A Genealogy of Authors’ Property RightsDans cette article, Joanne Richardson/ Anne.Nimus presente un historique
de la genese et du developpement du ‘copyright’ (droit d’auteur
anglo-saxon) jusqu’aux formes extremes qu’il a pris a l’heure actuelle.
Elle y developpe egalement une critique des alternatives qui y ont ete
proposees, et en particulier de la formule des ‘Creative Commons’.
This text developed out of a series of conversations and correspondences
between Joanne Richardson and Dmytri Kleiner. Many thanks to all who
contributed to its production: Saul Albert, Mikhail Bakunin, David Berry,
Critical Art Ensemble, Johann Gottlieb Fichte, Michel Foucault, Martin
Fredriksson, Marci Hamilton, Carla Hesse, Benjamin Mako Hill, Stewart
Home, Dan Hunter, Mark Lemley, Lawrence Lessig, Karl Marx, Giles Moss,
Milton Mueller, Piratbyran, Pierre-Joseph Proudhon, Toni Prug, Samuel
Richardson, Patrice Riemens, Mark Rose, Pamela Samuelson, the Situationist
International, Johan Soderberg, Richard Stallman, Kathryn Temple, Benjamin
Tucker, Jason Toynbee, Tristan Tzara, Wikipedia, Martha Woodmansee, Wu
Ming.
The author has not always existed. The image of the author as a wellspring
of originality, a genius guided by some secret compulsion to create works
of art out of a spontaneous overflow of powerful feelings, is an 18th
century invention. This image continues to influence how people speak
about the “great artists” of history, and it also trickles down to the
more modest claims of the intellectual property regime that authors have
original ideas that express their unique personality, and therefore have a
natural right to own their works – or to sell their rights, if they should
choose. Although these ideas appear self-evident today, they were an
anomaly during their own time. The different pre-Enlightenment traditions
did not consider ideas to be original inventions that could be owned
because knowledge was held in common. Art and philosophy were products of
the accumulated wisdom of the past. There were no authors – in the sense
of original creators and final authorities – but only masters of various
crafts (sculpture, painting, poetry, philosophy) whose task was to
appropriate existing knowledge, re-organize it, make it specific to their
age, and transmit it further. Artists and sages were messengers, and their
ability to make knowledge manifest was considered a gift from the gods.
Art was governed by a gift economy: aristocratic patronage was a gift in
return for the symbolic gift of the work. Even the neoclassical worldview
that immediately preceded Romanticism viewed art as imitation of nature
and the artist as a craftsman who transmitted ideas that belonged to a
common culture.
The Romantic revolution marked the birth of proprietary authorship. It
abolished the belief that creations of the human intellect were gifts from
the gods that could be policed by royal decrees. But while it liberated
the productive capacity of individuals from supernatural causes and
political control, it located this capacity in the sovereignty of the
individual, ignoring the larger social context of production. And it
chained the production of knowledge to the idea of private property that
dominated philosophical and economic discourse since Locke. Romanticism’s
re-definition of the artist as an original creator was an effect of a
combination of political, economic and technological transformations.
Industrial production during the 18th century led to increasing
commodification. The enclosure of the commons forced many farmers who had
lived off the land to become workers in industrial cities, and the
dominance of market relations began to permeate all spheres of life. The
sharp rise in literacy created a new middle-class public of consumers — a
necessary precondition for commercializing culture. The capacity of the
printing press to mass reproduce and distribute the written word destroyed
established values, displacing art from the courts to coffee houses and
salons. And as the feudal world of patronage withered away, along with the
system of political sovereignty that had supported it, for the first time
writers and artists tried to live from the profits earned from the sale of
their works.
Romanticism was born as a contradictory response to these developments. It
was an opposition to capitalism, but one expressed through the language of
private property and the assumptions inherited from the philosophical
discourse that legitimated capitalism’s mode of production. Romanticism
denounced the alienation and loss of independence spawned by industrial
production and market relations, and portrayed the artist in heroic
opposition to the drive for profit. Adopting Rousseau’s metaphors of
organic growth and Kant’s notion of genius as an innate force that created
from within, Romantic authors celebrated the artist as a spontaneous,
untamed being (like nature itself), guided by intuitive necessity and
indifferent to social rules and conventions. By locating the work of art
in a pre-social, natural self, its meaning was free from contamination
with everyday life. Art was neither public, nor social, nor similar to the
labour of workers who produced commodities. It was self-reflexive,
offering a window to a transcendent subjectivity.
In the mid 1750s, Edward Young and Samuel Richardson were the first to
argue that the work of an author, since it was a product of his unique
personality, was more truly an author’s property than the material objects
produced by a worker. This idea found its most enthusiastic supporters
among German and English Romanticism, but also echoed in wider literary
circles. In 1772 Lessing connected originality to rights over ideas and
argued that authors were entitled to economic profits from their works.
