Is intellectual property theft?
Listening to the high-pitched arguments about digital piracy one could almost assume that copyright or commercial legal protection of intellectual property are a law of nature; something we always enjoyed and that’s been around forever.
Not so: The term first appeared in English law in 1557 with the so-called “Statues of Anne”, a century after the invention of the printing press by Johannes Guttenberg. Its authors were not worried about intellectual property; rather they were aiming to protect the rights of printers, and specifically the members of the English “Stationers’ Company”, a guild, to publish works to which they could prove or at least somehow convincingly claim exclusive reproduction rights of some kind. The statute doesn’t even mention authors, who at the time were paid (if at all) only for providing manuscripts.
Copyrights, it turns out, aren’t there to protect artists at all: they protect publishers!
Anyone who thinks digitalization is the cause of pirating has got his history wrong. Printers and publishers for centuries have ignored the rights of artists and ruthlessly helped themselves to all the “intellectual property” they could lay hands on. Printers in Shakespeare’s day hired hack writers to sit in theaters and make shorthand transcriptions of popular plays such as Romeo and Juliet or Macbeth which they published in cheap “quarto” editions. The playwright never saw a penny.
John Naughton, professor of the public understanding of technology at the Open University, believes that Intellectual property is, in fact, only a temporary monopoly granted by governments to authors so they can benefit from their creativity.
In an essay for the Guardian entitled “Intellectual property is theft”, Naughton wrote: „We have to remind legislators that intellectual property rights are a socially-conferred privilege rather than an inalienable right, that copying is not always evil (and in some cases is actually socially beneficial) and that there is a huge difference between wholesale ‚piracy‘ – the mass-production and sale of illegal copies of protected works – and the file-sharing that most internet users go in for.”
The monopoly, he argued, is temporary because society benefits from the free circulation (i.e. unrestricted copying) of ideas. Copyright protection represents an attempt to strike a balance between the needs of society and those of authors. It is through the sharing of ideas that social progress is achieved.
Sharing, of course, is an essential element in art. Think of Brahms and his “Variations on a theme by Haydn”, or Plato’s “Dialogues” built upon ideas borrowed from Socrates. Only in modern times has plagiarism become ostracized.
The proponents of copyright protection don’t seem to understand the historic background. Since nobody remembers what the problem was that copyrights were supposed to solve, parliaments today think nothing of passing laws that effectively criminalize an entire generation. Young people, after all, have grown up in a world where “sharing” is a virtue, a value in itself; these laws fail to take this into account.
The same goes for patent laws. Patents are nothing but a technical variety of copyrights. Just take the abstruse and apparently never-ending “patent wars” between companies like Apple and Samsung and their ilk. Apple actually has patents that cover the “esthetic appearance” of smartphones; things like design, color, and form. Apple’s lawyers have gone to court in the past to stop competitors from making devices with “four evenly rounded corners”, “a flat, transparent surface”, and a display that “is centered beneath a transparent surface”, as well as a product that, “when turned on, shows colored icons on its display.”
Sounds crazy? Yes, but there is method to this madness. The object is to stop competitors from making an improved version of the devices Apple markets. In other words: to prohibit progress in technology and design.
Contrast this with a statement issued by WIPO, the World Intellectual Property Organization, a body that attempts to make the case that patents “simultaneously foster innovation and remain consistent with fair market rules.”
This is pure humbug: patents, by their very nature, stifle innovation! This is especially true in computer technology. As Richard Allen Posner, an American legal theorist, economist, and former judge on the United States Court of Appeals in Chicago, wrote in his blog:
“Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral—most software inventions are quickly superseded. Software innovation tends to be piecemeal—not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement—and also for infringing, and then challenging the validity of the patent when the patentee sues you.”
Patent trolls are a particularly virulent form of quasi-monopolies, defined by Wikipedia as “a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in economic rent-seeking.” Like the lilies of the field, they toil not, neither do they spin.
Ironically, one of the fiercest patent litigators, Apple, has itself been a prime target of patent trolls, or so the company asserted in two friend-of-the-court briefs for cases pending in the U.S. Supreme Court submitted in 2014. The company, they claim, has faced nearly 100 lawsuits during the last three years.
