Guillaume on Gomery

When Bryson prompted Gomery to supply some justifications as to how and why
copyright functions in the way it does, Gomeryʼs response was revealing: given an
alternative model, “what do [the artists] live on?”. Thus, we may conclude, according toGomery, the need to monetize artistic works is the principal justification upon which copyright should exist. Itʼs worth nothing that a discussion of the moral rights of artists was conspicuously absent from his discussion. For Gomery, the duty of copyright may well be to “protect the creative expression of ideas,” but in this case the verb “to protect” may well be synonymous with “to compensate.”
This viewpoint led me to consider some of the problems that arise when “law and
economics” drive our “moral” justifications for copyright policy and the realm of artistic creation. I came to two main conclusions. First (and perhaps more obvious), this view places the financial aspects related to the production of art ahead of the art itself. We already see some of the consequences of this tacit philosophy within society: a clampdown on sampling and remix culture; ridiculous claims of musical copying being taken to and allowed to stand in court (a recent example: http://tinyurl.com/yhn6omc); a corporate fixation with analyzing the technical details in othersʼ art to prove unlawful copying (to monetize damages from it) at the expense of looking at the bigger picture.
The possibilities for what might qualify as art and for protection are practically restricted, due to looming lawsuits; in some very meaningful way, new forms of artistic expression are limited in favour of “originality” based on the old models.
Second, yet also more worrisome for the future of art, the lenses of compensation reduce our common ability (and sometimes, even our obligations) to think about the creative process collaboratively, as collaborations necessarily render the legal
questions of ownership and payment significantly more complex. Rather, this model
encourages a simple view where composers apparently compose independently in a
vacuum (or if they do not, cannot state so publicly) in order to keep a payment system - already very complex in and of itself - as simple as possible. The growing use of “ghost” composers/writers/etc. who derive only a highly limited benefit from their work, because they are paid “up front” to sign over all rights to their work to a bigger and more marketable name, is a symptom of these legal complications and the desire to avoid them for financial interests. Yet by doing so, we sacrifice some of the very principles we originally sought to defend with copyright. In all, an ever-growing amount of rights that are supposed to protect intellectual property are concentrated into fewer peoplesʼ hands, and those people are less often the artists/creators/inventors.
Thinking about copyright through the lenses of normative law and economics
might make good business and/or legal sense, but it does not make good artistic sense, that very same intangible characteristic that copyright was originally supposed to encourage and protect.