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Dear all,<br>
<br>
FYI, interesting argument.<br>
<br>
TC<br>
<br>
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<td>[participants] Copyright, Copyleft and the Creative
Anti-Commons</td>
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<th align="right" nowrap="nowrap" valign="baseline">Date: </th>
<td>Thu, 28 Dec 2006 20:24:59 +0545</td>
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Deal Commoners,<br>
<br>
I found this article very informative, You may be interested to read it
once...<br>
<br>
<a href="http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html"
eudora="autourl">
http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html</a>
.....
(Berlin, 2006. Anticopyright. All rights dispersed. ) (text
attached below, Apologies for such a long text)<br>
<br>
Best Regards,<br>
<br>
Hempal Shrestha<br>
<br>
PS: Wish you a Happy and Commons New Year 2007.<br>
<br>
<br>
<font size="2">Main Article<br>
________________________________________________________________________________</font>
<br>
<br>
<br>
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. This image continues to influence how
people speak about the "great artists" of history, and it also
trickles down to the more modest claims of the intellectual property
regime that authors have original ideas that express their unique
personality, and therefore have a natural right to own their works - or
to sell their rights, if they should choose. Although these ideas
appear
self-evident today, they were an anomaly during their own time. The
different pre-Enlightenment traditions did not consider ideas to be
original inventions that could be owned because knowledge was held in
common. Art and philosophy were products of the accumulated wisdom of
the
past. There were no authors - in the sense of original creators and
final
authorities - but only masters of various crafts (sculpture, painting,
poetry, philosophy) whose task was to appropriate existing knowledge,
re-organize it, make it specific to their age, and transmit it further.
Artists and sages were messengers, and their ability to make knowledge
manifest was considered a gift from the gods. Art was governed by a
gift
economy : aristocratic patronage was a gift in return for the symbolic
gift of the work. Even the neoclassical worldview that immediately
preceded Romanticism viewed art as imitation of nature and the artist
as
a craftsman who transmitted ideas that belonged to a common
culture.<br>
<br>
The Romantic revolution marked the birth of proprietary authorship. It
abolished the belief that creations of the human intellect were gifts
from the gods that could be policed by royal decrees. But while it
liberated the productive capacity of individuals from supernatural
causes
and political control, it located this capacity in the sovereignty of
the
individual, ignoring the larger social context of production. And it
chained the production of knowledge to the idea of private property
that
dominated philosophical and economic discourse since Locke.
Romanticism’s
re-definition of the artist as an original creator was an effect of a
combination of political, economic and technological transformations.
Industrial production during the 18th century led to increasing
commodification. The enclosure of the commons forced many farmers who
had
lived off the land to become workers in industrial cities, and the
dominance of market relations began to permeate all spheres of life.
The
sharp rise in literacy created a new middle-class public of consumers ­
a
necessary precondition for commercializing culture. The capacity of the
printing press to mass reproduce and distribute the written word
destroyed established values, displacing art from the courts to coffee
houses and salons. And as the feudal world of patronage withered away,
along with the system of political sovereignty that had supported it,
for
the first time writers and artists tried to live from the profits
earned
from the sale of their works.<br>
<br>
Romanticism was born as a contradictory response to these developments.
It was an opposition to capitalism, but one expressed through the
language of private property and the assumptions inherited from the
philosophical discourse that legitimated capitalism’s mode of
production.
Romanticism denounced the alienation and loss of independence spawned
by
industrial production and market relations, and portrayed the artist in
heroic opposition to the drive for profit. Adopting Rousseau’s
metaphors
of organic growth and Kant’s notion of genius as an innate force that
created from within, Romantic authors celebrated the artist as a
spontaneous, untamed being (like nature itself), guided by intuitive
necessity and indifferent to social rules and conventions. By locating
the work of art in a pre-social, natural self, its meaning was free
from
contamination with everyday life. Art was neither public, nor social,
nor
similar to the labour of workers who produced commodities. It was
self-reflexive, offering a window to a transcendent
subjectivity.<br>
<br>
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. This idea found its most enthusiastic
supporters among German and English Romanticism, but also echoed in
wider
literary circles. In 1772 Lessing connected originality to rights over
ideas and argued that authors were entitled to economic profits from
their works. Realizing that the problem with defining ideas as property
was that many people seemed to share the same ideas, in 1791 Fichte
argued that for an idea to be regarded as property it had to have some
distinguishing characteristic that allowed only a single individual to
claim it. That quality lay not in the idea itself but in the unique
form
the author used to communicate it. Ideas that were common could become
private property through the author’s original form of expression. It
is
this distinction between content (ideas) and form (the particular style
and expression of those the ideas) that provided an initial foundation
for intellectual property law. By the 1830s Wordsworth had effectively
linked the notion of genius - defined as the introduction of a new
element into the intellectual universe - to legal stakes in the
copyright
wars. Arguing that artistic genius was often not recognized by
contemporaries but only after an author’s death, he became an active
lobbyist for extending copyright to 60 years after an author’s death.
Wordsworth’s duality in invoking the author as a solitary genius as
well
as an interested economic agent was symptomatic of the complicity
between
Romantic aesthetics and the logic of commodification. The Romantic
worldview tried to elevate art to a pure space above commodity
production, but its definition of the creative work as property
reintegrated art into the very sphere it sought to negate.<br>
<br>
The existence of "copy rights" predated 18th century notions of
the author’s right to ownership. From the 16th to the 17th century
royal
licenses gave exclusive rights to certain publishers to copy (or print)
particular texts. In 1557, England’s Queen Anne granted an exclusive
printing monopoly to a London guild of printers, the Stationers
Company,
because it assured her control over which books were published or
banned.
