Myths about Copyright

There has been a growing body of work that challenges the normative basis of intellectual property. These critiques are marked by their dissatisfaction with the traditional theories of justification, and have instead attempted to locate the historical and material basis of the emergence of IPR, and the role that they play in the politics of information and knowledge production in contemporary societies.¹

This critical approach to intellectual property has also gained from other movements and attempts at rearticulating ideas of creativity and property, like the free software movement. The free software/open source movement has inspired a whole generation of "open" initiatives including open content, open publishing, open art, etc. At the heart of the varied open initiatives is the belief that there is a need to rearticulate the basis of cultural and knowledge production to acknowledge the importance of the commons² of knowledge and culture. The idea of the commons of course is not a new one and traces its historical roots back to Roman times. The most common usage of the "commons" however is derived from England, when land was held as communal property and was not owned by any person or institution.

In recent times it has found articulation in legal developments in international law recognizing the common heritage of humankind. An attempt is therefore being made by these various scholars to understand cyberspace or the World Wide Web as the new global commons, which is under threat by the operation of intellectual property laws. This article seeks to understand these critical developments around the ideas of the "global commons", the new "public domain" and how these terms can offer an alternative conceptualisation to current copyright law.

THE GLOBAL COMMONS AND THE IPR DEBATE

Before we proceed to examine the all-pervasive status of copyright in our all day life, it is imperative for us to understand the current critical debates around intellectual property. The critical movement in its varied forms has largely emerged in the context of legal scholars and practitioners from the US examining the ways in which intellectual property have come to dominate almost every aspect of life.

It is in this context that opposition to the current practice of intellectual property law has emerged. It would of course be a misnomer to characterize the movement as a homogenous one with a single voice, as clearly even within the critical tradition there are very different positions ranging from an abolitionist stand to a lesser or softer protection stand. And the movement has certainly developed over the years to accommodate various positions. At a narrow level the crucial claim that has been argued consistently and currently being tested before the US Supreme Court has its basis in the fact that the US law of copyright is grounded in the constitution of the US. At a wider level it raises the larger issue of the relation between information and property and the forms and the implications that the internet and cyberspace have for the classical understanding of information and property. The invocation of a historically rich metaphor of the commons in relation to cyberspace as the "last frontier" of the commons universalises the debate beyond the concerns of the US alone.

Implicit in our current understanding of globalisation is the fact that information and communication technology, especially the internet, plays a great role in constituting the very process that we now understand as globalisation. There have been various levels of descriptive frameworks used to understand the ongoing process. In the institutional description of globalisation for instance, one often hears about the role played by transnational organizations such as the World Bank and the emergence of the World Trade Organization in the process of globalisation. The chief aim of the WTO is the establishment of standard rules and regulations for trade, and ensuring that legal systems across the world comply with the established global standard for the protection of IPR.

It is our argument that an understanding of the insertion of the discourse of copyright into quotidian imagination is critical for an insight into the worldwide transformations that are taking place within the realm of the production and distribution of knowledge and cultural commodities. It is in these spaces that the myth of copyright is carefully constructed and constantly reinforced. Our experience of media in any form is pre-mediated by our understanding of the networks of their circulation within the economy of intellectual property. The greatest success of the concept of copyright has been its successful elevation to the status of myth through the constant rendering of certain familiar figures (the poor struggling author), arguments (people deserve to own the fruit of their labour) and rhetorical data (billions of dollars lost due to piracy). By specifically labelling these assumptions myths, we seek to question their truth premise.

CONTEXTUALISING AUTHORSHIP AND ORIGINALITY

Copyright assumes as the subject of its enquiry the rights of the author. Simple as it sounds, this assertion is of great importance for our understanding of the conflict over copyright. Two sets of self-fulfilling prophecies are achieved by the assertion that copyright protects the rights of authors. First, it assumes a category which makes universal sense across cultures and across time – namely, that of "the author". Second, by erecting this universal figure of the author and asserting that copyright is meant for the protection of the author, it universalises the relationship between copyright and creativity. Our first task is, then, to historicise the emergence of the author figure or the author function as a relatively modern phenomenon that has arisen in the context of the crisis caused by the print revolution.

