The copyright debate is certainly polarised, as Sandy Starr argues in a recent contribution to openDemocracys copyright debate. But that surely reflects the reality of the situation, namely a conflict of interest between the cultural industries, which market words, sounds and images, and the workers and consumers who make and use them. Like Richard Stallman, Siva Vaidhyanathan and others, Im with the latter group. But I want to make the case from a slightly different perspective.
Cultural capitalism and the Romantic myth
My starting point is that copyright emerged, and continues to develop, as a form of property. It was a response not just to new technologies of replication, but also a new economic order, capitalism. On the one hand, printing and its descendants such as cinematography and sound recording enabled the mass production of cultural goods. On the other hand, the same technologies allowed others to copy and cheaply sell the work of originators. To use economic jargon, cultural artefacts came to take on the character of a public good, potentially being available to all at marginal cost. What copyright law did in this situation was construct a form of property, a private good, in the work. In essence, the work is something that cannot be copied, at least without the owners permission.
Who is the owner? Although attached to the author at birth, copyright in the work has always been assignable to another party. The fact is that rights that originate with a creator have to be sold on to a business with enough capital and technology to exploit them. So I would take issue with Richard Stallmans suggestion that there used to be a golden age when copyright let authors restrict publishers for the sake of the general public. This is an idealised view of history. From the Statute of Anne to the Digital Millennium Copyright Act (DMCA), cultural capitalism has driven the growth of copyright, always luring creators with the promise of rights income, while always conceding a degree of fair use to the public in order to promote the circulation of its commodities.
Quite simply, then, copyright turns symbolic forms into property, and market conditions ensure it is held and exploited by corporations. But this is not a reality which sits very easily with public opinion. For while the concept of private property in tangible goods, or chattels, is deeply ingrained in Western societies, the same cannot be said about symbolic works. A strong consensus, emerging first in the Enlightenment, has it that culture should circulate freely. The Romantic movement then contributes the idea that art and commerce are opposed, that the artist is in heroic opposition to the drive for profit.
It is something of a contradiction, then, that in the modern era the figure of the Romantic artist is invoked to justify copyright the very basis of commerce in culture. Yet this mythology lies at the heart of the publicity and lobbying of the cultural industries. In a prominent position on the Recording Industry Association of America (RIAA) website, for example, we find these words from Sheryl Crow:
"Copyright protects the creative process . Its rough out there . There is nothing more inspiring to creativity than independence and that requires protection. If youre an artist that can do something nobody else can, you need to know that your work will not be diluted or mass produced."
Now it seems to me that a key task for public culture advocates is to expose such rhetoric for what it is. Janis Ians contribution has been really useful in this respect. She shows just how little rights income gets back to most artists and, conversely, the extent to which file sharing promotes CD sales for the great majority, outside the palace of superstardom. Still, I think a further debunking move is required. We badly need to blast away that Romantic paint job which content owners keep applying to copyrights rusty hulk.
Social authorship: collaboration, combination, accumulation
We could start by showing how authorship is not at all a matter of heroic, individual creation. Rather it is a social process. There are three aspects to this. Firstly, there is collaboration, the fact that creative acts depend on interactive networks. These extend way beyond the primary creator of songwriter, novelist or director, to include intermediaries and entrepreneurs, technicians and tea makers. Audiences are part of the creative network too, in that they play the role of editor, rejecting some works and trends while affirming others.
Secondly, authorship is social in that it involves the recombination of existing symbolic materials from a historically-deposited common stock. These range from conventions such as the novel form, shotreverseshot editing in cinema or machine code in software, through to realised pieces of symbolic fabric such as War and Peace, the opening scene of Aliens or Word 2. The key point is that there is a practical continuum between what copyright law would keep as separate categories: idea (something freely usable by all) and expression (the privately owned work). Symbol makers of every hue are constantly re-using materials with different mixtures of these elements.
A significant feature of contemporary culture is that this ideaexpression series is actually being reversed. Digital sampling, appropriation art and the film essay (which uses existing footage) all employ the fabric of previous works to depict new ideas and emotions. They therefore make a nonsense of copyright fundamentalism.
The third aspect of social authorship is its incremental nature. Significant new developments result from many small innovations rather than major breakthroughs by single creators. As a result we cant say that Charlie Parker was responsible for modern jazz any more than 4 Hero invented the musical style known as drum and bass. Instead, the so-called greats are summarisers of collaborative research and development work undertaken over time. This echoes Richard Stallmans point about the role of continuous modification in software design. I would simply add that incremental change isnt confined to software. Rather it is a general principle encountered in symbol making everywhere.
In all three aspects, then, the practice of social authorship belies a crucial part of the rationale for copyright, namely that creativity is a matter of individual and self-sufficient expression, and that ownership should be attributed accordingly. What can we do with this argument?