The first copyrights were publishers’ rights to print copies, which
emerged out of the ideological needs of absolutist monarchies to
control
knowledge and censor dissent. After the Licensing Act expired in 1694,
the monopoly of the Stationers Company was threatened by provincial
booksellers, the so-called "pirates" from Ireland and Scotland.
The Stationers Company petitioned Parliament for a new bill to extend
their copyright monopoly. But this was a different England from 1557 :
Parliament had executed King Charles I in 1649, abolished the monarchy
and installed a republic under Cromwell, restored the monarchy with
Charles II, overthrew James II in the Revolution of 1688, and, in 1689,
it passed the first decree of modern constitutional sovereignty, the
Bill
of Rights. The Statute of Anne, passed in 1710 by Parliament, turned
out
to be a hard blow against the Stationers Company. The Statute declared
authors (not publishers) to be owners of their works and limited the
copyright term to 14 years for new books and 21 years for existing
copyrights. The Statute, which was subtitled "An Act for the
Encouragement of Learning, by vesting the Copies of Printed Books in
the
Authors or purchasers of such Copies, during the Times therein
mentioned," tried to balance the philosophical ideas of the
Enlightenment with the economic interests of a nascent capitalism by
creating a marketplace of knowledge through competition.<br>
<br>
The Statute’s aim was not to create an author’s copyright but to break
the Stationers Company’s monopoly. Since this monopoly was too well
established to be attacked superficially, reversing the ownership from
publisher to author provided a solid basis. After the Statute of Anne
was
passed, the Stationers Company ignored its time limitations and a
battle
over literary property began in the law courts that lasted more than 50
years. In Millar vs. Taylor (1769), a London publisher belonging to the
Stationers Company won a verdict supporting a common-law right of
perpetual copyright despite the Statute of Anne. This decision was
overturned in the landmark case of Donaldson vs. Becket (1774) ; the
ruling in favor of the Scottish bookseller Donaldson rejected the
argument for perpetual copyright and upheld the limits set out in the
Statute of Anne. The principal players in what the press hailed as the
great cause concerning literary property were not authors. Publishers
sued each other in the courts, invoking the author’s rights as a
pretext
in their battle for economic power. The notion of the author as an
originator with a natural right to own ideas may have been invented by
artists and philosophers, but it was publishers who profited from it.
Laws are not made by poets but by states, and states exist to enforce
economic privilege, adopting whatever philosophical legitimation they
find convenient at any given time. The Statute of Anne codified the
capitalist form of the author-publisher relationship : copyright was
attached to the author at birth but automatically assumed by publishers
through the "neutral" mechanisms of the market. Authors had a
right to own the products of their labour in theory, but since they
created immaterial ideas and lacked the technological means to produce
books, they had to sell their rights to another party with enough
capital
to exploit them. In essence, it was no different than having to sell
their labour. The exploitation of the author was embedded in the
intellectual property regime from its inception.<br>
<br>
Intellectual property laws have shifted with the winds of history to
justify specific interests. Countries that exported intellectual
property
favored the notion of authors’ natural rights, while developing
nations,
which were mainly importers, insisted on a more utilitarian
interpretation that limited copyright by public interest. During the
19th
century, American publishing companies justified their unauthorized
publication of British writers on the utilitarian grounds that the
public’s interest to have great works available for the cheapest
possible
price outweighed authors’ rights. By the beginning of the 20th century,
as American authors became popular in Europe and American publishing
companies became exporters of intellectual property, the law
conveniently
shifted, suddenly recognizing the natural rights of authors to own
their
ideas and forgetting previous theories of social utility. During the
20th
century, intellectual property law has extended the rights of owners in
several ways : by increasing the duration of copyright to lifetime plus
70 years, by standardizing international IP regimes to benefit
corporations in economically dominant countries (achieved through
shifting IP governance from the World Intellectual Property
Organization
to the World Trade Organization), and by redefining the means of
protection and the types of intellectual property that could benefit
from
protection. Until the middle of the 19th century, copyright meant only
protection against verbatim copying. Toward the end of the 19th
century,
this was redefined so that the property protected by copyright
consisted
(against Fichte’s definition) in the substance, and not in the form
alone
­ which meant translations were also subject to copyright. Later this
protection was extended to any close approximation of the original,
like
the plot of a novel or play or the use of the characters from a movie
or
book to create a sequel. The types of property protected by copyright
have also expanded exponentially. In the beginning, copyright was a
regulation of the reproduction of printed matter. But the legislation
changed with each new technology of reproduction (words, sounds,
photographs, moving images, digital information). At the beginning of
the
20th century copyright was extended from covering texts to covering
"works." During a landmark court case in 1983 it was argued
that computer software was also a "work" of original authorship
analogous to poetry, music and painting in its ability to capture the
author’s originality and creative imagination. This illustrates the
wildly different contexts in which the myth of the creative genius has
been invoked to legitimate economic interests. And in each of the
landmark cases the focus has always shifted away from corporations (the
real beneficiaries) to the sympathetic figure of the author, who people
identify with and want to reward.<br>
<br>
> Intellectual Property as Fraud<br>
<br>
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. Except by denying workers
access to the means of production, property owners could not extract
any
more than the reproduction costs of the instruments they contribute to
