Is Copyright Killing Creativity?

by Hans Rollman

15 April 2016

It's time to move toward an open-source model for literary and creative production, argues Illegal Literature, a provocative new challenge to traditional copyright models.
cover art

Illegal Literature: Toward a Disruptive Creativity

David S. Roh

(University of Minnesota Press)
US: Dec 2015

Is copyright killing creativity?

David Roh, an English professor at the University of Utah, warns that it might be. His study Illegal Literature: Toward a Disruptive Creativity emerges as a highly academic yet deeply provocative manifesto for loosening copyright laws in the name of culture and creativity. “The cultural stakes are high,” he writes. “For to continue unabated in the established trajectory would mean a steady march toward stasis… the literary and cultural landscape will lose out on a valuable form of production.”

Roh takes the side of the creative, building a case against the barriers to creativity and culture posed by contemporary copyright law. Copyright law today has grown far beyond its original function of securing the economic profits of a work, but now also stifles content that seeks to engage with another work, either through parody or other derivative creations. Roh opens his analysis with a study of two parodic works: Alice Randall’s The Wind Done Gone (a parody of Margaret Mitchell’s iconic Gone With the Wind, told from an African-American perspective) and Pia Pera’s Lo’s Diary, a parodic response to Vladimir Nabokov’s Lolita. Both derivative texts were initially challenged by the original author’s estate, and although each was finally published, the threat of litigation and high costs involved risks deterring publishers from taking on other dangerously subversive texts.

In actual fact, the notion of authorial control over not just profits but also ideas themselves is much more deeply rooted in European culture than Roh makes it out to be; this is better articulated in studies which contrast Anglo-American copyright principles with continental European (particularly French) copyright principles.

What Roh does argue, importantly, is that the notion of authorial genius, and the notion that a work can truly be considered the product of a single author, is increasingly at odds with our evolving digital culture.

“[T]he romantic idea of authorial genius can no longer enjoy uncritical acceptance—it’s simply become too restrictive,” he writes. The pervasiveness of internet trends—memes mocking memes, pop culture products emerging from spoofs or parodies of other pop culture products—reveals that ours is a derivative culture, in which creativity emerges from our engagement with each other; it is dialogic, to use Roh’s term. We do not lock ourselves into an attic and produce masterpieces out of thin air; we build on the work of others.

This isn’t entirely a new phenomenon. Roh notes that many of history’s most famous and revered creative producers were master plagiarizers who stole and remixed the work of others. Examples of this process date even further back. Storytellers and the purveyors of fireside myths and folktales also shared and tweaked and reworked each others’ stories freely, developing the rich cultural legacies our contemporary world is built upon. Indeed, the dialogic impulse can be seen in even the most ancient forms of call-and-response (songs, folktales, etc), where the storyteller doesn’t retain ultimate authority over their tale, but envisions storytelling as a participatory process in which the listener engages with and actually helps to build, shape and reshape the text.

These impulses, ancient as they may be, have reached a whole new scale in the digital era. Moreover, the digital era has enabled derivative creative culture to transcend traditional barriers of distribution. One no longer needs the financial backing of elites and publishing houses (and approval of church and state) in order to distribute one’s creative works: all you need is a computer and internet connection and you can reach the world. This, Roh suggests, has intensified the showdown between those attempting to protect their economic profits as based on the sole-author creator model, and those who are attempting to produce and spread derivative creative material in the face of lawsuits and copyright treaties.

Roh doesn’t mince his words (although he deploys plenty of fancy ones, which renders his work most accessible to an academic audience). Copyright is stifling creativity. He disposes of the argument, often used in defense of copyright, that financial incentives are key to inspiring creativity. Geniuses won’t take the time or effort to produce creative works unless they know that strong copyright laws will protect their economic profits and royalties, goes the argument. To counter that claim, Roh points to the widespread popularity of fan fiction: works produced by ‘amateurs’, which build on existing creative products (television shows, comics, movies) but do so with no expectation of profit.

Fan fiction is simply posted to the internet, or printed and photocopied for small-scale distribution. Yet it’s a burgeoning field, reflecting a broad-based desire to produce creative works even if they don’t lead to profit. Furthermore, the intense Japanese market for self-published fan fiction manga, or what’s known as dojinshi, has reached heights unparalleled in the West, and for some dojinshi creators it actually is profitable.

