When the primary articles of commerce in a society look so much like speech as to be indistinguishable from it, and when the traditional methods of protecting their ownership have become ineffectual, attempting to fix the problem with broader and more vigorous enforcement will inevitably threaten freedom of speech.” The explanation comes with predictions: “The greatest constraint on your future liberties may come not from government but from the corporate legal department laboring to protect by force what can no longer be protected by practical efficient or general social consent.”²³

As Barlow sees cyberspace, “notions of property, value, ownership, and the nature of wealth itself are changing more fundamentally than at ay time since the Sumerians first poked cuneiform into wet clay and called it stored grain.” What is happening in the digital realm, is this, “Since it is now possible to convey ideas from one mind to another without ever making them physical, we are now claiming to own ideas themselves and not merely their expression.”

Despite the urgency of the situation and the speed of change, Barlow nevertheless, proposes a moratorium on litigation, legislation and international treaties until we have a clear sense of the entire enterprise in cyberspace. Laws should be developed on the basis of social consensus, he notes, and at the moment, consensus around copyright is disintegrating. He then points out that faith in the law is not an effective strategy; the law adapts by increments, and “at a pace second only to geology”. What is happening now, is happening quickly, and “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.”

Barlow discusses the nature of information in cyberspace: Information as a life form, as a phenomenon that “wants to be free”, as a relationship (“receiving information is often as creative an act as generating it”), as something that is not perishable though it is likely to acquire (or be assigned) different values over time. (And these, he acknowledges are “highly subjective and conditional.”) Information in cyberspace becomes liquid, he says. The old static media (books etc.) that resist the evolutionary impulse will be replaced in cyberspace by old forms rather like the oral tradition that have no ‘final cut’. He then adds this comment:

In his description of the economics of ideas, Barlow speaks of the liquid commerce of electronic information and theorizes a role for artists. “Information economics, in the absence of objects, will be based more on relationship than possession,” he explains. Understood as a means of conveying intellectual information, he cites two models: the performance, and the service. “In fact, until the late 18^th century the service model was applied to much of what is now copyrighted. Before the industrialization of creation, writers, composers, artists and the like produced their products in the private service of patrons. Without objects to distribute in a mass market, creative people will return to a condition somewhat like this, except that they will serve many patrons rather than one.” He offers his own experience as evidence. “In regard to my own soft product, rock ‘n’ roll songs, there is no question that the band I write them for, the Grateful Dead, has increased its popularity enormously by giving them away. We have been letting people tape our concerts since the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America…” His words of advice for the artists in the crowd are vague. “Whether you think of yourself as a service provider or a performer, the future protection of your intellectual property will depend on your ability to control your relationship to the market – a relationship which will most likely live and grow over a period of time.”

Finally, like other writers, Barlow talks about the attitudes of Americans to copyright and decries the effects of copyright enforcement on the culture.

He ends the article with the following five predictions:

Two years after publishing this apologia in Wired, in February 1994, Barlow released a public statement directed to legislators as well as the media called a “Declaration of Independence of Cyberspace”²⁵ which takes fundamental issue with the assumption of government (and industry) of the responsibility for designing the web. It said in part:

The tenor of the document is what is significant, as is the positioning of the arguments of webheads and cyber-travellers as contrary to established order. Like others who have gathered around the EFF, Barlow fashions himself as a dissident and futurist. Much of what he says stems from his experience as a performer, and carries the cachet of fame. However, his view of creators and their position in this new-world is curiously antiquated in that he seems to hark back to old systems of private patronage. He has few words of concern or even interest in the economics of creation; his focus is exclusively on the economics of the cultural industries, and to some extent the public domain. When he speaks of oral culture, moreover, when he states that stories were simply passed on and that there was not protection for the expression, he clearly is not thinking about indigenous cultures. These we know have long had protocols and systems of ownership.

Lawrence Lessig is a law professor at Stanford University, founder of the Stanford Centre for Internet and Society, author of several books with catchy titles (and descriptive subtitles) like The Future of Ideas – The Fate of the Commons in the Connected World, and Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity,²⁶ and famous for having challenged the Sonny Bono Act, extending the term of copyright, in the United States Supreme Court in 2002 on the grounds that it was unconstitutional – and losing. Lessig has attracted a large following for his cogent analysis, and his unvarnished prose.