Realizing that the problem with defining ideas as property was that many
people seemed to share the same ideas, in 1791 Fichte argued that for an
idea to be regarded as property it had to have some distinguishing
characteristic that allowed only a single individual to claim it. That
quality lay not in the idea itself but in the unique form the author used
to communicate it. Ideas that were common could become private property
through the author’s original form of expression. It is this distinction
between content (ideas) and form (the particular style and expression of
those the ideas) that provided an initial foundation for intellectual
property law. By the 1830s Wordsworth had effectively linked the notion of
genius – defined as the introduction of a new element into the
intellectual universe – to legal stakes in the copyright wars. Arguing
that artistic genius was often not recognized by contemporaries but only
after an author’s death, he became an active lobbyist for extending
copyright to 60 years after an author’s death. Wordsworth’s duality in
invoking the author as a solitary genius as well as an interested economic
agent was symptomatic of the complicity between Romantic aesthetics and
the logic of commodification. The Romantic worldview tried to elevate art
to a pure space above commodity production, but its definition of the
creative work as property reintegrated art into the very sphere it sought
to negate.
The existence of “copy rights” predated 18th century notions of the
author’s right to ownership. From the 16th to the 17th century royal
licenses gave exclusive rights to certain publishers to copy (or print)
particular texts. In 1557, England’s Queen Anne granted an exclusive
printing monopoly to a London guild of printers, the Stationers Company,
because it assured her control over which books were published or banned.
The first copyrights were publishers’ rights to print copies, which
emerged out of the ideological needs of absolutist monarchies to control
knowledge and censor dissent. After the Licensing Act expired in 1694, the
monopoly of the Stationers Company was threatened by provincial
booksellers, the so-called “pirates” from Ireland and Scotland. The
Stationers Company petitioned Parliament for a new bill to extend their
copyright monopoly. But this was a different England from 1557: Parliament
had executed King Charles I in 1649, abolished the monarchy and installed
a republic under Cromwell, restored the monarchy with Charles II,
overthrew James II in the Revolution of 1688, and, in 1689, it passed the
first decree of modern constitutional sovereignty, the Bill of Rights. The
Statute of Anne, passed in 1710 by Parliament, turned out to be a hard
blow against the Stationers Company. The Statute declared authors (not
publishers) to be owners of their works and limited the copyright term to
14 years for new books and 21 years for existing copyrights. The Statute,
which was subtitled “An Act for the Encouragement of Learning, by vesting
the Copies of Printed Books in the Authors or purchasers of such Copies,
during the Times therein mentioned,” tried to balance the philosophical
ideas of the Enlightenment with the economic interests of a nascent
capitalism by creating a marketplace of knowledge through competition.
The Statute’s aim was not to create an author’s copyright but to break the
Stationers Company’s monopoly. Since this monopoly was too well
established to be attacked superficially, reversing the ownership from
publisher to author provided a solid basis. After the Statute of Anne was
passed, the Stationers Company ignored its time limitations and a battle
over literary property began in the law courts that lasted more than 50
years. In Millar vs. Taylor (1769), a London publisher belonging to the
Stationers Company won a verdict supporting a common-law right of
perpetual copyright despite the Statute of Anne. This decision was
overturned in the landmark case of Donaldson vs. Becket (1774); the ruling
in favor of the Scottish bookseller Donaldson rejected the argument for
perpetual copyright and upheld the limits set out in the Statute of Anne.
The principal players in what the press hailed as the great cause
concerning literary property were not authors. Publishers sued each other
in the courts, invoking the author’s rights as a pretext in their battle
for economic power. The notion of the author as an originator with a
natural right to own ideas may have been invented by artists and
philosophers, but it was publishers who profited from it. Laws are not
made by poets but by states, and states exist to enforce economic
privilege, adopting whatever philosophical legitimation they find
convenient at any given time. The Statute of Anne codified the capitalist
form of the author-publisher relationship: copyright was attached to the
author at birth but automatically assumed by publishers through the
“neutral” mechanisms of the market. Authors had a right to own the
products of their labour in theory, but since they created immaterial
ideas and lacked the technological means to produce books, they had to
sell their rights to another party with enough capital to exploit them. In
essence, it was no different than having to sell their labour. The
exploitation of the author was embedded in the intellectual property
regime from its inception.
Intellectual property laws have shifted with the winds of history to
justify specific interests. Countries that exported intellectual property
favored the notion of authors’ natural rights, while developing nations,
which were mainly importers, insisted on a more utilitarian interpretation
that limited copyright by public interest. During the 19th century,
American publishing companies justified their unauthorized publication of
British writers on the utilitarian grounds that the public’s interest to
have great works available for the cheapest possible price outweighed
authors’ rights. By the beginning of the 20th century, as American authors
became popular in Europe and American publishing companies became
exporters of intellectual property, the law conveniently shifted, suddenly
recognizing the natural rights of authors to own their ideas and
forgetting previous theories of social utility. During the 20th century,
intellectual property law has extended the rights of owners in several
ways: by increasing the duration of copyright to lifetime plus 70 years,
by standardizing international IP regimes to benefit corporations in
economically dominant countries (achieved through shifting IP governance
from the World Intellectual Property Organization to the World Trade
Organization), and by redefining the means of protection and the types of
intellectual property that could benefit from protection. Until the middle
of the 19th century, copyright meant only protection against verbatim
copying. Toward the end of the 19th century, this was redefined so that
the property protected by copyright consisted (against Fichte’s
definition) in the substance, and not in the form alone — which meant
translations were also subject to copyright. Later this protection was
extended to any close approximation of the original, like the plot of a
novel or play or the use of the characters from a movie or book to create
a sequel. The types of property protected by copyright have also expanded
exponentially. In the beginning, copyright was a regulation of the
reproduction of printed matter. But the legislation changed with each new
technology of reproduction (words, sounds, photographs, moving images,
digital information). At the beginning of the 20th century copyright was
extended from covering texts to covering “works.” During a landmark court
case in 1983 it was argued that computer software was also a “work” of
original authorship analogous to poetry, music and painting in its ability
to capture the author’s originality and creative imagination. This
illustrates the wildly different contexts in which the myth of the
creative genius has been invoked to legitimate economic interests. And in
each of the landmark cases the focus has always shifted away from
corporations (the real beneficiaries) to the sympathetic figure of the
author, who people identify with and want to reward.
