A Response to Sion Touhig’s “How the Anti-copyright Lobby Makes Big Business Richer”

I just read Sion Touhig‘s article “How the Anti-copyright Lobby Makes Big Business Richer” on the Register, and I found it deeply problematic, even if I sympathize with the cause he wants to defend: empowering and preserving the livelihoods of freelance professionals. See also his posting at his weblog here. From his opening:

“I’m a freelance professional photographer, and in recent years, the internet ‘economy’ has devastated my sector. It’s now difficult to make a viable living due to widespread copyright theft from newspapers, media groups, individuals and a glut of images freely or cheaply available on the Web.”

Throughout his article Touhig argues that “media democracy” and “citizen journalism,” aggregated free content, Copyleft, Creative Commons etc. has destroyed the little man’s business and, if passed, the Orphan Works Bill will also rob the little man of his ability to defend his copyright.

As I understand it, the basic system works something like. You create something—a photograph, say—and find that it, having value, can be sold, or licensed, for a certain amount to certain companies or directly to individuals. Its eventual price, if it can be sold, is determined by any number of factors, including the demand for your kind of creative work and supply of other cheaper or free content. Your copyright to this work, certainly not a divinely bestowed right, is at least nominally protected by the laws of a society which believes that the protection of a creative work will, in the end, encourage its people to create more such content in the future.

We find ourselves in a situation now where people of lesser talent, dedication, or financial means (for surely you need at least one, if not two of these three to succeed as a photojournalist) can easily share what we produce with the entire world. Our motivations may be many. Some of those who share what they create, or contribute it to large news corporations or other websites, may hope that they can eventually develop their art into a future career. However, many if not most of people are motivated out of the desire for fame or out of altruism—out of the sincere hope that what they created might be enjoyed or found useful by someone else out there.

Touhig’s article insults those people. It belittles that desire, and it reflects a bitterness about change which is found everywhere and in every generation.

No one is forcing Touhig to use a Creative Commons license. No major corporation is the malevolent puppet-master of the Copyleft movement. These are tools, admirable ones in my opinion, which have in mind not just the producers of content (including both those who wish to profit and those who do not wish to profit from their creative work) but the consumers of content. It gives them both a wonderful set of choices related to how they distribute, use, and modify creative works. In the case of the Creative Commons, it is designed to compliment, not replace, copyright protections.

Touhig is perhaps accurate in, and I am in no position to challenge, his claims about the specific changes within his industry that relate to the increasing difficulties of photojournalists to charge certain amounts for their work or be paid certain amounts to be dedicated to their craft. However, he is completely off the mark when he says that supporters of the various movements above are the “unwitting allies, or shills” of big business. If individual copyright holders have few means to protect their copyright by legal challenges, this is hardly the fault of the Creative Commons movement or Flickr or OhMyNews. If the photojournalist’s photographs are not selling at the same price they used to because there is a sudden flood of cheap alternatives created by people who have no profit motive, it is hardly appropriate to chide the charitable for giving away their content. If the consumer is satisfied with the less skillfully snapped photo, the less grammatically correct article, the goofy home video, or even the factually imperfect article on OhMyNews, WikiNews, etc. it is disingenuous for an elitist photographer to lament the world’s decline in standards by criticizing the movements which make it possible for us all to easily share content.

I used to put together some free macintosh software which I host foolsworkshop.com. My creations are all but useless now but there was a time when at least one of the free programs I created competed favorably with other commercial and shareware software out there. Before the rise of the internet amateur freeware developers such as myself did not have the means to distribute our creations. Other software developers, large and small sold their products via catalogs and shops. When a freeware product is well done, and it offers a comparable or least nearly comparable feature set with a shareware or commercial option, it out-competes the latter. Touhig’s position in his article is comparable to a small-time shareware developer accusing people like me of being the shill or unwitting ally of the commercial software companies. “You bourgeois running dog scum, how dare you give away your labor? What about proles like me who make a living out of this? What about my labor? How dare you undersell sell me with your free software. Don’t you see how this plays into the hands of the capitalists?”

All I can say to Touhig is that I hope he thinks through his position again and reflects on the two successful approaches that both small and big businesses (after all, things like Youtube started as a small business) have taken in response to these new developments. When they can, businesses try to co-opt these energies for its own benefit. When they can’t, they resist, with all their legal, lobbying, and coercive power any attempt to dilute their copyrighted assets. The fact that they can do the latter far better than any individual artist or professional is a matter of course. That is why movements such as the Creative Commons and those supporting serious copyright reforms need to be organized, committed, and highly vigilant in order to prevent a stifling of the very forces of creative energy that the internet has unleashed. However, Touhig completely misses the fact that creative professionals stand a much better chance, if not an equal chance, in the former approach—competing with large corporations when it comes to making use of these new developments for their own benefit. Individuals can adapt faster than corporations. This will require a change of thinking on their part; a change of business model; a change of their whole sales philosophy. A failure to do so may indeed, as Touhig predicts, lead to the destruction of his kind. The onus, however, is on him and professionals like him to take the initiative and adapt.

5 thoughts on “A Response to Sion Touhig’s “How the Anti-copyright Lobby Makes Big Business Richer””

  1. I’d say you’re right on spot. I don’t know what gives the guy the idea that what he does has something to do with CC, for what I’m seeing is the typical effect of work being outsourced to cheaper sources (with digital cameras every soldier will become a war reporter).