His early work had to do with explaining the meaning and function of computer code, and how the code becomes law. Latterly he has been focussed on copyright issues. In his latest book, Free Culture, he credits the inspiration of Open Source pioneer Richard Stallman’s book, Free Software, Free Society for his thesis and title.²⁷ He also makes particular point in the preface of noting his own non-anarchist and pro-property leanings, “A free culture is not a culture without property; it is not a culture in which artists don’t get paid. A culture without property, or in which creators can’t get paid, is anarchy not freedom. Anarchy is not what I advance here”.²⁸ What he does advance is an argument for balance between anarchy and over-control.

Free Culture is a combination of lessons and sermons: lessons to be found in real life stories about the intersection of creativity with property law, and sermons about the nature and history of that law. He notes, for example, that the historical focus of copyright law was primarily on commercial creativity, while non-commercial culture went essentially unregulated. “For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control vast amounts of culture and creativity that it never reached before. The technology that preserved the balance …. has been undone, The consequence is that we are less and less a free culture, more and more a permission culture.”

Early on, Lessig makes a distinction between artists and producers by pointing out that amendments to the American Copyright Act are often justified as necessary for the protection of commercial creativity, but that this protectionism is not aimed at artists or intended to benefit them so much as to protect “certain forms of business” and the current practice of “owning” culture. He reviews the history of the US law, and concludes that the advent of the Internet has eliminated the natural limit to its reach, allowing the effective control of the creativity of everyone, not just commercial creators. Moreover, he maintains, “[t]he law’s role is less and less to support creativity and more and more to protect certain industries against competition.” ³⁰

Expanding on his thesis, Lessig states “Creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now. That building is always and everywhere, at least partially, done without permission and without compensating the original creator. No society, free or controlled, has ever demanded that every use be paid for or that permission for Walt Disney creativity must always be sought. Instead, every society has left a certain bit of its culture free for the taking -- free societies more fully than the unfree, perhaps, but all societies to some degree.”³¹

In a long section on piracy, Lessig similarly points out the double standard in American copyright history. “We may have been born a pirate nation, but we will not allow any other nation to have a similar childhood.”³² The war on piracy being led by the copyright warriors from the entertainment industries has turned into a civil war in which free culture is the casualty. At issue, in other words, are important social conventions, for we are encountering the consequences of a culture that is largely mediated, and therefore owned by private corporations and institutions. The issues raised are at the level of human rights: access to the past, to memory (collective and individual), and to primary sources.

Lessig ultimately calls for an “environmentalism” for culture.

Facilitated by technology, copyright law has reached into every nook and cranny of culture and everyday life. “The technology expands the scope of effective control because the technology builds a copy into every transaction,” Lessig explains. And this is the key point, the law is triggered by copying. And the result of enabling technology to control copyright is the simple fact that it will no longer be balanced. It will simple mean what the owners dictate their terms.³⁴ “Using code, copyright owners restrict fair use; using the DMCA they punish those who would attempt to evade restrictions that they impose on fair use. Technology becomes a means by which fair use can be erased.”³⁵

The law itself is not the enemy, Lessig reiterates; the enemy is regulation, and the power that supports it. Lessig points to the duration of the copyright term, which in the US has tripled in the last thirty years. With this has come the regulation of the creative process. “It is the massive expansion in the scope of the government’s control over innovation and creativity; it would be totally unrecognizable to those who gave birth to copyright’s control.”³⁶ In short, Lessig sees the turn of events as a travesty, the hijacking of copyright by corporate lobbyists and the depleting of the public good. “Never in our history have fewer had a legal right to control more of the development of our culture than now.” [emphasis the author’s] In the end, he alleges this is the abuse of power.³⁷

“In the middle of the chaos that the Internet has created, an extraordinary land grab is occurring. The law and technology are being shifted to give content holders a kind of control over our culture that they have never had before. And in this extremism, many an opportunity for new innovation and new creativity will be lost.”³⁸ He points out that, beyond the controls the law provides, technology is also giving content providers the means for further control that is unregulated. Content providers can charge what they can get. And one result of this is the growing incidence of illegal behaviour, in fact its banalization, and its growing social acceptance.

