Historically the impact of the printing press on Western culture is a truism. Print gave rise to the mass reproduction and circulation of information with wide reaching consequences in all fields: political, social, and economic. An aspect that this paper wishes to focus on is that this moment also saw the birth (and necessity) of copyright legislation, to administer and protect this new found ability to package and disseminate text.
The term copyright itself, used freely in debates surrounding contemporary topics such as iTunes, DVD piracy, and file-sharing, is not only semantically anachronistic but, as will be shown, is an anachronistic problem. The history that it carries, through almost three hundred years, underscores the difficulties at the heart of copyright in the contemporary scene. Indeed the reliance on copyright in these debates creates an argument based on circular definitions relating to only the statutory conception of cultural rights. No avenue is really left to imagine a space outside its jurisdiction. This paper asserts that notions of the “culture industry” (as opposed to some other conception of culture) are also inherently connected to the some three hundred years of copyright legislation. Our conceptions of the author and of intellectual pursuits as property can also be traced within this relatively small period. As clarified by Lord Chief Baron Pollock in the English courts in 1854, “copyright is altogether an artificial right” that does not apply at common law and relies wholly on statute (Jeffreys v Boosey). Foucault (124-42) highlights, in his attack on Romantic notions of the author-genius-God, that the author-function is expressed primarily as a legal term, through the legal concepts of censorship and copyright.
Copyright, then, pays little attention to non-economic interests of the author and is used primarily to further economic interests. The corporate nature of the culture industry at present amounts to the successful application of copyright legislation in the past. This paper suggests that we look at our conception of literary and artistic work as separate from copyright’s own definitions of intellectual property and the commercialisation of culture.
From Hogarth to File-Sharing
The case of ‘DVD Jon’ is instructive. In 1999, Jon Lech Johansen, a Norwegian programmer, drew the ire of Hollywood by breaking the encryption code for DVDs (in a program called DeCSS). More recently, he has devised a program to circumvent the anti-piracy system for Apple’s iTunes music download service. With this program, called PyMusique, users still have to pay for the songs, but once these are paid for, users can use the songs on all operating systems and with no limits on copying, transfers or burning.
Johansen, who publishes his wares on his blog entitled So Sue Me, was in fact sued in 1999 by the Motion Picture Association of America (MPAA) for copyright infringement. He argued that he created DeCSS as part of developing a DVD player for his Linux operating system, and that copying DVD movies was an ancillary function of the program for which he could not be held responsible. He was acquitted by an Oslo district court in early 2003 and again by an appeals court later that year.
During this time many people on the internet found novel ways to publish the DeCSS code so as to avoid prosecution, including many different code encryptions incorporated into jpeg images (including the trademarked DVD logo, owned by DVD LLC) and mpeg movies, as an online MUD game scenario, and even produced in the form of a haiku (“42 Ways to Distribute DeCSS”).
The ability to publish the code in a format not readily prosecutable owes less to encryption and clandestine messages than it does to anachronistic laws regarding the wholly legal right to original formats. Prior to 1709, copyright or licensing related to the book publishing industry where the work as formatted, pressed and disseminated was more important to protect than the text itself or the concept of the author as the writer of the text. Even today different copyrights may be held over the different formatting of the same text. The ability for hackers to attack the copyright legislation through its inherent anachronism is more than smart lawyering or a neat joke. These attacks, based on file sharing and the morphing fluid forms of information (rather than contained text, printed, broadcast, or expressed through form in general), amount to a real breach in copyright’s capability to administer and protect information.
That the corporations are so excited and scared of these new technologies of dissemination should come as no surprise. It should also not be seen, as some commentators wish to, as a completely new approach to the dissemination of culture. If copyright was originally intended to protect the rights of the publisher, the passing of the Act of Anne in 1709 introduced two new concepts – an author being the owner of copyright, and the principle of a fixed term of protection for published works. In 1734, William Hogarth, wanting to ensure profits would flow from his widely disseminated prints (which attracted many pirate copies), fought to have these protections extended to visual works.