    IStockphoto (which he offers as an expample of this development) is fully copyright operated too, and has nothing to do with CC or copyleft. It’s just an example of different business models made possible through the advent of the internet.

  2. I believe you misunderstood Sion’s post. It has less to do with the Creative Commons’ license than with the new economics of user-generated content. You take the example of software but it is not totally the same situation. Mainly because there is:
    – no equivalent (until now) to FSF, GNU or Linux,
    – the distribution is now the same. Photographers have to deal with Getty/Corbis and other multi-million dollar companies and don’t have their say.

    The context is a bit different. However, CC is a great tool and at Kumaru.com we propose it. I wrote about your conversation at: http://forum.kumaru.com:8080/posts/list/45.page

    Happy New Year!

  3. The article was cut by about 50% which might have accounted for some of the opinions being somewhat opaque, or even wrong. All I can say is that in my sector, a withering of copyright protection combined with corporate seizing on that weakness for their own benefit, has damaged my sector of the business.

    There have never been any barriers to entry to my profession by the way. All the photographers I know do it because they simply decided to do it, and in business terms its already about as Darwinian as you wanna get, so I have no hangups about being ‘beaten’ by anyone. Ya win some, ya lose some.

    The iStockphoto business model is partially because they have to find a price point which can compete with images given away, and also that in some cases they only pass on 25c in the dollar to their contributors anyway. All the images are RF – Royalty Free, which is an extremely broad license which kinda renders the copyright redundant, as the buyer can use the image pretty much in any way they see fit. The images only value then, is their commodity value – a value which is not fully passed onto the authors even then. I don’t know any photographer – amateur or not – who refers to their images as their ‘property’. They refer of course to it as their ‘work’, and if anything, I’m arguing that ALL authors deserve recompense for their labour. But more often than not, media organisations soliciting for User Generated Content have hidden terms which steal the copyright from the contributor. It’s then leveraged for profit – and their newly acquired ownership is rigorously enforced of course, because thay have the financial and legal resources to do so. I don’t.

    In terms of adaption, the article may have made me appear to be more of a Luddite than I am. The last blog article I posted:


    will hopefully provide a more optimistic counterbalance to the Register piece, which was written some time ago and held for a while.

  4. As I mentioned in my posting, I’m certainly sympathetic to the challenges faced by your profession with the changes affecting your profession and generally sympathetic to what I believe is your ultimate worry. My objection with the article was that in many places throughout it, indeed the title itself, is deeply accusatory of what I see as the completely wrong target. If your enemy is the corporation, by all means, attack the corporations. However, that is not the point of your article as stated in your title, your opening paragraph or throughout. You have, perhaps unintentionally, but certainly carelessly in that case, gone out and attacked the wrong people.

    I’m not for a complete eradication of copyright, but even if I was, or the brunt of your article was aimed at such a scheme, then your conclusion doesn’t make any sense. The corporations can hardly make property out of your work, if the lack of copyright protection means that there is no intellectual “property.” Again, that is not what I or most of the movements you refer to by name are aiming for.

    In a less radical scheme which “weakens” copyright, then it will weaken it all around, again affecting the companies as well.

    There are movements, and I am certainly a supporter of many of them, aiming for radical reform of copyright (radical shortening of the length of protection, freeing orphaned works, supporting open source and open access initiatives, and re-creating a culture of intellectual sharing that is withering all around us in an age when creative work is being commodified more than it ever has), and the building of legal and communal frameworks that make it easier for those who create “works” of a creative nature to have more choices when they release their work.

    The Royalty Fee issue you are talking about has nothing to do with copyright reforms. It is a broad license, and as you describe it, it sucks if you want to profit by your labor. The choice to issue such a license is that of the corporation. The choice to agree to such a license is that of the contributor. If the contributor of a work is willing (there is no coercion here) to release their work under such a broad license, then that is their own choice.

    If they give it away completely, or release it under a CC license, that is also their choice and I admire them for making that contribution—especially if they have calculated that there is no company willing to pay an amount or offer a license that they believe worthy of their work.

    Several of the entries of this blog (mostly anedoctes from my life in East Asia) for example, released as they are under a CC license, have been scraped and posted on a number of aggregation news sites. These sites have created nothing, but have selected blog entries they liked, sometimes added a picture (modification is permitted by the CC license for this site), and always have added advertisements. Those companies profit from my generosity, that is, they make ad revenue from my postings because I chose to release this whole blog under a generous CC license. Does that make me an unwitting ally of big business? Am I responsible for the fact that good writers cannot sell their stories to paying websites because these websites can now scrape their stories off of CC blogs?

    Or to put it in your terms, do I deserve recompense for my labor? Perhaps, but I don’t write on this blog for money, I like the fact that people enjoy reading what I post here, I enjoy the comments and discussions it generates, and I’m delighted when something I say gets picked up somewhere on the web and becomes a topic of discussion or is found to be educational. I enjoy creating and I have the luxury of not having to live off of what I write. If I did try to live off of writing, and found getting good enough pay increasingly difficult because corporations are busy scraping blogs and posting user content the last thing I would do is blame or criticise those who are giving their content away.

    I wouldn’t criticise the “the lowest cost producer – the amateur photographer throwing their images onto the Web” or the “amateur [who] will buy a newspaper or magazine simply for the thrill of being in print.” and I wouldn’t criticize the “technology utopians” who are trying to make it easier to share, mix, and create materials without being hindered by a century of copyrighted blockage, dwindling fair use protection, etc.

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