the process. In the words of Benjamin Tucker, the lender of capital is
entitled to its return intact, and nothing more. When the peasants of
the
pre-industrial age were denied access to common land by the new
enclosures, it can be said that their land was stolen. But if physical
property can be stolen, can intelligence or ideas be stolen ? If your
land is stolen, you cannot use it anymore, except on the conditions set
by its new private "owner." If ownership of an idea is
analogous to the ownership of material property, it should be subject
to
the same conditions of economic exchange, forfeiture, and seizure - and
if seized it would then cease to be the property of its owner. But if
your idea is used by others, you have not lost your ability to use it ­
so what is really stolen ? The traditional notion of property, as
something that can be possessed to the exclusion of others, is
irreconcilable with intangibles like ideas. Unlike a material object,
which can exist in only one place at a given time, ideas are
non-rivalrous and non-exclusive. A poem is no less an authors’ poem
despite its existence in a thousand memories.<br>
<br>
Intellectual property is a meaningless concept - ideas don’t behave
like
land and cannot be possessed or alienated. All the intellectual
property
debates fought in courthouses and among pamphleteers during the 18th
century intuitively grasped this contradiction. What became obvious in
these debates was that the rights to own ideas would have to be
qualitatively different from the rights to own material property, and
that the ease of reproducing ideas posed serious problems for enforcing
such rights. In parallel to the philosophical debates about the nature
of
intellectual property, a monumental discourse criminalizing piracy and
plagiarism began to emerge. The most famous rant against piracy was
Samuel Richardson’s 1753 pamphlets denouncing unauthorized Irish
reprints
of his novel Sir Charles Grandison. Contrasting the enlightened English
book industry with the savagery and wickedness of Irish piracy,
Richardson criminalizes the reprints as theft. In actuality his claims
had no legal basis since Ireland was not subject to England’s
intellectual property regime. And what he denounced as piracy, Irish
publishers saw as a just retaliation against the Stationers Company’s
monopoly. A year before Richardson’s pamphlets, there were street riots
in Dublin against British taxation policies, which were part of a
larger
political struggle of Irish independence from Britain. By arguing that
this Cause is the Cause of Literature in general, Richardson framed the
battle over literary property in purely aesthetic terms, isolating it
from its political and economic context. But his use of the piracy
metaphor recalled Britain’s colonial history and brutal repression of
sea
pirates. 18th century maritime piracy has itself been interpreted as a
form of guerilla warfare against British imperialism, which also
created
alternative models of work, property and social relations based on a
spirit of democracy, sharing, and mutual insurance.<br>
<br>
Richardson’s account of originality and propriety excluded any notion
of
cultural appropriation and transmission. Never was work more the
property
of any man than this is his, he claims, portraying his novel as New in
every sense of the word. His claim is especially ironic given his own
appropriation, both in the novel and in the pamphlets, of stories of
piracy and plagiarism from the popular literature of his time and from
Heliodorus’ The Ethiopian, a 3rd century romance which was widely
parodied throughout the 18th century. The idea of originality, and the
possessive individualism it spawned, created a tidal wave of paranoia
among the author "geniuses," whose fear of being robbed seemed
to mask a more basic fear that their claim to originality was nothing
but
a fiction.<br>
<br>
Artistic creation is not born ex nihilo from the brains of individuals
as
a private language ; it has always been a social practice. Ideas are
not
original, they are built upon layers of knowledge accumulated
throughout
history. Out of these common layers, artists create works that have
their
unmistakable specificities and innovations. All creative works
reassemble
ideas, words and images from history and their contemporary context.
Before the 18th century, poets quoted their ancestors and sources of
inspiration without formal acknowledgement, and playwrights freely
borrowed plots and dialogue from previous sources without attribution.
Homer based the Iliad and the Odyssey on oral traditions that dated
back
centuries. Virgil’s Aeneid is lifted heavily from Homer. Shakespeare
borrowed many of his narrative plots and dialogue from Holinshed. This
is
not to say that the idea of plagiarism didn’t exist before the 18th
century, but its definition shifted radically. The term plagiarist
(literally, kidnapper) was first used by Martial in the 1st century to
describe someone who kidnapped his poems by copying them whole and
circulating them under the copier’s name. Plagiarism was a false
assumption of someone else’s work. But the fact that a new work had
similar passages or identical expressions to an earlier one was not
considered plagiarism as long as the new work had its own aesthetic
merits. After the invention of the creative genius, practices of
collaboration, appropriation and transmission were actively forgotten.
When Coleridge, Stendhall, Wilde and T.S. Eliot were accused of
plagiarism for including expressions from their predecessors in their
works, this reflected a redefinition of plagiarism in accordance with
the
modern sense of possessive authorship and exclusive property. Their
so-called "theft" is precisely what all previous writers had
regarded as natural.<br>
<br>
Ideas are viral, they couple with other ideas, change shape, and
migrate
into unfamiliar territories. The intellectual property regime restricts
the promiscuity of ideas and traps them in artificial enclosures,
extracting exclusive benefits from their ownership and control.
Intellectual property is fraud - a legal privilege to falsely represent
oneself as the sole "owner" of an idea, expression or technique
and to charge a tax to all who want to perceive, express or apply this
"property" in their own production. It is not plagiarism that
dispossesses an "owner" of the use of an idea ; it is
intellectual property, backed by the invasive violence of the state,
that
dispossesses everyone else from using their common culture. The basis
for
this dispossession is the legal fiction of the author as a sovereign
individual who creates original works out of the wellspring of his
imagination and thus has a natural and exclusive right to ownership.
