Saturday, January 11, 2003

While on Lessig, this piece of his in Red Herring is interesting. He talks about how a great portion of Japanese manga are dojinshi: works that are set in the universes of other writers and are technically illegal. However, the dojinshi tends to raise the profile of the original works in that universe, which often adds value for the original works. In a way, it isn't too dissimilar to the intellectual property conventions that exist for video games.

My feeling is that present intellectual property law gives original authors far too much control over derivative works. Quite simply, if the original author has complete control over every use that is ever made of anything based on his work, then the work of future artists is going to be hindered, and creativity in the long run is going to be hindered. This is simply because all works are derivative works, and everything is in some way based on what came before. The question is where do you draw the line, and this is not an easy one to answer. However, in order to try to answer it, you have to at least acknowledge the question, and if you simply say something like "The author controls all future uses" you are not acknowledging the question.

Secondly, it is worth acknowledging that there are two questions. One is "When should the author be compensated for derivative works?" and the other is "When should an author be able to control or stop derivative works?". These questions do not have to have the same answer, and even under present law they don't. If I hear a song on the radio and I like it, it is perfectly okay for me to record myself performing this song and sell CDs of the recording. When they sell, I then have to pay royalties to the composer. However, the composer cannot stop me making the recording. If, however, I make CDs of the original recording and sell them, the original performer can stop me.

I think an ideal copyright law would have a relatively narrow definition of "derivative works" that the author can control or prevent, and a much wider definition of "derivative works" that the author cannot control or prevent but can expect compensation from. Then there is the outer ring of works for which there may be some influence but which compensation cannot be expected from. For instance, there may be something to be said for the nephew of Samuel Beckett receiving royalties when Waiting for Godot is performed. However, he should not be able to control the interpretation of the play.

Of course, all this is good in principal, but in practice extremely difficult. Where exactly do you draw those two lines. I don't know, and the answer is going to vary wildly from medium to medium. However, the question is becoming so paramount that we have to try.

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