PhotoDude.com

Mon. Jan 20, 2003

Taxing Creators

Taxing Creators – I really value the work that Lawrence Lessig has done, both in court and at Creative Commons. But every now and then, it seems to me he betrays a core principle of copyright because of the debate’s currently corporate nature. As I’ve said before, every single copyrighted work made is created by an individual (or a small group of them). However, if that individual creates the work while in the full time employ of a corporation, via ”work for hire” rules, the copyright is immediately transferred from the employed individual to the corporation that employs them.

If you go strictly by the numbers, and the concept that an effective copyright is made the instant a work is created (in the case of a photographer, the instant after the shutter is snapped), the vast majority of copyrights are not held by corporations. Yet the arguments against copyright extensions (arguments that I mostly agree with) are set almost solely in corporate terms, as are the potential “solutions.” The individual copyright holder gets short shift in the effort to restrain Disney-like ambitions. This viewpoint seems clear in Lessig’s response to the loss in the Edred case, “on building rather than suing: The Eric Eldred Act.” It appears to me that his new proposal would mean that I might have to spend thousands of dollars when I’m an old retired photographer in order to protect my copyrights.

The reality is that such a proposal would effectively remove choice for tens of thousands of individual copyright holders by placing a new and punitive burden on them.

In the wake of the Supreme Court decision, people are rightfully saying, “this cannot stand, so what do we do next?” It’s now clear that the extension of copyrights can’t be altered by court challenge, so you must go to the source of the law; Congress.

After all, the legal argument was not so much about copyright itself, it was a specific argument about whether Congress had the right to extend copyright protection via the Bono Act in 1998. As Burningbird notes, “...the Supreme Court answered that though it may seem as if the Congress has overreached itself, it is not up to the members of this court to reign in a Congress that allows itself to be overly influenced by power and money—it is up to the people who put this Congress into office, and then ignored the acts of this same Congress. For the court of last resort to deny this is to deny the responsibility of the voters to ensure that the Congress acts in the best good for all. The Supreme Court was never meant to abbrogate our own responsibilities.”

So taking it back to Congress is perfectly appropriate, and frankly, may have more likelihood of success than litigation, but these early ideas are disturbing.

From Lessig’s web log: “In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been ’published,’ a copyright owner would be required to pay a copyright tax. That tax should be extremely low—this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain.”

Let’s suppose you were a photographer who was prolific in his 20’s. Let’s further suppose that out of the thousands of copyrighted images you might shoot in one year (each and every frame of film, 28 rolls = 1,008 copyrights), you “publish” 319 of them in your weblog that year. Perhaps 59 of them are special images that you want to protect (and that’s a very low number, especially if you’ve been shooting commercially). Under this proposal, the 59 images you’d like to protect from the year you were 21 will cost you $2950 when you are 71 years old, if you want to maintain the protection the law currently allows.

For a corporation, $50 per copyright is a mere pittance, and systems are in place to handle the administrative end … the paperwork. What would be a simple no-brain act for a corporation would be far more of a barrier for an older individual. Even if you lower the cost barrier to $1 per copyright, the paperwork barrier remains. Who wants to be 71 years old filling out even some minor form for each of 50 images from 50 years ago, and most importantly, why should an individual creator be subjected to that added burden? Individual creators are not the problem.

I’ve been fully supportive of the efforts in the Eldred case, and generally oppose the efforts of the music and film industries to pervert copyright ownership into total content control. I support Creative Commons, and intent to license most of my work here, once I’ve worked out some details (Attribution, Non-commercial, No Derivative Works). But I am sick and freakin’ tired of being lumped into the same boat with corporations who create nothing, yet try to own all. A way must be found to battle corporate copyright ownership in near perpetuity, without stifling individual copyright creation.

As I’ve said before, “I’m not sure I should be treated the same as Sony Inc.” Yet since corporations are the most egregious offenders in this case, all solutions are aimed at reigning them in. Unfortunately, they have far more heft, so it takes a harsher rope. But the rope goes around my scrawny individual neck just the same.

I must submit to the same stipulations, and they come from both sides. If, heaven forbid, the music and film industry succeed in mandating some kind of Digital Rights Management scheme, in which only “marked” images can be viewed in common software, I’ll be forced in “mark” all of my images, just to maintain their viewability. If a proposal such as Lessig’s becomes law, I’ll be forced to pony up at least a buck and some paperwork per image in my old age, just to maintain my rights to the few images I want to protect.

Protecting all of them won’t even be an option for me under such a proposal. In effect, it will remove choice for me; I won’t be able to afford to protect all of my published images (about 1500 in the past 3 years), even if I wanted to. That choice will have been effectively removed for individual copyright holders in prolific fields, yet will hardly be a speedbump to those “most egregious offenders,” the corporations.

And while the motivation of placing more work into the public domain is a positive one, this seems a case where the ends does not justify the means, especially when the “ends” is less than satisfying: “If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years [...] Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.”

Let me restate that. The 98% of copyrighted work that either [a] isn’t of value to a corporation, or [b] isn’t renewed by an individual for any reason, intent or economic inability, would enter the public domain. The fact is, any individual can declare any portion of their work in the public domain right now (as can any corporation … ha!). It just takes an added step to do so. Lessig’s proposal would instead force that added step onto every individual copyright holder, in the form of an “extension tax.” It clearly shifts the burden, solely to “force” more work into the public domain.

And the burden falls most heavily on Joe and Jane Creator, not the MegaCorps. The ends does not justify the means.

But then, I must look at this differently. Most arguments are framed primarily in terms of the “commercial,” even now as new strategies are formed to appeal to Congress: “If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?”

