Enclosing the Creative Commons

In recent decades intellectual property (IP) law has become the handmaiden of transnational capitalism. “Fair use”, at least in the United States, has become a hollow shell: tap it and it shatters into a thousand sharp-edged lawsuits. Two recent books delve into the history of and effects on creativity resulting from globalized IP law. The overall picture for scientists and artists in all media is gloomy. As novelist Michael Chabon concluded, in a recent review-essay on the sources of Conan Doyle’s Sherlock Holmes stories, “Every novel is a sequel. Influence is bliss.” Influence is bliss indeed, at least until it falls under the boot heel of regressive capitalism. Now royalties, licensing fees and corporate secrecy make creative ‘gene swapping’ too expensive for most artists and scientists.

“Follow the money” is the credo of investigative journalists. As Eva Hemmungs Wirtén argues in No Trespassing, it’s also the logic of empire when scoping out the landscape of IP law in general, and copyright law in particular. No Trespassing is tightly focused on book culture: the rise of copyright law in Western Europe and the U.S., the role of translation in commodifying authorship, and the blood-drawing lawsuits that result from the bliss of influence and the influence of technology (the photocopier in particular). Wirtén’s book, with its tight focus, deep historical view, and thorough-going scholarship make it a well-written complement to McLeod’s more free-wheeling Freedom of Expression.

Wirtén, a professor of comparative literature in Uppsala, Sweden, begins and ends her book with an analysis of Victor Hugo’s role in the development of international copyright law. Hugo was “far from the first author in Europe to promote the moral and economic right of the author in respect to his labor,” but he was the first to assert those rights in a nationalist framework. The “novel”, after all, “was the perfect vehicle for the nation-state to promote itself.” Hugo was France’s national literary hero, and France was the nineteenth century’s literary center. (Wirtén claims Paris is still the center; if capital is the name of the game then I’d be inclined to point to Hollywood as the literary center of gravity.) Hugo didn’t just belong to France though; as Wirtén points out, his books were widely translated and pirated. It was the rise of the nineteenth-century novel in a trans-Atlantic context that corresponded with “increased efforts at copyright legislation, and economic control.”

Hugo gave a famous speech in 1878 at the Exposition Universelle in Paris in which he argued that literature is “not something local, but something universal,” and that to “deny the author the fruits of his labour” was to “deny him his independence as a human being.” Thus began a long march toward international copyright and IP law. The road was fraught with difficulties, not the least of which was the unwillingness of certain countries to go along with the project. The United States, for instance, didn’t sign on to international IP treaties until late in the twentieth century: the U.S. long held on to a piratical attitude towards the artistic labor of other countries, especially Britain. Americans considered British literature a fair-use goldmine, fair recompense for the years of colonial rule. This is ironic, of course, considering that now the U.S. is, in Kembrew McLeod’s words, the “overzealous bozo” leading the pack in more and more restrictive IP legislation.

Hugo’s argument for copyright legislation went further. He was quite clear that he thought the control of an author over his or her creative property should end with the author’s death. In her final chapter, Wirtén examines two sequels to famous books: Frantois Cérésa Cosette ou les temps des illusions, a sequel to Hugo’s Les Misérables, and The Wind Done Gone, an unauthorized sequel to Margaret Mitchell’s Gone with the Wind. Both of the originating authors were dead, and by the terms of Victor Hugo’s own IP philosophy, Les Misérables was fair game; indeed, the novel has long been in the public domain and turned into musicals and films a number of times. “The heir does not make the book,” Hugo argued, and “cannot have the rights of the author.” Pierre Hugo, a “great-great-grandchild” of Victor, nevertheless sued the CérésaEnclosing the Creative Commons‘s publisher. Justly, the French court decided against Pierre Hugo, citing Victor Hugo’s own words in its decision: “If I have to choose between the rights of the author and the rights of the public domain, I will choose the rights of the public domain.”

With Alice Randall’s The Wind Done Gone, however, the situation was very different. Mitchell’s work was still under copyright (which had recently and retroactively been extended by the so-called Sonny Bono Copyright Extension Act), and the owner of the rights to Gone with the Wind, Suntrust Bank, attempted to sue Randall’s publisher, Houghton Mifflin, for damages. Suntrust eventually lost, as the courts found that The Wind Done Gone fell under the auspices of fair use as a parody of the original-a triumph for the public domain, or so it would seem.

