One of the things copyright is often accused of unfairly preventing, which in turn inhibits creativity and innovation, is so-called “transformative use”. That is, taking someones work as the starting point for your own, and sufficiently changing it so that a new work is created. Currently, in the UK, this mostly still requires a licence because the new work still includes the old one so no one person has the whole copyright. In the US, as a consequence of their “fair use” laws (and a load of litlgation over the years), some of this is allowed. And there are now calls to adopt a similar approach in the UK.

I am always slightly surprised that this is held up as a desirable thing. I sort of assume, rather rudely, that those who advocate it dont have much imagination of their own. Obviously people have been transforming each others work for donkeys years (think about sampling) and equally obviously its not impossible to get permission for this at least some of the time. But I always thought copyright was intended to promote and protect originality. Creatvity, surely. implies creating something. Not just giving something a make-over. New things, rather than iterations of old things. A really nice photocopy, or a cleaned-up photo, surely shouldnt be considered new works in their own right? Thats why copyright doesnt apply unless a work is in some way creative and original.

In fact I have always thought that one of the rather brilliant balancing acts that copyright performs is to prevent appropriation of someones work while allowing – encouraging, even – inspiration. Most original thoughts have their roots in something else. One thing leads to another, and what eventually emerges might bear no similarity at all to the thing which inspired it. You hear a song, and it makes you think, and a bit later a song of your own emerges*

This balancing act is brilliant not just because it creates a sensible compromise but also because it encourages widespread distribution of work. Most creative people are happy and flattered that their work might inspire someone as long as it isnt appropriated… feeling confident of that creates the confidence to publish widely. The more there is out there, the more there is to be inspired by, and the more gets created. If I were a management consultant I would call it a virtuous circle (and send a bill for several thousand pounds).

My questions are these:

Even though its undoubtedly true that transformative works can be brilliant and hugely enjoyable, why does that mean they should be protected by a legal right?

Why shouldnt I, as the creator of something, be able to benefit from the use someone else makes of it?

Equally, why shouldnt I be able to prevent them using it if I dont like what theyre doing? Even if other people think its great, if my work is recognisable in theirs. surely I should have a say?

And, from a public policy point of view, shouldnt we prefer a law that encourages true originality over endless iterations of past work? Which pushes beyond just re-cycling the past, with the risk of creating a colourless hybrid of indeterminate origin in the place of true creativity?

Surely we dont want a world of mash-ups to create a future which is just a mish-mash…

*for people who remember Lloyd Cole and the Commotions, and “Are you ready to be heartbroken”, check out “Lloyd, Im ready to be heartbroken” by Camera Obscura. Twenty years on, not copying or mashing up anything, but the inspiration is clear…

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