Meera Nair

Posts Tagged ‘Ruth Towse’

Creating creativity

In Posts on February 13, 2011 at 4:22 pm

In 2006 Professor Ruth Towse posed an interesting question: How do we create creativity?* She asked the question in light of the heightened attention by national governments to creative industries. Policy makers insisted that creativity offers economic gain on a national scale, and thus it was imperative to foster creative behaviour. As Professor Towse observed then, and still holds true today, “what is meant by creativity is not clear and it is far from clear how it can be encouraged by government policies.”

Copyright is deemed to be an incentive for creative effort because it appears to facilitate trade of creative effort. And so, when speaking of creativity, advocates of copyright expansion focus almost exclusively on the financial implications of the mechanism of copyright. Reading through the transcripts of the ongoing legislative meetings for Bill C-32, a constant theme is the amount of money that can be gained or may be lost through copyright. As to how those numbers are arrived at, the transcripts do not explain.

In any event, we need not argue: copyright does bring income to some people, some of the time. But the division of income is not evenly distributed between creator and publisher, or between domestic industries and international conglomerates, or the homegrown superstar as compared to the homegrown neophyte. Those distinctions have less to do with copyright and more to do with education, training, exposure, bargaining power, sheer luck, and that ill-defined term: creativity.

In the absence of a clear understanding of what creativity is, perhaps the policy objective of creating creativity can only be approached inversely. What deters creativity is the next best question. Lack of capital is a factor. But seen from this perspective it may be easier to recognize other factors. Access to past work is important and building upon past work is necessary. Yet fear is a palpable concern (as noted in my last post.)

To give creative endeavor more shelter I proposed making fair dealing illustrative. But if we must remain locked into enumerated categories of fair dealing Professor Graham Reynolds convincingly argues that a further category be added: a protection for those who engage in transformative work. In his chapter, “Towards a Right to Engage in the Fair Transformative Use of Copyright-Protected Expression,” in From “Radical Extremism” to “Balanced Copyright…” (free download available here) he indicates that Canada would not be the first country to take such a step, and, he stresses the importance of ensuring that the anti-circumvention provisions of Bill C-32 do not render such a right null and void.

Professor Reynolds reviews some of fair dealing case law where the defendants lost. Describing the rationale for those court decisions, he shows that there is good reason to believe that transformative works could be well received in Canadian courtrooms today, if the work can meet the first requirement of category of use.

Another interesting case concerning transformative use, and a success story at that, is Allen v. Toronto Star Newspapers Ltd. It marked a moment of discontinuity in fair dealing’s twentieth century ill fortunes; the outcome diverged from the tendency to subordinate fair dealing to copyright owners’ interests and was a much-needed reminder of the collaborative and transformative nature of creative effort.

* Ruth Towse. “Copyright and Creativity: An Application of Cultural Economics,” Review of Economic Research on Copyright Issues, 2006, vol. 3(2), pp. 83-91.

Looking for Charles Darwin

In Posts on May 11, 2010 at 4:06 pm

Last night I turned on CBC Radio One, with the expectation that Ideas would continue their story on the life of Charles Darwin. Part One had aired on Friday so naturally I hadn’t bothered to check the schedule; I assumed Part Two would be waiting for me at 9 pm. (I’ve since discovered that Part Two will air this Friday, with Part Three to come on Friday May 21.)

Instead of Darwin, Paul Kennedy was moderating a panel from the 2010 Blue Metropolis International Literary Festival in Montreal. The discussion focused upon the future of the book. For the most part I enjoyed it, but …

A theme that emanated from the publishers involved was the risk to authors posed by digital technology and networks. It was noted that one should learn from the experiences of the music industry. Unfortunately, in the one hour segment of Ideas, the panel did not probe what those experiences were. Perhaps they did at the Festival but, if so, that discussion was not aired. Instead, the impression cast to the radio audience was that the music industry is continuing to suffer.

It is true that some musicians are unhappy with the capability technology offers to distribute music without authorization. It is equally true that some musicians are reaching success through the exposure offered by those same technologies. To persist in arguing that ill tidings have befallen the music industry as a whole is a narrow interpretation.

The decline in music sales that occurred in the late twentieth century and early in the new millennium correlates to a number of factors beyond technology: generally poor macroeconomic conditions (remember the dot-com bubble bursting), competition from newer forms of entertainment (DVDs and gaming were on the rise), changes in the retailing structure of music itself (goodbye small independent music stores, hello Walmart/Best Buy with their limited inventory) and, inflated CD purchases in the preceding years (when CD technology emerged, consumers purchased music they already owned in vinyl, for the pleasure of the perfect digital experience.) It is inappropriate to place undue emphasis on any one factor.

If one wants to really explore the music industry, a great deal of research has come forth from economists. A nice survey of the literature is found in Ruth Towse’s work, “The Economics of Copyright Law – A Stocktake of the Literature,” Review of Economic Research on Copyright Issues, 2008, vol 5(1), p1-22. In her conclusion, she writes:

Whether business models suited to Internet commerce can yield sufficient revenues to maintain a desirable (though not necessarily optimal) supply of cultural products without copyright protection is a hard question to answer. On the one hand, the whole economic organisation of the creative industries has depended for so long on copyright that we have copyright ‘lock-in’ and there would be high switching costs of abandoning it. This applies not only to the production and distribution by the industries but also to the system for collecting and distributing royalty revenues to individual creators. On the other hand, recent history has shown that adaptation to new business models can and does take place. — witness the growth of legal online services for downloading music. As Schumpeter believed, technological change triggers a process of ‘creative destruction’, whereby firms that do not adapt to change go to the wall in a Darwinian selection process of the fittest by survival. That is what we have recently witnessed at work in the music industry. Should ‘lame ducks’ be propped up by statutory copyright protection (Plant’s concern 70 years ago — Plant, 1934)?