Time for some brainless babbling, and I apologise in advance for lack of coherence. I shall call this brainless babbling, because, well, there aren’t too many actual answers to some questions I’m tackling here - and it would probably be far too expensive to clarify these things.
The question of the day: can monkeys have copyright?
Summary of the story: The Daily Fail (sorry) obtained photographs that were taken by monkeys. Techdirt commented on them. The Daily Fail (sorry again) issued a takedown request. But under whose authority? Who really is the copyright holder in that case?
I didn’t originally want to comment on this issue on the blog until I happened to read a bit about some lady who had written down, through automatic writing, a novel by Jane Austin. Let’s ignore, for the moment, the debate on whether or not automatic writing is a scientifically verifiable phenomenon, and assume for the sake of argument that a dead person wrote a novel after they died. What exactly is the copyright status of that work?
The problem with the law is that most of it only applies to persons - living persons, to be specific. Animals have different sets of rights than humans, and while animals have sometimes put their creativity to good use, they don’t have to worry about the legal aspects. Because as far as legal aspects go, there are no good answers, and animals luckily seem to not give a damn. Animals don’t have responsibilities, but their owners and handlers have.
Copyright law is understood as giving the creator a limited exclusive right to a work, until it reverts back to non-copyrighted state. The original motivation of the law was to give content creators incentive to work on new works, because the content creators would know that at some point, those works would cease to be their exclusive works.
In that light, we might start asking better questions.
Jane Austen died in 1817. We should start asking the automatic-writing experts and spirit mediums and whatnot whether or not this world-famous author has been following the developments in copyright legislation; no doubt she has an eternity to contemplate the mysteries of the modern life. I do believe that writers and creative people of all stripes should be aware of the current copyright law, after all, and it really is quite simple to understand, even for non-lawyers. Of course, Austen died so long ago that all of the works she wrote while living have already long reverted to public domain. In this particular scenario, it’s unfortunate that copyright isn’t defined as years since first publication, but rather as extending to a specific number of years after the death of the author. This definitely gives less incentive for the deceased authors to write new novels. The only people who can profit from this work are the editors and translators.
I don’t think this spirit world thing is so good after all. When I die, I don’t think I’ll want to stay in the afterlife, because I would need to deal with some shady automatic-writing folks who would just attempt a weird only-technically-legal rights grab. I think reincarnation is the way to go. Living people can do the publication themselves and have some rights! Who cares if the name in the cover changes and I’d need to learn to write again and, obviously, would probably not remember a damn about my previous exploits as a writer!
But then again, even in our modern world, we have people whose works do not have the protection of copyrights. The United States Government produces a whole lot of awesome public-domain material that is celebrated the world over. And even this can get us questioning things: what exactly is the copyright status of the Killian documents? Are they authentic US government documents, in which case they’re public domain? Are they forgeries, in which case they may be copyrighted? (For the record, this was the only issue I kept thinking about in this case. =) Of course, if the documents look like forgeries, there’s no question about this, but even so, even small amounts of doubt can rock the boat.
In Finnish copyright law, there’s also a concept of “threshold of work”, which is also found in other jurisdictions, just under different names. Trivial works aren’t copyrightable. As far as copyright goes, this is a somewhat annoying thing, because photography needs pretty ridiculous definitions of thresholds of work when you really think of it, for the simple reason that the camera - an inanimate object, mind you - does most of the work. This is annoying, of course, because photography as an art form gets a lot of criticism on this point alone: is it really a form of art if all you do is push a button? Yet, there’s obviously more work and more opportunities required for artful photography. In short, if a person deliberately places and sets up the camera and presses the button, the photograph is a copyrightable work of art. If not, it kinda requires some… evaluation. Or repeated whining.
What can be done, if in some cases, the only reason you supposedly have a copyright on something is purely accidental, or if you can only claim copyright because “duh, it’s my camera”?
Do monkeys understand what the copyright law would allow them to do? Do monkeys have incentives to create more art, now that we’ve easily demonstrated that photography seems to be an art form they’re proficient at? Why are we demanding copyright on someone else’s work, when there plainly and obviously was no contract that transferred the rights?
Some random closing thoughts:
Here we have interesting “found art”. Google+ is on a meteoric rise. Facebook is feeling threatened. And in Slashdot, not everything can be fit on a screen.
“Previous Story: Zuckerberg”.
It’s just staring at me. Zuckerberg is the Previous Story. We don’t really need to concern ourselves with him anymore, now do we?
But can I claim copyright on this piece of found art? Not really - there’s copyrighted logos there, and the story was posted on a website that’s copyrighted by… whoever happens to own Slashdot this decade - I can’t be bothered to check. Besides, it’s just a silly idea. It’s meant to make you intrigued. …so, um, maybe it is copyrightable? If it’s enough to pass for incidental social commentary, maybe it is copyrightable. I don’t know, really. All I can hope is that you got a chuckle out of it. All I can hope is that you think of the challenges of social networking, new media and all that rot.
It’s always inconvenient to find oneself in a giant chasm of legislation. You just know there’s something you can hold on to, but you’re just not sure if that’s enough for you to complete what you’re doing. Imagine walking through a set of corridors, suspended over a great ravine; the corridor is broken at one of the intersections. You can barely swing to the other side if you hang on the edge with one hand and leg, but there’s a giant chasm below you. If you’re careful, as most people are, you won’t fall into the chasm, but everyone who has crossed the chasm know that it’s bloody scary anyway. And the authorities say there’s no need to fix things; “not many people”, they say, “ever go to that particular intersection anyway”.