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This month, iCommons’ resident copyright columnist, Tobias Schonwetter, provides historic proof that free publishing eventually pays off while high-protectionist copyright regimes for developing countries appear counter productive.
Once upon a time, a relatively young and unknown British author wrote a wonderful and touching book, based on what he later described as his carol philosophy, about Christmas time. According to this philosophy, Christmas holidays are “a good time: a kind, forgiving, charitable, pleasant time: the only time I know of in the long calendar of the year, when men and women seem by one consent to open their shut-up hearts freely, and to think of other people below them as if they really were fellow-passengers to the grave, and not another race of creatures bound on other journeys”. The British author called his book A Christmas Carol and by now, most of you will probably know that the author I am referring to is Charles Dickens.
Without a doubt, Charles Dickens has significantly influenced the way we celebrate Christmas today with his book. In what appears like a very different chapter of my life, I had the opportunity to play Tiny Tim's part for a couple of years around Christmas time when A Christmas Carol was staged in one of the bigger theatres in my home town Hamburg and I like to believe that the story itself as well as the reasons leading to its widespread circulation have had an impact on my approach to copyright law which I disseminate via this column every single month.
This needs further explanation. The storyline of the book is of course outstanding, both back in 1843 when it was first published and today. It conveys essential values such as altruistic compassion as well as the rejection of stinginess and excessive selfishness. Moreover, it pinpoints how intimately the past, the present and the future are related: if we learn from the past to make the right decisions today we can positively influence our future.
But it was not the intriguing storyline alone which resulted in the book becoming such a worldwide success. Rather, the book was ingeniously “marketed”. While readers in more affluent countries had to pay a higher price for the book right away, copies of the same book were (sometimes under a slightly different title though) sold in less developed countries for a fraction of this price. In the United States, for instance, A Christmas Ghost Story cost only a few cents a piece at the end of 1843 while in England the equivalent of US$ 2.50 was charged. Of course, the author would not profit significantly from such cheap sales in the developing countries at first. However, if he had asked for a higher price at this time no one would have been able to afford the book in any case - so he did not really loose anything either. On the contrary, the “strategy” surely contributed to the development of less affluent countries by way of helping to create a reading culture which eventually led to an improved level of education of the population. In the United States, Charles Dickens gained and confirmed such a solid reputation for being an extraordinarily gifted writer because of the widespread distribution of his book that he was widely celebrated during his North American reading tours. Eventually, this reputation resulted in better profits from his subsequent books which where published in the United States only a few decades later, after the United States had reached a considerably higher level of development and when people were able to pay a higher price over there.
Yet, there is a regrettable twist to the above Charles Dickens' success story. Charles Dickens was a vociferous advocate for a stronger copyright protection regime and the outlined ingenious “marketing strategy” was by no means his own decision but was forced upon him by the circumstances. The books that were distributed for little money in the United States were in fact pirated copies of his work and Charles Dickens went to great lengths to fight as well as publicly denounce this piracy. It could very well be argued that by doing so, he acted in contradiction to the very principles of charity and altruism that he had based his Christmas Carol upon.
This short historical digression highlights that unfortunately we are still fighting more or less the same battles in the field of copyright law that were fought more than 150 years ago! Then and today the often intertwined issues of piracy and development are at the forefront of the discussion. Yet, two important conclusions can be drawn from Charles Dickens' experiences.
First, Charles Dickens' individual (financial) success as a poet eventually rested significantly on his fame to which the widespread unauthorised copying of his earlier books had surely contributed. Hence, even predominantly self-serving creators should strive to achieve at least initially a wide dissemination of their works regardless of whether they make money from that or not. In fact, an ever increasing number of creators seems to adopt such a long-term strategy in recent times for which CC licences are perfectly suited. However, too many creators still continue to stick to the traditional statutory copyright regimes which, beyond dispute, hamper the dissemination of works.
Secondly, and on a more general note, it is noteworthy that the approach of first creating a market in less developed countries by way of distributing cheap materials and (at the most) a subsequent strengthening of intellectual property protection by degrees has already proven successful in history, e.g. in the U.S. Against this backdrop, the present strategy of developed countries to immediately impose high protectionist copyright regimes on less and least developed countries by means of Free Trade Agreements and the like becomes highly questionable. Proponents of such a strategy argue that a heightened level of copyright protection is also in the interest of developing countries because it is an additional incentive for domestic creators as well as a positive signal to potential foreign investors. However, whether or not these advantages for developing countries really outweigh the tremendous disadvantages and costs which are associated with increased copyright protection is disputable at best. To me, advocating for a further strengthening of copyright protection in order to achieve economic, cultural and educational goals appears like putting the cart before the horse with very uncertain prospects of success.
Charles Dickens' book A Christmas Carol communicated the message that we should learn from past experiences and make the right decisions today based on these experiences to build a better future. Let’s take him at his word and let us learn from a past which has shown so clearly that giving something away for free can certainly result in individual financial success at last and that a precipitous strengthening of copyright laws around the world is altogether unnecessary. Given his own view on copyright protection, Charles Dickens would arguably contest my interpretation of his experiences here. But we all know that even a genius can be mistaken once in a while. Merry Christmas!
This column is dedicated to the memory of Professor Mike Larkin (University of Cape Town).
tags: international policy-law copyright-law ip-law dickens
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