Before the invention of the printing press, the act of writing was a very localised activity. It was impossible to disseminate knowledge in any significant manner since the inaccuracies of copying prevented widespread use of the written word. The printing press enabled a number of innovations. Duplication became easier and more accurate. Mass distribution became viable. The printing press also revolutionised information storage, retrieval and usage. Printing, unlike writing, allowed a society to build on the past with the confidence that each step was being made on a firm foundation. Printing affirmed the belief that new information was an improvement over the old. The revolution in the capacity to accurately reproduce works fostered an understanding that progress can occur through a process of revision and improvement. The increased accuracy and rapidity of new editions made possible by the printing press made the most recent editions more valued than the older ones. Additionally, by providing access to the written word to the literate public, printing made possible a larger reading public which then formed the emerging public sphere.

The reaction from the literary and artistic world was to move away from the "ills of the industrial revolution". They began to deploy the notion of the author as a unique and transcendent being, possessing originality of spirit. This romantic model was used as a means of rescuing artists' works from the hostile market and the public, for whom mass production made works available as never before, but at the risk of their turning into industrial products.

The romantic artist was, therefore, deemed to have property in an uncommodifiable imaginary self; Originality was thereby elevated and located in the self of the author. And because the artist owns his/her original person or spirit, works created by such authors were also deemed to be original; in this way they could distinguish their personality from the expanding realm of mass produced goods. This is the moment when the romantic theory merges with the doctrine of property prevalent at the time, through the theory of conversion propounded by John Locke, wherein an individual, through his/her labour, creates something of value out of nothing. It is important to note that this is also the theory that justifies the appropriation of the commons, including lands understood as not belonging to any "civilised" nation.

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 naturalises 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.

The significant contribution to literary theory through the works of Roland Barthes, Michel Foucault and Jacques Derrida has been to problematise our notions of the romantic individual author. What then do the work of Foucault, Barthes and Derrida mean for the legal interpretation of authorship? If legal scholarship and practice were to take note of the inroads into the very notion of authorship and originality by these thinkers, we would need to reconceptualise the terrain that we understand to be intellectual property legislation. This reconceptualisation will necessarily have to shed the burden of the author's originality and recognise the millions of traces which shadow the arrival of any work, and provide a means of structuring the relationship between such texts, its readers and society at large. It will mean a more nuanced understanding of the public sphere or what intellectual property laws call the public domain, with the presumption being that the author is not a figure who has to be protected from this public sphere but one who resides and works within the public sphere.³

COPYRIGHT, INFORMATION AND THE LANGUAGE OF PROPERTY

Many explanations for the propertisation of intellectual creations are based on the Lockean theory of the creation of property. Locke's theory relies on three basic principles: Firstly, that every person has property in himself/herself; Secondly, everything that is in a state of nature – ie, not as yet propertised and still held in the commons – was given by God to be propertised; And thirdly, that labour converts things in a state of nature into a state of property and adds value to things so laboured upon. Locke was, therefore, of the opinion that if A mixes her labour into a thing that is in a state of nature, that thing becomes the property of A.⁴ In terms of copyright, authors can be said to take ideas that are "out there" in the commons, add their labour to it, and thereby create the "work". The question that Locke fails to answer is why, if authors add labour to ideas, the result becomes the property of the author; his theory simply rests on the assumption that property is the reward for labour.⁵

The next question that may be asked in this context is whether and how a person actually has property in himself or herself. This property in oneself cannot be a product of one's labour and, therefore, it must be premised upon something else. At the core of Locke's theory lies the notion of personal freedom, with state power severely constrained and limited to the protection of liberty. It is in this context that he, again, presumes the ownership of oneself. Unlike Locke, however, Hegel does not see humans as naturally free and as having natural ownership rights in themselves. According to him, occupancy, not labour, is the act by which external things become property. This occupancy, or taking possession, can be done in three ways: Firstly, by directly grasping it physically; Next, by forming it; And thirdly, by merely marking it as one's own. It is the second of these ways of possession that is most interesting for our purposes. As Hegel remarks, "When I impose a form on something, the thing's determinate character as mine acquires an independent externality and ceases to be restricted to my presence here and now and to the direct presence of my awareness and will."⁶

Moreover, as is seen with the Romantic conception of the author, Hegel fails to account for external influences on creations. Hegel's conception of property being the expression of the will of the individual fails to see that this "work" is influenced by various other factors; Painters, musicians, writers, all learn their skills and are classified into genres and styles; Artists may take inspiration from everyday scenes, and authors from gossip. In such situations can their "works" be said to be expressions of their soul?

Locke locates the desire for propertisation of the commons in the need for the preservation of resources. According to him, if resources are left in the commons their utility will gradually diminish because of over-use or neglect. Land, for example, may be overgrazed or may by neglect become unarable, and in both cases the utility that this land provides is diminished. Locke assumes that once a resource is taken from the commons and transformed into private property the owner of that property will use it in a manner that preserves its value in use. Even if we accept these assumptions, can this theory of the need for propertisation be extended to incorporeal ideas? Does the "over-use" or neglect of ideas lead to the reduction of their value in use?

