Joi Ito's Web

Joi Ito's conversation with the living web.

I'm posting this in full because it's important.

Cory @ Boing Boing Blog
Does "the Long Tail" mean we need longer copyrights?

Chris Anderson's brilliant Wired article, The Long Tail, talks about how indie, obscure and midlist/backlist material is more valuable, in aggregate, than all the glitzy, mainstream top-forty stuff is.

However, when Lawrence Lessig argues for shorter copyright terms, he bases his stuff, in part, on the fact that old stuff is all out of print and can't be brought back into print because of the cost of clearing the copyright to the work.

Are Lessig and the Long Tail irreconcilable? Anderson says no:

Many of those extracting new value from old content are not the original creators or rights-holders. Some of them are repurposing older material, and others are aggregators who have found ways to find new markets for material that's fallen beneath the commercial radar. Either way, they typically aren't the original record label, film studio, publishing house, TV production company or any of the other names that might be on the copyright declaration. They are someone else, probably someone entirely unexpected. This is, after all, the dawn of Remix Culture.

What's changed is the presumption that the primary rights-holder is the best at extracting the commercial potential of creative material. Instead, anyone can do it: the advertising company that remixes an old movie to sell a car; the Linux t-shirt done Warhol-style, or just plain old DJ magic. What you need to encourage this multiplicity of commercialization potential is tiered alternatives to one-size-fits-all copyright, from allowing derivative works (good marketing!) to shorter terms for the sake of the remix-culture social good. I can't think of a better example of that than Lessig's own Creative Commons, which has already become the license of choice for the right side of the Tail, where the commercial imperative is less all-consuming.


(via Copyfight)

Another way to look at this is to look at the marketing cost of promoting some piece of content. It is nearly impossible for someone to sustain a marketing campaign for most content for the lifetime of the copyright. In the past, it is likely that old content would get lost in the archives or disappear all together. With digital technology and remix culture, new creators can discover old music and bring it back. This is what Disney has done with many of their stories. When Disney takes an ancient myth or story and spends money to animate it, it's building on the past, but involved a great deal of creativity. In the same way, many of the people who dig into the tail and discover lost songs and books and are tuning them or putting them in context often add a great deal of creativity in the process. The notion that there is an "origin" of an idea or work and that the creativity stops there is silly. Most creative work is a process of people passing ideas and inspirations from the past into the future and adding their own creativity along the way.

Also, I'm not against businesses making money. I just believe that the cost of marketing is going to increase and the cost of delivery is going to decrease as the Net gets stronger and mass media gets weaker. In a world where discovery is more important than delivery, it's the people who find, remix and direct attention to old stuff that should be rewarded, not the people who deliver it or sit on it waiting for someone to show up.


Joi, your writing is very poignant here. Follows the principle of "nothing is created or destroyed; just transformed". Some days ago, I heard a song a friend from high school had on his website. I thought "hey, actually I came up with MOST of the song". But then I felt, "this is flattering."

We had created the song together acoustically, but he ultimately recorded it in the studio with his band.

This also happened with me when I wanted to create a NGO "Bamboo Brazil Foundation" and sent INBAMBU (Instituto Bambu do Brasil) my "draft". When I recently looked at their site, I saw "my ideas" implemented into their site, and I felt flattered again.

I constantly 'remix' articles, other people's photos from Flickr on my blog, and I find that much of it expresses what i feel at that moment.

It's overwhelmingly and almost depressing to think of "coming up with someone new;original;unique". I find I can't read contemporary writers because seems like what they've said I have read before by someone in the 18th century.

Read that the White House just allowed their first blogger as press.

whatever happens; things are getting more interesting; and I am sure someone somewhere will blog about it!

Under copyright law, the threshold for "originality" is very low; slightly above the telephone book. (You can't copyright lists or forms or the bloody obvious.)

Originality has very little to do with marketing which tends to lean heavily on the familiar. (In my book on VR I said somelike "Say what you will about the obvious and familiar -- it sells."

And, as I've said repeatedly, copyright disputes are always about the money. Basically you cannot bring a suit unless you've suffered financial damage at some level.

