FOSS Open Content/Contextualizing Open Content
Originality is nothing but judicious imitation. The most original writers borrowed one from another. The instruction we find in books is like fire.We fetch it from our neighbours, kindle it at home, communicate it to others, and it becomes the property of all.
If Open Content, like its predecessor the Free Software movement, attempts to create a practice which is radically different from the way the copyright imagines our relationship to knowledge and culture, then the first question that needs to be addressed is: what exactly is the problem with copyright. Mainstream logic and popular discourse seem to suggest that copyright is a system that was created for the benefit of content creators, so why would content creators want to consider any other option at all? It is important to look at the myths that copyright generates for itself in a critical fashion, and examine whether these myths have any basis in reality.
The Myths of Copyright
Copyright has a rather straightforward justification for itself. We shall begin with what may be considered a rather typical account of the necessity of copyright law.Copyright is the branch of intellectual property law that protects original works of authorship. These include literary, artistic, musical and dramatic works as well as software. In recent years, copyright law has included protection for performers’ rights. The key assumption that sustains copyright law is that authors have a natural right over their works of intellectual labour12 and that copyright protection is required to provide an incentive to create intellectual works. Copyright therefore grants an exclusive right to authors over their works, including the right to authorize reproduction, adaptation, performance, distribution, etc.[ 13 ]
It is alleged that in the absence of a copyright system, there would be no incentive for authors to produce and, consequently, there would be a general decline in the world of creativity and the arts. Hence, copyright inherently includes a balance between the protection of authors on the one hand and the interest of the public on the other. It is recognized that excessive protection may result in curbing public access to works; therefore, copyright protects only unique expressions and not ideas per se. It is argued that copyright seeks to achieve a balance between public access and creator rights by providing the creator of the work a period of time during which s/he shall have the exclusive rights to the work.As such, any person who uses the work of another person is indulging in an act of stealing the other person’s ideas, resulting in substantial losses for the author of the work.This is the underlying ‘myth of copyright’.
Hans Christian Andersen was once accused by the wife of another Danish writer of lifting material verbatim from other authors for a play he was writing.“You have copied whole paragraphs word for word from Oehlenschläger and lngemann!” she challenged. “I know,”Andersen replied with a guilty grin. ”Aren't they splendid [sic]?”
The myth of copyright seems to have intrinsic appeal, relying as it does on a battle for progress (copyright promotes creativity) against a potentially dystopic world (there will be no creativity without copyright). The reason why we choose to use the phrase ‘the myth of copyright’ is because we recognize the wonderful success of copyright in narrating itself as a universal truth. The history of copyright is always narrated in an ahistorical manner following a universally teleological route as though it were the natural culmination of events.
Yet there seem to be gaps in this story; it is neither complete nor accurate without locating the real-world operation of copyright.While copyright’s initial purpose may have been to provide an incentive for creators, it is important not to be taken in completely by this mythical claim. Consider, for instance, the following:
- Most creators/authors are rarely the owners of their own copyright. It usually gets
transferred to either the recording company, the publisher, or the person commissioning a work of art, etc.[ 14 ]
- Musicians often make most of their money from live performances rather than from
‘royalties’ from sales of their records. They sell ‘services’, as do many programmers and designers.
- Monetary incentive is rarely the only reason for a person to be engaged in cultural
production. Furthermore, an Open Content model does not preclude the creator from making money off his/her work.[ 15 ]
Copyright may have begun as a system of balances to provide incentives to creators while also ensuring that there was a free circulation of works in the public domain, which all other creators could build upon. For example, copyright explicitly allowed (and still allows) public libraries to exist as an alternative, non-commercial distribution channel for cultural works.Over time, this balance has shifted drastically in favour of content owners such as large publishing houses, media conglomerates, etc. In the contemporary context, it is arguable that copyright is often used as a tool to prevent or curb creativity and that the move away from copyright is an important one in that it seeks to refocus on the interest of the general public as well as artists and creators.
Scientia Donum Dei Est Unde Vindi Non Potest. Knowledge is a gift from god; therefore it cannot be sold.
Let us now have a closer look at some of the sustaining myths of copyright and examine their validity as universal truths.
The Myth of the Solitary Genius as Author
At the heart of copyright is the figure of the Author and his/her rights.As simple as it may sound, this assertion is important to our understanding of copyright, for at the heart of the statement lies the presumption that everyone has a clear understanding of authorship. For instance, ask any person to rattle of the names of the great authors, and you will find a varied crowd ranging from Shakespeare, Chaucer, Kalidas and Valmiki to Salman Rushdie and perhaps Jeffrey Archer. In this chapter we shall examine some of the scholarship on the history of the discourse of authorship which suggest that the idea of the author may have a more complex history than merely a reference to the individual named as an author.
