The Fiction of Copyright

Towards a Consensual Use of Intellectual Property

How to Cite

Bruns, A. (1999). The Fiction of Copyright: Towards a Consensual Use of Intellectual Property. M/C Journal, 2(1).
Vol. 2 No. 1 (1999): Fiction
Published 1999-02-01

It is the same spectacle all over the Western world: whenever delegates gather to discuss the development and consequences of new media technologies, a handful of people among them will stand out from the crowd, and somehow seem not quite to fit in with the remaining assortment of techno-evangelists, Internet ethnographers, multimedia project leaders, and online culture critics. At some point in the proceedings, they'll get to the podium and hold a talk on their ideas for the future of copyright protection and intellectual property (IP) rights in the information age; when they are finished, the reactions of the audience typically range from mild "what was that all about?" amusement to sheer "they haven't got a clue" disbelief.

Spare a thought for copyright lawyers; they're valiantly fighting a losing battle. Ever since the digitalisation and networking of our interpersonal and mass media made information transmission and duplication effortless and instantaneous, they've been trying to come up with ways to uphold and enforce concepts of copyright which are fundamentally linked to information as bound to physical objects (artifacts, books, CDs, etc.), as Barlow has demonstrated so clearly in "Selling Wine without Bottles". He writes that "copyright worked well because, Gutenberg notwithstanding, it was hard to make a book. ... Books had material surfaces to which one could attach copyright notices, publisher's marques, and price tags". If you could control the physical media which were used to transmit information (paper, books, audio and video tapes, as well as radio and TV sets, or access to cable systems), you could control who made copies when and where, and at what price. This only worked as long as the technology to make copies was similarly scarce, though: as soon as most people learnt to write, or as faxes and photocopiers became cheaper, the only real copyright protection books had was the effort that would have to be spent to copy them.

With technology continuously advancing (perhaps even at accellerating pace), copyright is soon becoming a legal fiction that is losing its link to reality. Indeed, we are now at a point where we have the opportunity -- the necessity, even -- to shift the fictional paradigm, to replace the industrial-age fiction of protective individual copyright with an information-age fiction of widespread intellectual cooperation. As it becomes ever easier to bypass and ignore copyright rules, and as copyright thus becomes ever more illusionary, this new fiction will correspondingly come ever closer to being realised.

To Protect and to ... Lose

Today, the lawyers' (and their corporate employers') favourite weapon in their fight against electronic copyright piracy are increasingly elaborate protection mechanisms -- hidden electronic signatures to mark intellectual property, electronic keys to unlock copyrighted products only for legitimate users (and sometimes only for a fixed amount of time or after certain licence payments), encryption of sensitive information, or of entire products to prevent electronic duplication. While the encryption of information exchanges between individuals has been proven to be a useful deterrent against all but the most determined of hackers, it's interesting to note that practically no electronic copyright protection mechanism of mass market products has ever been seen to work. However good and elaborate the protection efforts, it seems that as long as there is a sufficient number of interested consumers unwilling to pay for legitimate access, copy protections will be cracked eventually: the rampant software piracy is the best example. On the other hand, where copy protections become too elaborate and cumbersome, they end up killing the product they are meant to protect: this is currently happening in the case of some of the pay-per-view or limited-plays protection schemes forced upon the U.S. market for Digital Versatile Discs (DVDs).

The eventual failure of such mechanisms isn't a particularly recent observation, even. When broadcast radio was first introduced in Australia in 1923, it was proposed that programme content should be protected (and stations financed) by fixing radio receivers to a particular station's frequency -- by buying such a 'sealed set' receiver you would in effect subscribe to a station and acquire the right to receive the content it provided. Never known as uninventive, those Australians who this overprotectiveness didn't completely put off buying a receiver (radio was far from being a proven mass medium at the time, after all) did of course soon break the seal, and learnt to adjust the frequency to try out different stations -- or they built their own radios from scratch. The 'sealed set' scheme was abandoned after only nine months.

Even with the development of copy protection schemes since the 1920s, a full (or at least sufficiently comprehensive) protection of intellectual property seems as unattainable a fiction as it was then. Protection and copying technology are never far apart in development anyway, but even more fundamentally, the protected products are eventually meant to be used, after all. No matter how elaborately protected a CD, a video, or a computer programme is, it will still have to be converted into sound waves, image information, or executable code, and at that level copying will still remain possible. In the absence of workable copy protection, however, copies will be made in large amounts -- even more so since information is now being spread and multiplied around the globe virtually at the speed of light. Against this tide of copies, any attempts to use legislation to at least force the payment of royalties from illegitimate users are also becoming increasingly futile. While there may be a few highly publicised court cases, the multitude of small transgressions will remain unanswered. This in turn undermines the equality before the law that is a basic human right: increasingly, the few that are punished will be able to argue that, if "everybody does it", to single them out is highly unfair. At the same time, corporate efforts to uphold the law may be counterproductive: as Barlow writes, "against the swift tide of custom, the Software Publishers' current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law". Quite simply, their legal costs may not be justified by the results anymore.