And let us be very clear. You cannot copyright "ideas", but only their unique expression. I'm confused about Joi's phrase "lost in the archives". We put these things in archives so they don't get lost.

We use several organizing principles to ensure that, and electronic databases are very easy to search. Try doing a real estate title search some time with paper records and you will see what I mean.

I don't want to be unkind here, but a lot of this controversy seems to be the result of laziness. People don't want to make the effort to find old materials in the archives because of the cost in time and money. They also don't want to be original in their expression because it is harder to sell to an unsympathetic market. They seem to lack inspiration and to lean too heavily upon other people's vision rather than their own.

You can be very original while reusing old materials, simply with intepretation. Baz Lurman's film version of "Romeo and Julliet" is a case in point...and I think Will Shakespeare would have been delighted with the result. (I didn't much care for it myself.) Shakespeare's plays are mostly drawn from prior works or stories passed slowly through what was, even then, a global communications network. "Romeo and Julliet is based upon a real incident. So is "Ortello". So, the idea was not original, but the intepretation and the language used to tell the tale was viral, infecting 400 years of culture. Every so called "classic" started out as popular culture.

Lessig's take on copyright actually destroys archives and the possibility of preserving culture for future generations because it removes the incentive to create and to promote and preserve.

The problem with short copyright dates is perfectly expressed in the Long Tail phenomenum. Half the revenue stream or more will be lost if copyright terms are shortened, which means that the ability of new work to attract necessary investment in marketing and production will be dramatically lessened. That in turn will means that really innovative new work will be much less likely to be produced. What is produced is likely to be produced by amatuers, not professionals, with a consequent lost of quality.

It seems to me that Lessig's proposals are a direct threat to the creative process, not an enhancement. Ask any creative person whose support comes from "day jobs". Lack of incentive and money troubles have done in many an artist.

In recent years I've had the money to pursue long-term projects such as plays and novels. These take years to bring before a public. If I still had a "day job" my efforts would be considerably diminished and the primary thrust of my creative effort would be consumed by paying the bills. Part of my income is derived from my copyrights on old material published years ago. Everyone who has a creative career needs royalties from past work to have the wherewithal to create new work.

Very persuasive arguments, Francis...

I would like to throw in the thought that if we can reduce the costs involved in licensing a work to the point where the only real cost is price negotiation with the copyright holder, then anyone able to create value out of a 'dead' work will have a good enough incentive to license it. The owner then, if acting rationally, will license the work for a very low fee as well...

Dear Trevor:

$1.95 is not low enough for you? This is the retail price of most of my articles now published online and available through Amazon et al. Amazon simply will not carry anything in that line which is priced lower. Even if they show it online, it will be marked "out of stock" or "unavailable at this time".

There are sites, like Fictionwise, which offer product as low as 49 cents. I decided to stick with Amazon's mandate.

I make 88 cents a copy at that price, which is more than the typical royalty on a paperback book priced as $7.95. The difference is that paperback books sell by the hundred thousand through well established distribution channels. My reprinted articles sell one at a time to a very narrow audience.

To reach that audience I need access to Amazon's 30 million plus customers -- and those on, Elibron, Diesel, Fictionwise and all the affiliate sites they feed.

The actual costs here are not the content. I already own that. It's the copyright registration which can be less than a dollar on a group registration,( which most of them are), the ISBN, which, since I bought a thousand, is about $1.40, and preparation and promotion.

Leigh's time for preparation is worth about $15.00 per file. We haven't really done much promotion since this is an experiment and we wanted to see how much would sell just by being there.

Lightning Source normally charges $25.00 to set up a file. (They've been waiving that to encourage others to use their services. They also get a cut of the distribution fee).

So, at 88 cents apiece, how many copies must we sell to break even? Less than 50.

I'm surprised that more freelancers are not doing this. You probably can't get rich this way, but you can exploit the Long Tail for as long as your copyright lasts.

How many do you have to sell to match your original fee for the article? Or to justify writing one that isn't available anyplace else? Remember, $1.95 is the minimum. I have some bundled product that goes for $9.95 a copy.