There are then two sets of self-fulfilling prophesies that are achieved by the assertion that copyright protects the rights of authors. It assumes a category which makes universal sense across cultures and across time – namely that of the author – and, having erected this universal figure of the author and asserting that copyright is meant for his/her protection, it universalizes the relationship between copyright and creativity. Our first task is then to historicize the emergence of the author as a relatively modern phenomenon that has arisen in the context of the crisis caused by the print revolution.[ 16 ]
Before the invention of the printing press, the act of writing was a very localized activity. It was impossible to disseminate knowledge in any significant manner since the inaccuracies of copying prevented any widespread use of the written work.The invention of the printing press thus enabled a number of innovations. Duplication became easier and more accurate. Mass distribution became viable.The printing press revolutionized information storage, retrieval and usage. Printing, unlike writing, allowed a society to build on the past with a confidence that each step was being made on a firm foundation. The revolution in the ability to accurately reproduce works fostered an understanding that progress can occur through a process of revision and improvement. Additionally, access was now available to the literate public. Printing provided a mechanism by which a larger reading public developed, thus constituting the emerging public sphere.
This new reading public that emerged demanded books – both original works and reprints – and set the stage for the impending conflict over the ownership of such information. As Mark Rose observes, “a sufficient market for books to sustain a commercial system of cultural production”had to exist before a formal regime of intellectual property could come into being. What was earlier the monopoly of the Stationers Company, a guild recognized and regulated by the Crown, became a mass industrial activity with a number of publishers in the provinces (Scotland) publishing cheap reprints for the new reading public.
|Etymology: (c.1330) from Old French copie, from Medieval Latin copia, ”reproduction,
transcript,” from L. copia “plenty, means” (see “copious”). The word ‘copy’ moves in English from an original sense of “abundance” to the more recent sense of derivativeness; it passes thereby from a sense of plenty (“Spain bath grete copie and plente of castefl,” Trevisa 1387; “the copie and varietie of our sweete-mother-toong,”Florio 1598) to an emphasis on the scarcity and rarity of originals.[ 17 ]
The reaction from the literary and artistic world was to move away from the ‘ills of industrial revolution’; thus, they began deploying the notion of the author as a unique and transcendent being, possessing originality of spirit. The romantic artist was therefore deemed to have a sort of intangible property, wholly contained within the self – the author’s original, creative works. This romantic theory of authorship has since remained the dominant account of the process of creativity.[ 18 ]
Before the publication, the author has an undeniable and unlimited right.Think of a man like Dante, Molière or Shakespeare. Imagine him at the time when he has just finished a great work.His manuscript is there, in front of him; suppose that he gets the idea to throw it into the fire; nobody can stop him. Shakespeare can destroy Hamlet, Molière Tartuffe,Dante the Hell. But as soon as the work is published, the author is not any more the master. It is then that other persons seize it; call them what you will: human spirit, public domain, society.
Victor Hugo, 1870
Thus, there is an inextricable link between copyright and the concept of an author. The proprietary author emerges as the London publisher’s mode of maintaining strict control over copyright. However, once unleashed, the idea of the author starts taking on a new meaning with unexpected consequences. It emerges as a new social relationship, which will transform the way society perceives the ownership of knowledge. This establishment of the ideological figure of the author naturalizes a particular process of knowledge production where the emphasis on individual contribution denigrates the concept of community knowledge and helps promulgate the notion of the individual as owner.
However,we have to ask the question of whether any act of creation happens in a vacuum, with the author creating something out of nothing. Common sense informs us that even the magician who seems to pull a rabbit out of an empty hat is engaging in a sleight of hand.
Creativity and the Public Domain
The Walt Disney Corporation founded much of its wealth on folk tales, such as Snow White and Sinbad, by taking them out of the public domain and turning them into proprietary, copyrighted films and merchandise products.Today, the company is one of the strongest backers and political lobby sponsors for drastic copyright restrictions on digital media. The same is true for many works considered part of the high-cultural canon, crafted by unidentified, often collective authors: Homer’s epics for example, or the Tales of 1001 Nights which were spread by storytellers and of which no authoritative, ‘original’ written version ever existed. Modern philology believes them to be derived from Persian sources which in return were translated from Indian works.
In the Middle Ages and Renaissance, original authorship was rather more disregarded than encouraged. In the foreword to Don Quixote,Cervantes falsely claims that his novel was based on an Arabic source. Literary works typically render themselves canonical not by inventing new stories, but by rewriting existing ones, such as the many adaptations of Faustus from Christopher Marlowe to Johann Wolfgang Goethe, Fernando Pessoa, Alfred Jarry,Thomas Mann and Michel Butor.
Until the 20th Century and the rise of the recording industry, copyright played no major role in music and musical composition.Musical themes were freely adapted and copied from one composer to another. Bach’s Concerto in D Major BWV 972, for example, is simply a re-orchestration of the ninth movement of Vivaldi’s L’Estro Armonica. And of course, the entire genre of Blues music is, as a matter of fact, a variation of only one song, the twelve-bar harmonic scheme.
In nêhiyawin (Cree cosmology) to refer to something as ‘mine’does not necessarily imply ownership, but refers instead to a relational proximity to objects (animate and inanimate) and beings and the accompanying responsibilities and obligations.