Abandoning Copyright Law

If copyright has become a fiction, however -- one that is still, despite all evidence, posited as reality by the legal system --, and if the makeup of today's electronic media, particularly the Internet, allow that fiction to be widely ignored and circumvented in daily practice -- despite all corporate legal efforts --, how is this disparity between law and reality to be solved? Barlow offers a clear answer: "whenever there is such profound divergence between the law and social practice, it is not society that adapts". He goes on to state that it may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place.

But something will happen. After all, people do business. When a currency becomes meaningless, business is done in barter. When societies develop outside the law, they develop their own unwritten codes, practices, and ethical systems. While technology may undo law, technology offers methods for restoring creative rights.

When William Gibson invented the term 'cyberspace', he described it as a "consensual hallucination" (67). As the removal of copyright to the realm of the fictional has been driven largely by the Internet and its 'freedom of information' ethics, perhaps it is apt to speak of a new approach to intellectual property (or, with Barlow, to 'creative rights') as one of consensual, collaborative use of such property. This approach is far from being fully realised yet, and must so for now remain fiction, too, but it is no mere utopian vision -- in various places, attempts are made to put into place consensual schemes of dealing with intellectual property. They also represent a move from IP hoarding to IP use.

Raymond speaks of the schemes competing here as the 'cathedral' and the 'bazaar' system. In the cathedral system, knowledge is tightly controlled, and only the finished product, "carefully crafted by individual wizards or small bands of mages working in splendid isolation" (1), is ever released. This corresponds to traditional copyright approaches, where company secrets are hoarded and locked away (sometimes only in order to keep competitors from using them), and breaches punished severely. The bazaar system, on the other hand, includes the entire community of producers and users early on in the creative process, up to the point of removing the producer/user dichotomy altogether: "no quiet, reverent cathedral-building here -- rather, ... a great babbling bazaar of differing agendas and approaches ... out of which a coherent and stable system could seemingly emerge only by a succession of miracles", as Raymond admits (1).

The Linux 'Miracle'

Raymond writes about one such bazaar-system project which provides impressive proof that the approach can work, however: the highly acclaimed Unix-based operating system Linux. Instigated and organised by Finnish programmer Linus Torvalds, this enthusiast-driven, Internet-based development project has achieved more in less than a decade than what many corporate developers (Microsoft being the obvious example) can do in thrice that time, and with little financial incentive or institutional support at that. As Raymond describes, "the Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximise utility which in the process produces a self-correcting spontaneous order more elaborate and efficient than any amount of central planning could achieve" (10). Thus, while there is no doubt that individual participants will eventually always also be driven by selfish reasons, there is collaboration towards the achievement of communal goals, and a consensus about what those goals are: "while coding remains an essentially solitary activity, the really great hacks come from harnessing the attention and brainpower of entire communities. The developer who uses only his or her own brain in a closed project is going to fall behind the developer who knows how to create an open, evolutionary context in which bug-spotting and improvements get done by hundreds of people" (Raymond 10).

It is obvious that such collaborative projects need a structure that allows for the immediate participation of a large community, and so in the same way that the Internet has been instrumental in dismantling traditional copyright systems, it is also a driving factor in making these new approaches possible: "Linux was the first project to make a conscious and successful effort to use the entire world as its talent pool. I don't think it's a coincidence that the gestation period of Linux coincided with the birth of the World Wide Web, and that Linux left its infancy during the same period in 1993-1994 that saw the takeoff of the ISP industry and the explosion of mainstream interest in the Internet. Linus was the first person who learned how to play by the new rules that pervasive Internet made possible" (Raymond 10). While some previous collaborative efforts exist (such as shareware schemes, which have existed ever since the advent of programmable home computers), their comparatively limited successes underline the importance of a suitable communication medium.

The success of Linux has now begun to affect corporate structures, too: informational material for the Mozilla project, in fact, makes direct reference to the Linux experience. On the Net, Mozilla is as big as it gets -- instituted to continue development of Netscape Communicator-based Web browsers following Netscape's publication of the Communicator source code, it poses a serious threat to Microsoft's push (the legality of which is currently under investigation in the U.S.) to increase marketshare for its Internet Explorer browser. Much like Linux, Mozilla will be a collaborative effort: "we intend to delegate authority over the various modules to the people most qualified to make decisions about them. We intend to operate as a meritocracy: the more good code you contribute, the more responsibility you will be given. We believe that to be the only way to continue to remain relevant, and to do the greatest good for the greatest number" ("Who Is"), with the Netscape corporation only one among that number, and a contributor amongst many. Netscape itself intends to release browsers based on the Mozilla source code, with some individual proprietary additions and the benefits corporate structures allow (printed manuals, helplines, and the like), but -- so it seems -- it is giving up its unlimited hold over the course of development of the browser. Such actions afford an almost prophetic quality to Barlow's observation that "familiarity is an important asset in the world of information. It may often be the case that the best thing you can do to raise the demand for your product is to give it away".