Like Barlow, artists are not part of Lessig’s purview, but he does at least pose the question about payment: “If the only way to assure that artists get paid were the elimination of the ability to freely move content, then these technologies to interfere with freedom to move content would be justifiable”, he allows.³⁹ However, he suggests that there is another way to assure compensation, one that would leave consumers and creators more free, and would not present the choice as one between “property and piracy” as happens now; for at the moment, he contends, the copyright warriors, “… are riding the law to protect themselves against this new form of competition. For them the choice is between forty-three million Americans as criminals and their own survival.”⁴⁰

He concludes that while the copyright wars rage, everyone has been focused on the wrong thing. “No doubt current technologies threaten existing businesses. No doubt they may threaten artists. But technologies change. The industry and the technologies have plenty of ways to use technology to protect themselves against current threats of the Internet. This is a fire that if let alone would burn itself out.” ⁴¹

Lessig repeatedly maintains in Free Culture that he is a supporter both of property and intellectual property, including copyright. In making rather a point of this, he seems to be addressing a critique, although he does not expound. Nonetheless, this is a significant difference to the stand proposed ten years before by John Perry Barlow. What Lessig is militating against is the “naked self-interest driving the copyright war”, and what he cares about is the growing prejudice to the public good exacted by the process and by the growing body of jurisprudence. The public good he interprets largely in terms of the need for a robust and accessible public domain, and he laments it is being depleted by private interests. He expresses no interest in the issue of the creative return to society from the monopoly, although he promises to delineate a better mousetrap (for compensating authors) in the last chapter. Something, for some reason, he neglects to do.

Pamela Samuelson and Jessica Litman are two of the better known academic activists in the United States, law professors at Wayne State and University of California at Berkeley respectively. Both have written extensively on the subject of intellectual property law, particularly since 1996 and the appearance of Clinton Administration’s White Paper on Intellectual Property.⁴² Both are highly political, and take no prisoners.

In her much circulated article, “The Copyright Grab”⁴³, originally published in Wired in 1996, Samuelson delivers an analysis of the agenda of the “copyright maximalists” prefaced by this scene-setter: “Why would the Clinton administration want to transform the emerging information superhighway into a publisher-dominated toll road? The most plausible explanation is a simple one: campaign contributions.” As she sees it, the cozy relationship between the content lobby and legislators is reflected in the White Paper, which is essentially an advocacy document for the maximalist point of view. What the copyright owners want, in short, is even greater control than they already have. These are people who “regard all unauthorized use of copyrighted work as theft.”

What the copyright maximalist agenda, therefore, is to:

These precepts, Samuelson points out, translate into several new kinds of restrictions. The right to browsing, sharing or making noncommercial copies of copyright material is rescinded, along with “first-sale” rights to dispose of a legitimately purchase copy of something; service providers are forced to troll clients’ files in the pursuit of unlicensed material. Children are taught sharing is bad. “To ensure that future generations are broken of the habit of thinking that it’s OK to share copies of copyrighted works with a friend, the White Paper offers examples of lessons about copyright…[t]he general theme of [which] …. would be, “Just say yes” to licensing.”

Like Barlow and others, Samuelson counsels caution in designing legislation to cover the web. “It is far more important to get copyright legislation and treaties right than to act fast on a flawed proposal.”⁴⁵ She makes the case that copyright law has not historically attempted to regulate private noncommercial activity, that it largely regulated industry-to-industry relationships, that it made sense for policy making to be done by technicians. “[T]he longtime reliance on experts to formulate copyright policy has made them accustomed to consulting no one but themselves and affected industry groups….The only groups that have any sustained history of representing the interests of users in copyright policymaking have been library groups…..” And adds, that proposals for TPMs and digital right management, are likely to impede invention. In the light of the copyright wars, Samuelson warns:

Basically, Samuelson is suggesting that the social consensus around copyright has been fractured. As part of her defence of the public domain, she denounces the invasion of the private sphere by copyright owners and advocates the rights of users. As for creators, “The biggest challenge that cyberspace poses for authors and publishers is not how to strengthen copyright law, but how to reinvent their business models so that they figure out how to provide content that will interest potential customers on terms that these customers find acceptable.”

Jessica Litman’s criticisms of the White Paper on copyright are similar to Samuelson’s. She talks about the lack of balance, and the need for a movement to counter-balance the existing accommodation of interests, and insist that “that the benefits of the new technology should not be arrogated solely to publishers”.⁴⁶ She writes about the concept of a user’s bill of rights, and latterly, about the court battles of the music industry, parsing the politics and legal language. In a speech given in Toronto in 2000 called The Demonization of Piracy⁴⁷, she notes that piracy has ceased to refer to the illicit manufacture of knock-off copies for sale into a traditional market and has come to be understood as any unauthorized use. In 2001, she published Digital Copyright,⁴⁸ a book in which she rejects the reproduction right that is central to the current law on the grounds that digital information cannot be used without making copies, but because of this, copies are no longer a way to distinguish activities copyright owners should expect to control (as opposed to those they shouldn’t). And, Litman points out, copyright no longer focuses on incentives, “it concerns itself obsessively with issues of control”.

