The Theft of Culture

[Mazer]

The Theft of Culture

Western culture, the basis of our daily lives, the culmination of our works and our desires, is the arbitrary collection of the things we use to define ourselves as individuals and as a people, and many different things comprise this collection. We have our daily rituals and our friendships and our physical possessions and our belief structures, and western civilization as a whole is complex, colorful, deeply flawed, and a thing of beauty all at the same time. So all-encompassing is our culture that often it is difficult to decide whether our culture is the product of our collective experiences or if the reverse is true.

But perhaps that doesn't matter as much as the question of ownership: do we own our culture or does our culture own us? That may sound absurd, but think about it like this. Our history is the history of property disputes, and what it all comes down to is possession. A man who can prove he possess an object is considered the object's rightful owner, but for a physical item or a parcel of land that is a simple thing to prove. Perhaps a better way to put this would be: do we possess our culture or are we possessed by it? Concepts and ideas are almost impossible for one person to possess exclusively. An idea may be a phrase, a melody, a discovery about the natural world, a philosophy, or any number of intangible things, and due to their ephemeral nature there is nothing easier than to reproduce and distribute them.

So when it comes to a question of ownership of an idea, we look for the origin of the idea and attribute ownership to the first person who fixed it in physical form, in words on a page or the like. But because, just by talking about it, an idea may be reproduced and distributed, enforcing property laws concerning ideas is challenging, and for the past four centuries that has been the central preoccupation of the creators and publishers of books, songs, photographs, films, inventions, software, and every other form of entertainment. Suffice it to say, after four hundred years people have made a real mess of things.

Who Really Owns Ideas?

One thing will always be true: people will tend to take possession of the ideas, concepts, and stories of their times as if they had actually created them, because in a way they have. If not for the audience, the author would never write anything. The audience creates the need for ideas to be fixed in physical form, and the audience provides the motivation for specific ideas to be expressed. And because ideas are created specifically for their cultures of origin they become inextricable parts of those cultures. Take ancient Greek literature, for example. The Republic by Plato and the Odyssey by Homer were written for Greek audiences because Greeks could identify with the concepts and stories they contain. But we identify these writings as much with ancient Greek civilization as we do with their respective authors, and ultimately we have become the owners of these timeless writings because we inherited them from our ideological fore bearers; those books now belong to everyone.

It is inevitable that any creative work that endures through the ages will eventually become the property of humanity, even when the laws of the many nations are designed to prevent this occurrence. Can it be denied that this is the natural order of things? Above all, everyone can agree that people who have left this Earth for the great beyond can no longer possess earthly things, and copyrighted works fall into that category. We may certainly continue to attribute the creation of a work to its originator long after he or she has died, and often by doing so we immortalize the memory of that person. However, the exclusive ownership of an idea need not endure longer than the person who came up with it for it to survive the ages unscathed, because right or wrong, that idea will become a part of a culture and from then on it always will be.

However, the really good ideas tend to spread far and wide long before the deaths of their creators, and these days they can reach every corner of the globe in a single day. That kind of takes the fun out of being creative sometimes. It is widely agreed that once an idea is fixed in time and space that it should be protected by law to give the originator due respect and possibly monetary compensation, this that we may reward people for performing tasks that are not rewarding in and of themselves. To enforce this opinion we have given ourselves the gift of copyright, a set of laws that place unnatural limitations on society in order to benefit us in the long run by enlarging the body of our collective knowledge and the culture we use to identify ourselves. Though created with the good intent of maintaining fairness and balance, copyright has become overbearing, resulting in an impoverished public domain and the loss of the freedoms of otherwise law abiding citizens.

A Good Idea Goes Bad

People first began claiming exclusive rights to their creative works when the invention of the printing press kicked off the Renaissance. The advent of cheap, durable paper and movable type made producing books immensely easier than scribing them by hand, as had been done for centuries before. The problem was that there were people who made money from writing books and there were other people who made money from printing and selling them, and usually the right to make copies was granted to the printer rather than the author. A printer might produce and sell a few hundred copies of a book and later discover that other printers were selling the same book and not sharing the profits. So laws were made that gave certain printers exclusive rights to print books, provided they cleared them with the government first. This gave rise to printing guilds that developed their own rules of conduct concerning copyrights, and nowhere in these guilds were the concerns of authors represented. At this time in history copyrights were considered to last forever.

Then in 1709 “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,” better known as the Statute of Anne, was enacted by the British Parliament. It gave authors rather than publishers the rights to their works and limited those rights to fourteen years from the date of publishing, renewable once for a second fourteen year term. This eventually led to the birth of public domain, the idea that after a period of time a printed work could no longer be monopolized by an individual and from then on would be freely available to everyone. Most people agree that the public domain is a great resource, providing people with a basis for future creative works and for scientific and historical research. Public domain can be thought of an aspect of culture that legally belongs to everyone. However, as outlined above, just because an idea is the legal property of an individual does not mean that society will not take possession of it as well.