A number of the Open Content projects such as Wikipedia base themselves on an alternative model of production, one in which the individual myth of creation is contested and negated. But it would be important for us to remember that this is not a new phenomenon; over centuries, a number of cultures have grown and spread on the basis of collaborative production.
The Story Teller of Peshawar
The chattering comes to an intuitive halt; the room becomes motionless and an eerie silence envelops the air. Khan Baba steps in, unaided even in his old age, he is the embodiment of a proud Pathan. A pristine white beard flows from a face, wrinkled through age and physical hardship; his eyes though are a testament to his blazing spirit. A word is yet to be spoken; Khan Baba instead relies on his eyes to relay warmth. The bustling market seems to have sensed the occasion, the buses and the rickshaws seem no longer to be there. Khan Baba finally greets his audience, orders some tea and gets into an inane conversation with those around him; a veteran of the art, he teases the anxious audience. Finally he begins; it is going to be a story of passion and love,war and death, with a smile he adds ‘about all the good things in life’.
This is the story of a story teller, Khan Baba, who belongs to a dying breed of men, anxious to hold on to the last remnants of their heritage…storytelling. They ply their trade in the Qissa-Kahani Bazaar, in Peshawar, Pakistan. It is in Peshawar that traders and travellers, men of science and men of war, travelling through the Khyber Pass and the Silk Route have stopped and relayed their stories for hundreds of years in tea shops dotted around the Bazaar. These tea shops are a relic to a bygone era, but even today they serve as an ancient repository of stories and memoirs.
For Khan Baba, a story can never simply be read; it must be listened to and then passed on through the generations. When it comes to these stories, there is no concept of ownership or of uniqueness; there is however a concept of sharing one’s experiences and of imparting knowledge; for these stories are considered to be the collective wisdom of the Pathans. The story tellers consider themselves to be guardians of an ancient tradition, and by recalling the stories of their lives, and the lives of their forefathers, they keep their history alive.
From The Copysouth Dossier
Many different cultures and civilisations strongly believe that knowledge is something to be shared amongst all people and should not be confined to those who can afford to gain knowledge. The Australian Aborigines, for example, have no Western concept of originality. In aboriginal culture, art is not defined by originality, no matter how distinct it may be, but by the correct representation of ancestral traditions, known as ‘the Dreaming’. The stories which constitute the Dreaming carry the truth from the past together with the Code of Law, which operates in the present.The Dreaming consists of the natural world, especially the land or county to which a person belongs, and hence it is the person who belongs to the Dreaming and not the Dreaming to the person. In our ceremonies we wear marks on our bodies, they come from the Dreaming too, we carry the design that the Dreamings gave to us. When we wear that Dreaming mark we are carrying the country,we are keeping the Dreaming held up,we are keeping the country and the Dreaming alive.
From The Copysouth Dossier
Copyright and the Incentive for Creativity
One of the main justifications for copyright law is that in the absence of copyright, authors of works would lack the incentive to further create; that artists cannot produce new works without economic incentive. Copyright is justified on the basis that it stimulates investment of time and money in the creation of new works, and that many authors of copyrighted works rely on the income derived from their publication for their livelihood.
Nothing can be made of nothing; he who has laid up no materials can produce no combinations.
Sir Joshua Reynolds, English portrait painter
There may even be a case for the proposition that without incentives, authors would find it difficult to create new works; however, the statement that copyright law is the basis for this incentive requires a closer examination. Is copyright synonymous with incentives or does copyright merely create an illusory idea that it is the best system to foster creativity?
Firstly, many authors who have little hope of ever finding a market for their publications and whose copyrights are, as a result, virtually worthless, have in the past, and at present, continued to write, create and invent. While it may not be a general phenomenon, it is possible that people produce works for pure personal satisfaction, or even for peer respect and recognition.
Secondly, historically, there is much evidence to suggest that copyright law and incentive were rarely linked. The 19th Century, for instance, saw the proliferation of literary works, despite the absence of any meaningful protection afforded to authors by virtue of their copyright.While copyright protection existed, these rarely benefited the author beyond an initial payment for the copyrights in their works. This payment, often referred to as an honorarium, bore no relationship to the exchange value of that work; rather, it was merely an acknowledgment of the writer’s achievements. In the vast majority of cases, most profits went to the publisher and, on occasion, authors were even asked to underwrite a portion of the publishing costs. Moreover, without the publisher, the copyright in effect had no value, as the work could never be published.Hence, copyright protection in reality benefited the publisher, but rarely the author.[ 19 ]
With the enactment of every subsequent Copyright Act, the protection given to authors was reduced. In England, prior to 1814, copyright of a work reverted to the author after a term. The author could then renew proprietary rights in a work and could conceivably gain from again transferring the copyright. However, after 1814, such renewal terms were eliminated and the author lost his/her position in the mechanisms of copyright. The typical transaction consisted of the transfer of the copyright to the publisher by the author for a one-time payment. Subsequent to that, the author had little role to play in the publication of a work, and the author reaped little reward. [ 20 ]
This can be seen in a number of recent cases regarding the translation of works into new media. At issue in these cases is whether the author, who has transferred copyright in, say, a film, to another party, has a proprietary interest in translations of this work into new media, say release over the Internet, the development of which was unforeseen at the time of copyright transfer. In the United States, there are a number of cases where it has been held that the author no longer has a proprietary interest in works that have been translated into new media. In such cases, where does copyright provide an incentive to authors?[ 21 ]
In addition, the existence of alternative incentives further erodes the incentive claim of copyright protection. Two non-monetary incentives have been identified above: personal satisfaction and recognition. Many people have created works without thought of monetary benefit. It is doubted that Anne Frank wrote her diary or Nehru his letters with the intent to eke the benefits arising out of copyright protection.