> Intellectual Property as Fraud
If property is theft, as Proudhon famously argued, then intellectual
property is fraud. Property is theft because the owner of property has no
legitimate claim to the product of labour. Except by denying workers
access to the means of production, property owners could not extract any
more than the reproduction costs of the instruments they contribute to the
process. In the words of Benjamin Tucker, the lender of capital is
entitled to its return intact, and nothing more. When the peasants of the
pre-industrial age were denied access to common land by the new
enclosures, it can be said that their land was stolen. But if physical
property can be stolen, can intelligence or ideas be stolen? If your land
is stolen, you cannot use it anymore, except on the conditions set by its
new private “owner.” If ownership of an idea is analogous to the ownership
of material property, it should be subject to the same conditions of
economic exchange, forfeiture, and seizure – and if seized it would then
cease to be the property of its owner. But if your idea is used by others,
you have not lost your ability to use it — so what is really stolen? The
traditional notion of property, as something that can be possessed to the
exclusion of others, is irreconcilable with intangibles like ideas. Unlike
a material object, which can exist in only one place at a given time,
ideas are non-rivalrous and non-exclusive. A poem is no less an authors’
poem despite its existence in a thousand memories.
Intellectual property is a meaningless concept – ideas don’t behave like
land and cannot be possessed or alienated. All the intellectual property
debates fought in courthouses and among pamphleteers during the 18th
century intuitively grasped this contradiction. What became obvious in
these debates was that the rights to own ideas would have to be
qualitatively different from the rights to own material property, and that
the ease of reproducing ideas posed serious problems for enforcing such
rights. In parallel to the philosophical debates about the nature of
intellectual property, a monumental discourse criminalizing piracy and
plagiarism began to emerge. The most famous rant against piracy was Samuel
Richardson’s 1753 pamphlets denouncing unauthorized Irish reprints of his
novel Sir Charles Grandison. Contrasting the enlightened English book
industry with the savagery and wickedness of Irish piracy, Richardson
criminalizes the reprints as theft. In actuality his claims had no legal
basis since Ireland was not subject to England’s intellectual property
regime. And what he denounced as piracy, Irish publishers saw as a just
retaliation against the Stationers Company’s monopoly. A year before
Richardson’s pamphlets, there were street riots in Dublin against British
taxation policies, which were part of a larger political struggle of Irish
independence from Britain. By arguing that this Cause is the Cause of
Literature in general, Richardson framed the battle over literary property
in purely aesthetic terms, isolating it from its political and economic
context. But his use of the piracy metaphor recalled Britain’s colonial
history and brutal repression of sea pirates. 18th century maritime piracy
has itself been interpreted as a form of guerilla warfare against British
imperialism, which also created alternative models of work, property and
social relations based on a spirit of democracy, sharing, and mutual
insurance.
Richardson’s account of originality and propriety excluded any notion of
cultural appropriation and transmission. Never was work more the property
of any man than this is his, he claims, portraying his novel as New in
every sense of the word. His claim is especially ironic given his own
appropriation, both in the novel and in the pamphlets, of stories of
piracy and plagiarism from the popular literature of his time and from
Heliodorus’ The Ethiopian, a 3rd century romance which was widely parodied
throughout the 18th century. The idea of originality, and the possessive
individualism it spawned, created a tidal wave of paranoia among the
author “geniuses,” whose fear of being robbed seemed to mask a more basic
fear that their claim to originality was nothing but a fiction.
Artistic creation is not born ex nihilo from the brains of individuals as
a private language; it has always been a social practice. Ideas are not
original, they are built upon layers of knowledge accumulated throughout
history. Out of these common layers, artists create works that have their
unmistakable specificities and innovations. All creative works reassemble
ideas, words and images from history and their contemporary context.
Before the 18th century, poets quoted their ancestors and sources of
inspiration without formal acknowledgement, and playwrights freely
borrowed plots and dialogue from previous sources without attribution.
Homer based the Iliad and the Odyssey on oral traditions that dated back
centuries. Virgil’s Aeneid is lifted heavily from Homer. Shakespeare
borrowed many of his narrative plots and dialogue from Holinshed. This is
not to say that the idea of plagiarism didn’t exist before the 18th
century, but its definition shifted radically. The term plagiarist
(literally, kidnapper) was first used by Martial in the 1st century to
describe someone who kidnapped his poems by copying them whole and
circulating them under the copier’s name. Plagiarism was a false
assumption of someone else’s work. But the fact that a new work had
similar passages or identical expressions to an earlier one was not
considered plagiarism as long as the new work had its own aesthetic
merits. After the invention of the creative genius, practices of
collaboration, appropriation and transmission were actively forgotten.