Foucault unmasked authorship as a functional principle that impedes the
free circulation, the free manipulation, the free composition,
decomposition, and recomposition of knowledge. The author-function
represents a form of despotism over the proliferation of ideas. The
effects of this despotism, and of the system of intellectual property
that it shelters and preserves, is that it robs us of our cultural
memory, censors our words, and chains our imagination to the
law.<br>
<br>
And yet artists continue to be flattered by their association with this
myth of the creative genius, turning a blind eye to how it is used to
justify their exploitation and expand the privilege of the property
owning elite. Copyright pits author against author in a war of
competition for originality ­ its effects are not only economic, it
also
naturalizes a certain process of knowledge production, delegitimates
the
notion of a common culture, and cripples social relations. Artists are
not encouraged to share their thoughts, expressions and works or to
contribute to a common pool of creativity. Instead, they jealously
guard
their "property" from others, who they view as potential
competitors, spies and thieves lying in wait to snatch and defile their
original ideas. This is a vision of the art world created in
capitalism’s
own image, whose ultimate aim is to make it possible for corporations
to
appropriate the alienated products of its intellectual workers.<br>
<br>
> The Revolt against Intellectual Property<br>
<br>
The private ownership of ideas over the last two centuries hasn’t
managed
to completely eradicate the memory of a common culture or the
recognition
that knowledge flourishes when ideas, words, sounds and images are free
for everyone to use. Ever since the birth of the proprietary author,
different individuals and groups have challenged the intellectual
property regime and the "right" it gave to some private
individuals to "own" creative works while preventing others
from using and re-interpreting them. In his 1870 Poesies, Lautreamont
called for a return of impersonal poetry, a poetry written by all. He
added, Plagiarism is necessary. Progress implies it. It closely grasps
an
author’s sentence, uses his expressions, deletes a false idea, replaces
it with a right one. His definition subverted the myth of individual
creativity, which was used to justify property relations in the name of
progress when it actually impeded progress by privatizing culture. The
natural response was to reappropriate culture as a sphere of collective
production without acknowledging artificial enclosures of authorship.
Lautremont’s phrase became a benchmark for the 20th century
avant-gardes.
Dada rejected originality and portrayed all artistic production as
recycling and reassembling - from Duchamp’s ready-mades, to Tzara’s
rule
for making poems from cut-up newspapers, to the photomontages of Hoech,
Hausmann and Heartfield. Dada also challenged the idea of the artist as
solitary genius and of art as a separate sphere by working collectively
to produce not only art objects and texts, but media hoaxes,
interventions at political gatherings and demonstrations on the street.
Its assault on artistic values was a revolt against the capitalist
foundations that created them.<br>
<br>
Dadaist ideas were systematically developed into a theory (if often
suffering on the level of real practice) by the Situationists. The SI
acknowledged that detournement - putting existing artworks, films,
advertisements and comic strips through a detour, or recoding their
dominant meanings - was indebted to Dadaist practices, but with a
difference. They saw Dada as a negative critique of dominant images
(one
that depended on the easy recognition of the image being negated), and
defined detournement as a positive reuse of existing fragments simply
as
elements in the production of a new work. Detournement was not
primarily
an antagonism to tradition ; it emphasized the reinvention of a new
world
from the scraps of the old. And implicitly, revolution was not
primarily
an insurrection against the past, but learning to live in a different
way
by creating new practices and forms of behavior. These forms of
behavior
also included collective writings, which were often unsigned, and an
explicit refusal of the copyright regime by attaching the labels "no
copyright" or "anticopyright" to their works, along with
the directions for use : any of the texts in this book may be freely
reproduced, translated or adapted even without mentioning the
source.<br>
<br>
It is these twin practices of detournement (Lautremont’s necessary
plagiarism) and anticopyright that inspired many artistic and
subcultural
practices from the 1970s to the 1990s. John Oswald started doing sound
collages that remixed copyrighted works during the 1970s. In 1985 he
coined the term plunderphonics for the practice of audio piracy as a
compositional prerogative, which he and others had been practicing.
Oswald’s motto was : if creativity is a field, copyright is the fence.
