copyright: moral right or outdated convention

Ray Dillinger bear at sonic.net
Wed Jan 17 09:10:54 PST 2001




In the internet world, no publishers are needed - or if they are 
needed, it will only be as manufacturers of a physical commodity 
(bound printed pages) that people like better than what they can 
roll off their own printers.  And in fact, you find publishers 
living this way now -- I can still get recent printings of Mary 
Shelley's book _Frankenstein_, or Melville's _The Whale_, even 
though the copyrights on them are long gone.  So somebody out there 
is making a profit manufacturing bound volumes of public-domain 
words.  There's no reason the whole industry can't work that way.

A long time before there was copyright law, as it is now understood, 
there was literature.  

When Virgil sat down to write about what the Gods had been up to 
lately, he didn't have to worry about who owned the characters; 
the characters were clearly in the public domain.  (He did have 
to worry about what the priests would think, though - the practice 
of stoning heretics was well-established).  

But anyway, from the greeks forward, you get plays and works composed 
by many different authors, drawing upon characters and storylines 
and situations that had been dreamed up by earlier authors.  In 
Italy, characters like Scaramouche and Pantaloon emerged, and the 
entire Commedia Del Arte coalesced around them - written by dozens 
of different people, none of whom had to ask the others for any 
kind of permission.  In Germany, new stories were written about 
old characters like Tyll Eulenspeigel, each author developing 
something about the character that other authors had left out. 

And these people, acting in defiance of the principles that would 
later be enshrined as copyright law, created powerful, thoughtful 
literature.  How did this happen?

First, there were _Patrons_.  I use the word not in the sense of a 
movie watcher or theatre watcher today, but in the sense of its 
coinage.  At the time, a _Patron_ was someone who would underwrite 
the living expenses of an acting troupe or an author, in exchange 
for the right to have first access to any new work or new performance.
Sculptors and Painters also had their _Patrons_, but in those cases 
the works were non-copyable and the _Patron_ simply wound up owning 
it.  Today we would call such things "works for hire", or simply say 
that the _Patron_ had bought it and paid in advance.  But in the case 
of the acting troupes or the authors, the work the _Patron_ paid for 
would eventually be enjoyed by everyone.  You still find such people 
today, teaming up to support local ballet companies and theatre 
groups.  Considering that the incremental cost of copying bits is 
very near zero, I suppose that several _Patrons_ could easily 
support an author working on his next book, and then simply hand it 
off to public domain when it was finished.  With very few exceptions, 
the artist isn't going to get rich, but as someone who's seen 
publishing contracts, that doesn't really make a difference.  With 
very few exceptions, the artists don't get rich now.

The second reason such powerful literature was produced without the 
benefit of copyright, was because the characters themselves became 
Archetypes.  Each was formed not by a single quirky hand, but by 
hundreds of authors scattered by thousands of miles and many years. 
Innovations in an established character were either greeted with 
delight or shouted down, depending on whether they appealed to an 
audience's perception of the character.  And each author was free 
to develop new facets of the characters that hadn't been developed 
before.  Thus we see Scaramouche, in hundreds of plays, as the 
jester, the prankster, the happy-go-lucky ne'er-do-well.  But we 
also see him, a couple of times, as an old man, experiencing 
regrets, and as a sincere lover, striving to redeem himself, and 
so on...  These outlier plays, which would never have been dreamed 
up by the original author (whoever that might be) of Scaramouche, 
develop facets of the character that are a vital part of the whole. 
Without copyrights, characters and stories are free to grow beyond 
the vision of the artists who created them.

I don't think copyright is still necessary.  It existed for the 
sole reason of making new ideas profitable so that someone could 
afford to publish them.  But publishing new ideas is effectively 
free now, so it's become obsolete.  And our literature is sadly 
missing some of the things that copyrights destroyed. 

				Bear










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