Actually, I'm thinking of raiaing prices a little. Most of the articles are not price sensitive. If you need it, you'll buy it and if you don't you won't, even for free. Niche marketing, true, but niche does not mean "small"

Yep, that's pretty cheap. ;)

What sort of articles are you writing, Francis??

"In a world where discovery is more important than delivery, it's the people who find, remix and direct attention to old stuff that should be rewarded, not the people who deliver it or sit on it waiting for someone to show up."

I guess your argument makes some sense, if we work from the very depressing premise, that man kind's truly great leaps of original first hand art and creative expression are over and that we are now all bound to live as second handers, reassmebling the work of our ancestors in a world of mediocrity.

But,I certainly do not think that such a society would be a fertile place to nurture and reward truly original and ground breaking artists and art. Yes, the network will enable people to discover, remix and promote the treasure of the imagination of our forbears for quite a while, just like any other form of wealth that can be redistributed and shared, it still needs to be created in the first place and that takes a special type of person who does not feed on the life force of people from the past, but uses his own creative life force to create new visions of the present and the future.

Answering the question: These are all previously published artciels , mostly from high tech trade magazines. Amazon has the complete list; so does Powells and Diesel.

Some titles are thematic bundles of several articles. Some are discounted by the retailer. There is even a previously published long story, "Buying Retail". which has had a good reception. Take a look.

Everything is available in both MS Reader and Adobe Reader formats. And we will be adding more titles shortly.

The issue of originality is an interesting one. Theoretically, if you devised the same text as someone else without ever having had access to to their work, it is a new work, even if it were word for word the same.

Familiar themes get reprocessed all the time. That does not mean that the new work lacks originality. You can make it so original that no one else understands it, but since the goal is to communicate, what would be the point of such an exercise?

It is not the basic idea , but the expression of the idea. You can create a similiar story without violating copyright, It's when you use the same character names, dialog, order of plot information, etc that you become guilty of "substantial similarity" and thus, infringement.

Once material falls into the Public Domain, it can be used, adapted,copied, without charge. Those who want to shorten the cop[yright term simply either don't want to wait, or don't want to pay for rights and permissions. But, as you can see from my example on electronic publishing, most of the retail price goes for distribution anyway. The typical book royalty is 10 to 15 percent of the cover price in hardbound and much less in paperback.

Older works get preserved in archives for the scholar and, as in the case of some authors, are still sold and performed.

I saw 'Taming of the Shrew" the other night. Holds up pretty well.

Indeed. This is a key part of the point of mediAgora.

As for remixing folk tales, see my post about Carole Ferris-Greer.

I'm running now so can't write a long reply, but my point is that even if your work is in an archive, unless people are interested or know how to find it, it doesn't provide value for either the copyright holder or society. Bringing things back to life from archives adds value to the work and to society. I guess where the disagreement is, and where maybe there needs to be more elaboration is who is adding more value and how many of these copyright holders of "dead works" even exist anymore.

Trevor has a point, but Lessig addresses this. His suggestion is that people who are still around "ping" the copyright system by paying 1 dollar after a limited copyright term. This allows us to find them and keeps their work "in play". If you can't afford a dollar, you either don't exist anymore or you don't believe your work has commercial value. If we took all of the work that was still "alive" and created a low transaction cost system for licensing, I would be all for it.

Another example of the cost of marketing is music for television dramas in Japan. Because being the theme song for a popular television drama on TV in Japan, the record company or the agent will pay around $2M to a TV show to use a song by an artist. That's right. They don't get paid, they PAY to have their music aired. They hope to recoup this later in music sales and concerts. You really need to look at the economics of marketing before you can begin to draw the whole picture of how copyright and licensing should work.

Dear Joi:

Well, we've been down this road before haven't we? Lessig's scheme to charge a dollar is unworkable because (1) that amount doesn't begin to cover the adminstrative costs, (2) it violates international treaties on copyright and you can't change the law without changing the treaties. (3) It creates the situation we had under the 1909 Act where valauable copyrights are lost because someone didn't do the paperwork in time.