Information just does not possess the same characteristics as classical "real property". The dissemination of ideas, for instance, does not reduce their use value. Information is considered a "non-rival" good, in the sense that usage of a particular piece of information cannot impair the utility of that information to another user. It has also been characterised as "non-excludable" in the sense that use of a certain piece of information does not exclude other users from utilising the same information. The sharing of information goods, especially in the digital context, does not diminish in any manner the quality of the good that is shared. There is clearly a movement away from the idea of property as we have always understood it. However, the concept of copyright represents a stubborn drive towards taming this new monster of accessibility created by developments in information technology.

COPYRIGHT AND THE INCENTIVE FOR CREATIVITY

It is often argued that in the absence of copyright protection authors would lack the incentive to create more works, thereby depriving society of useful works that may have been produced. Intellectual property law, therefore, is often justified on the basis that it stimulates the investment of time and money in the creation of new works and that many authors of copyrighted works depend for their livelihood on the income that they derive from the publication of their works.⁷

While there may be a case for the proposition that without incentives authors would fail to create new works, the statement that copyright law is a prerequisite for such incentives requires closer examination. What is essentially argued here is that copyright is not synonymous with incentives, and that authors have created in the absence of copyright. It is also argued that, in many instances, the incentive that copyright appears to give authors is illusory.

Firstly, many authors who have little hope of ever finding a market for their publications, and whose copyright is, as a result, virtually worthless, have in the past, and even in the present, continued to write. While it may not be a general phenomenon, it is possible that people produce works purely for personal satisfaction, or even for respect and recognition from peers.⁸

Secondly, historically, there is much to suggest that copyright law and incentive were rarely linked. The 19th century saw the prolific authorship of literary works in the absence of any meaningful protection afforded to authors by virtue of their copyright.⁹ While copyright protection existed, these rarely benefited the author beyond an initial payment for the copyright for their works.¹⁰ This payment, often referred to as an honorarium, bore no relationship to the exchange value of that work, but was rather an acknowledgment of the writer's achievements.¹¹ In the vast majority of cases, most of the profits went to the publisher¹² and, on occasion, authors were even asked to underwrite a portion of the publishing costs. Moreover, without the publisher the copyright had no effective value, as the work would never get published. It is clear that in reality copyright protection usually benefited the publisher, and rarely the author.¹³

Furthermore, with the enactment of every subsequent Copyright Act, the protection given to authors was reduced.¹⁴ In England, prior to 1814, copyright for the work reverted to the author after a term. The author could renew proprietary rights over his or her 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 on the basis of a one-time payment. Subsequently the author had little role to play in the publication of his/her work and the author reaped little reward from future sales.¹⁵

Currently there are several mechanisms, primarily internet-based, for creating incentives that are independent of copyright. The Street Performer, or the Fairshare Protocols, are examples of such devices. 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. Under the first method, the authors contemplate a menu of options available to artists. What each has in common is that a release price will be set for a work, and that it will be made available in digital form, without copyright restrictions, once members of the public voluntarily donate sufficient funds to meet the asking price.

COPYRIGHT PROTECTS THE POOR STRUGGLING AUTHOR

We are constantly regaled with stories of how copyright as a system acts as the basic protection for poor, struggling authors who would otherwise have no means of protecting themselves against pirates who reproduce their goods or others who steal their ideas. Let us, at the very outset, clarify that we are certainly not enemies of creative workers, and that we would, of course, like to see all creative labour recognised and rewarded. But the question that begs an answer is: does copyright really achieve that and, if not, why does this image of the poor, struggling author keep coming to mind?

What the metaphor of the poor, struggling author does is render invisible the critical difference between the authorship of a work of intellectual labour and the ownership of the same. Copyright scholar Peter Jaszi states that 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: the 'work-for-hire' doctrine of American copyright law. Where this doctrine applies, 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". It is abundantly clear that in the current era of industrial production of cultural commodities, copyrighted works are more often than not created by unromantic authors sitting in their cubicles creating for a large corporation like Microsoft.

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 made, 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 employers' claims are rationalised in terms of the Romantic conception of "authorship" with its concomitant values of "originality" and "inspiration".

Secondly, if one were to closely analyse the agreements between various publishing houses and the authors of works published by them, one notices immediately that unless you are an author of some fame, the contracts are absolutely one-sided, with the individual author having little bargaining power, as he or she assigns all rights in favour of the publishing house.