When Coleridge, Stendhall, Wilde and T.S. Eliot were accused of plagiarism
for including expressions from their predecessors in their works, this
reflected a redefinition of plagiarism in accordance with the modern sense
of possessive authorship and exclusive property. Their so-called “theft”
is precisely what all previous writers had regarded as natural.
Ideas are viral, they couple with other ideas, change shape, and migrate
into unfamiliar territories. The intellectual property regime restricts
the promiscuity of ideas and traps them in artificial enclosures,
extracting exclusive benefits from their ownership and control.
Intellectual property is fraud – a legal privilege to falsely represent
oneself as the sole “owner” of an idea, expression or technique and to
charge a tax to all who want to perceive, express or apply this “property”
in their own production. It is not plagiarism that dispossesses an “owner”
of the use of an idea; it is intellectual property, backed by the invasive
violence of the state, that dispossesses everyone else from using their
common culture. The basis for this dispossession is the legal fiction of
the author as a sovereign individual who creates original works out of the
wellspring of his imagination and thus has a natural and exclusive right
to ownership. Foucault unmasked authorship as a functional principle that
impedes the free circulation, the free manipulation, the free composition,
decomposition, and recomposition of knowledge. The author-function
represents a form of despotism over the proliferation of ideas. The
effects of this despotism, and of the system of intellectual property that
it shelters and preserves, is that it robs us of our cultural memory,
censors our words, and chains our imagination to the law.
And yet artists continue to be flattered by their association with this
myth of the creative genius, turning a blind eye to how it is used to
justify their exploitation and expand the privilege of the property owning
elite. Copyright pits author against author in a war of competition for
originality — its effects are not only economic, it also naturalizes a
certain process of knowledge production, delegitimates the notion of a
common culture, and cripples social relations. Artists are not encouraged
to share their thoughts, expressions and works or to contribute to a
common pool of creativity. Instead, they jealously guard their “property”
from others, who they view as potential competitors, spies and thieves
lying in wait to snatch and defile their original ideas. This is a vision
of the art world created in capitalism’s own image, whose ultimate aim is
to make it possible for corporations to appropriate the alienated products
of its intellectual workers.
> The Revolt against Intellectual Property
The private ownership of ideas over the last two centuries hasn’t managed
to completely eradicate the memory of a common culture or the recognition
that knowledge flourishes when ideas, words, sounds and images are free
for everyone to use. Ever since the birth of the proprietary author,
different individuals and groups have challenged the intellectual property
regime and the “right” it gave to some private individuals to “own”
creative works while preventing others from using and re-interpreting
them. In his 1870 Poesies, Lautreamont called for a return of impersonal
poetry, a poetry written by all. He added, Plagiarism is necessary.
Progress implies it. It closely grasps an author’s sentence, uses his
expressions, deletes a false idea, replaces it with a right one. His
definition subverted the myth of individual creativity, which was used to
justify property relations in the name of progress when it actually
impeded progress by privatizing culture. The natural response was to
reappropriate culture as a sphere of collective production without
acknowledging artificial enclosures of authorship. Lautremont’s phrase
became a benchmark for the 20th century avant-gardes. Dada rejected
originality and portrayed all artistic production as recycling and
reassembling – from Duchamp’s ready-mades, to Tzara’s rule for making
poems from cut-up newspapers, to the photomontages of Hoech, Hausmann and
Heartfield. Dada also challenged the idea of the artist as solitary genius
and of art as a separate sphere by working collectively to produce not
only art objects and texts, but media hoaxes, interventions at political
gatherings and demonstrations on the street. Its assault on artistic
values was a revolt against the capitalist foundations that created them.
Dadaist ideas were systematically developed into a theory (if often
suffering on the level of real practice) by the Situationists. The SI
acknowledged that detournement – putting existing artworks, films,
advertisements and comic strips through a detour, or recoding their
dominant meanings – was indebted to Dadaist practices, but with a
difference. They saw Dada as a negative critique of dominant images (one
that depended on the easy recognition of the image being negated), and
defined detournement as a positive reuse of existing fragments simply as
elements in the production of a new work. Detournement was not primarily
an antagonism to tradition; it emphasized the reinvention of a new world
from the scraps of the old. And implicitly, revolution was not primarily
an insurrection against the past, but learning to live in a different way
by creating new practices and forms of behavior. These forms of behavior
also included collective writings, which were often unsigned, and an
explicit refusal of the copyright regime by attaching the labels “no
copyright” or “anticopyright” to their works, along with the directions
for use: any of the texts in this book may be freely reproduced,
translated or adapted even without mentioning the source.
It is these twin practices of detournement (Lautremont’s necessary
plagiarism) and anticopyright that inspired many artistic and subcultural
practices from the 1970s to the 1990s. John Oswald started doing sound
collages that remixed copyrighted works during the 1970s. In 1985 he
coined the term plunderphonics for the practice of audio piracy as a
compositional prerogative, which he and others had been practicing.
