Lesson 18: The Magical Properties of Intellectual Property

There’s something magical about intellectual property.

I know we don’t normally associate magic with the law, but intellectual property is intangible, invisible, and infinitely subtle and complex in its application.

To hear lawyers debating the finer points of copyright law in the digital age is like eavesdropping on medieval theologians discussing how many angels could fit on the head of a pin. To outsiders it sounds remote and fanciful, but for the people concerned, it is a matter of the gravest importance.

In last week’s lesson we looked at the basics of copyright, trademark and patents. This week, we’re going to tease out some of the implications for you as a creative professional – with an emphasis not just on protection and compliance, but on creativity and opportunity.

This lesson will focus on copyright, as the form of intellectual property most of us have most dealings with, and online publishing, which has proved the most challenging area to regulate.

Intellectual property is not proper property

You wouldn’t steal a car. You wouldn’t steal a handbag. You wouldn’t steal a mobile phone. You wouldn’t steal a DVD. Downloading pirated films is stealing. Stealing is against the law. Piracy: it’s a crime.

A few years ago, this was the message I was often forced to listen to when I inserted a new disc into my DVD player. It was part of an ‘educational’ advertising campaign by the Motion Picture Association of America.

Just to make sure I didn’t skip the message – and presumably to keep my criminal tendencies firmly in check – the MPAA made it impossible for me to skip this track, so I had to watch the ad (or make a cup of tea) every time I wanted to watch the movie.

It was patronizing and annoying. Yet it’s hard for law-abiding citizens like you and me to argue with the basic message.

But did you notice the ad’s little conjuring trick?

The logic of the message depends on an analogy between private property (such as cars and mobile phones) and intellectual property (such as a motion picture, recorded music or the text of a novel). But in fact, the very idea of intellectual property is nothing more than a metaphor.

Aristotle defined a metaphor as a figure of speech in which one thing is spoken of as another. It is used to highlight certain characteristics of one thing, by comparison (often in an exaggerated fashion) with certain characteristics of another.

So if we say someone is ‘a bull in a china shop’, we don’t mean that he is literally a bovine male causing havoc in a retail store – he’d be on the news if that were so. We mean his behaviour appears inappropriately boisterous and aggressive.

And if we describe the weather as ‘raining cats and dogs’, we mean it’s raining very hard. We don’t mean there are furry animals falling out of the sky. That would be absurd.

In both cases, the metaphor works by a slightly comic exaggeration. We don’t intend people to take the metaphor literally. The man may have some characteristics of a bull (boisterousness, aggression) but not all of them (horns, four legs, ring through nose).

Yet the MPAA, along with many other intellectual property rights holders, was determined to take things literally. Intellectual property was described as being the same as other forms of property. So anyone who downloaded a film or copied a piece of music without paying for it first was no better than a common thief. (Unless you wanted to mix the metaphor and call them a ‘pirate’ which sounded a little more glamorous.)

But there are several very obvious ways in which physical property and intellectual property are different. If I own a car, for instance, and someone steals it, then I don’t have the car any more. I’m getting the bus home in a bad mood.

But if I write an article and someone copies it onto their hard drive, it doesn’t disappear from mine. Now there are two copies. If it finds its way onto the web, and hundreds or thousands of people download it on their browsers, there are hundreds and thousands of copies. We can all enjoy it, with no deterioration in the original.

I told you it was magical.

Now, this is an emotive subject, so I want to be very clear. I am not saying we shouldn’t respect the rights of copyright holders. I’m not saying we shouldn’t pay for digital content. And I’m not saying creators should give all their creations away for free. I’m a creator myself, and I depend on selling digital content for part of my living.

All I’m saying is that that thinking about these issues purely in terms of the ‘property’ metaphor is limiting and distorting.

It’s often more helpful to think about intellectual property in terms of a set of rights. Copyright is not a monolithic entity, it’s a collection of different rights, including the right to copy, the right to prevent others from copying, and the right to be identified as the creator of your own work.

And sometimes, as a creator, you can benefit more by relaxing some of these rights than witholding all of them…

What you gain by giving (some of) your work away

My books are Amazon bestsellers and are given away free as downloads.

My problem isn’t piracy it’s obscurity. Most people who didn’t buy my book, didn’t because they had never heard of me, not because they got a free book.

(Cory Doctorow)

people have to hear music, then they will grow to like it, and then finally, if you’re lucky, they will engage in an economic relationship in order to consume (not just buy and listen to) that music.

That’s the order it has to happen in. It can’t happen in any other order. There’s no point in hoping that people will buy the music, then hear it, then like it. They just won’t.

(Andrew Dubber, Hear, Like, Buy)

These two quotations, from a writer and an online music consultant, are typical of an approach to copyright, creativity and marketing that is very different to the stance of the MPAA.

Instead of throwing up their hands in horror at the thought of widespread copying of their work, some creators are rubbing their hands with glee. Where the MPAA sees stealing, they see free marketing.

They see an opportunity to distribute their work worldwide without paying for advertising or broadcasting. A chance to sidestep the gatekeepers of the Old Media world and build relationships directly with their fans.

I know how they feel.

Back in 2007 I wrote an ebook called Time Management for Creative People. I gave it away for free. It did pretty well – within a couple of years, I counted over 150,000 downloads, before I lost track of the numbers.