I hate to sound like a corporation, but the answer is control. Let me offer a real world individual example on the importance of control. I was lucky enough to extensively photograph the 1996 Olympics. Each event ticket contained stipulations that prohibit me from profitting commercially from any of those images, and I haven’t. I’ve merely published them for others on my web site, at my own expense. So, why would I not offer those images to the public domain?

There’s the hypothetical question of, how do I know those images won’t be used for profit once they are placed into the public domain, in violation of the terms under which I made them? Once they leave my control, they can be placed in any context, including those that are either undesirable to me or even completely illegal. Back to that real world example. During the Olympics, I took some totally innocent pictures one night at Centennial Park, including some shots of children frolicking in the fountain.

Why should I care if anyone uses them? They’re not taking money from my pocket. In fact, I’ve found quite a few sites who’ve used my Olympics images in perfectly acceptable ways, and I’ve done nothing to try and stop them, though it would be my legal right. Well, a few weeks after those images were online, I noticed an odd URL in my site referrals. Upon following it, I found my images of children playing in the fountain displayed on a site for pedophiles called “Wet Boys.”

Now, do you understand a little bit more about why copyright is not just about commerce, it’s also about controlling the context in which the copyrighted work appears? For some of us (at least one) retaining control of copyrighted work is not about controlling its commercial value, it’s quite literally about “protecting the work.” Thus, it is horribly frustrating to hear the argument phrased as though it’s all about greed: “Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?”

Burningbird puts it another way: “By what standard do we measure these things that he or she [who] creates has less rights than she or he who copies and modifies? [...] Forget laws, and what is or is not allowed, I know of few writers who wouldn’t like to know that their work is inspiring enough to be used to prove a point. Unless…”

“Unless, the writing is pulled out of context, modified, and used to prove something that is abhorant to the writer. Then few would not fight to reclaim the true meaning of their words. To reclaim their freedom of speech.”

To an individual creator, controlling the context is often as important as controlling the commerce. It’s about the integrity of the created work, and the expression it contains. That integrity and expression can be completely corrupted by environment … context.

But back to Lessig’s proposal: “There is a FAQ about the proposal that will be updated to reflect great questions raised by many. Read it, and think. And if you agree, then please, do something about it. Write your congressman or congresswoman.”

I will indeed be writing my Congresspeople about this, and while I’ve read and thought about the FAQ, I’ll be danged if I’ll be mentioning it to my Congresspeople. It doesn’t appear to represent my interests (though I sometimes have that same problem with those same Congresspeople). Let me detail the ways that I haven’t already.

“Why limit this to ’published’ works?”

“Copyright reaches both published and unpublished works. It protects unpublished works primarily for reasons of privacy. There’s no good reason to force people to take affirmative steps to protect work they have not published to others. So this proposal would only apply to work that people initially intended to make available commercially.”

So, you’re going to exempt work published on the web that wasn’t made available commercially? Here’s a list of over 500 individuals who each post hundreds of images to the web every year. Non-commercially. Each of those tens of thousands of published images would be impacted by this proposal.

The assumption that all published images are commercial images is false.

“Why is the tax so low? Isn’t this a good way to raise money for the government?”

“Copyright owners who earn revenue from their work already pay a tax to the government—an income tax. This tax should not be a punitive measure added on top. Its purpose is only to help identify which copyrights should be continued, and which should be passed into the public domain.”

Indeed, it should not be a punitive measure, but it is exactly its punitive nature that will “help identify which copyrights should be continued,” as each individual creator is forced to decide if the fee and paperwork are worth the hassle. On a per image basis. At an elderly age. In my book, that’s punitive. It forces an unsolicited choice on an individual, placing a burden on them to simply retain their property, for whatever reason they choose.

In a way, this effort to “help identify which copyrights should be continued” almost comes across as an enforced moral judgement via taxation … “if you’re not willing to go to the trouble of ponying up, clearly, this work should be in the public domain, because that’s the right thing to do with almost all content.” That’s fine as an opinion. As a law, it sucks. It’s an imposition onto a personal property choice: Pay the tax, or lose it to our judgement of a Better Cause. As Burningbird asks, “Do the rights of the public domain exceed the rights of the author to have control over their own acts of creation? Lately, all I’ve heard is voices in defense of the commons, but what about the artist? [...] Since when is an artist obligated to give their works to the public? Is this same requirement demanded of all people?”

Those last two questions are very valid. And unaddressed.

“Would this proposal ’burden the poor’?”

“Every tax is a burden, no doubt. And every tax should be as low as possible for both efficiency and fairness reasons. But it is hard to see how this tax would burden the poor. This tax would only apply to people either receiving income from copyrighted works, or who want to keep the copyright of a work that is no longer earning income. An alternative to lessen the burden on the first class might be a credit for any taxes paid (so you could deduct the income tax paid on a royalty from the Eldred tax). And the solution to lessen the burden on the second class would be to keep the tax low.”

It’s not just that it might burden the poor. By the very nature of its terms, it will likely burden the elderly. 50 years after the prime of your creative life, you will be forced to make difficult and perhaps expensive choices about what work to retain. That is, if you want to have any of it passed on to your heirs, as is your legal right.

I’m perfectly fine with my work reverting to the public domain 50 years after my death (that which I haven’t personally bequeathed to the public domain beforehand … by choice, not force), just as it was before the Bono Act was passed. 70 years is indeed excessive. I am not fine with being burdened by the same requirements as a corporation when I’m in my Golden Years, just to retain anything.

There has got to be a better way. In my opinion, there’s got to be a separation in the treatment of individual content creators and corporate intellectual property owners. Solutions that treat them the same are almost certain to have huge inequities built in. This one is a prime example.