Oswald’s motto was: if creativity is a field, copyright is the fence. His
1989 album Plunderphonics, which contained 25 tracks that remixed material
from Beethoven to Michael Jackson, was threatened by legal action for
copyright violation. Negativland has become the most infamous of the
plunderphonic bands after their parody of U2’s song “I Still Haven’t Found
What I’m Looking For” was sued by U2’s record label for violating both
copyright and trademark law. Plundervisuals also has a long tradition.
Found footage film goes back to Bruce Connor’s work in the 1950s, but
became more prevalent after the 1970s with Chick Strand, Mathew Arnold,
Craig Baldwin and Keith Sanborn. With the invention of the video recorder,
the practice of scratch video, which detourned images recorded directly
from television programs and ads, became very popular during the 1980s
because of the relative ease of production compared to the found film’s
splicing of celluloid. A form of more depolititicized, postmodern
plagiarism has also achieved widespread reputation in literary and
artistic circles during the 1990s with Kathy Acker’s novels – her Empire
of the Senseless plagiarized a chapter of William Gibson’s Neuromancer
with only minor rewriting – and with Sherrie Levine’s image appropriations
of Walker Evans, Van Gogh and Duchamp.
Steward Home, a well-known proponent of plagiarism and organizer of
several Festivals of Plagiarsm from 1988-1989, has also advocated the use
of multiple names as a tactic for challenging the myth of the creative
genius. The significant difference is that whereas plagiarism can be
easily recuperated as an artform, with star plagiarists like Kathy Acker
or Sherrie Levine, the use of multiple names requires a self-effacement
that draws attention away from the name of the author. The use of multiple
names goes back to Neoism, which encouraged artists to work together under
the shared name of Monty Cantsin. After his break with Neoism, Home and
others started using the name Karen Eliot. The practice also caught on in
Italy, where the Luther Blissett name was used by hundreds of artists and
activists between 1994 and 1999. Luther Blissett became a kind of Robin
Hood of the information age, playing elaborate pranks on the culture
industry, always acknowledging responsibility and explaining what cracks
in the system were exploited to plant a fake story. After Luther
Blissett’s symbolic suicide in 1999, five writers who were active in the
movement invented the collective pseudonym Wu Ming, which means “no name”
in Chinese. The collective, anonymous name is also a refusal of the
machine that turns writers into celebrity names. By challenging the myth
of the proprietary author, Wu Ming claims they’ve only made explicit what
should already be obvious – there are no “geniuses,” thus there are no
“lawful owners,” there is only exchange, re-use and improvement of ideas.
Wu Ming adds that this notion, which once appeared natural but has been
marginalized for the past two centuries, is now becoming dominant again
because of the digital revolution and the success of free software and the
General Public License.
Digitalization has proven to be much more of a threat to conventional
notions of authorship and intellectual property than the plagiarism
practiced by radical artists or critiques of the author by
poststructuralist theorists. The computer is dissolving the boundaries
essential to the modern fiction of the author as a solitary creator of
unique, original works. Ownership presupposes a separation between texts
and between author and reader. The artificiality of this separation is
becoming more apparent. On mailinglists, newsgroups and open publishing
sites, the transition from reader to writer is natural, and the difference
between original texts vanishes as readers contribute commentary and
incorporate fragments of the original in their response without the use of
quotation. Copyrighting online writing seems increasingly absurd, because
it is often collectively produced and immediately multiplied. As online
information circulates without regard for the conventions of copyright,
the concept of the proprietary author really seems to have become a ghost
of the past. Perhaps the most important effect of digitalization is that
it threatens the traditional benefactors of intellectual property since
monopolistic control by book publishers, music labels and the film
industry is no longer necessary as ordinary people are taking up the means
of production and distribution for themselves.
Free software guru Richard Stallman claims that in the age of the digital
copy the role of copyright has been completely reversed. While it began as
a legal measure to allow authors to restrict publishers for the sake of
the general public, copyright has become a publishers’ weapon to maintain
their monopoly by imposing restrictions on a general public that now has
the means to produce their own copies. The aim of copyleft more generally,
and of specific licenses like the GPL, is to reverse this reversal.
Copyleft uses copyright law, but flips it over to serve the opposite of
its usual purpose. Instead of fostering privatization, it becomes a
guarantee that everyone has the freedom to use, copy, distribute and
modify software or any other work. Its only “restriction” is precisely the
one that guarantees freedom — users are not permitted to restrict anyone
else’s freedom since all copies and derivations must be redistributed
under the same license. Copyleft claims ownership legally only to
relinquish it practically by allowing everyone to use the work as they
choose as long the copyleft is passed down. The merely formal claim of
ownership means that no one else may put a copyright over a copylefted
work and try to limit its use.
