BrokenLogic

Intellectual Property and Artistic Freedom

We are in the midst of an unfinished global techno-cultural revolution. We live in a “cut and paste” culture enabled by technology. But how did we get from “liberty, equality, fraternity” to “rip, mix, burn?” The phenomenal growth of the internet has greatly intensified the force of this revolution. Anyone building a presentation knows the extraordinary freedom that the cut and paste architecture of the Internet created. This is propelling an unprecendented expansion in the scope and duration of intellectual property protection—as well as more intrusive kinds of enforcement and new technologies of control. At the same time that a massive system of lawyers regulating creativity as copyright law is expanding in unrecognizable forms, a powerful force in the opposite direction is gaining momentum. Like the French and American Revolutions, this particular revolution has ideological origins and could have any of several outcomes. It could be a triumph for freedom or unfreedom. It could devolve into violent chaos or a stifling sense of order.

In America, we established a regime that left creativity unregulated. Culture is anarchistic if it is alive at all. It grows up from common everyday interactions among humans who share a condition or set of common symbols and experiences. It was a culture in which you didn’t need the permission of someone else to take and build upon. The collection of end products of culture—the symphonies and operas, novels and poems that survive rigorous peer review of markets and critics—are often taken as the culture itself. Instead, culture is the process that generates those products, and it has become an increasingly important part of America. If it is working properly, culture is radically democratic, vibrant, malleable, surprising, and fun.

Copyright was intended to protect literary, artistic, musical, and computer-generated works for a limited period of time. Copyright law did not control derivative work. The common perception is that copyright first and foremost protects the well-being and interests of artists. At first slightly, then quite extensively, the law protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in the commercial marketplace; this grant of a limited monopoly against republication is supposed to provide enough of a reward to encourage creativity. Copyright was not intended to be a restrictive property right. But it has evolved over recent decades into one part of the matrix of commercial legal protections now called “intellectual property.” This is an intrinsic fault which makes it difficult to maintain in a democratic society, since the traditional notion of property is largely irreconcilable with intangible concepts such as knowledge and creativity; a tune, an idea or an invention will not lose any of its value or usefulness when it is shared among any number of people. Yet in this year now, we have a massive system to regulate creativity, not only a regulation of publishing, but a regulation of copying. There’s the expansion of law, but also there’s been an expansion of control through technology. Copyright owners want to strictly control their creative and informational work—in all markets, on all media platforms, and even in how people can use copyrighted products. But overregulation risks cultural stasis.

Artists have always used and built upon other artists’ work to create new works of art. Creativity and innovation always build on the past. It is hard to imagine indeed that the works of Shakespeare, Bach, and countless other cultural heavyweights could have come into existence without this principle of freely building on the work of predecessors. Though we had a culture where people could take and build upon what went before, that’s over. Copyright law is reaching into the nooks and crannies of the information commons. Artists, scholars, and writers all over the United States avoid quoting passages from books or songs for fear of being sued. No one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm. For the law-abiding sorts, a wealth of creativity is never made. There is no such thing as public domain because now culture is owned. In most cultures around the world, this state of affairs is highly undesirable, even unthinkable.

In the old days, before the Internet, natural frictions in the physical world prevented copyright owners from exerting absolute control over their content and its subsequent uses—and the public, for its part, did not have the means to ignore copyright protection on a mass scale. In our “cut and paste” culture, however, you can find just about any image you want in a second; in another second, you can have it planted in your presentation. Now that digital technologies are allowing content to be ripped from its physical vessels, translated into ones and zeros, and sent around the globe with the click of a mouse, the political economy of creative content is being blown wide open. But contrary to what one might expect, the seemingly endless possibilities of copying and sampling using modern digital technologies have so far only aggravated the situation. On the internet, every act is a copy, which means all unregulated uses disappear. Presumptively, everything you do on your machine on a network is regulated use. Using the internet and its archives, musicians are able to string together mixes of sound never before imagined. But these musicians, who used to freely sample work from others to build new musical creations, are now treated as pirates and criminals. Filmmakers are able to build movies out of clips on computers around the world, but nowadays face almost insurmountable obstacles, as their work almost inevitably contains fragments of copyrighted pictorial or musical content, the use of which requires both consent from the copyright owner and a fee to be paid.

The growth of the Internet has put pressure on traditional intellectual property protections such as copyright and patent. Because the costs of copying are low and because copying is often anonymous, publishers have often responded with more aggressive enforcement of existing intellectual property rights and with calls for extensions of those rights to cover additional content, new media and new forms of access. Indeed, whole copyright enforcement industries have emerged, scouting the digital universe day and night for even the smallest snippet of copyrighted work used by others—and those found out, often stand to lose literally everything they have. Yet this response and this trend toward tighter intellectual property rights are not always appropriate, especially on the Internet.