A historian of American copyright law, she describes its evolution from one “designed to ensure the enhancement of the public domain to one designed to support the indefinite proprietary treatment of articulated thought.”⁴⁹ She notes the extension of copyright over the last century from 14 to 95 years (for corporations) and the evolution of “the predominant metaphor for copyright from the notion of a quid pro quo… [to] a bargain in which the public granted limited exclusive rights to authors as a means to advance the public interest. The model was about compensation: it focused on the copyright as a way to permit authors to make enough money from the works they created that they would be able to make the works available to the public.” And finally, from the idea of the bargain to a system of incentives, which is not rooted in compensation, but in the effort to promote production of “more works of authorship”.⁵⁰

Litman characterizes the history of US legislation as a private deal resulting from “multilateral bargaining among affected stakeholders” and calls attention to those whose interests are not-represented. (While libraries and educators are there, the general public is not.) “[T]he group most drastically affected by the application of copyright law to the new digital technology is neither the publishers and their friends, nor the librarians and their friends, but individual users making noncommercial, consumptive use of copyrighted works from their homes and offices.” She continues, “Just as digital technology promises and threatens to permit any member of the public to act as her own publishers, it also promises and threatens to subject every member of the pubic to the provisions of a copyright law that was drafted by copyright lawyers with no attention to the question of whether it could make sense to the public at large.”⁵¹ Her contention is that it doesn’t make sense, and that the law, and changes to it, have to be reconsidered with these new paradigms in mind.

Litman’s take on TPMs is that their use makes the public’s access to ideas and information “contingent on the copyright holders’ marketing plans and puts the ability of consumers to engage in the legal uses of the material in those texts within the copyright holder’s unconstrained discretion. In essence, that’s an exclusive right to use.” Like Barlow and Samuelson, she assumes that cultural creation will happen no matter what the economics, and though she pays some attention to the impact of TPMs on innovation, she does not purse the investigation into the arts.

Esther Dyson, an entrepreneurial, high-tech industry analyst who is regularly described as “the most powerful woman in the Net-erati”, is another critic associated with Copyleft in the US. In 1993, a profile in Wired described her extraordinary reputation thus: “People want to talk to Esther – because she is Esther. In the world she travels in, she is one of those women, like Martina in tennis, or Hilary in politics, who need only be identified by her first name.”⁵² Dyson has written two books, the best known being Release 2.0 – A design for Living in the Digital Age⁵³ published in 1997, but she is mainly known for her exclusive newsletter, Release 1.0 and her compelling public appearances. Dyson is, in fact, the embodiment of the business model she promotes. She can be found at edventure.com where her activities and appearances are chronicled, and her ideas highlighted. A dealer in intellectual property, she sells both services (private advice) and performance (as a keynote speaker).

Dyson’s seminal article modestly titled, “Intellectual Property on the Net”⁵⁴ which appeared in 1995, is an apologia for Open Source and (almost) open content. In essence, she takes the John Perry Barlow model and gives it theoretical flesh. In a world where “content-based value” will be created on the net by providing such things as selection, the presence of other people, the assurance of authenticity, “creativity will proliferate, but quality will be scarce, and hard to recognize. Creators will have to fight to attract attention, and to get paid.” She elaborates, “We are not saying that content is worthless, or that you can get it for free. What we are saying is that content providers should manage their businesses as if it were free, and then figure out how to set up relationships or develop ancillary products and services that cover the costs of developing content. The creator who writes off the costs of developing content immediately - as if it were valueless – is always going to win over the creator who can’t figure out how to cover those costs. Other players may simply try their hands at creative endeavors based on service, not content assets: filtering content, hosting online forums, rating others’ content, custom programming or performing.”

Further on, “Frustratingly to creators of content, the value of their work doesn’t generally get recognized without broad distribution. This means that any artists or creator must somehow attract broad attention to attract huge payment for copies - which somehow means you give the first performances, books or whatever away in hopes of recouping with subsequent works. But that very breadth of distribution lessens the creator’s control. In principle, it should be possible to control and charge for such works, but it will become more and more difficult. People want to pay only for that which is scarce – a personal performance or a custom application, for example, or some tangible manifestation which can’t be easily reproduced (by nature or by fiat; that’s why we have numbered lithographs, for example.) The trick is to control not the copies but a relationship with the customer - a subscription.”

