One of the central “justifications” for copyright is that it is indispensable if creativity is to be viable. Without it, we are assured, artists would starve. This ignores the fact that artists created and thrived for thousands of years before the 1710 Statute of Anne. But leaving that historical detail aside, as well as the larger question of the claimed indispensability of copyright, a separate issue is whether copyright is a good fit for all creativity, or whether it has inherent biases that few like to talk about.
One person who does talk about them is Kevin J. Greene, John J. Schumacher Chair Professor of Law at Southwestern Law School in Los Angeles. In his 2008 paper “‘Copynorms,’ Black Cultural Production, and the Debate Over African-American Reparations” he writes:
To paraphrase Pink Floyd, there’s a dark sarcasm in the stance of the entertainment industry regarding “copynorms” [respect for copyright]. Indeed, the “copynorms” rhetoric the entertainment industry espouses shows particular irony in light of its long history of piracy of the works of African-American artists, such as blues artists and composers.
In another analysis, Greene points out that several aspects of copyright are a poor fit for the way many artists create. For example:
The [US] Copyright Act requires that “a work of authorship must be “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.” Although “race-neutral”, the fixation requirement has not served the ways Black artists create: “a key component of black cultural production is improvisation.” As a result, fixation deeply disadvantages African-American modes of cultural production, which are derived from an oral tradition and communal standards.
The same is true for much creativity outside the Western nations that invented the idea of copyright, and then proceeded to impose its norms on other nations, not least through trade agreements. Greene’s observation suggests that copyright is far from universally applicable, and may just be a reflection of certain cultural and historical biases. When people talk airily about how copyright is needed to support artists, it is important to ask them to specify which artists, and to examine then whether copyright really is such a good fit for their particular kind of creativity.