When copyright law was new it may not have provided protection for a long enough period of time for the author to justify the effort of publishing a book, so the terms of protection were extended as time went on. This is evident in the history of the United States when early on the first copyright law enacted there gave the same rights to authors that the Statute of Anne did. It was eventually amended to increase the term of protection to twenty eight years plus a fourteen year renewal, then to twenty eight years with a twenty eight year renewal, and so on until the Copyright Act of 1976 extended the term of protection to the lifetime of the author plus fifty years. That act was passed so the U.S. could comply with the Berne convention which it signed in 1988.

Then Greed Set In

Such a long copyright term flies in the face of the fact that people who are dead do not need copyright protection. If all goes well, a person who publishes a book will see a large return on his work and can use the money to finance future books and provide a living for himself and his family. But a term that lasts for the lifetime of the author and longer provides no incentive for the author to write new books if his previous books continue to generate income forever. When the Copyright Term Extension Act of 1998 was passed in the United States the motive was clear: the Walt Disney Company didn't want its copyright on Mickey Mouse to expire. It wanted to rest on the laurels of the late Walt Disney to generate revenue for the company, removing the need to hire new talent to create new animated characters. Obviously Mr. Disney himself benefits not at all from the extension of his creation's copyright term.

Copyright law also provides for statutory damages when a copyright is violated, and over the years the minimum and maximum penalties have been increased as well. The promise of cashing in on the crimes of pirates has become too much for copyright owners to ignore, and the music industry represented by the Recording Industry Association of America demonstrates this fact well. In 1999 when the Digital Theft Deterrence and Copyright Damages Improvement Act was passed, the maximum penalty assessable for willful copyright infringement was increased to $150,000. In 2003 the RIAA took full advantage of this change in order to threaten its customers with multi-million-dollar lawsuits for their online copyright infringement activities. To date these law suits have numbered almost 20,000 cases, about half of which have been settled for amounts averaging $3,500. That comes out to $35,000,000 of revenue generated in two and a half years with out the sale of one song or album. If the record industry stopped making records today it could thrive for nearly a century by licensing the use of old recordings and suing people for infringement. Without a doubt copyright law as it stands today exists only to make copyright owners wealthy, the public welfare be damned.

The Lost Spirit of Sharing

There was a time when the leaders of this country understood that a balance must be struck between the rights of content creators and the general public. It started with the framers who, in Article I, Section 8 of the U.S. Constitution, wrote “the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Two important things can be read from this clause: first that the purpose of copyright is to promote scientific and artistic progress, thereby enlarging the culture of the United States, and second that the terms of these rights are only meant to be enforced for reasonably limited periods of time. Mary Bono, who sponsored the Copyright Term Extension Act on behalf of her late husband once said, “Sonny wanted the term of copyright protection to last forever.” But when she was informed that such a change would violate the Constitution, she suggested that Congress consider a copyright term of “forever less one day,” a loophole conceived by the then-president of the Motion Picture Association of America, Jack Valenti. If these people had their way then nothing would ever pass into the public domain ever again.

Almost a century ago Congress did not consider their Constitutional mandate burdensome, but sought to stay true to the spirit of the copyright clause. In 1909 the 60th Congress wrote, “The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.” Congress then understood that there is a balance that copyright law is meant to preserve, that these lawful monopolies are not meant to be used as a bludgeon to keep the public in check, but simply to provide incentive for individual creativity. They seemed to understand that, in the end, all creative works are meant to pass into the public domain for the benefit of everyone.

We Are Not the Thieves...

In times past, and especially in recent years, infringers of copyright have been called pirates and even thieves. Those appellations are not always justified. Piracy in this sense refers to the act of infringing an other person's copyright for the purpose of personal, monetary gain. International piracy is a big business abroad, especially in Asian countries where the concept of copyright is relatively new and the laws are lax. In the instances where black market groups invest large sums of capital in CD and DVD copying equipment, those men are rightfully labeled pirates, and what they do could justifiably be called theft. Often their products are of equal quality to the legally distributed versions published by record and movie studios around the world, but they sell for half the price or less. This makes legitimate sales in those countries very difficult to sustain. In those countries that have signed international copyright treaties these criminals should be prosecuted to the fullest extent of the law.

Piracy rings of such massive scale aren't as prevalent in western countries, and if they are they don't last long. Yet piracy is said by spokesmen for the RIAA and the MPAA to be as bad here as it is in Asia. These trade associations claim annual losses due to piracy of more than $4 billion and $6 billion respectively, and constantly blame peer to peer filesharing for a large percentage of those losses. They call filesharers pirates and thieves, comparing them to the real pirates and thieves who cost the entertainment industry real money. While some filesharers proudly wear the pirate label with tongue in cheek, none of them can justifiably be called thieves according to the Supreme Court of the United States. In the 1985 case of Dowling vs. United States, a pirate who was found guilty of mail fraud and copyright infringement for selling Elvis Presley recordings through the mail, appealed his theft convictions on the basis that he hadn't deprived the rightful owners of their original copies. The court agreed stating, “[transport of stolen property in interstate commerce] does not apply to this case because the rights of a copyright holder are 'different' from the rights of owners of other kinds of property.” The entertainment industry wishes to treat copyrighted works like any other kind of physical property, but they are in essence two vastly different things. The Supreme Court upheld this truth, forever eliminating the idea that copyright infringement and theft are the same thing.