Dyson’s news for artists is not enigmatic. “In entertainment and art, there will be unique content, but pricing as a whole will trend downwards as more and more creators compete for attention using low-cost, easy-to-use production tools. More artists will find their audiences within their local communities – geographical or net-based – rather than hit the big time. Local barriers to entry will be low, but global competition will be strong. There’s the odd movie star or work of art for which no substitute is acceptable, but most entertainment is a way of spending time - not a unique experience.”

The media industries, Dyson allows, have somewhat different economics than most. Here “payments to creators are likely to come not from the viewers, readers or listeners, but from companies who will use the content as – or to deliver – advertising.” And here, is the key. Dyson maintains that the important question is not whether it is fair to charge someone for something that can be delivered with no incremental cost, but “how we should allocate the cost of developing that value among the people who benefit from it?” This includes the question of how artists cover their costs and fund their habit. Dyson contends that creativity will return to being prerogative of private patrons. “In essence advertisers will sponsor lives and online forum hosts rather than content. Creators and performers will be under contract - the best ones at high prices, since they will be free to negotiate for the highest bid. Just as prominent patrons such as the Medici sponsored artists in the Renaissance, corporations and the odd rich person will sponsor artists and entertainers in the new era. The Medici presumably had the pleasure of seeing or listening to their beneficiaries and sharing access to them with their friends. This won them renown and attention as well as a certain amount (we hope) of sheer pleasure at the art.”

In a section entitled “Low price-content drives out high-priced”, Dyson finally speaks directly to creators. “Creators worry that they won’t be paid and creative effort may be discouraged. The free-content market certainly will discourage redundant effort, since the wheel won’t need to be reinvented. The free-content market might also discourage a lot of current marketing designed to draw attention to content. Why market a book that’s free? It should ‘sell’ by itself, drawing attention to the author or not at all. There’s no external reason to sell it, so poor novels won’t be foisted on the public, and good ones may find their audience by themselves – or through the efforts of filter agents who get rewarded for finding (not creating) good content. The novelist, then, will be rewarded by fees for his performances, or perhaps by finding sponsors for his next works. He may write serials and find people who will pay for is continuing service.”

The Commentators: 2000 And Beyond

While thinkers like Lawrence Lessig and John Perry Barlow continue to write, analyse and conceptualize, they have been joined in the agora by a plethora of theorists, idealists, and thinkers, active in many fields and endeavors, who weigh in with their opinions on copyright on a regular basis.

In Canada, Michael Geist, a law professor at the University of Ottawa and the Canada Research Chair in Internet and E-Commerce Law, has become a leading voice in the debate, from his perch, his column “Law Bytes”, in the Toronto Star. He is a hero to indie musicians who consider all recording companies the enemy and Geist the lone voice speaking out against their control, and to independent software creators for the same reasons. In his columns he raises concern about the invasion of privacy by technology, and has opposed a change of law to give photographers first rights in their work in part because of this. He is a champion of users’ rights, and an outspoken opponent of TPMs. “Canada does not need protection for technological protection measures. In order to maintain personal privacy, a vibrant security research community, a competitive marketplace, and a fair copyright balance, we need protection from them.” He speaks about balance, or more precisely imbalance: “policymakers and politicians….have already used legislative intervention to establish many rights and protections that have tilted the copyright balance heavily toward creators at the expense of users.”⁵⁵ Creators, whether as individual artists or stand-ins for the cultural industries, are identified as part of the problem. While he speaks in specifics about industry groups and their representatives, he generally characterizes the battle as one between “users and creators”.

