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net.wars: One copyright does not fit all

Photography, I've discovered, really isn't like writing. Nor like the music business.

I had a piece in the Guardian this week that caused me to rethink a portion of the giddy optimism with which I've typically embraced the notion of "free culture". Not, I hesitate to add, that I want to take back anything I said in "spamigation" about the disproportion of the fees charged for Corbis's pictures versus their actual value to a taxi business.

However, in the process of writing that piece, some comments from the photographers I interviewed made it clear to me that the discussion about copyright and free culture generally focuses on intellectual property that starts with writers: movies (screenwriter), music (songwriters), books (authors), and so on.

Photography doesn't start there, and the more I spoke to photographers the less convinced I was that it ends up in the same place, either.

"What separates photography," Tony Sleep said to me while I was researching that article, "is the insertion of agents and middlemen, who have disproportionate power." Photography now is dominated by three mega-agencies, whereas the literary world is still awash in tiny few-man shops who provide writers of all stripes with personal representation.

That used to be true in photography, but is no longer.

Those differences are why Sleep (who took the picture I have, by permission, on my Web site) can simultaneously love free culture and condemn the Gowers Report as a disaster for photographers. Gowers does not even mention photography, though submissions from the National Union of Journalists and other groups did.

Like a lot of people, I cheered Gowers for recommending against extending the term of copyright for music recordings and his general approach towards free culture, and the necessary public balance between the interests of creators and artists and the interests of the public. However, it's a sign of how used we have all become to the realities of daily work in journalism that Gowers' failure to consider redressing the commercial imbalance that now exists between creators and rightsholders, something I remember pleading for ten years ago, passed without comment.

If, as Tony Sleep argues, we're going to revise the 1988 copyright act, why not make it illegal to assign copyright and sign away moral rights? A lot of the reason some artists get so angry over run-of-the-Net copying and file-sharing is that they've been so badly burned in the commercial arena. Redress some of that unfairness, and then the public's interest might seem more reasonable to them.

I have always thought that a situation where someone must ask permission to exploit his own work was morally wrong. The longstanding exception is people whose creations are made in full-time employment (which Sleep equates to Thomas Macaulay's "patronage"), where your employer pays you a salary, provides you the equipment you need to work, gives you paid vacations and sick leave, and a pension (and, these days, backdated shares in the company). For freelances, though, the tradeoff was always that although you didn't have any of those things in return you kept your copyrights.

The Web has largely (though not entirely) ended the opportunities wordsmiths had for reselling the same articles into different markets.

As recently as ten years ago I was still hearing about freelance writers for whom foreign sales were a substantial portion of their income. But the same is not true for photographers, whose overheads are far higher in any case: every new article needs illustrations. Images that mean little one day may suddenly be extremely valuable the next – or on another day 30 years later; some images are reused endlessly.

Photography is also, of course, a service, as in corporate awards ceremonies and weddings, where what you're buying is less the photographs themselves than the expertise and equipment that ensures the photographs will be on time and to specification.

Besides, while you could say that individual photographers and other creators have the same right to pursue copyright infringements as Big Copyright, in practice, as Mike Holdnerness said in the Guardian article, it doesn't work that way. Hence his suggestion to create a Copyright Small Claims court to give freelance creators better access to the courts.

Big Copyright has, therefore, done two sorts of damage, and they're interlinked.

First, is to make it significantly harder for many creators to make a living than it was 20 years ago. Rates haven't budged, and most contracts demand all rights, so with inflation you're looking at significantly less income than you might have had back then. Second, as Sleep points out, is that by taking absurd and disproportionate actions – Corbis and Getty; the RIAA versus Napster, Grokster, and a generation of file-sharing customers; the MPAA and more file-sharing customers – Big Copyright has alienated public opinion into seeing copyright as legalized theft from the public.

That said, I still can't agree with the photographer who said to me, "I don't see why copyright should ever expire."

Ownership of a house doesn't, he pointed out. But, as I seem to keep saying, creators are net consumers of intellectual property, and copyrighted materials really aren't houses. If the only way we could create new works was to stand on the shoulders of giant houses, we'd be trampling up rights-of-way quickly enough.