What is notable about all this is that in 1734 the concept of copyright both in literary and artistic works applied only to published or reproduced works. It would be over one hundred years later, in the Romantic period, that a broader protection to all artworks would be available (for example, paintings, sculpture, etc). Born primarily out of guild systems, the socio-political aspect of protection, although with a passing nod to the author, was primarily a commercial concern. These days the statute has muddied its primary purpose; commercial interest is conflated and confused with the moral rights of the author (which, it might be added, although first asserted in the International Berne Convention of 1886 were only ratified in Australia in December 2000).
For instance, in a case such as Sony Entertainment (Australia) Ltd v Smith (2005), both parties in fact want the protection of copyright. On one day the DJ in question (Pee Wee Ferris) might be advertising himself through his DJ name as an appropriative, sampling artist-author, while at the same time, we might assume, wishing to protect his own rights as a recording artist. Alternatively, the authors of the various DeCSS code works want both the free flow of information which then results in a possible free flow of media content. Naturally, this does not sit well with the current lords of copyright: the corporations. The new open-source author works contrary to all copyright.
Freed Slaves
The model of the open source author is not without precedent. Historically, prior to copyright and the culture industry, this approach to authorship was the norm. The Roman poet Martial, known for his wit and gifts of poetry, wrote
I commend to you, Quintianus, my little books – if I can call them mine when your poet recites them: if they complain of their harsh servitude, you should come forward as their champion and give your guarantees; and when he calls himself their master you should say they are mine and have been granted their freedom. If you shout this out three or four times, you will make their kidnapper (plagiario) feel ashamed of himself.
Here of course the cultural producer is a landed aristocrat (a situation common to early Western poets such as Chaucer, Spencer and More). The poem, or work, exists in the economy of the gift. The author-function here is also not the same as in modern times but was based on the advantages of reputation and celebrity within the Roman court. Similarly other texts such as stories, songs and music were circulated, prior to print, in a primarily oral economy.
Later, with the rise of the professional guild system in late medieval times, the patronage system did indeed pay artists, sometimes royal sums. However, this bursary was not so much for the work than for upkeep as members of the household holding a particular skill. The commercial aspect of the author as owner only became fully realised with the rise of the middle classes in the eighteenth and nineteenth century and led to the global adoption of the copyright regime as the culture industry’s sanction. Added to this, the author is now overwhelmingly a corporation, not an individual, which has expanded the utilisation of these statutes for commercial advantage to, perhaps, an unforeseen degree.
To understand the file-sharing period, which we are now entering at full speed, we cannot be confused by notions found in the copyright acts; definitions based on copyright cannot adequately express a culture without commercial concerns. Perhaps the discussion needs to return to concepts that predate copyright, before the author-function (as suggested by Foucault) and before the notion of intellectual property. That we have returned to a gift economy for cultural products is easily understood in the context of file-sharing. But what of the author? Here the figure of the hacker suggests a movement towards such an archaic model where the author’s remuneration comes in the form of celebrity, or a reputation as an exciting innovator. Another model, which is perhaps more likely, is an understanding that certain material disseminated will be sold and administered under copyright for profit and that the excess will be quickly and efficiently disseminated with no profit and with no overall duration of protection. Such an amalgamated approach is exemplified by Radiohead’s Kid A album, which, although available for free downloads, was still profitable because the (anachronistic) printed version, with its cover and artwork, still sold by the millions.
Perhaps cultural works, the slaves of the author-corporation, should be granted their freedom: freedom from servitude to a commercial master, freedom to be re-told rather than re-sold, with due attribution to the author the only payment. This is a Utopian idea perhaps, but no less a fantasy than the idea that the laws of copyright, born of the printing press, can evolve to match the economy today that they purport to control.
When thinking about ownership and authorship today, it must be recalled that copyright itself has a history of useful fictions.