Geist represents a second generation of analyst academics who have joined the fray, and are taking an active and public interest in copyright reform. This new generation includes hybrids like Laura Murray in Canada, and Kembrew McLeod in the United States. Both reflect the new multi-media, multi-purpose approach to post-modern intellectual work. Murray is a professor of English Literature at Queen’s University, who has taken an interest in copyright law as an educator, writer and musician. She writes scholarly articles, gives media interviews, and operates a website called faircopyright.ca. Mcleod, an artist, music critic and associate professor in the department of Communications Studies at the University of Iowa made a name for himself as a graduate student by successfully trade marking the term “Freedom of Expression”. The hoax turned into his first book, Owning Culture: Authorship, Ownership and Intellectual Property Law,⁵⁶ which is a far-ranging, left analysis of the effect of intellectual property law in the global commercial context. In it, McLeod looks at the cultural industries (the music industry particularly) and evaluates the ways in which western IP law recognizes only highly circumscribed sets of productive relationships, characteristically those that privilege individuals over collective notions of creativity and institutionalized processes of cultural production over less formal ones. In a departure from other Copyleftist texts, he explores the ethno-centrism of IP regimes which “produce conceptual and legal categories that exclude from patent protection the contributions and knowledges [sic] of local communities, farmers and indigenous peoples.”⁵⁷ His second book, the lead item on his website, Freedom of Expression ®: Overzealous Copyright Bozo and Other Enemies of Creativity ⁵⁸ takes his arguments further into the issues of downloading and the rampant privatization of culture .

Like many, Murray and McLeod arrived at their activism through personal experience in music, and like many of their generation have been affected by the battle over downloading which has seen recording companies suing fans in the attempt to curb file sharing. Public resistance in this case can be understood to be a consumer revolt in some measure, pitched against a business model that would disallow selection, sampling, and mixing, except under license. On another level, it is also a rejection by artists of the control exerted by record labels, large and small, on the careers of artists. The phenomenon has already proven that the Internet can be an extremely effective route to new audiences, a route, which allows independent cultural production to take place outside traditional channels and editorial control.

In Canada, university commentators like Laura Murray and Michael Geist appear as “experts” in the public debate, although neither of them has produced a book-length study. Murray has authored a piece on the subject of current copyright reform published in First Monday in 2004 that addresses the major issue consuming the attention of her community, namely the educational use of material from the Internet, and the proposal for an education exception. She takes a critical look at fair dealing as an alternative.⁵⁹ Geist who has been on the scene for several years is a well-established voice. His ideas are mainly showcased in his “Law Bytes” columns and on his website. (Recently, these have been the subject of a forty-page rebuttal by Barry B. Sookman, partner at McCarthy Tétrault LLP and head of its Internet and E-commerce Law Group.⁶⁰) There is, in fact, a growing literature on the Internet coming not only from law professors, consultants and economists, but from journalists, researchers and students in fields like communications and cultural theory, political science, and most important, from creators, in this case particularly software creators. The material provides context and a history, which is to say different prisms for viewing and understanding copyright in the virtual world. Marxist interpretations take note of the commodification of information; and the paradox in the situation where cultural expression is been privatized (“locked up” as the current saying goes) at the same time as individual privacy is being invaded by smart technologies; copyright has become part of everyday life. So, for example, the play of lights over Niagara Falls at night belongs to Disney Corp, which apparently means anyone wishing to video the Falls at night now has first to get clearance.

As Johan Söderberg explains in his article, “Copyleft vs. Copyright”,⁶¹ Open Source built a parallel economy that actually outperforms the market economy; both have developed a system of licensing, supporting a proprietary regime on the one hand, and a communal one on the other. No apologist for Hollywood much less AOL/Time Warner, Söderberg writes:

The scenario, he suggests, may not be the collapse of capitalism, but of capitalism retooling.

Copyleft And Copyright Law

The Copyleft view is typically accompanied by a critique of the monopoly of media/entertainment industry, and the restrictions it exercises on public access to cultural artifacts via the so-called “copyright system”. The issue of the Public Domain is central, and discussed in terms of the public interest and basic human rights and freedoms.

Bob Young, Open Source entrepreneur and former owner of the highly successful Open Source software company RedHat put $15 million into a foundation to address the issue.⁶² Laura Murray, in “Protecting ourselves to Death,” likewise defends a concept of fair dealing that in essence includes the notion of a commons, perhaps a (de)limited commons, where informal community sharing, word-of-mouth discussion, all that human activity and interaction which translates objects and expressions into culture, occurs.⁶³ This, according to Copyleftists, would be brought under the purview of copyright by technology and the Internet. The assumption seems to be that the nature of the activity remains unchanged (the medium in this case, not being the message); however, it may well might not. This is so not only because transmission entails copying, but also because the small circles of friends can now translate into networks of tens, and thousands.

