Re: <nettime> Copyright, Copyleft and the Creative Anti-Commons

[Karl-Erik Tallmo <ketallmo@nisus.se>]

>Copyright, Copyleft and the Creative Anti-Commons
>Anna Nimus (http://subsol.c3.hu/subsol_2/contributors0/nimustext.html)
>
>>  A Genealogy of Authors' Property Rights


An interesting article, although I don't agree with its (implied) conclusions.


>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.


True, but I don't think this is as simple as often claimed. Authors
were celebrated during antiquity too, and the idea of plagiarism would
not have emerged if there had not been some concept of ownership to an
intellectual achievement. Martial who coined the word was plagiarized
by the somewhat poorer poet Fidentinus who published Martial's poems
as his own. But opposing this was no self-evident attitude at that
time. Oral tradition was strong and it was often of highest virtue to
tread in someone's footprints, to imitate and even outdo the model.

Horace commended Lucilius for his "total dependency" on the Greek
comedy, and Pliny the younger was only flattered to hear that one
of his orations was very much alike one of Demosthenes' speeches.
Plautus, who was copied by a row of authors from Ariosto and Molière
and on to our days, took most of his stuff from Greek authors -
but gave them a Roman touch. This should have been to Horace's
liking but he blamed Plautus for not being sufficiently faithful to
the originals! And Cicero even claimed that the ancestors' works
constituted a "common pool" for everybody to share, although he
himself undoubtedly contributed and increased this pool with "certain
findings of his own" Originality was nevertheless desirable. Seneca
writes in his letters that "whatever we have incorporated, it may
still not remain unaltered, then it will not become a part of
ourselves".


>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.

Well, I believe this notion was well on its way already in Milton,
Sidney, Pope, and Defoe. Even ancient Greece had it in a strange way,
since many Greeks saw writing as something so incredibly personal
that they regarded a reader as being raped by the writer. One way of
escaping this fate was to have slaves (rhapsodes) reading out loud.
(Another extreme - and modern - version of this view was Ayn Rand's;
she held intellectual property as so immensely personal that it could
not be inherited.)

>
>
>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.


Note that even Proudhon changed his mind about intellectual property.
In "Théorie de la Propriété" from 1863 he says it was really the
common man's protection against the state: "La propriété est la seule
capable de s'opposer à l'Etat."

>But if physical
>property can be stolen, can intelligence or ideas be stolen?

In ancient and medieval times the intellectual and physical property
was not yet separated. Especially when a book could cost a person
twenty or thirty sheep, the owner would not always let just anybody
copy it, but held on to it, despite the fact that information can
be shared without (material) loss - in Jefferson's words, "as he
who lights his taper at mine, receives light without darkening me".
Earlier one believed that the owner of the physical item, the book,
also got the ownership of copies done on the basis of this book, as a
farmer who owns a cow also owns the cow's offspring. When the bearer
(medium) of information was separated from the information itself this
was a big step forward, that made issuing to the public possible.



>  The most famous rant against piracy was Samuel
>Richardson's 1753 pamphlets denouncing unauthorized Irish reprints of his
>novel Sir Charles Grandison.


Defoe is not bad either:

"This is really a most injurious piece of Violence, and a Grievance
to all Mankind; for it not only robs their Neighbour of their just:
Right, but it robs Men of the due Reward of Industry, the Prize of
Learning, and the Benefit of their Studies; in the next Place, it robs
the Reader, by printing Copies of other Men uncorrect and imperfect,
making surreptitious and spurious Collections, and innumerable Errors,
by which the Design of the Author is often inverted, conceal'd, or
destroy'd, and the Information the World would reap by a curious and
well studied Discourse, is dwindled into Confusion and Nonsense. [...]
"I think in Justice, no Man has a Right to make any Abridgment of a
Book, but the Proprietor of the Book; and I am sure no Man can be so
well qualified for the doing it, as the Author, if alive, because no
Man can be capable of knowing the true Sense of the Design, or of
giving it a due Turn like him that compos'd it. [...] "'Twould be
unaccountably severe, to make a Man answerable for the Miscarriages
of a thing which he shall not reap the benefit of if well perform'd;
there is no Law so much wanting in the Nation, relating to Trade and
Civil Property, as this, nor is there a greater Abuse in any Civil
Employment, than the printing of other Mens Copies, every jot as
unjust as lying with their Wives, and breaking-up their Houses." (An
Essay on the Regulation of the Press, 1704)

and Luther and Fichte ...


If it were possible for artists to make a living today without
copyright, we would need to go back to the times of patrons
(mecenates) who sponsored individual artists. Today we can get
sponsored by companies or through grants from the government. However,
many artists do not regard either of those alternatives a very
satisfactory solution. They want to be able to support themselves.

The integrity of the work as well as that of its creator is another
issue that is often neglected by copyright's opponents. Defoe talks
about it. Luther does too. Money isn't everything. Authenticity is
paramount in science and for the progress of knowledge in society.
In most countries these questions are subject to the moral rights
part of copyright. In the US it is mostly a question of defamation
etc. However, tying matters of integrity, presentation context etc.
directly to the regulation of work-creator-public relations is more
straightforward in my opinion.

Copyright needs reform. Copyright stands and falls with its
exceptions. Therefore it is important to fight for e.g. the right to
quote (and to quote extensively without having to ask permission), a
right which is now being under attack. It is also important to defend
the public domain from "infringement". Many archives and libraries
claim copyright to their reproductions of e.g. medieval manuscripts.
Copyright AND its exceptions must be defended - not abolished.

See also my article "The Misunderstood Idea of Copyright", at
http://www.nisus.se/archive/050902e.html


Karl-Erik Tallmo


__________________________________________________________________

   KARL-ERIK TALLMO, Swedish writer, artist and journalist.
   Contributor to Nordic dailies and magazines for the last 25
   years. Tallmo has written six books. He has participated as
   an expert in governmental investigations on new media and been
   a member of advisory boards, e.g. at the Royal Library, the
   Swedish IT Commission, and the Swedish Research Council.
   ARTICLE ARCHIVE, ART WORKS ETC: http://www.nisus.se/tallmo
   MAGAZINE: http://art-bin.com
  __________________________________________________________________



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