October 1, 2007KR BlogEthics

On Intellectual Property and Copyright, Pt. II

This is the second installment of an exchange between Meg Galipault and Stuart Bernstein on intellectual property and copyright issues. This question and answer was conducted in during the summer months of 2007. Learn more about Bernstein and the agency he created here.???TM

MG: How often do you find copyright infringement in your searches? Is there a typical culprit? How do you conduct your searches? Do you use Google?

SB: I try to use a variety of search engines when I look for things on the internet, including Google.

The unauthorized use of copyrighted material takes many forms. Sometimes it’s as innocent as an elementary school teacher who has had great success teaching a particular selection and wants to share her joy with the world, so she posts the selection. In some instances, those wishing to censor what children read in school post what they consider offending passages from authors’ works. All too common, though, are instances wherein the right to reprint has been granted for a print edition of an anthology or a book about the craft of writing, which then becomes part of the Google Book Search program. So many books contain short selections licensed from third parties, but publishers fail to check if the right to post was included in the license to reprint the material in those books before allowing Google to Search Inside them. So, even though only a few pages are viewable using the Google program, that often encompasses the entire licensed selection.

But even more common these days are emails from students of all ages who tell us that they’ve been able to find this selection or that selection by an author on the web, but they want to know where to find that third one they need to read. The younger they are, the more they expect to find everything on the internet and the more indignant they are when we suggest they go to the library or a bookstore.

If I was honest with myself, I could probably hire a full-time person to do nothing but find infringements. And it’s only going to get worse.

MG: There’s a libertarian point of view that intellectual property is equivalent to intellectual monopoly and that creativity shouldn’t be constrained by law. Some argue that market forces could quell the more egregious cases of plagiarism and piracy, suggesting that the offenders could be ostracized by their peers (in the case of plagiarism) or could be boycotted (in the case of piracy). What’s wrong with this point of view?

SB: I’m at a loss trying to figure out how copyright law hinders creativity. It seems to me that it protects and encourages creativity while it punishes cheaters. Cheating is a decidedly uncreative act.

Intellectual property law allows creative people to be compensated for their work and by doing so makes creativity viable. It rewards people and companies who create successfully (whatever that may mean) as those whose ideas, products, works reach more people are more greatly rewarded. In fact, it encourages people with originality to share their work with others because it protects new ideas from being stolen.

Market forces is another matter. Even Adam Smith believed in a vigorous justice system and reasonable regulation. And I have a hard time with deciding what is a “more egregious” case of plagiarism or piracy. Will only the most brazen cheaters be caught and ostracized? I think the number of fake Louis Vuitton bags and Rolex watches produced and sold every year gives lie to the suggestion that market forces can protect intellectual property. And market forces can also keep brilliant acts of creativity from seeing the light of day as we’ve seen with the conglomeration of publishing and the rule of the bottom line.

But nothing about copyright law, intellectual property, or market forces can really keep a creative artist from creating. Take the example of Martin Ramirez, an artist who made the finest art on the rolled paper used to cover the examining table in the mental institution in which he was confined.

I have a hard time with “intellectual monopoly” and “creativity that shouldn’t be constrained by law,” which at some fundamental level–the socialist in me–I agree with, however, the artists or creators who are protected by the law still have the opportunity to make personal decisions about how to distribute their work. It’s important to remember that artists donate their work to good causes, underfunded projects, underserved communities, even to anthologies with limited permissions budgets all the
time. But isn’t it the laws that protect them that also allow them to be generous?

Stuart Bernstein is a New York-based agent representing over 20 working artists. He began representing writers in 1995.

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