His 1989 album Plunderphonics, which contained 25 tracks that remixed
material from Beethoven to Michael Jackson, was threatened by legal
action for copyright violation. Negativland has become the most
infamous
of the plunderphonic bands after their parody of U2’s song "I Still
Haven’t Found What I’m Looking For" was sued by U2’s record label
for violating both copyright and trademark law. Plundervisuals also has
a
long tradition. Found footage film goes back to Bruce Connor’s work in
the 1950s, but became more prevalent after the 1970s with Chick Strand,
Mathew Arnold, Craig Baldwin and Keith Sanborn. With the invention of
the
video recorder, the practice of scratch video, which detourned images
recorded directly from television programs and ads, became very popular
during the 1980s because of the relative ease of production compared to
the found film’s splicing of celluloid. A form of more depolititicized,
postmodern plagiarism has also achieved widespread reputation in
literary
and artistic circles during the 1990s with Kathy Acker’s novels - her
Empire of the Senseless plagiarized a chapter of William Gibson’s
Neuromancer with only minor rewriting - and with Sherrie Levine’s image
appropriations of Walker Evans, Van Gogh and Duchamp.<br>
<br>
Steward Home, a well-known proponent of plagiarism and organizer of
several Festivals of Plagiarsm from 1988-1989, has also advocated the
use
of multiple names as a tactic for challenging the myth of the creative
genius. The significant difference is that whereas plagiarism can be
easily recuperated as an artform, with star plagiarists like Kathy
Acker
or Sherrie Levine, the use of multiple names requires a self-effacement
that draws attention away from the name of the author. The use of
multiple names goes back to Neoism, which encouraged artists to work
together under the shared name of Monty Cantsin. After his break with
Neoism, Home and others started using the name Karen Eliot. The
practice
also caught on in Italy, where the Luther Blissett name was used by
hundreds of artists and activists between 1994 and 1999. Luther
Blissett
became a kind of Robin Hood of the information age, playing elaborate
pranks on the culture industry, always acknowledging responsibility and
explaining what cracks in the system were exploited to plant a fake
story. After Luther Blissett’s symbolic suicide in 1999, five writers
who
were active in the movement invented the collective pseudonym Wu Ming,
which means "no name" in Chinese. The collective, anonymous
name is also a refusal of the machine that turns writers into celebrity
names. By challenging the myth of the proprietary author, Wu Ming
claims
they’ve only made explicit what should already be obvious - there are
no
"geniuses," thus there are no "lawful owners," there
is only exchange, re-use and improvement of ideas. Wu Ming adds that
this
notion, which once appeared natural but has been marginalized for the
past two centuries, is now becoming dominant again because of the
digital
revolution and the success of free software and the General Public
License.<br>
<br>
Digitalization has proven to be much more of a threat to conventional
notions of authorship and intellectual property than the plagiarism
practiced by radical artists or critiques of the author by
poststructuralist theorists. The computer is dissolving the boundaries
essential to the modern fiction of the author as a solitary creator of
unique, original works. Ownership presupposes a separation between
texts
and between author and reader. The artificiality of this separation is
becoming more apparent. On mailinglists, newsgroups and open publishing
sites, the transition from reader to writer is natural, and the
difference between original texts vanishes as readers contribute
commentary and incorporate fragments of the original in their response
without the use of quotation. Copyrighting online writing seems
increasingly absurd, because it is often collectively produced and
immediately multiplied. As online information circulates without regard
for the conventions of copyright, the concept of the proprietary author
really seems to have become a ghost of the past. Perhaps the most
important effect of digitalization is that it threatens the traditional
benefactors of intellectual property since monopolistic control by book
publishers, music labels and the film industry is no longer necessary
as
ordinary people are taking up the means of production and distribution
for themselves.<br>
<br>
Free software guru Richard Stallman claims that in the age of the
digital
copy the role of copyright has been completely reversed. While it began
as a legal measure to allow authors to restrict publishers for the sake
of the general public, copyright has become a publishers’ weapon to
maintain their monopoly by imposing restrictions on a general public
that
now has the means to produce their own copies. The aim of copyleft more
generally, and of specific licenses like the GPL, is to reverse this
reversal. Copyleft uses copyright law, but flips it over to serve the
opposite of its usual purpose. Instead of fostering privatization, it
becomes a guarantee that everyone has the freedom to use, copy,
distribute and modify software or any other work. Its only
"restriction" is precisely the one that guarantees freedom ­
users are not permitted to restrict anyone else’s freedom since all
copies and derivations must be redistributed under the same license.
Copyleft claims ownership legally only to relinquish it practically by
allowing everyone to use the work as they choose as long the copyleft
is
passed down. The merely formal claim of ownership means that no one
else
may put a copyright over a copylefted work and try to limit its
use.<br>
<br>
Seen in its historical context, copyleft lies somewhere between
copyright
and anticopyright. The gesture by writers of anticopyrighting their
works
was made in a spirit of generosity, affirming that knowledge can
flourish
only when it has no owners. As a declaration of "no rights
reserved" anticopyright was a perfect slogan launched in an
imperfect world. The assumption was that others would be using the
information in the same spirit of generosity. But corporations learned
to
exploit the lack of copyright and redistribute works for a profit.
Stallman came up with the idea of copyleft in 1984 after a company that
made improvements to software he had placed in the public domain (the
technical equivalent of anticopyright, but without the overt gesture of
critique) privatized the source code and refused to share the new
version. So in a sense, copyleft represents a coming of age, a painful
lesson that relinquishing all rights can lead to abuse by profiteers.
Copyleft attempts to create a commons based on reciprocal rights and
responsibilities ­ those who want to share the common resources have
certain ethical obligations to respect the rights of other users.
Everyone can add to the commons, but no one may subtract from
it.<br>
<br>
But in another sense copyleft represents a step back from anticopyright
and is plagued by a number of contradictions. Stallman’s position is in
agreement with a widespread consensus that copyright has been perverted
into a tool that benefits corporations rather than the authors for whom
it was originally intended. But no such golden age of copyright exists.
Copyright has always been a legal tool that coupled texts to the names
of
authors in order to transform ideas into commodities and turn a profit
for the owners of capital. Stallman’s idealized view of the origins of
copyright does not recognize the exploitation of authors by the early
copyright system. This specific myopia about copyright is part of a
more
general non-engagement with economic questions. The "left" in
copyleft resembles a vague sort of libertarianism whose main enemies
are
closed, nontransparent systems and totalitarian restrictions on access
to
information rather than economic privilege or the exploitation of
labour.