Furthermore, advancement and honour in one’s field and recognition are other forms of compensation for authorship. As in the term ‘honorarium’, discussed above, there is great prestige in composing an acclaimed book, article or piece of art.These incentives will always be present, regardless of whether one is awarded monopoly rights.
Original authors may also have the benefit of being the first movers in the market. By entering the market first, the authors of works may be able to capture a certain degree of the economic rewards that copyright aims to bestow even without the actual conferral of such legal rights.
Currently, there exist several mechanisms – primarily Internet based – for creating incentives that stand independent from copyright. The Street Performer, or the Fairshare Protocols are examples of such devices. Under the first method, the authors contemplate a menu of options available to artists. Under the latter system, several people make a payment directly to the author to finance future works, with the understanding that they are given access to a portion of the consequent profits.What each have in common is that a release price will be set for a work, and that it will be made available in digital form without (or with few) copyright restrictions, once members of the public voluntarily donate sufficient funds to meet the asking price. An author might set up a website and announce a book project directly to the public. Usually, though not necessarily, the author might begin by posting a chapter or two to give readers a sample of what is to come.[ 22 ]
Copyright Protects the Poor Struggling Author
We are constantly regaled with stories of how the copyright system acts as the basic protection for poor struggling authors who would otherwise be unable to protect themselves against piracy or knowledge theft. Let us clarify at the very outset that we are not the enemies of creative workers, and we would of course like to see all creative labour recognized and rewarded.Take, for instance, the following account from American cartoon creator Bill Waterson of how the system works for unknown artists and creators.
My attitude toward the strip's production also put me in a strange position when the pressure built to license Calvin and Hobbes.On the one hand, it provided a simple clarity in the decision to forgo all merchandising. I didn't think greeting cards,T-shirts, or plush dolls fit with the spirit or message of my comic strip, and I didn't like the idea of using this hard-won, precious job to peddle a bunch of trinkets. I wanted to draw cartoons, not run an empire, so the offers and requests were not tempting in the slightest. On the other hand, none of my reasons for declining involved business considerations, so these arguments were not particularly persuasive to my syndicate, which flat-out owned the rights to my work and stood to split the immense wealth these products likely would have generated.
Over the years, I've come to realize that it's almost impossible to make anyone understand why, five years into the culmination of my life's dreams, I was ready to quit the strip and lose everything, rather than get appallingly rich off Calvin and Hobbes products. All I can say is, I worked too long to get this job, and worked too hard once I got it, to let other people run away with my creation once it became successful. If I could not control what my own work was about and stood for, then cartooning meant very little to me.
In hindsight I see that, with so much money at stake, the artistic issues I argued about were irrelevant. In the end, it was simply might makes right. I was an unknown cartoonist when I started, and my contractual disadvantage reflected my nonexistent bargaining power when I got the job.Five years later, I was a big enough gorilla that I could turn the tables.Even though I finally got my way, the whole mess is depressing to recall, even all these years later. The fight was personally traumatic. For several years it poisoned what had been a happy relationship with my syndicate, and in my disillusionment and disgust at being pushed to the wall, I lost the conviction that I wanted to spend my life cartooning. Both sides paid a heavy price for this battle. Bill Waterson,Creator of Calvin and Hobbes (Introduction to Collected Calvin and Hobbes)
It was perhaps his rather unpleasant experience with the formal system of intellectual property that prompts Bill Waterson to make critical references to it in his comics.
The metaphor of the poor struggling author tends to blur the critical difference between the authorship of a work and the ownership of the same.While there is a tendency in copyright law to invoke liberal individualism to justify economic structures that frustrate the aspirations of real-life individuals, it is somewhat surprising to encounter the individualistic romantic conception of ’authorship’ deployed to support a regime that disassociates creative workers from a legal interest in their creations. Take, for instance, the ’work-for-hire’ doctrine of copyright law. This doctrine states that the firm or individual who paid to have a work created, rather than the person who created it, is regarded as the ‘author’ for purposes of copyright ownership. Thus, works of copyright conflict are, in fact, often created by unromantic authors sitting in their cubicles creating for large corporations.[ 23 ]
When a work is deemed to have been made ‘for hire’, the alienation of labour is formally and legally complete: the ‘author’ of the ‘work’ is the person on whose behalf the ‘work’ was created, not the individual who created it. In this legal configuration, the employer's rights do not derive from the employee by an implied grant or assignment. Rather, those rights are the direct result of the employer's status. Ironically, the employer’s claims are rationalized in terms of the romantic conception of ‘authorship’ with its concomitant values of ‘originality’ and ‘inspiration’. [ 24 ]
Secondly, if one were to closely analyse the publishing agreements of various publishing houses,one would notice immediately that unless you are an author of some fame,contracts are absolutely one-sided, with the individual author having little bargaining power, as s/he assigns all rights in favour of the publishing house.
