Why should copyright law and policy care specially about the interests of professional creators and artists, as a class of people distinguishable from amateur creators and artists, from “ordinary” consumers and users, fans, and so forth, and from the mass of undifferentiated creators, re-mixers, and transformers?
This question has been lurking in the back of my mind for some time. The theme has particular resonance in the scholarship of Rob Merges and Jane Ginsburg, among others, and I saw it pop up again recently in a draft book review by Peter Menell (in a critical review of John Tehranian’s Infringement Nation). The draft book review is up at SSRN.
Here’s the passage that intrigues me:
While recognizing that the distinction between amateurs and professionals is not always clear, I don’t understand how professional creators — who play such a central role in the creative ecosystem — would not deserve serious attention in a book about the ramifications of “infringement nation.” Most consumers overwhelmingly favor professionally produced creativity. Such content inspires and engages. And although every professional began his or her career as an amateur — with the possible exception of the “King of Pop” — most of the social, economic, and political benefits of the copyright system writ large flow from the joy, enlightenment, and inspiration derived from those unique, talented, and hard-working individuals and collaborative teams that are able to capture a sizeable share of the public’s imagination. Every generation has its standouts. It would seem central to analysis of copyright policy for the Internet Age to consider how the changing technological, economic, and social landscape will affect the next generation’s J.K. Rowlings, Tom Friedmans, Steven Spielbergs, Red Hot Chili Peppers, Eminems, and Pixars.
In historical terms, this is entirely understandable and sensible. Until relatively recently (pick a date — 40 years ago? 30 years ago?), it made little sense to speak of anyone other than a professional creator when one spoke of copyright policy. The tools of commercializable creativity, or at least publicly shareable creativity, were too expensive for use by anyone other than creators who were part of a professional ecosystem. The disciplines and practices of creativity were likewise relatively inaccessible to the mass of the population. Everyone knows the story of how technology changed all that. We don’t have a great method for distinguishing “professionals” from “everyone else” or from various subsets of “everyone else,” but most people agree that these subsets exist.
That means, I think, that if copyright law is going to incorporate rules and standards and policies to protect professional creators and ensure that they, especially, continue to have appropriate incentives and rewards, then copyright needs an account of “professional creativity” that justifies special solicitude in the law for that group.
What could that justification consist of? Here are the possibilities that I can think of. Some of them are alluded to in the excerpt above from Professor Menell’s review.
History. Copyright law has always worked in favor of professional creators. The law should not depart from that framework absent a good reason for doing so.
Moral superiority (author side). Professional creators have likely invested a lot of time and effort in developing a special set of artistic and creative skills and have therefore earned a degree of deference from society (including the legal system) that is commensurate with that effort. One might imbue this hypothesis with a bit of Locke (professionals labor extra hard, or extra long, or give up more to become creators), or with a bit of soul (professionals are imbued via their work with a distinct and valuable spirituality), or with a bit of celebrity worship (professionals are just different sorts of people altogether, born, not made; they have a “gift”).
Moral superiority (audience side). Professional creators give the rest of us, as audience members (or consumers, users, readers, etc.), more than amateurs and casual creators give us. They inspire us, they engage us, they challenge us, and they romance us in ways that only professionals can.
Consumer preference. Consumers generally like work(s) produced via professional creativity channels more than they like works produced via amateurs or casual creators. One might take this in terms of an aesthetic bias (professional works are “better,” or “purer,” or “cleaner,” or “truer” in terms of discipline or lack thereof), or in terms of preferences revealed via willingness to pay, i.e., the market simply tells us that Taylor Swift is preferred to Gretchen Wilson, because Taylor Swift sells more records and concert tickets. (No offense intended to Taylor Swift, who is a perfectly harmless singer, or to her fans.)
Social value. Works created by professional creators are more valuable to society at large. Again, this might be judged in aesthetic terms. It might be judged in informational terms; professionals give us more knowledge, and more expert knowledge, than amateurs do, or give us more raw material for cultural (re)production and consumption. It is more likely, given the framing of current policy debates, that this would be expressed in monetary terms: professional works are “worth” X dollars (measured by sales and related revenue), whereas amateur works are “worth” less because they do not generate equivalent revenue.
Employment. Professional creativity is embedded in an institutional matrix that can count X number of people employed worldwide — far more than are paid for the production and distribution of “amateur” content — and that employment in and of itself is a justification for exceptional copyright treatment of professional artists.
Investment and reliance. Lots and lots of people, as creators, as their supporters, and as their investors, have invested a ton of time and money over the centuries in building up the institutional machinery of professional creativity, and what in other contexts are called “investment-based expectations” justify special solicitude for them.
Creative complexity. Only professionals have the time, patience, and solo or collaborative skills to produce particularly complex creative products, such as movies or computer programs (for collaborative projects) or epic novels (for solo projects). This may depend on a related premise, which is that complex creative products are especially valuable, or preferred.
Durability. Only professionals have the time, patience, and solo or collaborative skills to produce particularly durable creative products, such as movies that stand the test of time, or novels that are re-read over multiple generations. This may depend on a related premise, which that durable creative products are especially valuable, or preferred.
Institutional complexity. It is probably worth separately highlighting the possibility that there is a distinct form of institutional complexity that is associated with the production and distribution of professional creativity, and that this represents a potential justification for special copyright treatment over and above the investment proposition and the complexity or durability proposition. Professional creativity requires not only the institutions that produce the disciplines of professional creative craft, but also the institutions to manufacture, distribute, promote, and maintain generations of professional products themselves throughout a market economy. And all of these institutions have to be taught to operate in tandem with one another. A slightly different form of this justification would be this: It takes more to create a market for professional creativity than for amateur creativity, because the up-front investments in professional creativity are only recoverable over a longer period of time, or across a broader variety of markets, or both, compared to amateur creativity.
I’ve probably missed a possible justification or two, and others who agree that this is an interesting question might frame it or my possible answers differently. It is almost certainly the case that whatever the justification really is, if there is a justification, it is a blend of some number of these rather than one to the exclusion of all others. Finally, I have tried to present the justifications as justifications, without much in the way of critique or analysis.
My intuition, for what it’s worth, is that many and perhaps most of these possibilities (or even all of them – perhaps) lack much in the way of logical support or supporting data or other evidence. Or the data, if it exists, is misleading or incomplete or both. Several of the possibilities are not data- or evidence-based; they are philosophical or ideological or possibly religious commitments.
So, I’m left scratching my head a bit. I understand the interest in professionals, and when I’m in the company of someone who has devoted his or her life and livelihood to an art, I get that there is something “special” going on. It is a challenge, however, to put my finger on precisely what that is.