I know a thing or two about marketing. My last job in the corporate monster-mind was called "Vice Prsident of Sales and Marketing" You are indignent because someone paid to get a song used on television rather than get paid? No one forced them to make that deal. At the price mentioned, the decision, and the fee paid, were done by the distributor, not the artist, and the idea was to gain exposure that would enhance sales of the artist's works. This is NOT a matter of copyright, but a business decision based upon supply and demand theory. And contracts will trump copyright law every time.

Enforcing a copyright is a matter of choice and you can lose your right to do so simply by letting the statute of limitations for filing a suit run out. There is also the doctrine of "laches", which translates into English as "you snooze, you lose". If you don't take timely action, then you can lose your right to do so later.

The only court you can bring an action for copyright is Federal District Court, which generally will not take a case of less than $10,000 in damages. You can't do it in Small Claims courts or state courts or municipal courts. Federal premption applies.

Little wonder then that media firms have adopted a strategy of ignoring all complaints from those whose copyrights they infringe and force them to actually file a suit.

I think a Federal Copyright Claims Court would be an excellent remedy, but don't expect it to happen.

You and Mr. Lessig seem intent on changing a system that already makes enforcement of copyrights very difficult and making it impossible. Market forces and technology seem to be forcing a lot of material into the de facto public domain anyway. Most violations are not worth pursuing, even if you have a slam dunk case.

Creative Commons is a nice touchy-feely idea that ignores the realities. People already look for excuses to steal copyrighted work. Creative Commons isn't law, but some will mistake it for just that and use its provisions as an excuse to take other people's work without compensation.

The bottom line is money. The general tendency is not part with money if you can get something for free. The Long Tail proves that copyrighted work has resideual value that goes on for many years. The payments are set by the marketplace because we have lots of alternative choices. Most work fails to survive this simple test. Most doesn't get reprinted because there is an adequate supply of used copies.

The cost of marketing is part of the cost of doing business. So when you talk about that as a detriment to distribution you are being rather disingenious, which given your business background, you shouldn't be.

You can't really make a business case for the distribution of electronic databses in libraries, but they are now pervasive. This is social policy, because, like the libraries themselves, such access is a public good which overrides the profit motive.

It looks like the articles are free to patrons. The reality is very much different. The companies that provide them limit access and charge subscription fees to the libraries wich pay them with tax money. Otherwise it's a business like any other.

Everyone gets paid - or should. Revenues are shared with the original publishers and it is a wider choice and more efficent distribution model than any one library could manage on its own.

But, even if all copyright laws were abolished tomorrow, the model would not change, nor would it be less costly to the public purse. Most of the cost is resident in other parts of the supply chain.

A large database company or aggregator can make billions of dollars off of other people's work without compensating them if they simply are careful to steal very small amounts from thousand of people rather than large amounts from a few. Class actions suits make big money for lawyers. Individual awards are usually pitiful and claim procedures are daunting. I've come to view such lawsuits as yet another way for Big Media to buy people off and limit liability.

Copyrights are the only protection creative people have against theft of their work, not just in money terms but also the Droit Moral; the moral right to control how the work is used. And by whom.

So, if you choose to give away your work, that it your right and I have no objection. Just don't give away mine at the same time.

I don't think Lessig's idea goes against the Berne Treaty. He is suggesting this happens after a limited amount of time and is talking about limiting the extensions beyond the scope of the treaty if I'm not mistaken. I will check to be certain.

I am not suggesting abolishing copyright. I'm suggesting that we allow more choice and re-examine the business models currently used to create and distribute content to see if there is a better way.

The Berne treaty admits no impediments to copyright. This is why we dropped the renwal scheme in the first place. Many nations don't even require registration and France enforces the Droit Morale. It is anything but uniform, but I don't see a way to impliment Lessig's idea if you automatically thrust material into the public domain if the paper work isn't done or a fee paid. Note that our form of registration is not required to have a copyright, but only to enforce it, and its stated purpose is public notice as a prequistite to legal action. You have copyright from the moment of creation, which is also why you can register it at any time after publication, without limit.

How does Lessig's scheme jibe with that? Most copyrights in this country are never registered. People depend upon notice of copyright, even though that is no longer required to enforce one.