Piracy has always been portrayed as being an assault on the rights of authors. It is interesting to note, for instance, that during the initial days of one of India’s largest music companies, T Series, the company was often approached by various small-time singers requesting them to release their works through the pirated circuit because HMV, the owners of the work’s copyright, were unable or uninterested in issuing the works, and the authors therefore did not have a chance to ensure that the works were available to the consuming public. [ 25 ]
The example of Harry Potter series author J K Rowling as a struggling single mother is often used as an example of copyright protecting the rights of poor authors. However, now that Ms. Rowling has become one of the highest-paid authors in the world and has enjoyed great publishing success, the poor author metaphor would not seem to apply.Clearly, pirates respond only to market demand, and not every book, film, CD or other form of intellectual property is pirated. There is a particular popularity or price limit that is required to be achieved before a work enters into the piracy circuit. Presumably then, if a work has achieved enough status to become pirated (as in the case of the Harry Potter books), the poor struggling author has already struck rich.Thus, the sight of Madonna appearing in TV ads condemning piracy because it deprives her of livelihood is not quite convincing when images of her many villas and islands flash in your mind.[ 26 ]
Expansion of Copyright Over the Years
Even assuming that copyright began its career as a system of balance between owners of copyright and the public interest, this system has grossly shifted in favour of owners and at the costs of the public.
There are three ways to account for the expansion of copyright. These are through the term of copyright, the reach of copyright and the scope of copyright.When copyright began in 1709 with the Statute of Anne, it was for a limited term of 14 years.Over the years, however, there has been a gradual expansion of the term of copyright, primarily pushed by the entertainment industry.Much has been written about the ‘mouse that ate up the public domain’, or the story of how Disney corporation has been one of the major actors in pushing for an extension of the term of copyright.[ 27 ] If this artificial lease on life had not been constantly granted to copyright, Mickey Mouse would have – or rather should have – been in the public domain by now.
Writing about the extension of copyright term in the United States, Lawrence Lessig says that:
In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copyright from 14 years to 28 years. In the next 50 years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last 40 years, Congress has extended the terms of existing copyrights; twice in those 40 years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by 19 years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by 20 years. The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the public domain will have been tolled for 39 out of 55 years, or 70 percent of the time since 1962. Thus, in the 20 years after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term.[ 28 ]
The latest extension was challenged by Lawrence Lessig and others in Eldred v.Ashcroft,[ 29 ] where Lessig took a constitutional argument to say that the extension term violated both the copyright clause of the US Constitution as well as the first amendment. The Supreme Court upheld the validity of the extension.While the case was an exciting attempt at linking copyright to the oldest public law tradition, namely constitutional doctrines, it also seriously reveals the limitation of the constitutional argument when it comes to questioning property.
The second area of expansion of copyright has been in terms of the reach of copyright.Where copyright was initially supposed to be for the protection of ‘original’works of authorship, since the idea of originality in copyright is a very minimal one, it has allowed for all kinds of works to be brought under the umbrella of a copyright claim. It is ironic that the same doctrine of copyright and authorship is used to protect the works of a single author as much as that of a large corporation employing thousands of coders to prepare software. The question of databases, for example, is an area of contention in copyright law, where mere collection of facts have sought protection on the basis of being original works of authorship, the argument being that originality requires proving a minimum standard of originality, or, as long as it can be shown that there was a slight element of originality combined with investment and labour, then it would fall under the protection of copyright law.[ 30 ]
Finally, and most troubling, has been the scope of copyright. When copyright began, it was primarily concerned with a single right, namely the right to reproduce or the right to make copies. But with the emergence of new technologies and new media, the cultural commodity has now become – via the control of derivative rights – an endless commodity of signification as well as of property.
Lead the people with governmental measures and regulate them by law and punishments, and they will avoid wrongdoing, but will have no sense of honour and shame. Lead them by virtue and regulate them by the rules of propriety and they will have a sense of shame and, moreover, set themselves right.
Confucius, The Analects, 2:3
After completing his Analects, Confucius was remarked as having said “I have completed the work of my life and I am happy to say that not a single thought here is mine.” The great sage of the 6th Century BC is also recorded as saying: “I transmit rather than create.”According to William P Alford, author of To Steal a Book is an Elegant Offence, the attitudes enshrined in these aphorisms had a determining effect on the Chinese attitude to intellectual property. Until the country opened itself to Western influence in the early 20th Century, its intellectual property system was effectively self-regulating, relying on the principles of respect and tradition.[ 31 ]
How Copyright Impedes Creativity and Access to Knowledge
It is a combination of all three aspects; the term, the reach and the scope of copyright which imposes a heavy cost on the ability of people to access knowledge and culture.While this is not limited to only developing countries, the impact on them is greater.We can look at the impact of copyright on questions of creativity and access to knowledge in two ways: one is by looking at access barriers set up by copyright as a result of the price of information, and the second is by looking at the ways in which creativity and social practices are curtailed through copyright law.