Seen in its historical context, copyleft lies somewhere between copyright
and anticopyright. The gesture by writers of anticopyrighting their works
was made in a spirit of generosity, affirming that knowledge can flourish
only when it has no owners. As a declaration of “no rights reserved”
anticopyright was a perfect slogan launched in an imperfect world. The
assumption was that others would be using the information in the same
spirit of generosity. But corporations learned to exploit the lack of
copyright and redistribute works for a profit. Stallman came up with the
idea of copyleft in 1984 after a company that made improvements to
software he had placed in the public domain (the technical equivalent of
anticopyright, but without the overt gesture of critique) privatized the
source code and refused to share the new version. So in a sense, copyleft
represents a coming of age, a painful lesson that relinquishing all rights
can lead to abuse by profiteers. Copyleft attempts to create a commons
based on reciprocal rights and responsibilities — those who want to share
the common resources have certain ethical obligations to respect the
rights of other users. Everyone can add to the commons, but no one may
subtract from it.
But in another sense copyleft represents a step back from anticopyright
and is plagued by a number of contradictions. Stallman’s position is in
agreement with a widespread consensus that copyright has been perverted
into a tool that benefits corporations rather than the authors for whom it
was originally intended. But no such golden age of copyright exists.
Copyright has always been a legal tool that coupled texts to the names of
authors in order to transform ideas into commodities and turn a profit for
the owners of capital. Stallman’s idealized view of the origins of
copyright does not recognize the exploitation of authors by the early
copyright system. This specific myopia about copyright is part of a more
general non-engagement with economic questions. The “left” in copyleft
resembles a vague sort of libertarianism whose main enemies are closed,
nontransparent systems and totalitarian restrictions on access to
information rather than economic privilege or the exploitation of labour.
Copyleft emerged out of a hacker ethic that comes closest to the pursuit
of knowledge for knowledge’s sake. Its main objective is defending freedom
of information against restrictions imposed by “the system,” which
explains why there’s such a wide range of political opinions among
hackers. It also explains why the commonality that links hackers together
– the “left” in Stallman’s vision of copyleft – is not the left as it’s
understood by most political activists.
The GPL and copyleft is frequently invoked as an example of the free
software movement’s anticommercial bias. But there is no such bias. The
four freedoms required by the GPL — the freedom to run, study, distribute
and improve the source code so long as the same freedom is passed down —
means that any additional restriction, like a non-commercial clause, would
be non-free. Keeping software “free” does not prevent developers from
selling copies they’ve modified with their own labour and it also does not
prevent redistribution (without modification) for a fee by a commercial
company, as long as the same license is passed down and the source code
remains transparent. This version of freedom does not abolish exchange —
as some free software enthusiasts have claimed — nor is it even
incompatible with a capitalist economy based on the theft of surplus
value. The contradiction inherent in this commons is partly due to the
understanding of proprietary as synonymous with closed-sourced or
nontransparent. Proprietary means having an owner who prohibits access to
information, who keeps the source code secret; it does not necessarily
mean having an owner who extracts a profit, although keeping the source
code secret and extracting a profit often coincide in practice. As long as
the four conditions are met, commercial redistribution of free software is
nonproprietary. The problem is more obvious when translating this
condition to content-based works, like poems, novels, films, or music. If
someone releases a novel under a copyleft license, and Random House prints
it and makes a profit off the author’s work, there’s nothing wrong with
this as long as the copyleft is passed down. To be free means to be open
to commercial appropriation, since freedom is defined as the
nonrestrictive circulation of information rather than as freedom from
exploitation.
It comes as no surprise that the major revision in applying copyleft to
the production of artworks, music and texts has been to permit copying,
modifying and redistributing as long as it’s non-commercial. Wu Ming claim
it is necessary to place a restriction on commercial use or use for profit
in order to prohibit the parasitic exploitation of cultural workers. They
justify this restriction, and its divergence from the GPL and GFDL
versions of copyleft, on the grounds that the struggle against
exploitation and the fight for a fair remuneration of labour is the
cornerstone of the history of the left. Other content providers and book
publishers (Verso, for example) have expanded this restriction by claiming
that copying, modifying and redistributing should not only be non-profit
but also in the spirit of the original – without explaining what this
“spirit” means. Indymedia Romania revised its copyleft definition to make
the meaning of “in the spirit of the original” clearer after repeated
problems with the neofascist site Altermedia Romania, whose “pranks”
ranged from hijacking the indymedia.ro domain to copying texts from
Indymedia and lying about names and sources. Indymedia Romania’s
restrictions include: not modifying the original name or source since it
goes against the desire for transparency, not reproducing the material for
profit since it abuses the spirit of generosity, and not reproducing the
material in a context that violates the rights of individuals or groups by
discriminating against them on the basis of nationality, ethnicity, gender
or sexuality since it contradicts its commitment to equality.
While some have multiplied restrictions, others have rejected any
restriction at all, including the single restriction imposed by the
initial copyleft. It is the movement around peer-to-peer filesharing that
comes closest to the gesture of anticopyright. The best example is the
Copyriot blog by Rasmus Fleischer of Pyratbiran (Bureau of Piracy), an
anti-IP think tank and the one-time founders of Pirate Bay, the most used
Bittorent tracker in the P2P community. The motto of copyriot is no
copyright, no license. But there is a difference from the older
anticopyright tradition. Fleischer claims that copyright has become absurd
in the age of digital technology because it has to resort to all sorts of
fictions, like distinctions between uploading and downloading or between
producer and consumer, which don’t actually exist in horizontal P2P
communication. Pyratbiran rejects copyright in its entirety — not because
it was flawed in its inception, but because it was invented to regulate an
expensive, one-way machine like the printing press, and it no longer
corresponds to the practices that have been made possible by current
technologies of reproduction.