What this demonstrates, however, is that contrary to foundational western copyright tenets, removing or loosening copyright restrictions in fact increases the quantity and intensity of creative production, generating even greater economic outcomes. In Japan, where derivative dojinshi based on other authors’ works are respected and permitted—there are even entire libraries of them—they’ve produced enormous spin-off industries, with conventions and publishing houses of their own. In other words, removing copyright restrictions (or in the Japanese case not imposing them as strictly in the first place) on derivative works won’t kill creative culture, but could intensify it, both in terms of scale and economic output.

“[T]he creative community in Japan seems to thrive because looser interpretations of copyright allow both mainstream and dojinshi creators to poach from common materials without the burden of clearing rights… [they] may be necessary for the health of the manga industry so that dojinshi can find a responsive audience and dojinshi artists are encouraged to develop their skills and produce. The implication for American readers is that the increasing strength and breadth of copyright may be counter to its purpose of advancing the sciences and useful arts.”

Finally, Roh compares literary production with the open source software model. He looks at open versus closed programming systems, and the logic of horizontal versus vertical (hierarchical) networks. Predictably, open source models are often argued to be the most creative and productive: allowing the public non-proprietary access to software codes is a more effective method of finding and fixing bugs, and developing newer and more improved software.

If literary production operated along similar lines and without the interference of proprietary copyright barriers, Roh seems to suggest, the scale and breadth of creative production might be far greater. Indeed, if computer programmers had the sort of copyright protections on their programming codes that literary producers have, old and outdated code would never be upgraded and technological innovation would grind to a halt.

Open source software operates according to the model of the gift economy, Roh notes. Companies and programmers give up their proprietary rights to the products they produce—making of them a sort of gift to the broader society—but they know that they will receive gifts in return: newer and better forms of software and innovations made by the users who freely build on their work. The notion is grounded in a sense of the cultural value of good software: we all benefit, and it enriches our society as a whole.

The proprietary model of literary production, on the other hand, mired in restrictive copyright rules, suggests that literary producers are losing sight of the broader cultural value of their work. There’s an implicit inferiority complex at the root of proprietary models: a literary work’s greatest value is seen to be what it imparts to its creator (royalties and profits), not what it imparts to the broader society.

Roh suggests that literary and creative producers could take a lesson from software programmers and develop what he refers to as ‘literary versioning’. Much as we consider it inevitable that our operating systems and applications will eventually be upgraded to a new version, why not think of literary works the same way? Instead of trying to lock down a creative work as soon as it’s published, so as to prevent other people from altering or modifying it on their own, why not simply accept the inevitability of its modification, and acknowledge that literary works will be re-worked freely by others into new versions?

Indeed, this is already happening in other forms of culture—movies and television series produced decades ago are being remade or ‘rebooted’ so as to be more relevant to today’s culture. This demonstrates how ‘versioning’ is being carried out not simply to refresh the technological components of a work (as in software) but also to refresh the cultural components (rebooting movies and television shows). Remaking such works every generation or two is becoming more and more common—why should literary works be any different?

Roh’s work offers a number of valuable insights. The ardent defense of copyright on a broad scale, he suggests, isn’t so much about protecting specific works as it is about resisting a changing cultural logic that no longer values the ideology of single author genius. There’s a clash of cultures that’s gathering speed and intensity: copyright culture, which is trying to preserve control of ideas and financial incentives for individual creators, versus an emerging culture that’s grown up in a world of interconnected horizontal networks, derivative texts, and open source models where original authorship is valued less than the potential a work has for being built upon by others.

One of the outcomes, some scholars suggest, is that authors need to stop placing themselves at the centre of focus. Any move toward disrupting the copyright model will necessarily involve relinquishing authorial control, and authors risk being sidelined as their works take flight and are reworked, remixed and reinvented by the broader culture. This, perhaps, is what really frightens scholars and literary producers more than financial loss: the idea that they will lose a bit of their individuality amid a growing sea of creative and intellectual production. This may or may not happen—open source programmers are very good at crediting each other’s accomplishments in voluntary fashion—but the outcome might be a much more creative and intellectually vibrant culture for all of us.

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//Mixed media