The corporate assault on public culture
We are faced today with a major copyright offensive. Just as content owners fought for the extension of property rights when earlier technologies opened up access to existing cultural forms (broadcasting and the video cassette are the most important cases in recent history), so too the cultural industries today are fighting intensively to commodify the new communication system of the Internet. With the Internet, the difference is the vastly increased monopoly power of cultural capitalism. A short history lesson bears this out.
In the early 1940s the radio industry struggled with music publishers in the US to break the latters stranglehold on the supply of songs for broadcasting. The networks set up their own publishing agency, boycotted ASCAP (the organisation of the established publishers) and finally forced down music licensing fees across the board. A Justice Department decree then consolidated the new competitive environment. In effect, conflict over copyright between two sectors of capital had opened up public access to music on the airwaves, and to new kinds of music too R & B, country and later rocknroll.
We cannot rely on such a process this time around. Content owners are more powerful and more thoroughly integrated. They also have the ear of governments, which through international treaties and national laws are imposing an increasingly punitive intellectual property (IP) regime across the world so much for free trade. In the case of webcasting, as Brian Zisk points out, recent legislation extends phonographic performance rights to the digital domain. Over-air broadcasters in the US have never had to pay record companies in order to play records. Now an extra, and impossible, burden is being imposed on webcasters, most of who will be forced out of business.
The fact is that each week the list of restrictions and coercive measures being proposed just gets longer. In this situation, the key objective must be to formulate a counter strategy to that of the Motion Picture Association (MPAA) and RIAA. So I entirely agree with Siva Vaidhynathan when he calls for the formation of a coalition and a set of political slogans and principles that can appeal broadly. This is a matter of resisting extremely well-organised and powerful interests. The libertarian alternative just keep hacking is simply not going to work. As Vaidhynathan points out, the problem is that a combination of tightly-focused laws, tough sanctions and (in prospect) legally protected cyber-sabotage from the corporations means that only a handful of dedicated enthusiasts will be able to carry on sharing files.
Perhaps most worrying of all is the increasing integration of software, hardware and content. The implementation of trusted technology based on protocols agreed between these rapidly converging sectors would effectively spell the end of the PC and the Internet as we know them. The new apparatus? A tightly-policed delivery system for e-commerce, with only files certified by trusted corporate agents able to move around the network and, even worse, around the PC itself. In this all-too-possible scenario, encryption and coercive copyright are ubiquitous.
Restrict copyright, revive creativity
Heres where the social authorship argument comes in. Quite simply, we must enlist creative workers in the campaign to open up access to culture. But we need to do so in a way that reflects the reality of their role as collaborators and remixers. If this runs against the Romantic self-image of some, it would actually benefit most artists in economic and creative terms.
The high proportion of sales taken by a few stars means that, for most of the time, the great majority of creative workers earn little. Clearly, demand factors are at work here people want stars. But theres no doubt that the existing system of copyright also boosts the institution of stardom by channelling rewards to the highly-visible few, and by providing an artificial incentive for success over time. Long-term copyright encourages the cultural industries to market long-term superstars. One way of flattening out cultural markets, of increasing innovation and acknowledging the social nature of authorship would be to radically reduce term. Michael Fraases interesting four-step copyright solution includes a fourteen-year proposal. There may be an argument for making it even shorter.
Along with reduction in term, a reformed copyright system should include comprehensive digital rights management (DRM). At the moment, rights revenue distribution is extremely uneven. For example, music performance fees paid by broadcasters stream back to a few hit makers in disproportionate amounts because the crude sampling systems currently in use simply fail to register songs receiving lower airplay. So, DRM would not only enable more efficient collection, but also a much fairer pattern of distribution.
Equity would be further enhanced by making rights non-alienable. With copyright in their own hands, authors and performers would receive a much higher proportion of rights income. Such a move could also provide the opportunity for renewing and extending mutual collection societies. Instead of corporate rights holders arranging revenue collection and management, this would be done by authorperformer co-ops.
Of course, these reforms would radically change the shape of the cultural industries, reversing the balance of power between creative workers and the corporations. I dont have a problem with this.
Let me make two final points. Like Michael Fraase, Id advocate repealing the DMCA (in other countries this means forestalling the equivalent legislation). We need a fairer copyright system, and that includes keeping copyright out of the Internet and not-for-profit digital replication. These are, respectively, a public space and a well-established fair-use activity. On creative re-use of materials, copyright clearance tribunals should be set up in all sectors to ensure that cultural workers are able to get access to the stock of existing works quickly and cheaply. Surely we want more sampling, quotation, and parody.
Of course some will squeal unwarranted regulation! at these suggestions. I would say: if you want to see what partisan state control of culture really looks like, go no further than your local legislature where new and coercive IP measures are being drafted right now.
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