes for the one who purchased it.

I think that a possible solution to these problems with IP be to make them work in the same way as all other forms of compensation - as a work for hire. That term has been dragged through the mud by the recording industry, since they classify work done for them as "work for hire", but they pay their hire in the form of a loan that needs to be repaid. If my employer tried to pay me my wages by advancing me a line of credit I'd laugh in his face, but this is a rant for another time.

The idea is actually sort of a regression to the old system of patronage, but with modern technology, patronage need not be limited to one person. I've been thinking more along the lines of TV than for music or literature, but it goes something like this:

  • Some guy has an idea for a great TV show.

  • He writes it up/makes a pilot episode, and distributes it online. He outlines how much each episode would cost, how much money he'd need to start the show, and what the deadline is for starting.

  • An independant specialized service would exist to act act as an escrow service. Any who are interested in the idea donate funds through the escrow service. If the account hits the minimum before the deadline has passed, the show goes into production. If it doesn't, the money is returned to the donors (minus a cut for the escrow service).

For an example of this in real life, take Firefly. Estimates are that it cost about $1 million per episode. After being canceled, Firefly sold 500,000 copies (these figures were from 2005, I imagine it's much higher now). So, using the system above, Joss puts up a promo for Firefly. He gets, say 250,000 respondants (he's well-known, and his stuff would get a lot of attention, but probably not the response Firefly got after all episodes were available - but this is just a guess). Each of those 250,000 are willing to pony up, say $40 (about what they paid for the boxed set). They do this knowing that, if the critical amount isn't reached, they're going to get most of their money back, so it's not much of a risk. That's $10 million, enough to do 10 episodes, more or less. So he starts producing, and distributes each episode online. The escrow company pays out money as needed, like a trust account, so that Joss can't do a runner with the money. The show is a hit (as it was), and, when they start getting towards the end of the run, they announce that Joss is willing to do X more episodes, but would need $Y, and Firefly continues until it cannot garner any more funds.

Joss, the actors, and all the technical people get paid. All the donors get their Firefly. At this stage, it doesn't really matter if people copy it. After all, everyone involved has been rewarded for their work. In the old model, everyone still would have been paid (by the network) and the network would now be out trying to leverage the product to make back it's money (and some profit on top, of course). Under this system, everyone's happy (or at least paid), there are no middle-men who need to paying, and more - Joss would still own the rights to his show. He could then take it to the networks and offer it to them, so they could screen it on TV, make money off of ads, or subscription, or whatever system they use. He can release the DVDs himself, or sell the contract for the DVD release, and all money made on the sale would go to himself (or himself and the actors/technicians, depending on how their contract was formulated).

The advantage of this system is that it relies on natural laws - if the product isn't produced until it's paid for, then it can't be copied until everyone has been compensated. It doesn't rely on an artificial, government-imposed restriction that is ultimately unenforceable to guarantee profits for the creators. It also means that a whole, completed product isn't released "on spec", in the hope that lots of people will like it, and you'll end up getting paid.

I imagine that, under such a system, producers would find other ways of enticing donors as well. After all, TV content producers would be competing for the attention of the viewers, unlike now, where they're competing for the attention of network executives. For instance, perhaps all donors who donated more than $50 a season can get a special limited edition box set of the season for the cost of pressing/postage. Or over $100, get their name in the credits somewhere. Or guest appearances, meeting their favourite actor, invitations to watch the filming, etc. This leads even further on towards the concept of a gift economy, where you're rewarded by recognition rather than money. And hey, who wouldn't want to have their name associated with their favourite TV show?

As for the donors, well. It costs about $40 a month for Foxtel's basic package. I don't know about you, but I can only really afford the time to follow 2-3 TV shows at a time. So patronising these TV shows would cost me about 25% of a cable subscription, possibly get me the box set at a nominal price, and get the satisfaction of directly supporting people whose work I admire. I thought through this in the context of TV, but I'm sure similar systems can be imagined for authors and musicians.

Of course, a sweeping change like that would probably have many other unintended consequences. But I'm confident that the premise is sound, and that the human ability to make a buck out of any situation would ultimately carry it through, even if it required adjustment along the way.