...We Are the Victims of Theft

And yet property is being taken from its rightful owners, and shockingly it's one hundred percent legal. Eventually the public must inherit every idea, artistic creation, and invention so they may do the most good. Innovation and creation must not be impeded by greed, so at some point we must decide that there are certain creative works that no longer belong to their creators, and that decision must be made with all fairness in mind. So the question is not whether this should occur, but when.

For different creations perhaps different terms of protection should be applied. A patent on an invention or process, for instance, is usually based on scientific research, the kind that leads to profitable ventures and which are researched for that specific purpose. Those researchers have every right to profit from their work, but at the same time what they do cannot be called real science until their research is published and subject to peer review. For many companies this would mean the revelation of trade secrets followed by serious competition from other companies. In this instance the rights of companies to profit from their innovation must be balanced against the utilitarian need for advances in such fields as medical research. And at any rate, such innovations should be motivated by the impending expiration of previous patents in order to prevent stagnation.

Perhaps patent law needs reform, but not nearly as much a copyright law. While inventions and sciences can be said to contribute to the collective knowledge of man, literature and the arts play a major role in the expansion of culture. When asked what modern creations they most enjoy, people are probably more like to name a movie or song rather than an invention. It is the popular forms of entertainment that we identify with, these have the greatest impact on our psyches and our states of mind. They help us define who we are as a society, they become part of us. We are people who treasure individualism and we reject the idea that third parties can own or take control of us. This is why we chafe at the idea that someone else might be taking away our access to culture; we can't be who we are unless we're allowed free access to knowledge and ideas.

The problem with copyright terms isn't just that they are so long, but that they continue to be extended when there is no real need. I am 25 years old. If I live to be 75 years old this essay will be protected by copyright until the year 2126. I have no desire for that to happen, but to my despair, in the next decade or two the terms of copyright are likely to be extended again, as they have been at regular intervals for the past two centuries. So in effect, the copyright on this essay will never expire. The world will end in one way or an other long before my writings become public domain. It is for this reason that I'm publishing this under a Creative Commons license. I want people to have free access to my words, not just after I die, but now. My only purpose for writing this essay is for it to be read and passed on, and I think it's pitiful that I have to spell these rights out to my readers in advance.

This is my lesson: that which you do not deserve does not belong to you. I have done nothing to earn the right to have my works protected by law for 120 years and more, and I don't think I'll ever do something to deserve it. And I'm just like everyone else in this regard, because simply being a creative thinker does not merit perpetual ownership of a thought, especially considering that everyone is mortal and nobody can take their possessions with them when they die. But the industry cartels that publish music and movies and, to a lesser extent, books have laws on their side that make perpetual ownership of “intellectual property” possible. This doesn't just apply to the creations of contemporary artists but also to every copyrighted work since 1928 whose copyright was not allowed to lapse until 1976, after which nothing has entered the public domain without the express consent of the creator. The cartels simply do not deserve to own such a large chunk of our culture in perpetuity.

Every year that passes is a year that the cartels have contributed nothing to civilization. Every year that passes is a year that they have annexed a part of our souls. Every year that passes is a year they have stolen from us. The real shame of it all is that their continuing theft of culture is fully endorsed by international copyright law. Reform is needed, and it is needed now. The scales are tipped way to far in their direction, and if things do not change soon they'll end up owning our hearts and minds. The day our civilization as we know it ends is the day we don't mind buying pieces of our culture on a pay-per-view basis. Culture belongs to everybody until we allow a few individuals to possess it, at which point they will own us.

Copyright © 2006 Mazer

This document is licensed under a Creative Commons Attribution-ShareAlike 2.5 License

Digg this article?

[Mazer]

Hey, I've been published!

I've never heard of Don't Panic magazine before but it looks cool. They asked me a couple weeks ago if they could "syndicate" my essay, and now they've put it on their website.


http://www.dontpanicmedia.com/articl...-06-22%2021:08

[multi]

I am not surprised really
it is a good read

took a bit of looking around but I found it

http://www.dontpanicmedia.com/articl...eft_of_Culture

that seems to be the link for the article ^

[Mazer]

That's the one, multi. I like the artwork they put at the top of the page, reminds me of WASTE. I wonder if that's on purpose.

[multi]

maybe it is
who knows what goes on in the minds of these crazy artists

[TankGirl]

FYI: this essay has been included in Swedish Pirate Party's reference library. There are also many other interesting references there so worth checking!

A good essay, Mazer!

[TankGirl]

Mazer, the Swedish pirates seem to have liked your essay so much that they have now made it directly available on their own webpages: here. I guess you can now consider yourself one of the main ideologists of the international pirate movement.

[Mazer]

Dang, now I have to put Sweedish on my list of languages I need to learn but probably never will.