It is important to locate the debate on copyright within the larger political economy of the knowledge and culture industries. The core copyright industries are serious business: the top three exports of the US, for instance, are movies, music and software. In 2001, the value of the copyright industries stood at $535 billion and exports from the same accounted for $88 billion to $97 billion. By comparison, chemicals exports were valued at $74.6 billion and automobiles at $56.52 billion.[ 32 ] It is only within this context of the global political economy of the media industry that we can even begin to understand the ramifications of licensing in copyright law. The contemporary media empire is one of convergence and of cross-holdings; the classical distinctions between types of media no longer apply. It is precisely this world of the disaggregated media commodity in which the control over derivate rights through licensing becomes a critical component of the way through which media empires are imagined.[ 33 ]It is the disaggregated media commodity that can be controlled through time and space, which is critical in maintaining large media empires that span the globe.
The developed nations, led by the United States, remain the main producers and consumers of cultural goods. From the 1990s, the export value of US copyrighted products (which include books, but are mainly entertainment commodities such as films, music and television programmes), exceeded the total for clothing, chemicals, cars, computers and airplanes combined.[ 34 ] In 1997, the value of copyrighted products was $414 billion, according to one popular account.The core copyright industries extend to “all industries that create copyright or related works as their primary product: advertising, computer software, design, photography, film, video, performing arts, music (publishing, recording and performing), publishing, radio and TV, and video games.”This list does not even begin to cover the economic value of patents and trademarks, which is considerable.[ 35 ]
Ironically, it could be argued that it is precisely the highly hierarchical structure of global media that enables the increased importance of alternative paradigms such as Open Content, peer production, etc. New technologies and tools have provided the context through which effective voluntary individual action can be enabled, and these technologies allow for various decentralized production practices, which challenge the market monopoly.
Given that developing nations remain as net importers of proprietary and copyright material, one then has to look at the amount that developing nations end up paying in the form of royalties to developed countries, and the difference it would make if the same money was used for other areas of concern, such as health, education and infrastructure.
The Costs of Learning Materials
There are many problems that plague basic and higher education in developing countries, including lack of schoolteachers, physical infrastructure for classrooms, general illiteracy, absence of compulsory primary education, etc. However, another aspect of the problem lies in the prohibitive costs of books and learning materials. Copyright law creates very high information costs, due to the nature of copyright subject matter, namely, non-tangible assets. Every property right imposes information costs related to ascertaining the contours of legal relationships pertaining to the owned asset and determining the boundaries of goods to which it applies. In the case of copyright, these costs tend to be prohibitively high.[ 36 ]
Access is determined not only by the availability of a product but also by its affordability. The often prohibitive cost of educational materials inhibits educational opportunities, hence the need to ensure that educational materials remain affordable. Educational materials that are protected by copyright are not always affordable. The possibility of assigning and licensing copyright has enabled the sustenance of various industries, such as the book publishing industry and the music publishing industry. These copyright-enabled industries determine the price and the availability of copyrighted materials. As a result, vast amounts of educational materials have been priced at a level that is beyond the reach of consumers in developing countries. This constitutes a barrier to access to knowledge, hence a denial of the right to education.[ 37 ]
The Consumer International (CI) report,“Copyright and Access to Knowledge”, argues that:
Evidence gathered by CI in this project indicates that copyrighted educational materials are indeed prohibitively priced in developing countries and in that manner pose a barrier to access to knowledge. This is evident from the results of a comparative price survey of book prices. Although the retail prices of books in developing countries are generally lower in absolute terms, when the prices are considered in the context of a country’s GDP per capita, it becomes clear that consumers in developing countries are in fact paying more than consumers in developed countries for the same books.[ 38 ]
In many cases, the books that are being used in primary schools, in legal education, in engineering and in medicine are textbooks which are imported from the UK or the US. In the absence of an indigenous textbook publishing sector, most of these books have to be imported, and they are rarely subsidized. Even in the few cases when textbooks come at a subsidized rate, their prices are still astronomical. Take, for instance, the results of the study by CI, which looked at the comparative costs of textbooks in Thailand, Indonesia and in the US, as shown in Table 1.
A comparative price study was conducted to illustrate the relatively high cost of educational materials in developing countries in gross domestic product (GDP) terms. The study compares the prices of five university textbooks in Indonesia, Thailand and the US. In absolute terms, the retail prices of textbooks in Indonesia and Thailand are generally lower than the list prices of the same books in the US. This may be due to the commendable practice of major textbook publishers publishing international or student editions for distribution in developing countries like Indonesia and Thailand.
