Martin Scherzinger (New York University): Authors or Commons? Neither, but Both!
The reach of private property rights, it seems, is widening. Over the last two decades, scholars in a variety of disciplines have tackled the impact of IP law on practices of politics, science, economics, law and culture. Not only has IP been extended to new information objects (from databases and software designs to biological seed lines, bacteria, genetically engineered life forms and DNA sequences), but the lengths of time for which protection is granted have been substantially extended for nearly all objects. At the same time, we witness today an outpouring of academic and popular scholarship in critical response to the widening reach of the IP concept. Like an evil twin, the progressive IP and cyberlaw scholarship calls for an expansion of the commons, emphasizes the productive delinking of cultural practice from cultural policy, and offers countervailing forces to the enclosure of the commons. Instead of identifying the expanding commons as inherently progressive, this paper argues that the peculiar co-mingling of the commons with its privatized antithesis productively underwrites new networks of exchange value. It is the opportunistic conceptual mélange between private property and public domain – whereby one side of the conceptual pole readily supplements (as alibi) for the other – that prevents the proper functioning of either conceptual principle in practice. Not property alone, but the very opposition between property and commons becomes the bastard concept for power. The paper describes contemporary cases of proprietary interests vested in anti-property as a paradoxical capitalist expansion of the laboring commons.
It seems that property rights are expanding in many domains. The ‘length of term’ is expanding, sometimes as much as 120 years. Legal literature tends to follow it with ‘like an evil twin its own shadowly branch of inverted morality’.
- Has copyright become delinked from its original mandate?
- Have excesses of (over) protection undermined some laws (e.g. patents of amino acids undermining innovation and research)?
Three types of IP ‘enclosure’:
- Property/land rights (18th and 19thC)
- Cultural commons enclosure – now becoming proprietary
- Future planning – copyrights protecting affecting as-yet-unachieved innovation. A ‘pre-emptive strike on the future’
In music we have pre-emptive constraints (e.g. DRM – constraints on on pausing, syncing etc) which undermines other laws that allow legitimate copying. Martin argues that the swing has gone too far towards protectiveness. He contrasts Lessig style arguments with less permissive, legally-supported ones.
Mismatch between anthropological reality and human behaviour. Informal ‘habitae’ are not implied by the law – free software being an example. There is a social network that is out of sync with the property laws that guard them. When people are at odds with the law and don’t care, we have a mismatch that needs to be resolved. Music is at the vanguard of developments – the MP3 effect was an early example of the genie leaving the bottle, generating mass criminality in the context of current laws. Three quarters of global information consumption is arguably ‘outside the law’. The ‘author is dead’ argument is very powerful – intertextuality is an ontological axiom of art. “Any time you do anything [in the arts], you cannot not break the law”. The cautious and comprised artist who ‘checks with the lawyers first’ arguably distorts the creative process, placing a constraint on communication.
The logic of ‘likeness’ is no longer the argument. However mashed up or adapted a sample may be, if it can be traced back to the source it is considered plagiarism. Transformativeness is paradoxical when viewed through the lens of law. Thresholds of similarity don’t line up with artistic practice, especially in self-derivative artforms (Martin cites Nickelback’s songs This is How You Remind Me and Someday which are in some respects the same song.
Copyright distorts the creative process because different types of copying have different costs. The author is irreducibly put into pastiche but must achieve originality. A fully postmodern approach would lead to the development of a ‘generalised commons’. An author without the author and a commons without a commons devolves both parties’ independent powers. Powerful stakeholders often assert their influence by embracing both sides of the author/commons dichotomy. A Beyoncé video is essentially a ‘collaboration of thousands’.
Beyoncé’s (Mozambique) dancers receive no reward for their input. Martin quotes the choreographer’s paradoxical statement;
While Beyoncé is the pop star, Gatson is quick to give credit to all of the dancers in the clip, including some that the team enlisted from Africa. “We say, ‘Share the light, you sparkle brighter,’ and we share our light with a lot of new, creative people…
Limelight is the reward rather than ‘true’ authorship. If we were serious about rewarding authorship we would find a mechanism to reward and acknowledge them. Only a small subset of creators is compensated. Disney – Grimm bros and Rudyard Kipling turned into unique IP.
Martin now turns to the ‘false romance of the commons’. Gold becomes iron – everything has its roots in Africa (so the romance of authenticity argument goes). It is perilous to mix the global public domain and the cultural concept of the innovative author. Billions of dollars of IP fees are paid from the ‘global south’ to the ‘global north’ (the latter owning more IP in many fields). The benefits and joys of access are geographically differential. Internet penetration is around 1% in Africa. Differentian access, differential constitution, asymmetric copyright.