Copyright --
or Wrong? Intellectual
Property in the Electronic Age
by A. D. Coleman
My ruminations
last month on the ownership and control of information
now lead me inexorably to the matter of copyright.
And I can think of no better jumping-off point for
such a discussion than an essay by the late photographer
and critic Derek Bennett, titled "A Speculation,"
that appeared in the elegant Belgian magazine Clichés
awhile back.(1)
In the guise of
a prophecy, this text was a frontal attack on what
Bennett proposed was the "antiquated" concept
of copyright, which he felt had ceased to serve any
productive purpose (if it ever did) and now only stood
in the way of progress. Ideas can't be owned, he argued,
and treating them as property interferes with their
free circulation. In short order, computerization
and the digitization of imagery were going to undermine
any practical exercise of copyright, and even the
very concept of it, anyway; so we might as well have
the grace to abandon it as a matter of choice before
progress and/or technology stripped it from us.
My dispute with
Bennett over this issue went deep. I found myself
in profound disagreement not only with his conclusions
but with some of his premises as well, so much so
that I still feel impelled to formulate a reply. Therefore,
with all due respect, let me see if I can defang and
declaw Bennett's bête noire.
Everywhere in the
world, people with an appetite or need for data and
information -- not only such researchers as journalists
or scholars but also average citizens with their professional,
personal and private concerns -- struggle against
forces that oppose the free flow of information. One,
almost invariably, is the government; as discussed
in my previous column, the other -- at least in capitalist
or social-democratic countries -- is the corporate
state.
Bennett saw copyright
law as part of this problem, suggesting that copyright
is now an archaic procedure serving only to stifle
information exchange. But copyright does not prevent
anyone from obtaining information; it should not be
confused with a trade secret, which -- like the recipe
for Coca-Cola -- can indeed be kept entirely private,
forever if one so wishes.(2)
To register my
copyright of something, I must deposit a copy of it
in a public archive -- here in the States, it's the
Library of Congress -- to which others have free access.
So, if I had information that I wanted to keep secret,
I'd put it under the mattress, or in a safe deposit
box; the last thing I'd do is copyright it. To put
it another way, short of searching through the Library
of Congress's files for copyrighted but unpublished
material, the only way to discover the existence of
something that's been copyrighted is to come across
a published version of it bearing the copyright notice
-- which means, by definition, that its contents have
been made available to you for scrutiny.
Copyright thus
bears direct comparison to the patenting process,
which -- in the U.S. -- gives inventors (or their
assigns) a fourteen-year monopoly on their device,
formula or other discovery. Both patents and copyrights
are granted to the originators of ideas embedded in
specific forms, to compensate them for their investment
of time, energy and labor in generating material that
did not previously exist; that compensation merely
guarantees them the exclusive right to sell or license
their product for a fixed period of time. Thereafter,
those products fall into the public domain, and may
be freely used by all. Curiously, those who (like
Bennett) proclaim the death of the author rarely acknowledge
this parallel; you won't find them denying the existence
of inventors, or proposing the dismantling of patent
law and the elimination of its protection of those
who devise physical things rather than concrete forms
for thoughts and emotions.
Be that as it may,
copyrighting clearly doesn't prohibit people from
buying books, newspapers, magazines, records and videotapes,
nor from borrowing those at libraries and archives
or from friends and colleagues. It does not interfere
with their hearing and seeing public presentations
of a wider variety of what we might broadly call ideas
and information -- as embedded in music, films, plays,
and talk shows offered on radio and TV, in movie houses
and theaters -- than the species has ever had available
to it before. Copyright law doesn't stop teachers
from assigning readings to their students. It doesn't
prevent anyone from handwriting or typing out a copy
of any text for personal use, nor from quoting it
(within certain size limits for a published quotation).
What copyright
law prohibits (and not indefinitely, but for a limited
time only) is the unauthorized duplication of those
forms in which the information is embodied, and certain
kinds of unauthorized public presentations thereof,
especially when done for profit. While not very effective
at stopping individuals from making single copies
of things on photocopy machines, VCRs and home tape
recorders, it's useful in forestalling and halting
the increasingly common mass production and distribution
of pirated versions.