Copyleft emerged out of a hacker ethic that comes closest to the
pursuit
of knowledge for knowledge’s sake. Its main objective is defending
freedom of information against restrictions imposed by "the
system," which explains why there’s such a wide range of political
opinions among hackers. It also explains why the commonality that links
hackers together <br>
the "left" in Stallman’s vision of copyleft - is not the
left as it’s understood by most political activists.<br>
<br>
The GPL and copyleft is frequently invoked as an example of the free
software movement’s anticommercial bias. But there is no such bias. The
four freedoms required by the GPL ­ the freedom to run, study,
distribute
and improve the source code so long as the same freedom is passed down
­
means that any additional restriction, like a non-commercial clause,
would be non-free. Keeping software "free" does not prevent
developers from selling copies they’ve modified with their own labour
and
it also does not prevent redistribution (without modification) for a
fee
by a commercial company, as long as the same license is passed down and
the source code remains transparent. This version of freedom does not
abolish exchange ­ as some free software enthusiasts have claimed ­ nor
is it even incompatible with a capitalist economy based on the theft of
surplus value. The contradiction inherent in this commons is partly due
to the understanding of proprietary as synonymous with closed-sourced
or
nontransparent. Proprietary means having an owner who prohibits access
to
information, who keeps the source code secret ; it does not necessarily
mean having an owner who extracts a profit, although keeping the source
code secret and extracting a profit often coincide in practice. As long
as the four conditions are met, commercial redistribution of free
software is nonproprietary. The problem is more obvious when
translating
this condition to content-based works, like poems, novels, films, or
music. If someone releases a novel under a copyleft license, and Random
House prints it and makes a profit off the author’s work, there’s
nothing
wrong with this as long as the copyleft is passed down. To be free
means
to be open to commercial appropriation, since freedom is defined as the
nonrestrictive circulation of information rather than as freedom from
exploitation.<br>
<br>
It comes as no surprise that the major revision in applying copyleft to
the production of artworks, music and texts has been to permit copying,
modifying and redistributing as long as it’s non-commercial. Wu Ming
claim it is necessary to place a restriction on commercial use or use
for
profit in order to prohibit the parasitic exploitation of cultural
workers. They justify this restriction, and its divergence from the GPL
and GFDL versions of copyleft, on the grounds that the struggle against
exploitation and the fight for a fair remuneration of labour is the
cornerstone of the history of the left. Other content providers and
book
publishers (Verso, for example) have expanded this restriction by
claiming that copying, modifying and redistributing should not only be
non-profit but also in the spirit of the original - without explaining
what this "spirit" means. Indymedia Romania revised its
copyleft definition to make the meaning of "in the spirit of the
original" clearer after repeated problems with the neofascist site
Altermedia Romania, whose "pranks" ranged from hijacking the
indymedia.ro domain to copying texts from Indymedia and lying about
names
and sources. Indymedia Romania’s restrictions include : not modifying
the
original name or source since it goes against the desire for
transparency, not reproducing the material for profit since it abuses
the
spirit of generosity, and not reproducing the material in a context
that
violates the rights of individuals or groups by discriminating against
them on the basis of nationality, ethnicity, gender or sexuality since
it
contradicts its commitment to equality.<br>
<br>
While some have multiplied restrictions, others have rejected any
restriction at all, including the single restriction imposed by the
initial copyleft. It is the movement around peer-to-peer filesharing
that
comes closest to the gesture of anticopyright. The best example is the
Copyriot blog by Rasmus Fleischer of Pyratbiran (Bureau of Piracy), an
anti-IP think tank and the one-time founders of Pirate Bay, the most
used
Bittorent tracker in the P2P community. The motto of copyriot is no
copyright, no license. But there is a difference from the older
anticopyright tradition. Fleischer claims that copyright has become
absurd in the age of digital technology because it has to resort to all
sorts of fictions, like distinctions between uploading and downloading
or
between producer and consumer, which don’t actually exist in horizontal
P2P communication. Pyratbiran rejects copyright in its entirety ­ not
because it was flawed in its inception, but because it was invented to
regulate an expensive, one-way machine like the printing press, and it
no
longer corresponds to the practices that have been made possible by
current technologies of reproduction.<br>
<br>
Stallman’s original definition of copyleft attempts to found an
information commons solely around the principle of information freedom
­
in this sense it is purely formal, like a categorical imperative that
demands freedom of information to be universalizable. The only limit to
belonging to this community is those who do not share the desire for
free
information ­ they are not excluded, they refuse to participate because
they refuse to make information free. Other versions of copyleft have
tried to add further restrictions based on a stronger interpretation of
the "left" in copyleft as needing to be based not on a negative
freedom from restrictions but on positive principles like valuing
social
cooperation above profit, nonhierarchical participation and
nondiscrimination. The more restrictive definitions of copyleft attempt
to found an information commons that is not just about the free flow of
information but sees itself as part of a larger social movement that
bases its commonality on shared leftist principles. In its various
mutations, copyleft represents a pragmatic, rational approach that
recognizes the limits of freedom as implying reciprocal rights and
responsibilities ­ the different restrictions represent divergent
interpretations about what these rights and responsibilities should be.