Some Copyleft proponents call for abandonment of copyright entirely; most concede it has its purpose, maintaining that this has been perverted. Moral rights are sometime mentioned in this connection. Independent software creators, for example, will say they “live on their moral rights”, explaining that the obligation to identify the author of a work is why the model of giving music/software away gratis works as a way of selling their services. The copy of a poem or song is the loss-leader or advertisement for commissions or appearances. The main thrust of the argument, however, can be understood as the attempt to carve out a publicly controlled, commercial-free, commons. At the same time, creators/artists (who work both sides of the street being creators of copyright material as well as users of others’ work, their own work depending absolutely on this exchange) [note that they are being joined by bands of enthusiasts and amateurs.] are of mixed mind when it comes to the Internet and the issues like downloading. SOCAN and the Song Writers Association of Canada did not support CRIA’s bid to sue downloaders, for example. Moreover, most artists understand the advent of digitization and the Internet as a means of self publishing and of publicizing their work, of by-passing producers (publishers, directors, curators etc.) in the quest for an audience, as well as a way to do research and to interact with readers and audiences. The Internet is by no means a tragedy, or a debilitation of creativity. But it has brought new pressures to bear on creators’ rights, and places a premium on redefining the public interest in the exchange.

Another argument often made by Copyleftists in support of “free culture”, concerns the idea of originality. Says Murray, “Creators do not create from nothing. They borrow from peers and previous generations - through fair dealing, permission, or the public domain; they create; they have a limited monopoly to reward their talent and effort; and then that material becomes free again for later generations of creators. Cultural markets depend on non-market creativity, which generates new ideas and revisits old.”⁶⁴ She makes the important observation that the marketing of creators can only happen if the content is taken up by the culture. Expression seeks an audience, books become literature when people read them and talk about it. Or as dub poet Lillian Allen has phrased it “there is no art without culture and no culture without community”.⁶⁵ The point is, that art doesn’t happen in a vacuum. And, in fact, no serious artist is likely take issue with the idea that creation is the sum of its past. Art history has traditionally been written on this presumption, and it is why, for example, when the Writers’ Union of Canada crafted a statement on cultural appropriation in 1992, it began with an acknowledgement of this essential ingredient of art and culture and proceeded to grapple with the practice of “misappropriation”.⁶⁶ The point about originality, however, is typically raised in defense of Open Source approaches to research and development policy, and in reference to situations where traditional disposition of intellectual property law has inhibited invention (mainly in connection with software, though there are stories from other eras and media as well).⁶⁷ It is also used to make the case for the Public Domain.

The response of Barry B. Sookman to Michael Geist (and indirectly to the positions espoused by education sector lobbyists like Laura Murray) is instructive, if only because he goes back to the original purpose of copyright. Quoting Justice McLachlin of the Supreme Court of Canada in Bishop v. Stevens,⁶⁸ he reminds us that the Canadian Copyright Act “was passed with a single object, namely, the benefit of authors of all kinds.” He further interprets the Supreme Courts reference in the Tariff 22⁶⁹ ruling “to not permitting acts to be done ‘unfairly at the expense’ of rights holders [a]s an acknowledgement of the longstanding principle… that a key purpose of copyright is to reward authors and protect property arising from the intellectual efforts of authors.”⁷⁰

Sookman’s rebuttal mainly focuses on the issue of TPMs, but, he continually points out absence of creators in Geist’s purview even while noting that Geist fingers creators as the culprits in producing the imbalance problem. [see above quote] “Somehow the goal of protecting property has been de-emphasized in favour of creating a ‘public domain’; the goal of rewarding authors has been subjugated to ‘fair dealing’; and the notion of exclusive rights has been eclipsed by ‘user rights’.” Sookman’s main point is that the balance Geist is promoting ignores the perspective of creators and that fails to take into account a large enough picture not only to identify the public interest in these issues, but actually to define and defend it. “My argument is that any such singular focus is fundamentally flawed. It misses the critical reality that the public interest in the creation and dissemination of works is serves by protecting TPMs. To have a vibrant public domain and works that can be used for fair dealing purposes, there must be adequate incentives for works to be created in the first instance.”⁷¹