To bolster his
argument, Bennett painted a rosy but only partially
accurate picture of the Middle Ages, replete with
freethinking scholars cheerfully and unabashedly cannibalizing
each other's work. There's some truth to that, but
those times were much different from ours. Virtually
all the writers of that age were subsidized -- by
the church, by the state, or by private patrons. And,
even then, information was certainly commodified and
controlled, not only by those who did the subsidizing
but by those privileged institutions and individuals
who owned or supervised collections of original manuscripts,
or hand-copied versions thereof. (Those of you who
read Umberto Eco's The Name of the Rose,(3) or saw
the movie, will remember the elaborate labyrinth in
the monastery's library expressly designed to restrict
access to controversial texts.) Certainly censorship
was rife; those were the days in which authors as
well as books were burned.
As I pointed out
in my earlier column, information has been recognized
as a commodity for at least the past five hundred
years; printed books and their manuscript predecessors
have functioned as products for longer than that.
As a result of electronic technology, the physical
forms in which information is embodied, and the devices
through which it is disseminated, are changing with
breathtaking rapidity. Clearly, as Bennett himself
observed, we're in a transitional state at the moment.
I agree absolutely with that, but not with his conclusion
that copyright will therefore become irrelevant in
the digital epoch.
From my standpoint,
it's wrongheaded to propose that anyone who supports
the legal concept of copyright must believe that ideas
can be possessed. I certainly don't conflate the two;
such an argument ignores the difference between the
uninhibited circulation of ideas and the unrecompensed
production of specific embodiments of those ideas.
The U.S. copyright law recognizes that distinction,
and does not in fact allow the copyrighting of ideas;
you cannot use it to safeguard the theme of an essay,
or the conceptual premise for a suite of photographs.
What the copyright law protects is what the philosopher
Karl Popper calls "objective knowledge,"
by which he means objectified knowledge: thought that
has been given specific, concrete form.(4)
What this means
is that Georges Braque and Pablo Picasso could not
have copyrighted the premise of cubism (which, simplistically
stated, is that one can apprehend and describe something
by building up a collage of glimpses of it from many
different vantage points); Albert Einstein could not
have copyrighted the formula E=MC2, nor Edward Weston
his conviction that the implacable forces of nature
were revealed to the attentive eye in close scrutiny
of animal, mineral and vegetable forms. But Braque's
and Picasso's paintings, graphics and sculptures were
protected by law from unauthorized replication, as
was Einstein's essay disclosing and explaining his
theory of relativity, as was Weston's "Pepper
No. 30."
"To [secure]
to each laborer the whole product of his labor, or
as nearly as possible, is a most worthy object of
any good government," said Abraham Lincoln in
1847.(5) Copyright enables me, as an independent contractor
in the business of generating idiosyncratic configurations
of words, to reap the fruits of my labors, providing
me with an adequate if modest recompense for making
the effort to transform my ideas into tangible, physical
form. To inveigh against this is to suggest that writers
-- and photographers, and all other makers of embodied
ideas -- either must be willing to work for nothing
or must find state, institutional, corporate or private
patronage, for without copyright how else can their
labor be subsidized?
But the protection
afforded by copyright empowers me -- and makes me
accountable as well -- in other ways, which I'll have
to take up next month.
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Notes
(1) Derek Bennett,
"Une spéculation" ("A Speculation),"
Clichés 45 (April 1988), p. 3. His text
appears in French only, and though I doubt that he
wrote it in that language I know of no published English
version of this text.
(2) As such, it
would be covered by property law, and its disclosure
without permission would be actionable. But, should
someone else coincidentally duplicate that discovery
and begin to market it, those who'd first created
it would have no recourse under law.
(3) Umberto Eco,
The Name of the Rose (New York: Harcourt Brace
Jovanovitch, 1983).
(4) Popper, Karl,
Objective Knowledge: An Evolutionary Approach
(Oxford: Oxford University Press, 1972).
(5) My source for
this quote is the main branch of the Amalgamated Bank
of New York, on Union Square West, in whose interior
it's engraved in marble. Beyond that, I cannot vouch
for its accuracy.
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This essay first
appeared in Camera & Darkroom Photography,
Vol. 13, no. 9 (September 1991). This somewhat revised
and expanded version subsequently appeared in my book
The Digital Evolution: Visual Communication in
the Electronic Age, Essays, Lectures and Interviews
1967-1998 (Nazraeli Press, 1998; second edition,
Villa Florentine Books, 2002).