James O. Young, "Radically Rethinking Copyright in the Arts: A Philosophical Approach."

When was the last time you sang Happy Birthday to You? Did you pay Warner Music US$5000 for the privilege?If you'd had to, would you still have sung it?Me neither.And as far as James Young is concerned, to do so would be to cave in to intellectual property laws which inhibit creativity, enclose the artistic and intellectual commons, and reward corporate middlemen at the expense of content creators and the general public.In this spellbinding foray into the applied ontology of art, Young argues that the fundamental problem is that intellectual property laws are ontologically illiterate.As he puts it, 'a remarkable amount can be deduced about legitimate copyright simply from reflection on the ontology of artworks' (15), and that is precisely what he sets out to do in a slim volume that packs a hefty wallop.Ch. 1 begins by showing that intellectual property laws do not satisfy their stated purpose, which is to promote the public good by rewarding artists and incentivizing creativity.Young demonstrates that extended copyright terms have primarily served to enrich corporate middlemen, rather than artists themselves.This has been achieved thanks to low royalties on the one hand (e.g.$0.09 per track purchased on iTunes goes to the artist vs. $0.53for the label; $0.00029 per play on Spotify goes to the artist vs. $0.0016for the label), and high licensing fees on the other (as with Happy Birthday).Combined with aggressive corporate litigation, the result has been the systematic enclosure of the public domain, and a marked decrease in creativity.Young argues that we should rethink intellectual property law along the lines suggested by Mill's principle of liberty: artists should do as they please, unless and until their actions would harm someone else (15-6).Courts have typically relied on the distinction between the idea expressed by a work and the way it is expressed in the work to resolve copyright disputes.In Ch. 2, Young argues that this distinction is unhelpful (32)(33)(34)(35)(36)(37)(38), and that courts should instead rely on less controversial distinctions from the ontology of art, such as that between concrete and abstract entities.Concreta like paintings are physically instantiated and have physical parts; abstracta like literature and music, however, are types instantiated by their tokens (e.g.individual books or performances).To these, Young adds the category of works whose pattern can only be specified by reference to a concrete individual: concrete pattern-types such as a negative or digital file, whose existence depends on the initial production of a concrete individual which is then used to generate tokens of the work .So armed, Young introduces a powerful-but potentially controversial-new distinction between parts of artworks and 'artistic elements'.Straightforwardly, a work's parts are its spatiotemporal regions, and are instantiated wherever the work is; its artistic elements, by contrast, are the principles and processes which govern the arrangement of its parts (28-9).Artistic elements are not parts of works because they do not exist wherever a work is instantiated (29).Consider Jurassic Park (1993): wherever it exists, so too do its scenes, which are parts of each physical print.So, if I have the tape in my hand, I am holding

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