Copyright confusion

An article by James Boyle in today’s FT is a good example of how people get the wrong end of the stick when debating copyright. While copyright is not the most exciting subject to some, to others it arouses such passion that clear thinking goes by the board.

Boyle’s article criticizes a piece co-authored by Scott Turow in the NYT. Turow’s piece argues that the building of theatres in Elizabethan London with their admission fees allowed playwrights to make a living from writing, which cultivated a wave of brilliant dramatists. Copyright, it says, has similarly allowed creative people to make a living from their work.

But this is what Boyle hears:

‘The argument is so strange it is hard to know where to begin. The problem is not simply that Shakespeare flourished without copyright protection for his work. It is that he made liberal use of the work of others in his own plays in ways that would today almost certainly generate a lawsuit. Like many readers, I found myself wondering whether Shakespeare would have survived copyright, never mind the web. Certainly, the dense interplay of unidentified quotation, paraphrase and plot lifting that characterizes much of Elizabethan theatre would have been very different; imagine what jazz would sound like if musicians had to pay for every fragment of another tune they work into a solo.’

Turow is making a point about how it helps if creative people can make a living out of their work, whether through selling tickets (in the case of Elizabethan playwrights) or copyright (from the 18th century). Boyle tries to undermine the argument by commenting on whether 21st-century copyright law would have presented stylistic problems for Shakespeare. That may be an interesting question but it’s not what Turow is driving at.

James Boyle is on the panel of the Hargreaves Review, which has called for evidence about copyright from ‘the widest possible range of interests’, so no doubt some of the views will not necessarily accord with the panel’s. The first challenge in the apparently overwhelmingly exciting copyright debate is to start by actually hearing what the other person is saying.