Clearly pirates respond only to a market demand, and not every commodity is pirated. There is a particular popularity or price limit that has to be achieved before it enters into the piracy circuit. Presumably, if a book has achieved a certain status that leads to it being pirated, its author is no longer poor and struggling. Thus, the sight of Madonna appearing in TV ads condemning piracy because it deprives her of her livelihood is not terribly convincing as images of her many villas and islands flash in one's mind. If the terms of the debate were around property and monopolies alone, then there are many ways in which the issue can be addressed – for instance, under anti trust laws, etc – but the fact that it is always this image of the sole struggling author that is used hides questions regarding the political economy of publishing, and so on.

ECONOMIC LOSSES CAUSED BY PIRACY

The most common use of statistics in the copyright tale concerns the losses caused by piracy. But these statistics often rely on certain dubious economic assumptions. The main one, of course, is the assumption that a person buying an illegal copy would necessarily buy a legal copy of the same if piracy did not exist. Thus, while we know that most computers in India, for instance, have an illegal copy of Microsoft Windows and Microsoft Office, can we assume that every user would be willing to pay for the software alone, especially in the light of a free alternative in the form of Linux? Is it not likely that most users would not go in for the Microsoft software were it not for the fact that pirated software is available for free?

In a very insightful study, Harvard economist Carlos Osorio seeks to empirically understand the phenomenon of piracy. He starts with the assumption that computer software has the characteristic of being a non-rival and quasi non-excludable good.¹⁶ Thus, he says, "One may prohibit a third person from using it only by not letting him (or her) access a version of the software. Once access is granted, however, the software can be copied at almost zero cost. By doing so, new users cannot exclude the earlier one from using the software – as with a bicycle or a jacket – and, by direct and indirect network effects, the new user adds value to the whole network of users (legal and illegal)". The question for him, then, is: What are the effects of illegal copying of software, commonly known as "piracy", on the overall software market? Why do some software companies enforce their IPR differently across countries?

He states that, classically, illegal copying is commonly assumed to be a function of the price of the software, the average income per capita of the potential market, and the marginal cost of copying versus producing the software. However, he states that, in addition to these common assumptions, it is important to examine the role of direct and indirect network effects in explaining the importance of illegal users in the diffusion process. His argument is that software companies might have a direct and indirect role in helping the generation of illegal copying in underdeveloped markets, and incentives for doing so. In terms of business strategies, for instance, some ways of doing this are by undersupplying system compatibility, generating lock-in for users of their product.

Furthermore, piracy often acts in underdeveloped markets as the most efficient manner of creating a market or user base and also to create a lock-in period for the product. Thus Microsoft has consistently refused to enforce its IPR in markets in developing countries until a market base is created for its products. Piracy works to produce "network effects", which means that with every added user, whether legal or not, the popularity of a product increases. Network effects are important because, in terms of the total user base, the illegal users of software add value to all the users, legal and illegal, and act as agents in fostering the diffusion of the software by word-of-mouth. In this way, they indirectly generate additional positive effects for the software company.

CONCLUSION

The task of this paper has been to examine the various myths that sustain copyright. This is just the beginning of the process of questioning the assumptions on which copyright is based. If we are to seriously engage with the totalising logic of copyright, two tasks lie ahead. Firstly, we will need to continue to chip away at the foundational logic of copyright, exposing the shaky grounds on which it makes its universal claims. Secondly, we need to actively examine alternative models through which we can understand the production and dissemination of knowledge and culture.

The existence of alternatives to copyright – such as copyleft, the open source movement, the Fairshare and Street Performer protocols – belie the reality of copyright. Conceptually, these alternatives challenge the fundamentals upon which copyright rests. The emphasis is on the ability of users to modify and distribute works – yet there is still "incentive" to create, as is evident in the success and spread of Linux. Essentially there is no contradiction of purpose as it creates public rights for a public purpose. If the world of copyright constructs itself as the only model of incentive, reward, etc for creative labour, the symbolic power of the open source movement rests in the creation of alternative social imaginaries which turn every assumption of copyright upon itself.

There is, however, a world of quotidian media practices which do not fall squarely within the alternative progress narratives of copyleft, open source etc, and this is the world of illegal media networks and practices like piracy. This is also the world that copyright seeks to demonise. In our search for alternative models, it is also critical for us to engage with the "subterranean" other of the open source movement, as the pirates go about redistributing wealth in the information era.