A friend once said to me “Imagine if everyone who downloaded it had paid you a pound…” Which would admittedly have been nice. But if I had asked a pound a copy, it would not have been downloaded 150,000 times. Given my obscurity, I’d have been lucky to sell 1,000 copies.

That ebook took me a week to write, and several days of promotion online – emailing it to bloggers and so on. But over the past three years, I’ve lost track of the number of coaching clients and speaking, training and consulting gigs it has brought me.

And I wouldn’t be running Lateral Action if I hadn’t given that ebook away – one of the bloggers I sent it too was Brian Clark, who told me later he was thinking of starting a new site about creativity and productivity ‘and your ebook was bang on target’. It was one of the things that led to us working together as partners.

Plenty of people have told me they can’t believe I’m giving The 21st Century Creative away for free. On the other hand, plenty of other people would never have heard of me if they didn’t sign up for the course. And since I launched it in 2010, the course has helped me to find many coaching clients, readers for my books and listeners to my podcast. I only had to write the course once (and revise some lessons every few years) but it will carry on working for me for years…

How much should you give away?

Once more, I want to be really clear: I am not suggesting you ‘give away the farm’, by making all your work available for free online, in the highest possible resolution.

Call me cynical, but I can’t help noticing that a lot of the people who say everything on the internet should be free are the ones with salaries or professorships, who don’t depend on selling creative work to make ends meet. If you’re an independent artist, musician or creative entrepreneur, then your online activities are more than a hobby.

So if you want to make money from your creative work, you need to take a strategic approach to your intellectual property rights.

When you’re starting out, give away some of your work for free, so that people can encounter it, experience it and enjoy it – and make sure you clearly signpost the way back to your website and mailing list signup page.

You can probably give away a lot more than you think – Brian and I agree that if it feels like you’re giving away too much, you’re probably on the right track!

But make sure you have something in reserve. An extended version. A higher-resolution image, or higher-fidelity recording. A live show or face-to-face consulting. A framed original or a limited-edition print.

If you’re an artist, give away low resolution images, and sell the originals, or limited-edition prints.
If you’re a musician, give away the singles (as MP3s) and sell the album (as a CD-quality download), or the live show.
If you’re a novelist, give away short stories, or articles about your favourite writers, or the first chapter of your novel, and sell the rest.
If you’re a non-fiction writer, start a blog that complements your books, with added background information, interviews, and updated material.
If you’re a consultant, give away top quality advice, and charge to help people apply it to their particular situation.

Not everyone who experiences your free gift will become a raving fan – but if you spread it widely enough, in the right places, you should start to find your customer base growing.

Whatever you do, be generous. And be smart.

Beware of copying other people’s tactics without understanding their strategy. Radiohead famously gave away an entire album and said ‘pay what you want’ – but they were already famous as Radiohead, with a huge audience used to paying them money. Can you say the same?

In 2007 Prince gave away his new album Planet Earth, bundling it with copies of the UK ‘newspaper’ The Mail on Sunday. It caused a sensation and was reported all over the British press. Which is exactly what Prince wanted. Not only did he receive a handsome payment from the Mail, the PR helped him sell out around 30 shows at the O2 Arena.

So the answer to the question of how much to give away, you need to be clear about your business or career goals. If you’re looking to land a job, speaking gigs or fill out your live show, then it makes sense to give away more; if you want to earn a living from selling media content, then you may want to hold a little more in reserve.

Creative Commons – a quick and easy
way to license your work

Believe it or not, there are people out there who are still hesitant about copying and sharing your content. These are the nice people who don’t want to rip you off. So how do you let them know that you actually want them to share some of your content? And which bits?

Creative Commons is a free service that allows you to quickly and easily apply a copyright license to your content, making it very clear which of your rights you want to withhold, and which rights you want to grant to the general public.

For example, this link will take you to the Creative Commons licence I used for my time management ebook. It specifies that people are welcome to copy and share the ebook on the following conditions:

They don’t use it for commercial purposes
They credit me as the author
They keep it intact and do not alter the text

I could have relaxed any of these conditions, for instance allowing people to use it for commercial purposes, or to edit it and write their own version of it.

This page explains how you can create your own Creative Commons license, within a matter of seconds, and add it to your work.

If you’re wondering whether you can copy and use other people’s work, look out for a copyright statement:

‘Some rights reserved’ means the creator has granted you some of the rights — look for a creative Commons or similar license statement, that will specify what you can do with the work.

Image by opensourceway

Worksheet

Worksheet: Intellectual Property Magic (PDF Format)

Worksheet: Intellectual Property Magic (MS Word Format)

Resources

Written by me, unless otherwise stated

Free Culture: The Nature and Future of Creativity by Lawrence Lessig. Fascinating survey of intellectual property in the digital age, and the implications for creators and publishers.

Piracy Is Progressive Taxation by Tim O’Reilly

Forget the Career Ladder – Start Creating Assets

Tune in next time …

… When we’ll look at the invisible currencies of the creative economy – some of which are more valuable than money.

About The 21st Century Creative

This lesson is part of The 21st Century Creative Foundation Course, an in-depth free course about how to succeed as a creative professional. If you landed on this page from elsewhere, you can get the whole course delivered to you for free by signing up here.

The course is taught by Mark McGuinness – award-winning poet, creative coach, author of several books for creatives, and host of The 21st Century Creative podcast