Wednesday, August 25, 2010

Intellectual Property vs. "Cultural Commons"

by Jessica

Some years ago, shortly after I moved from New York to Egypt, I was invited to participate with fellow publishing professionals in a seminar on intellectual property rights, hosted by the Cairo Book Fair. The discussion swirled around licensing translations into and out of Arabic, the plight of authors in the Arab world (who, no matter how successful, rarely make enough money to give up their day jobs) and the importance of combating piracy. Therefore it caught me by surprise when one of the participants—presumably a fellow publisher—raised his hand and pointed out, with all due respect, that intellectual property law in general, and copyright law in particular, was just one more way in which wealthy first-world nations turned a profit at the expense of poorer developing ones.

I was thunderstruck.

Although I’d heard folks in the United States—generally my tech-savvy acquaintances—bat around the notion that “knowledge wants to be free, dude,” I imagined that this applied mostly to shareware, assorted wikis, and other Wired magazine fare. Somehow, up until that moment, I’d failed to see the connection this notion has to the business in which I work, which is, of course, predicated on the idea that knowledge, at least in book form, does not wish to be free. It wants a retail price, a percentage of which (7.5% for trade paperbacks, 10-15% for hardcovers, and still tbd as far as e-books are concerned) should be given to the author.

At that seminar in Cairo, it had never even occurred to me that copyright could be regarded as anything other than capital-G Good. Intellectual property law is, after all, what allows writers to write—the knowledge that their material is protected, that they can profit by its success, that their words or ideas cannot be distorted or stolen, that writing for a living is, in fact, possible. Not easy, not likely, but possible. I’d never so much as imagined that a counter-argument existed, much less thought about ways in which intellectual property law might be seen as vehicle of exploitation. But in developing markets, the cost of commissioning a translation and paying even a modest licensing fee can make publishing a given project untenable. And of course, the issue is not just with books: Powerful pharmaceutical companies control the patents to drugs that are most acutely needed in desperately poor countries, the same is true for most all scientific and creative output—much is controlled by relatively rich entities—whether countries or corporations.

Don’t get me wrong, I’m not looking to toss out the baby with the bath water. I’m a staunch defender of copyright; it goes with the territory of being an agent. But I’d like to think I’m a little more critical—or at least open-minded--about the role intellectual property law plays in a complex, global, and (with apologies to Tom Friedman) not entirely flat world. Which is why I have been particularly interested to dig into Lewis Hyde’s Common as Air: Revolution, Art and Ownership. There’s a great (and unusual) graphic review in the Barnes and Noble review , plus an excellent non-graphic discussion in the New York Times Book Review. Hyde cites copyright law (which presently stands at the author’s lifetime, plus 70 years) as an area in which “enclosure,” i.e. fencing off areas of science, literature, innovation, etc. for commercial gain, has won at the expense of our “cultural commons,” areas of shared knowledge that are essential to the growth of a society. He does believe that artists should own their work (whew!), but questions how long that period should last. He illustrates his point with true stories drawn from agribusiness, pharmaceuticals and even the music industry. He is particularly keen to cite the ideas of the founding fathers, who, he argues, were more or less in agreement with Thomas Jefferson that "ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man."

Sounds good in theory, but how does this play out in practice? How do we see that writing, or creative output in general, is both fostered and rewarded? That the publishing industry does not collapse? I sure don’t have the answers, but given the fact that e-books (and initiatives like Google Books and Project Gutenberg) can aid and abet the Jeffersonian spread of ideas in unprecedented ways, it’s worth mulling over.

What do you think?


  1. Copyrights are extended like clockwork every time Steamboat Willie begins to be eligible for the public domain. The protection of Mickey Mouse has a lot of money behind it.

    I intend to stipulate in my will that all of my copyrights revert to the public domain at the latest of my death, my wife's death and my youngest child's 25th birthday.

  2. I think ideas and product are two different things.

  3. The publisher's statement needs a little more amplification before it can be judged.

    After all, he's a businessman. If he can get away without paying the writer, he'll all be for it. He's a capitalist, after all. So I can't see how copyright law affects him in a negative way, unless it keeps him from pirating protected works before the law allows him.

    Now, it might be a different matter for drugs. There, you're getting into profit and loss. If it takes a drug company millions to develop a drug (in part because of the regulatory regime imposed by DC to ensure a measure of quality and a lack of harmful side-effects), then doesn't the company have a right to recoup those millions?

    Ah, but how many millions? How much of a profit? And who decides? The devil, after all, is in the details. Much like Hollywood accounting.

  4. Framing it as 'ideas' makes it sound like writers pull books from the air or at least from the collective unconscious, that there's no work involved.

    There's also an unfortunate conflation of 'free, you don't have to pay', 'free market' and 'freedom'. Three rather different concepts.

    If someone publishes something in the public domain they are, by definition, a publisher. They want to charge $7.99 for the book. Or give you a free ebook and charge you $189 for a device to read it on. It's not some utopian dream of free-flowing information, it's about charging for something they didn't pay for.


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