The use of examples from the computer world should not be seen to mean that the consensual, collaborative use of intellectual property suggested here is limited only to software -- it is, however, no surprise that a computer-based medium would first be put to use to support computer-based development projects. Producers and artists from other fields can profit from networking with their peers and clients just as much: artists can stay in touch with their audience and one another, working on collaborative projects such as the brilliant Djam Karet CD Collaborator (see Taylor's review in Gibraltar), professional interest groups can exchange information about the latest developments in their field as well as link with the users of their products to find out about their needs or problems, and the use of the Net as a medium of communication for academic researchers was one of its first applications, of course. In many such cases, consensual collaboration would even speed up the development process and help iron out remaining glitches, beating the efforts of traditional institutions with their severely guarded intellectual property rights. As Raymond sees it, for example, "no commercial developer can match the pool of talent the Linux community can bring to bear on a problem", and so "perhaps in the end the free-software culture will triumph not because cooperation is morally right or software 'hoarding' is morally wrong ... , but simply because the commercial world cannot win an evolutionary arms race with free-software communities that can put orders of magnitude more skilled time into a problem" (10).

Realising the Fiction

There remains the problem that even the members of such development communities must make a living somehow -- a need to which their efforts in the community not only don't contribute, but the pursuit of which even limits the time available for the community efforts. The apparent impossibility of reconciling these two goals has made the consensual collaborative approach appear little more than a utopian fiction so far, individual successes like Linux or (potentially) Mozilla notwithstanding. However, there are ways of making money from the communal work even if due to the abolition of copyright laws mere royalty payments are impossible -- as the example of Netscape's relation to the Mozilla project shows, the added benefits that corporate support can bring will still seem worth paying for, for many users. Similarly, while music and artwork may be freely available on the Net, many music fans will still prefer to get the entire CD package from a store rather than having to burn the CD and print the booklet themselves. The changes to producer/user relations suggested here do have severe implications for corporate and legal structures, however, and that is the central reason why particularly the major corporate intellectual property holders (or, hoarders) and their armies of lawyers are engaged in such a fierce defensive battle.

Needless to say, the changeover from the still-powerful fiction of enforcible intellectual property copyrights to the new vision of open, consensual collaboration that gives credit for individual contributions, but has no concept of an exclusive ownership of ideas, will not take place overnight. Intellectual property will continue to be guarded, trade secrets will keep being kept, for some time yet, but -- just as is the case with the established practice of patenting particular ideas just so competitors can't use them, but without ever putting them to use in one's own work -- eventually such efforts will prove to be self-defeating. Shutting one's creative talents off in a quiet cathedral will come to be seen as less productive than engaging in the creative cooperation occuring in the global bazaar, and solitary directives of central executives will be replaced by consensual decisions of the community of producers and users. As Raymond points out, "this is not to say that individual vision and brilliance will no longer matter; rather, ... the cutting edge ... will belong to people who start from individual vision and brilliance, then amplify it through the effective construction of voluntary communities of interest" (10).

Such communal approaches may to some seem much like communism, but this, too, is a misconception. In fact, in this new system there is much more exchange, much more give and take going on than in the traditional process of an exchange of money for product between user and producer -- only the currency has changed. "This explains much of the collective 'volunteer' work which fills the archives, newsgroups, and databases of the Internet. Its denizens are not working for 'nothing,' as is widely believed. Rather they are getting paid in something besides money. It is an economy which consists almost entirely of information" (Barlow). And with the removal of the many barriers to the free flow of information and obstacles to scientific and artistic development that traditional copyright has created, the progress of human endeavour itself is likely to be sped up.

In the end, then, it all comes down to what fictions we choose to believe or reject. In the light of recent developments, and considering the evidence that suggests the viability, even superiority of alternative approaches, it is becoming increasingly hard to believe that traditional copyright can, and much less, should be sustained. Other than the few major copyright holders, few stand to gain from upholding these rights. On the other hand, were we to lift copyright restrictions and use the ideas and information thus made available freely in a cooperative, consensual, and most of all productive way, we all might profit. As various projects have shown, that fiction is already in the process of being realised.

Author Biography

Axel Bruns