In Europe, discussion is now underway about how to reform copyright and patent laws to bring them in line with cultural change. Digitalization and networking are rapidly reshaping our collective sense of legality and social justice. In the journal “Le Monde diplomatique“, the Dutch art teacher Jost Smiers wrote: „The concept of copyright protection, once a consistent and convincing idea, has become an instrument designed to give a handful of mega-corporations control over our common intellectual property.” 90 percent of money earned through sales of intellectual property, he maintains, wind up in the pockets of publishers and studios; writers and performers only get about 10 percent; which just goes to show how phony the claims are that copyrights are there to protect the poor artists.
The effect of these monopolistic control structures is catastrophic, Smiers says, since they guarantee that only art and entertainment owned by large corporations has a chance at reaching the general public. “They are only interested in creating a handful of mega acts and superstars in which they invest huge sums and who earn them fortunes in merchandizing and marketing. Because they risk losing their investment they pursue aggressive worldwide marketing strategies aimed at displacing any alternative, any artist they don’t own, from the public consciousness.” The result, of course, is cultural poverty.
In arts and letters, copying someone else’s work is called “plagiarism”, and it has a bad name. This is surprising, since it’s been around as long as art itself. Cavemen presumably copied the wall drawings of their fellows. „Immature poets imitate; mature poets steal“, T.S. Eliot wrote. With the rise of “cut & paste”, copying has become so widespread that teachers and university professors now use “plagiarism checkers”, special software designed to catch out students who cheat on their term papers by helping themselves to someone else’s online texts.
But is copying really cheating? Or is it in fact itself a form of art?
When “Axolotl Roadkill”, the debut novel by authoress Helene Hegemann, was published in 2010, a huge literary scandal erupted because the young German writer freely admitted that she had copied entire passages written by an anonymous blogger who went under the name “Arien”. Instead of being embarrassed, Ms. Hegemann dismissed critics, claiming to have “recontextualized” the text. In her eyes (and in the eyes of many of her fans and followers) this is a legitimate artistic technique, akin to remixing, sampling and cover versions popular among musicians, especially in the realm of New Age and Electronic Music pioneered by such groups as Kraftwerk, Yellow Magic Orchestra, and the Frenchman Jean Michel Jarre.
Just how hard it is to prove plagiarism was noted by the French philosopher Jacques Soulillou in his book “L’auteur mode d’emploi” (roughly: “Instructions for the Author”). He wrote: “In art and literature it is difficult to demonstrate that B has borrowed from A without quoting the source because it would first be necessary to find out whether A has lifted it from someone else entirely. Plagiarism requires that the process ends with B copying from A.” If the chain extends further back, he implies, then it isn’t plagiarism at all.
In fact, the creative process always involves some kind of plagiarism, or borrowing from others. Ms. Hegemann’s term “recontextualizing” describes this very well. An artist can only work with things he or she has experienced or learned from others. Originality therefore is a myth: No one is an original thinker! Einstein constructed his famous Theory of Relativity with the help of knowledge acquired by generations of mathematicians and physicists before him. Or, as Isaac Newton famously said: “If I have seen further it is by standing on the shoulders of giants.”
To put it bluntly: A good copy is itself a work of art. Only poor copies deserve to be stigmatized as plagiarism. We are dealing here with a value statement, not a judgment, much less a legal ruling. Instead of calling a copyist a crook, we should be thinking: “This guy is a plagiarist, how boring!” And since nobody will buy or use such a product, the punishment for plagiarism will be to be ignored.
Good plagiarists, on the other hand, will continue to be in great demand, and people will be willing to pay for their productions. When Emerson, Lake & Palmer released a rock version of Aaron Copeland’s “Fanfare for the Common Man”, they sold millions of copies of what had in effect become a new original work of art.
In his book “Mashup”, Dirk von Gehlen explores the idea of differentiating between plagiarism (replicating with intent to deceive) and copying (with intent to disseminate). Sounds like an interesting idea. Maybe we should borrow it…