Stallman’s original definition of copyleft attempts to found an
information commons solely around the principle of information freedom —
in this sense it is purely formal, like a categorical imperative that
demands freedom of information to be universalizable. The only limit to
belonging to this community is those who do not share the desire for free
information — they are not excluded, they refuse to participate because
they refuse to make information free. Other versions of copyleft have
tried to add further restrictions based on a stronger interpretation of
the “left” in copyleft as needing to be based not on a negative freedom
from restrictions but on positive principles like valuing social
cooperation above profit, nonhierarchical participation and
nondiscrimination. The more restrictive definitions of copyleft attempt to
found an information commons that is not just about the free flow of
information but sees itself as part of a larger social movement that bases
its commonality on shared leftist principles. In its various mutations,
copyleft represents a pragmatic, rational approach that recognizes the
limits of freedom as implying reciprocal rights and responsibilities — the
different restrictions represent divergent interpretations about what
these rights and responsibilities should be. By contrast, anticopyright is
a gesture of radicality that refuses pragmatic compromises and seeks to
abolish intellectual property in its entirety. Anticopyright affirms a
freedom that is absolute and recognizes no limits to its desire. The
incompatibility between these positions poses a dilemma: do you affirm
absolute freedom, knowing it could be used against you, or moderate
freedom by restricting the information commons to communities who won’t
abuse it because they share the same “spirit”?
> The Creative Anti-Commons Compromise
The dissidents of intellectual property have had a rich history among
avant-garde artists, zine producers, radical musicians, and the
subcultural fringe. Today the fight against intellectual property is being
led by lawyers, professors and members of government. Not only is the
social strata of the leading players very different, which in itself might
not be such an important detail, but the framework of the struggle against
intellectual property has completely changed. Before law professors like
Lawrence Lessig became interested in IP, the discourse among dissidents
was against any ownership of the commons, intellectual or physical. Now
center stage is occupied by supporters of property and economic privilege.
The argument is no longer that the author is a fiction and that property
is theft, but that intellectual property law needs to be restrained and
reformed because it now infringes upon the rights of creators. Lessig
criticizes the recent changes in copyright legislation imposed by global
media corporations and their powerful lobbies, the absurd lengths to which
copyright has been extended, and other perversions that restrict the
creativity of artists. But he does not question copyright as such, since
he views it as the most important incentive for artists to create. The
objective is to defend against IP extremism and absolutism, while
preserving IP’s beneficial effects.
In his keynote at Wizards of OS4 in Berlin, Lessig celebrated the
Read-Write culture of free sharing and collaborative authorship that has
been the norm for most of history. During the last century this Read-Write
culture has been thwarted by IP legislation and converted to a Read-Only
culture dominated by a regime of producer-control. Lessig bemoans the
recent travesties of copyright law that have censured the work of remix
artists like DJ Dangermouse (The Grey Album) and Javier Prato (Jesus
Christ: The Musical). Both were torpedoed by the legal owners of the music
used in the production of their works, as were John Oswald and Negativland
before them. In these cases the wishes of the artists, who were regarded
as mere consumers in the eyes of the law, were subordinated to control by
the producers – the Beatles and Gloria Gaynor, respectively – and their
legal representatives. The problem is that producer-control is creating a
Read-Only culture and destroying the vibrancy and diversity of creative
production. It is promoting the narrow interests of a few privileged
“producers” at the expense of everybody else. Lessig contrasts
producer-control to the cultural commons – a common stock of value that
all can use and contribute to. The commons denies producer-control and
insists on the freedom of consumers. The “free” in free culture refers to
the natural freedom of consumers to use the common cultural stock and not
the state-enforced freedom of producers to control the use of “their”
work. In principle, the notion of a cultural commons abolishes the
distinction between producers and consumers, viewing them as equal actors
in an ongoing process.
Lessig claims that today, as a result of commons-based peer-production and
the Creative Commons project more specifically, the possibility of a
Read-Write culture is reborn. But is the Creative Commons really a
commons? According to its website, Creative Commons defines the spectrum
of possibilities between full copyright – all rights reserved – and the
public domain – no rights reserved. Our licenses help you keep your
copyright while inviting certain uses of your work – a “some rights
reserved” copyright. The point is clear: Creative Commons exists to help
“you,” the producer, keep control of “your” work. You are invited to
choose among a range of restrictions you wish to apply to “your” work,
such as forbidding duplication, forbidding derivative works, or forbidding
commercial use. It is assumed that as an author-producer everything you
make and everything you say is your property. The right of the consumer is
not mentioned, nor is the distinction between producers and consumers of
culture disputed. Creative Commons legitimates, rather than denies,
producer-control and enforces, rather than abolishes, the distinction
between producer and consumer. It expands the legal framework for
producers to deny consumers the possibility to create use-value or
exchange-value out of the common stock.