The report goes on to state that:
Nevertheless, lower prices of textbooks do not translate to more affordable books.When the price of a book is considered in the context of a country’s GDP per capita (i.e. the average individual income), it becomes apparent that these books remain prohibitively expensive to the average Indonesian and Thai.When a student in Indonesia is made to pay US$81.70 for an older edition of Goodman & Gilman’s The Pharmacological Basis of Therapeutics, it is equivalent to a student in the US paying US$3,170.97 for the same book.Even when a comparison is made using the GDP per capita calculated at purchasing power parity (PPP) exchange rate, so that the standard of living in different countries is taken into account, the prices are still prohibitive.Using the same book as an example, when a student in Indonesia is made to pay US$81.70 for the book, it is equivalent to a student in the US paying US$913.07 for the same book.[ 39 ]
Table 1. Comparative Survey of Textbook Prices in Thailand, Indonesia and the US (US$)
GDP per capita of Thailand (2004)*: $2,539
GDP per capita of Indonesia (2004)*: $1,184
GDP per capita of the US (2004)*: $39,883
Exchange rate as at 1 July 2005:
US$1 = THB 41.39
US$1 = IDR 9,791.92
- Data obtained from UN Human Development Report 2006
^ Price of international edition
- Price of the 9th edition
§ Student Edition is available in Thailand for US$11.23
@ Price of the 5th Edition
° Price of hardcover version
With the increasing move of having electronic databases for scientific as well as social science journals, the situation is no better. While one would have imagined that enabling electronic resources would increase access to these materials, this is far from the case. In most cases, these databases are owned by very large publishing houses, and access to these databases is at exorbitant prices and usually restricted to large institutions and universities. In most universities in developing nations, where the library budget is often dismal, it becomes impossible to have access to any of these databases, thereby perpetuating the knowledge/information gap that exists.
Scholarly communication or access to the entire scientific record has always relied on a global network of libraries sharing the burden of acquisition of the estimated 70,000 or so academic journals that are published around the world. Academic libraries share these resources primarily through a system of inter-library loans. If a researcher requires an article from a journal that is not in Library A’s collections, staff members contact Library B, which does subscribe, and get a photocopy of the article, which the researcher can keep. This is frequently done free of charge as there is a principle of reciprocity at work, but in theory, the researcher may have to cover the copying costs.[ 40 ]
Journal publishers typically charge higher subscription rates to libraries than to individuals, precisely in order to recover what they see as lost sales from this kind of activity, which is, of course, perfectly legal under fair-use exemptions. However, with the advent of multi-layered protection of digital content, libraries that subscribe to electronic journals through access to a database sometimes find that they are forbidden by the terms of the contract from sharing electronic or paper copies of articles with other institutions. The researcher then has no other resort than desist, or to turn to a commercial document delivery service to obtain a copy, perhaps at a transaction cost of $8 or more. This is an active disincentive to enquiry, especially in poor countries, where research funds are spread thin and $8 represents a significant cost.
At another level, if the system of intellectual property protection effectively closes off parts of the scientific record, not through censorship or formal barriers, but by making access unaffordable, it can be argued that the requirement of full disclosure is not being met.[ 41 ]
One of the most significant initiatives in recent times has been the US-based Massachusetts Institute of Technology’s Open CourseWare (MIT OCW) initiative, which makes world-class learning materials available for free download and use. It has been reported that the largest users of the materials have thus far been from countries in Africa and Latin America.42 Since the site’s public launch on 30 September 2002, users from more than 215 countries, territories, and city-states around the world have visited the MIT OCW. The site has received more than 25,000 email messages regarding its usefulness.
The Impact of Copyright on Free Speech and Creativity
The second important issue to examine is the impact of copyright on the process of creativity itself. As we have argued, creativity is not a mythical process in which someone creates something out of nothing, but is an incremental process where people may make use of existing material, mix, match and develop something new. This is particularly true of the digital era, where technologies have made it easier for people to produce music, films, photographs, etc. However, if copyright imposes a cost by means of a licensing fee that has to be paid for the use of pre-existing material, it might be increasingly more expensive to produce content.[ 43 ]
Tarnation, the surprise hit at the 2004 Cannes and Sundance Film Festivals was made by Jonathan Caouette, an unemployed New York actor and doorman. He made the film by editing and combining his own home movies with other video clips and music.Caouette spent $218 making the film and observed that “[m]aking a movie is not as difficult as it is made out to be” and “[h]opefully this will be a catalyst for people who didn’t have a voice before to go out and make a movie.”
After the film was declared a hit and people were interested in distributing it officially, it was estimated that the total cost for making Tarnation will rise to over half a million dollars to obtain rights to use copyrighted music and video clips.