Perhaps so, but, as Wirtén argues in her conclusion, the public domain is under-theorized. It is seen as a gap and therefore falls under the radar of judicial scholars. In an era where content is king, and control of content is paramount, the public domain is viewed as anarchic, something that must be tamed or obliterated, like wilderness, by the pavement of IP legislation. But “what is… unique about information and knowledge is that it is nonrivalrous, it cannot be depleted.” Unlike, as Wirtén writes, a park bench, two or more people can utilize an idea at the same time. “In that sense, all efforts that seek to minimize the public domain… and maximize that of intellectual properties will contribute to the foreclosure of new knowledge-production.” Influence, in other words, isn’t just bliss: it’s a necessary constituent of human creativity.
“Influence is bliss” could have been an epigraph for Kembrew McLeod’s Freedom of Expression. McLeod is a sociology professor at a state university and an expert in the study of popular culture-just the sort of academic whom right-wingers love to excoriate as a “liberal” waste of tax money. But Freedom of Expression justifies society’s investment in scholars like McLeod: he is learned, and his book ranges widely over key areas of the copyright and intellectual property wars, and-this is something you don’t hear every day in regard to a scholarly work-it’s funny!
“Overzealous copyright bozos” have drawn battle lines all over the map of everyday life. Mickey Mouse, for instance, should have long ago become the common creative property of we, the people; yet, thanks to the late, great hyperbozo, Sonny Bono, Mickey, and most everything else from the early days of the twentieth century on, will be “protected” from creative recirculation for decades to come.

But maybe you don’t care about art and creativity. Perhaps you’ve got a sick friend or family member and the only thing likely to save that person is gene therapy. Thing is, the bozos are at work here too. Scientists have long been champions of the public domain, of the creative commons. The way science progresses, after all, is by Bob repeating Sarah’s experiment and either verifying or modifying the premises upon which Sarah’s experiment was conducted. The process falls flat on its face if Sarah, for whatever reasons, keeps her experiment and her experimental results a secret. Secrecy, though, is the name of the game in genetic research. IP thrives in a state of secrecy; creativity, Wirtén’s “knowledge production”, shrivels. When profit-mongering corporations become involved with academic research, the result is inevitable: scientists stop sharing because they’ve been forced into secrecy by non-disclosure agreements and other impediments to creativity. When asked, researcher after researcher concedes that such corporate restrictions are impeding the progress of genetic science. The same lust for privatizing intellectual property goes for medicine in general: “The kinds of constraints intellectual-property laws impose on culture may be bad for music and creativity,” McLeod writes, “but in the case of drug patents it’s literally a life-and-death matter.”

When Act Up, an anti-AIDS activist group of the 1980s and ’90s, said “silence = death”, they weren’t kidding. Thinking globally, drug patents have killed millions of people because such patents “silence” availability by quashing inexpensive generic alternatives.

Is it really the corporate hunger for profit that is impeding creativity? Yes-but corporations don’t act alone. There are, of course, an army of lawyers who file the lawsuits and argue the cases that tear apart the creative commons that we, the people, built. As well, there are “activist judges” who interpret the copyright provision of the U.S. Constitution in favor of corporations and private holdings. “An argument for the commons,” McLeod writes, “whether it’s the genetic commons or a folk-song commons-is an argument for more creative elbow room. But because of our blind faith in privatization, freedom of expression has been limited artistically, socially and scientifically.”

McLeod is good on IP law, but where he really shines is with copyright law and its “protection” of music. For instance, if you go to a public park and sing “Happy Birthday” to your child, you’d better bring along your checkbook. Even though the words were written by a group of school children to an ancient folk melody, the teacher of those children copyrighted the song her students wrote. “Happy Birthday” is still under copyright (more than 100 years later), and a music publisher holds the rights. The public performance of “Happy Birthday” is strictly controlled. Are we supposed to laugh or cry at the absurdity of that?

Perhaps even more damaging is the “overzealous copyright bozos” penchant for suing samplers. Sampling is the art of taking snippets from previously recorded music and recirculating them into a new and original piece of music. Snagging a second or two of a drumbeat from an old James Brown tune should be constitutionally protected fair use. But, thanks to activist judges and hound-dog-greedy publishers, it isn’t. James Brown wants to be paid big bucks for the privilege of sampling “his” music. Never mind that the “godfather of soul” relied heavily on his band–in particular drummer Clyde Stubblefield–to create that music. The sample-license fee all goes to Brown. This is precisely why hip-hop, after an amazing fluorescence in the ’70s and ’80s, has become sickeningly repetitive: it simply costs too damn much to license samples in order to make a richly textured hip-hop tune. According to the music industry, those of us (and I include myself here) who make new music out of old are pirates. The industry has failed to recognize that turntables and samplers are, in fact, instruments of creative production.

If all this sounds hopeless and depressing, McLeod’s book isn’t: he’s funny (or at least sarcastic) throughout, and ends on a hopeful note, at least as regards the arts. There’s a new copyright movement afoot on the Internet, called the “Creative Commons” license, which actually encourages others to reuse (with credit where credit is due) so-licensed work. McLeod’s wit, deep knowledge of the issues, and most of all his love of creative endeavor, make Freedom of Expression a delightful and empowering read.

This review was originally published in Books in Canada

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