Had the Beatles and Gloria Gaynor published their work within the
framework of Creative Commons, it would still be their choice and not the
choice of DJ Dangermouse or Javier Patro whether The Grey Album or Jesus
Christ: The Musical should be allowed to exist. The legal representatives
of the Beatles and Gloria Gaynor could just as easily have used CC
licenses to enforce their control over the use of their work. The very
problem of producer-control presented by Lessig is not solved by the
Creative Commons “solution” as long as the producer has an exclusive right
to choose the level of freedom to grant the consumer, a right that Lessig
has never questioned. The Creative Commons mission of allowing producers
the “freedom” to choose the level of restrictions for publishing their
work contradicts the real conditions of commons-based production. Lessig’s
use of DJ Dangermouse and Javier Patro as examples to promote the cause of
Creative Commons is an extravagant dishonesty.
A similar dishonesty is present in Lessig’s praise of the Free Software
movement because its architecture assures everyone (technologically as
well as legally, in the form of its licenses) the possibility to use the
common resource of the source code. Despite its claim to be extending the
principles of the free software movement, the freedom Creative Commons
gives to creators to choose how their works are used is very different
from the freedom the GPL gives to users to copy, modify and distribute the
software as long as the same freedom is passed down. Stallman recently
made a statement rejecting Creative Commons in its entirety because some
of its licenses are free while others are non-free, which confuses people
into mistaking the common label for something substantial when in fact
there’s no common standard and no ethical position behind the label.
Whereas copyleft claims ownership legally only to relinquish it
practically, the references to ownership by Creative Commons is no longer
an ironic reversal but real. The pick and choose CC licenses allow
arbitrary restrictions on the freedom of users based on an authors’
particular preferences and tastes. In this sense, Creative Commons is a
more elaborate version of copyright. It doesn’t challenge the copyright
regime as a whole, nor does it preserve its legal shell in order to turn
the practice of copyright on its head, like copyleft does.
The public domain, anticopyright and copyleft are all attempts to create a
commons, a shared space of non-ownership that is free for everyone to use.
The conditions of use may differ, according to various interpretations of
rights and responsibilities, but these rights are common rights and the
resources are shared alike by the whole community — their use is not
decided arbitrarily, on a case by case basis, according to the whims of
individual members. By contrast, Creative Commons is an attempt to use a
regime of property ownership (copyright law) to create a non-owned,
culturally shared resource. Its mixed bag of cultural goods are not held
in common since it is the choice of individual authors to permit their use
or to deny it. Creative Commons is really an anti-commons that peddles a
capitalist logic of privatization under a deliberately misleading name.
Its purpose is to help the owners of intellectual property catch up with
the fast pace of information exchange, not by freeing information, but by
providing more sophisticated definitions for various shades of ownership
and producer-control.
What began as a movement for the abolition of intellectual property has
become a movement of customizing owners’ licenses. Almost without notice,
what was once a very threatening movement of radicals, hackers and pirates
is now the domain of reformists, revisionists, and apologists for
capitalism. When capital is threatened, it co-opts its opposition. We have
seen this scenario many times throughout history — its most spectacular
example is the transformation of self-organized workers’ councils into a
trade union movement that negotiates legal contracts with the owners of
corporations. The Creative Commons is a similar subversion that does not
question the “right” to private property but tries to get small
concessions in a playing field where the game and its rules are determined
in advance. The real effect of Creative Commons is to narrow political
contestation within the sphere of the already permissible.
While narrowing this field of contestation, Creative Commons
simultaneously portrays itself as radical, as the avant-garde of the
battle against intellectual property. Creative Commons has become a kind
of default orthodoxy in non-commercial licensing, and a popular cause
among artists and intellectuals who consider themselves generally on the
left and against the IP regime in particular. The Creative Commons label
is moralistically invoked on countless sites, blogs, speeches, essays,
artworks and pieces of music as if it constituted the necessary and
sufficient condition for the coming revolution of a truly “free culture.”
Creative Commons is part of a larger copyfight movement, which is defined
as a fight to keep intellectual property tethered to its original purpose
and to prevent it from going too far. The individuals and groups
associated with this movement (John Perry Barlow, David Bollier, James
Boyle, Creative Commons, EFF, freeculture.org, Larry Lessig, Jessica
Litman, Eric Raymond, Slashdot.org) advocate what Boyle has called a
smarter IP, or a reform of intellectual property that doesn’t threaten
free speech, democracy, competition, innovation, education, the progress
of science, and other things that are critically important to our (?)
social, cultural, and economic well-being.
In an uncanny repetition of the copyright struggles that first emerged
during the period of Romanticism, the excesses of the capitalist form of
intellectual property are opposed, but using its own language and
presuppositions. Creative Commons preserves Romanticism’s ideas of
originality, creativity and property rights, and similarly considers “free
culture to be a separate sphere existing in splendid isolation from the
world of material production. Ever since the 18th century, the ideas of
“creativity” and “originality” have been inextricably linked to an
anti-commons of knowledge. Creative Commons is no exception. There’s no
doubt that Creative Commons can shed light on some of the issues in the
continuing struggle against intellectual property. But it is insufficient
at best, and, at its worst, it’s just another attempt by the apologists of
property to confuse the discourse, poison the well, and crowd out any
revolutionary analysis.
Berlin, 2006. Anticopyright. All rights dispersed.