Hip-hip artist Siva Vaidhyanathan brilliantly captures the way in which stricter copyright depletes culture in his account of the music industry:
In the early 1990s, I noticed [that rap] music was changing […] the underlying body of samples were getting thinner, more predictable, more obvious, less playful. I had heard that there had been some copyright conflicts in 1990 and 1991. So I suspected that lawsuits had chilled playful and transgressive sampling. I was right. The courts had stolen the soul. And rap music is poorer for it. We used to get fresh, exciting, walls of sound that were a language unto themselves. By the mid-1990s, all we got were jeep beats and heavy bass.[ 44 ]
A lot of contemporary creativity rests on the ability to borrow, appropriate and re-signify existing works. This is an important aspect of creativity in a culture of mass media, where everyone is fixed as a consumer, rather than a producer. [ 45 ]
In December 2003, a young artist, DJ Danger Mouse, remixed an album called the Grey Album from the White Album of the Beatles and hip hop artist Jay Z’s Black Album. Only 3,000 copies of the Grey Album were released and would probably have disappeared into obscurity were it not for the fact that two months later, DJ Danger Mouse received a cease and desist letter ordering him to stop any further distribution of the album since it violated the copyright of the Beatles’White Album, owned by EMI.
This unofficial ban on the album was seen as an unfair violation of creative expression by a number of people, and a campaign called Grey Tuesday, sponsored by http://www.downhillbattle.org, was launched to ensure that the album would still be available for people to download via P2P networks. Over 170 websites offered to host the Grey Album, many of which later received cease and desist letters from EMI.To date, the Grey Album has been downloaded by over 1.25 million users and continues in making DJ Danger Mouse one of the top ‘selling’ artists of 2004, beating other contenders such as Norah Jones.
A lawyer/artist in India,Namita, created a parody of one of the largest Bollywood hits of 2004,Kal Ho Na Ho.The parody edited the original film in a way as to make it into a queer love story, reversing the boy-girl story. This film has circulated massively in the queer community and through P2P networks online. The film, unlike the original that it is derived from, will never have a massive public release, but creatively uses the twin tools of ‘copy’ and ‘paste’ from the original to make a subversive critique. And yet, given that at the time of its making,fair use in India did not apply to films,its status is as an ‘illegal’work.
Moving beyond the level of the individual creator, the world’s largest film industry, India’s Bollywood, has been known to a certain extent for its creative adaptation of Hollywood hits. Some of these are done with religious rigor, ensuring that the copy tries to stay as close to the original as possible, and yet in every instance of these acts of copying, there is necessarily an act of rendering the text intelligible for the ‘Indian’ audience. This is a subject that has merited serious ethnographic analysis in terms of what it is that makes a ‘cultural copy’. (For instance, what are the conditions that are taken into mind while translating Seven Brides for Seven Brothers into Satte pe Satta?) Very often, you have had Indian versions of the Hollywood film which have been far better than the original (a case in point is Masoom, a remake of Man,Woman and Child). In 2003, however, a very curious case was filed against an Indian TV serial, Karishma. The ‘grand old lady of pulp’, Barbara Taylor Bradford, was informed by a ‘fan’ that people in India were making a lavish remake of her novel AWoman of Substance. She flew to India and promptly filed an injunction suit against the serial in an attempt to prevent its broadcast. But this begs the question: what exactly was she attempting to protect, since the idea behind A Woman of Substance, namely, a woman’s rags-to-riches story, is an idea that cannot be protected under copyright law? These processes of adaptations or copying are central to the process of cultural production, and a quick survey of Hollywood history will itself reveal the number of ‘inspired’ films that they have made.[ 46 ]
Ideas improve. The meaning of words participates in the improvement. Plagiarism is necessary. Progress implies it. It embraces an author’s phrase, makes use of his expressions, erases a false idea, and replaces it with the right idea.
Guy Debord, The Society of the Spectacle
Copyright as a Threat to Free Speech
Alice Randall, a black American author, wrote a parody of Gone With the Wind from the perspective of Scarlett O’Hara’s mullato half-sister. The estate of Gone With the Wind author Margaret Mitchell claimed that this was an infringement of copyright and obtained an injunction against the publication of the book. The court of appeal overturned the injunction.
In 1998, the writer Kembrew McLeod, as a prank, successfully registered the phrase ‘freedom of expression’ with the United States Patent and Trademark Office, under Class 16 of the International Schedule. This covers printed matter. Writers are therefore no longer free to use the expression without McLeod’s consent.[ 47 ]
The Electronic Frontier Foundation has been documenting various instances and cases of how copyright is being used to silence dissenting speech acts. They range from scientists withdrawing papers after being threatened with action under the Digital Millennium Copyright Act to members of fan fiction communities [ 48 ] being asked to withdraw materials which the copyright owners find offensive (http://www.chillingeffects.org).
While copyright claims are often made on the basis of property rights, because they deal with the world of ideas and creativity, the line between property and censorship becomes very blurred.
Where do we even begin to draw the line between culture and property in the contemporary, where from the time that we wake up to the time that we go to sleep, we are engaging with media forms/property of all kinds, from advertisements (‘the landscape of the modern’), to music, to films, to the software we use, to the mobile phones that we carry. De Certeau said that “[My] purpose…is to make explicit the systems of operational combination…which also compose a ‘culture’, and to bring to light the models of action characteristic of users whose status as the dominated element in society…is concealed by the euphemistic term ‘consumers’. Everyday life invents itself by poaching in countless ways on the property of others.”[ 49 ]