Originality is a fundamental principle of copyright. It implies that the author or artist created the work through his or her own skill, labor, and judgment. There is a strong cultural image of creative activity as the work of a romantic individual: the artist in the garret or the inventor in the garage. With regard to artistic works, however, it is quite conceivable that no single person should have the right to claim exclusive ownership over an idea. This doesn’t mean we should have less respect for artists creating new works of art, and we’re obliged to contribute to artists’ well-being and income in our society. But the simple truth is that much creative activity is not the work of lone creators. Rather, it is interactive and involves the contributions of many different parties. Indeed, innovation is often sequential, where each creator improves improves on the work of the previous iteration. This is especially true on the Internet. The internet provides a fine opportunity for individuals to publish their works, but it also includes many opportunities for interactive communication and so constitutes a good environment for sequential improvement.

Now where in this scheme of things are our human rights? Human rights should guarantee freedom of communication, and a free exchange of ideas and cultural expressions is what greatly helped build our modern society. Institutions may be used to construct and preserve free flows of culture and information, but all too often they are harnessed to the oligarchic cause, making winners into bigger winners and thus rigging the cultural market. When a mere handful of persons or companies can call themselves “owners” of the majority of pictures and melodies our society has brought forth, human cultural development will grind to a halt. This puts them in a position where they alone can dictate whether we can make use of a substantial part of our collective human cultural achievement, and on which terms and conditions. Winners can silence losers and late starters, excluding future competitors. The consequences are detrimental: we are being made speechless; our cultural memory is taken from us and locked away; the development and spread of our cultural identity is stunted, and our imagination is laid in chains by law. We live in an energizing information age, where we are beginning to realize many of yesterday’s dreams about information exchange on a global scale. Publishers will do best by recognizing and encouraging the complementary contributions of others. Society will do best by recognizing that subsequent authors/inventors may make important additions to original contributions. We can do best by pursuing legislation which regulates only the most extreme behavior, leaving the rest of the spectrum of behavior for marketplace solutions.

One of the preeminent challenges in the digital age is to address how the cultural bargain of copyright protection should be structured. We need to re-negotiate the meaning of fair use and the public domain for our digital culture. We need to provide a good environment for interactive communication and sequential improvement. We need to limit intellectual property protections to achieve a balance that prevents direct copying but that encourages value-adding imitation. We need to alter the mix of rights so that people are free to build upon our culture; free to add or mix as they see fit. We need to re-think and reinvent the legal principles and social institutions that enable the market and the information commons to coexist and work together in constructive ways. We need to make it easy for follow-on creators to compensate artists without requiring an army of lawyers to come along, and without rewarding their every single achievement, or reproduction or even interpretation thereof, with a monopoly lasting many decades, because it leaves nothing for other artists to build on.

Show me why overregulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away.

Bibliography

• Annenberg School of Communications. Artists, Technology & the Ownership of Creative Content. Lear Center Press, 2003.
• Bessen, James and Eric Maskin. “Intellectual Property on the Internet: What’s Wrong with Conventional Wisdom?” 2004.
• Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. Penguin Press HC, 2004.
• ---. “Free Culture.” Keynote from OSCON, 2002.
• Schlachter, Eric. “The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet.” Berkeley Technology Law Journal, 1997.
• Smiers, Joost. “Abandoning Copyright: A Blessing for Artists, Art, and Society.” 2005.
• Vaidhyanathan, Siva. The Anarchist in the Library: How the Clash Between Freedom and Control is Hacking the Real World and Crashing the System. Basic Books, 2004.
• ---. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. NYU Press, 2001.

Addendum

Researching the impact of technology on intellectual property has allowed me to examine how the effect of copyright law on our freedom has changed over the centuries, and how it is changing faster than ever with the advent of new technologies and media like the internet. Many of these works, and especially Lawrence Lessig’s Free Culture, have made me realize that in its current state, intellectual property regulations are doing more harm than good in terms of promoting creativity and the free flow of ideas. This is because today’s copyright laws are still based on an outdated model of intellectual property that has not adapted to the many changes of our modern world.

It is clear that these laws and regulations need to be updated, but before that can happen, both citizens and legislators need to be made aware of the problems with the current system. Organizations such as The Libre Society and the Electronic Frontier Foundation are spearheading the movement to preserve what has come to be known as the “free culture,” by educating people about their rights, and providing legal defense for those who would otherwise be unable to defend themselves from the encroachment of the so-called commerical culture.

I believe that this is an important cause, and that if it fails, we will be destroying an irreplaceable component of our society, and that future generations will not be able experience the richness and diversity in our culture that we have experienced, and are so desperately holding on to.