By contrast, anticopyright is a gesture of radicality that refuses
pragmatic compromises and seeks to abolish intellectual property in its
entirety. Anticopyright affirms a freedom that is absolute and
recognizes
no limits to its desire. The incompatibility between these positions
poses a dilemma : do you affirm absolute freedom, knowing it could be
used against you, or moderate freedom by restricting the information
commons to communities who won’t abuse it because they share the same
"spirit" ?<br>
<br>
> The Creative Anti-Commons Compromise<br>
<br>
The dissidents of intellectual property have had a rich history among
avant-garde artists, zine producers, radical musicians, and the
subcultural fringe. Today the fight against intellectual property is
being led by lawyers, professors and members of government. Not only is
the social strata of the leading players very different, which in
itself
might not be such an important detail, but the framework of the
struggle
against intellectual property has completely changed. Before law
professors like Lawrence Lessig became interested in IP, the discourse
among dissidents was against any ownership of the commons, intellectual
or physical. Now center stage is occupied by supporters of property and
economic privilege. The argument is no longer that the author is a
fiction and that property is theft, but that intellectual property law
needs to be restrained and reformed because it now infringes upon the
rights of creators. Lessig criticizes the recent changes in copyright
legislation imposed by global media corporations and their powerful
lobbies, the absurd lengths to which copyright has been extended, and
other perversions that restrict the creativity of artists. But he does
not question copyright as such, since he views it as the most important
incentive for artists to create. The objective is to defend against IP
extremism and absolutism, while preserving IP’s beneficial
effects.<br>
<br>
In his keynote at Wizards of OS4 in Berlin, Lessig celebrated the
Read-Write culture of free sharing and collaborative authorship that
has
been the norm for most of history. During the last century this
Read-Write culture has been thwarted by IP legislation and converted to
a
Read-Only culture dominated by a regime of producer-control. Lessig
bemoans the recent travesties of copyright law that have censured the
work of remix artists like DJ Dangermouse (The Grey Album) and Javier
Prato (Jesus Christ : The Musical). Both were torpedoed by the legal
owners of the music used in the production of their works, as were John
Oswald and Negativland before them. In these cases the wishes of the
artists, who were regarded as mere consumers in the eyes of the law,
were
subordinated to control by the producers - the Beatles and Gloria
Gaynor,
respectively - and their legal representatives. The problem is that
producer-control is creating a Read-Only culture and destroying the
vibrancy and diversity of creative production. It is promoting the
narrow
interests of a few privileged "producers" at the expense of
everybody else. Lessig contrasts producer-control to the cultural
commons
- a common stock of value that all can use and contribute to. The
commons
denies producer-control and insists on the freedom of consumers. The
"free" in free culture refers to the natural freedom of
consumers to use the common cultural stock and not the state-enforced
freedom of producers to control the use of "their" work. In
principle, the notion of a cultural commons abolishes the distinction
between producers and consumers, viewing them as equal actors in an
ongoing process.<br>
<br>
Lessig claims that today, as a result of commons-based peer-production
and the Creative Commons project more specifically, the possibility of
a
Read-Write culture is reborn. But is the Creative Commons really a
commons ? According to its website, Creative Commons defines the
spectrum
of possibilities between full copyright - all rights reserved - and the
public domain - no rights reserved. Our licenses help you keep your
copyright while inviting certain uses of your work - a "some rights
reserved" copyright. The point is clear : Creative Commons exists to
help "you," the producer, keep control of "your"
work. You are invited to choose among a range of restrictions you wish
to
apply to "your" work, such as forbidding duplication,
forbidding derivative works, or forbidding commercial use. It is
assumed
that as an author-producer everything you make and everything you say
is
your property. The right of the consumer is not mentioned, nor is the
distinction between producers and consumers of culture disputed.
Creative
Commons legitimates, rather than denies, producer-control and enforces,
rather than abolishes, the distinction between producer and consumer.
It
expands the legal framework for producers to deny consumers the
possibility to create use-value or exchange-value out of the common
stock.<br>
<br>
Had the Beatles and Gloria Gaynor published their work within the
framework of Creative Commons, it would still be their choice and not
the
choice of DJ Dangermouse or Javier Patro whether The Grey Album or
Jesus
Christ : The Musical should be allowed to exist. The legal
representatives of the Beatles and Gloria Gaynor could just as easily
have used CC licenses to enforce their control over the use of their
work. The very problem of producer-control presented by Lessig is not
solved by the Creative Commons "solution" as long as the
producer has an exclusive right to choose the level of freedom to grant
the consumer, a right that Lessig has never questioned. The Creative
Commons mission of allowing producers the "freedom" to choose
the level of restrictions for publishing their work contradicts the
real
conditions of commons-based production. Lessig’s use of DJ Dangermouse
and Javier Patro as examples to promote the cause of Creative Commons
is
an extravagant dishonesty.<br>
<br>
A similar dishonesty is present in Lessig’s praise of the Free Software
movement because its architecture assures everyone (technologically as
well as legally, in the form of its licenses) the possibility to use
the
common resource of the source code. Despite its claim to be extending
the
principles of the free software movement, the freedom Creative Commons
gives to creators to choose how their works are used is very different
from the freedom the GPL gives to users to copy, modify and distribute
the software as long as the same freedom is passed down. Stallman
recently made a statement rejecting Creative Commons in its entirety
because some of its licenses are free while others are non-free, which
confuses people into mistaking the common label for something
