Death of the Author

 

When the topic of copyright term lengths come up or Friday nights as I call them, certain ideas and expressions start to repeat. One common one is the idea that terms should last for the life of the author and no longer. After all, a corpse can't cash royalty checks, and as I've discussed earlier, inheritance can be a protracted and vicious thing. So, why not let the decision of the Allmighty be a chance for wiping the slate clean?

A popular response is alarm at the hypothetical prospect of some big corporation knocking off some rising star to cut them out of the negotiations and save themselves the chore of humouring the artists concerns over the franchising of their intellectual property. I've heard variations of this for years, last night Neil Gaiman had a variation that posits the murder of J. K. Rowling in 2001. I used to think these were jokes and responded appropriately, polite and light laughter before moving onto some other topic. Furthermore, I've since learnt that this is a genuine fear that some people have and take very seriously and use it to motivate their positions on this subject.

I'm sorry, but I am confident in declaring that that will not happen if such a system were adopted. Given my obvious hostility to private capital, don't misunderstand me, my views do not rely on amoral cost and profit driven entities suddenly developing moral scruples or fear of punishment by a legal system that already privileges them. No, the reason why no corporation will off someone in this scenario because that would completely destroy the framework of Intellectual Property. In this scenario, the corporation arranging the murder doesn't get the artist rights, the rights cease to exist. The benefit would be no upfront fee, negotiation period and revenue splitting agreement, the cost would be no new IP from the artist and everyone else on the planet has the same opportunity you have and can crowd out the market with competition.

IP can be hard to think about, since it's fundamentally an abstraction. An author's story isn't the book on your shelf, that's the medium in which the story is communicated to the audience. I find it helpful to think about it like this, oil is a physical commodity, it's a resource that is created naturally through a process that takes millions of years. Say a large deposit of oil is discovered under a stretch of land, and that land is owned by someone. An oil company wishes to purchase access to that oil and the exclusive right to use it commercially, the owner will not sell, or won't sell for a price the company is willing to pay. Inheritance has been abolished, so once the landowner is dead the land becomes free for anyone. The oil company arranges an "accident" and in the process they have saved themselves the fee, but cost themselves exclusive access to that oil, other companies can tap into the field and drain it and sell their oil in direct competition with the company with the hitman on the payroll. It's possible that this company will still turn a profit off the oil they managed to tap and sell on the market, but the lack of exclusivity has prevented them from a higher yield of profit. In the UK we call this behaviour cutting your nose off to spite your face, it means actions that remove an irritant but cause far more damage.

You may be thinking this is a strange way of explaining the process if you're familiar with the frequent campaigns of murder and forced evictions that oil and gas companies carry out in parts of the world such as the Nigerian delta, but that's a consequence of property, not its absence. These horrific campaigns are happening with the direct knowledge and support of the authorities, who on paper should be intervening to stop them. And they are not removing populations to make the land and its valuable resources free for anyone to exploit them, they're seizing that land for themselves. After the removal of the local inhabitants and their resistance and witnesses, the land is legally given to the company to exploit. Property rights have done nothing to protect these people, on the contrary it has heavily incentivized human rights abuses and assaults on them. If property were to be abolished, these communities would be far safer because there would be nothing to gain from funding a war of extermination in remote areas. Property is theft, it also in many cases murder.

It would be the same thing in the creative economy. Yes the company doesn't have to cut Rowling or King or whoever royalty checks, but now every other company and independent can churn out rival product. What makes IP so lucrative as a commodity that high sums are exchanged is the right to exclusive profit.

When J.K. Rowling signed with Bloomsbury to publish Harry Potter that property was off limits to every other publisher and when Warner Brothers to make the movies, no one else can unless the deal is ended, and they secure Rowling's agreement. If anything, I can see contract killings as more likely to happen under the current system of copyright, where terms last decades after death and contracts can be drawn up transferring exclusive rights to remuneration and commercial activities until the rights expire. Alan Alexander Milne died in 1956, yet for decades since that time Disney had exclusive rights to Whinnie-the-Pooh as a commercial asset until last year when that character entered the public domain in the United States. Death is not an obstacle to corporate profiteering, and contracts and Wills can be challenged by entities that can afford the best legal representation. Multiple creators have lost the rights to their creations while still alive and able to pursue resistance, see Jerry Siegal and Joe Schuster, the creators of Superman. 

So, no, there is no danger to the lives of creators if the term of copyright were to be set to life. But hey, if you're still convinced then let's shift the debate to a fixed term of copyright regardless of the living condition of its creators, that would erase even the remotest chance of this happening.