Creators And The Open Source/Copyleft Vision

For the most part, Copyleft proponents do not talk about creativity; few even refer to the original quid pro quo of copyright. If artists are mentioned, it is usually for the purpose of furthering the debate about ‘balance’ and/or devaluing their interests. Most Canadian Copyleftist critics see the issues in terms of imbalance, where the critical absence at the reform table is not creators, but consumers or users. Only the courts, specifically the Supreme Court of Canada, are said to give voice to the rights of the general public. As Laura Murray states. “..[T]he courts are almost alone in Canada in articulating the idea of balance and flexibility of use and access.”⁷² (Murray then quotes the musings of Justice Binnie in the Théberge⁷³ on the inefficiency of overcompensating artists, and excessive control by holders of copyright after first sale.) Murray also discounts the notion that moral rights are in any way affected by interlibrary loan exceptions stating that “Licensing solutions may benefit some creators, but licensing by its nature reduces creators’ ability to control the use of their work. The concern about moral rights serves as part of the government’s rationale for what can be described as a tax on education.” She suspects creators of raising the issue “strategically rather than sincerely”, and apparently dismisses the effect of a legal precedent. For example, the exemption for individuals with perceptual disabilities allows the making of talking books without permission, and, it has been assumed, without the necessity of informing the writers.⁷⁴ (While publishers generally have the final say on jacket cover and copy, authors are nevertheless consulted as a rule. In fact, digitization has increased the participation of writers in the process.) However, the exemption and exceptions generally, have led to the widespread notion that exceptions exempt all rights. As a result, there is no protocol for informing authors, and no respect for the issues arising from their moral rights such that a user producing a major project such as a talking book (which actually creates a copyright in the new rendition, owned by someone other than the original author, whose work is a recording of the original authors work) would normally consult with the author.

The main thrust of the Copyleft debate has been the demand that the Internet not be turned over to e-commerce, and that a public commons with some rules be allowed to thrive where the “ordinary” currency between and among individuals in cyberspace is left outside of formal copyright regimes. The role of creators is presented mainly in terms of a new business model, the one popularized by J.P Barlow and success stories like Bob Young’s RedHat, which defy the convention that says you can’t make money giving stuff away for free.

“The free proliferation of expression does not decrease its commercial value. Free access increases it, and should be encouraged rather than stymied,” writes Barlow. “For ideas, fame is fortune. And nothing makes you famous faster than an audience willing to distribute your work for free.”⁷⁵ Returning to his original text on the economy of ideas, Barlow expounds on the philosophy behind it. “Let me state a creed: Art is a service, not a product. Created beauty is a relationship, and a relationship with the Holy at that. Reducing such work to ‘content’ is like praying in swear words. End of sermon. Back to business.”⁷⁶ It is the relationship that should provide the basis for remunerating artists, he says, not the fixed form of creative expression which is the book, the painting or the CD. His approach remains radically critical of the basic concepts of copyright. Whether or not they subscribe to the full ideology, many artists agree with the analysis and have taken up Barlow’s challenge; scores of young musicians are using the Internet to distribute their work, as are writers, photographers, visual artists and others. Not all below the age of 30 either. (Visual artist Doris McCarthy, 94, has had a website and virtual gallery for four years.⁷⁷) Still, the model is not easily or obviously transferable to all media, genres or artistic practices. Thus it is not at all clear where and how it relates to the much larger issue of how a society provides for the creation of art and culture. There is no question, though, that it involves departing from traditional systems of marketing. For one thing, it reverses the usual arrangement so that the old adage about the true function of the author’s book tour being “see the body, buy the book” becomes a strategy of “see the book, buy the body.”

Nonetheless, and despite the promise of the Internet, there is something strangely reminiscent about the concepts that artists should allow the free exhibition of their work as a way of advertising. This was the argument used in the 1980s by libraries in opposition to the introduction of the Public Lending Right, and by museums and public art galleries both against the payment of an exhibition fees to visual artists and to the exhibition right eventually enshrined in the Copyright Act in 1988. Artists were admonished that the library and the art gallery were public institutions serving a public good, and that artists should be content to permit their work to be used in return for the exposure.⁷⁸

Likewise, the proposal that a technology has arrived and will introduce new ways of doing things, which, of necessity, will redefine artists’ work, smacks of technological determinism, a conundrum that has bedeviled Canadian cultural policy for six decades. The Canadian cultural industries and Canadian cultural policy, despite sometimes noble attempts, have failed to find a means of returning reasonable revenues to creators such that they can continue to create. Like the Copyright Act itself, cultural policy has succeeded in constructing extremely competent and successful cultural industries and employment for thousands of individuals (including artists at their day-jobs), but only imperfectly, fitfully, and at appallingly low rates, remunerates creators.

If the Copyleft critique has failed so far to address the crux of copyright, and has avoided including fundamental questions about the political economy of creation, which is to say the status of the artist and the health of creativity, its ideas are nonetheless critical and timely. And they point to the incontrovertible importance of both the public domain and fair dealing to everyone, but particularly to creators.