substantial
when in fact there’s no common standard and no ethical position behind
the label. Whereas copyleft claims ownership legally only to relinquish
it practically, the references to ownership by Creative Commons is no
longer an ironic reversal but real. The pick and choose CC licenses
allow
arbitrary restrictions on the freedom of users based on an authors’
particular preferences and tastes. In this sense, Creative Commons is a
more elaborate version of copyright. It doesn’t challenge the copyright
regime as a whole, nor does it preserve its legal shell in order to
turn
the practice of copyright on its head, like copyleft does.<br>
<br>
The public domain, anticopyright and copyleft are all attempts to
create
a commons, a shared space of non-ownership that is free for everyone to
use. The conditions of use may differ, according to various
interpretations of rights and responsibilities, but these rights are
common rights and the resources are shared alike by the whole community
­
their use is not decided arbitrarily, on a case by case basis,
according
to the whims of individual members. By contrast, Creative Commons is an
attempt to use a regime of property ownership (copyright law) to create
a
non-owned, culturally shared resource. Its mixed bag of cultural goods
are not held in common since it is the choice of individual authors to
permit their use or to deny it. Creative Commons is really an
anti-commons that peddles a capitalist logic of privatization under a
deliberately misleading name. Its purpose is to help the owners of
intellectual property catch up with the fast pace of information
exchange, not by freeing information, but by providing more
sophisticated
definitions for various shades of ownership and
producer-control.<br>
<br>
What began as a movement for the abolition of intellectual property has
become a movement of customizing owners’ licenses. Almost without
notice,
what was once a very threatening movement of radicals, hackers and
pirates is now the domain of reformists, revisionists, and apologists
for
capitalism. When capital is threatened, it co-opts its opposition. We
have seen this scenario many times throughout history ­ its most
spectacular example is the transformation of self-organized workers’
councils into a trade union movement that negotiates legal contracts
with
the owners of corporations. The Creative Commons is a similar
subversion
that does not question the "right" to private property but
tries to get small concessions in a playing field where the game and
its
rules are determined in advance. The real effect of Creative Commons is
to narrow political contestation within the sphere of the already
permissible.<br>
<br>
While narrowing this field of contestation, Creative Commons
simultaneously portrays itself as radical, as the avant-garde of the
battle against intellectual property. Creative Commons has become a
kind
of default orthodoxy in non-commercial licensing, and a popular cause
among artists and intellectuals who consider themselves generally on
the
left and against the IP regime in particular. The Creative Commons
label
is moralistically invoked on countless sites, blogs, speeches, essays,
artworks and pieces of music as if it constituted the necessary and
sufficient condition for the coming revolution of a truly "free
culture." Creative Commons is part of a larger copyfight movement,
which is defined as a fight to keep intellectual property tethered to
its
original purpose and to prevent it from going too far. The individuals
and groups associated with this movement (John Perry Barlow, David
Bollier, James Boyle, Creative Commons, EFF, freeculture.org, Larry
Lessig, Jessica Litman, Eric Raymond, Slashdot.org) advocate what Boyle
has called a smarter IP, or a reform of intellectual property that
doesn’t threaten free speech, democracy, competition, innovation,
education, the progress of science, and other things that are
critically
important to our ( ?) social, cultural, and economic well-being.<br>
<br>
In an uncanny repetition of the copyright struggles that first emerged
during the period of Romanticism, the excesses of the capitalist form
of
intellectual property are opposed, but using its own language and
presuppositions. Creative Commons preserves Romanticism’s ideas of
originality, creativity and property rights, and similarly considers
"free culture to be a separate sphere existing in splendid isolation
from the world of material production. Ever since the 18th century, the
ideas of "creativity" and "originality" have been
inextricably linked to an anti-commons of knowledge. Creative Commons
is
no exception. There’s no doubt that Creative Commons can shed light on
some of the issues in the continuing struggle against intellectual
property. But it is insufficient at best, and, at its worst, it’s just
another attempt by the apologists of property to confuse the discourse,
poison the well, and crowd out any revolutionary analysis.<br>
<br>
Berlin, 2006. Anticopyright. All rights dispersed.<br>
<br>
Note: (This text developed out of a series of conversations and
correspondences between Joanne Richardson and Dmytri Kleiner. Many
thanks
to all who contributed to its production : Saul Albert, Mikhail
Bakunin,
David Berry, Critical Art Ensemble, Johann Gottlieb Fichte, Michel
Foucault, Martin Fredriksson, Marci Hamilton, Carla Hesse, Benjamin
Mako
Hill, Stewart Home, Dan Hunter, Mark Lemley, Lawrence Lessig, Karl
Marx,
Giles Moss, Milton Mueller, Piratbyran, Pierre-Joseph Proudhon, Toni
Prug, Samuel Richardson, Patrice Riemens, Mark Rose, Pamela Samuelson,
the Situationist International, Johan Soderberg, Richard Stallman,
Kathryn Temple, Benjamin Tucker, Jason Toynbee, Tristan Tzara,
Wikipedia,
Martha Woodmansee, Wu Ming. ) <br>
<br>
<font size="2">
________________________________________________________________________________</font>
<br>
Hempal Shrestha<br>
<br>
Program Officer<br>
Bellanet Regional Secretariat, Asia <br>
<br>
<br>
<pre class="moz-signature" cols="200">--
TzuChiang Liou, Project Manager
OSSF Supports Software Freedom <a class="moz-txt-link-freetext" href="http://www.openfoundry.org">http://www.openfoundry.org</a>
Institute of Information Science, Academia Sinica, Taiwan
E-mail: <a class="moz-txt-link-abbreviated" href="mailto:tcliou@iis.sinica.edu.tw">tcliou@iis.sinica.edu.tw</a>
MSN: <a class="moz-txt-link-abbreviated" href="mailto:tcliou@msn.com">tcliou@msn.com</a>
GTalk: <a class="moz-txt-link-abbreviated" href="mailto:tcliou@gmail.com">tcliou@gmail.com</a>
TEL:+886-2-2788-3799 ext.1404
FAX:+886-2-2651-8660
Mobile: +886-937835052</pre>
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