ISSUES
Pirates of the Commons
SUDHAKAR THATHS CHANDRASEKHARAN
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The Commons is a shared spring from which we all draw sustenance. But recent trends seek to diminish its relevance, writes SUDHAKAR THATHS CHANDRASEKHARAN.
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CONTROLLING access to literary works to prevent copies from being made is a practice that goes back millennia. The Royal Library of Alexandria was so notoriously difficult to get into that Ptolemy III had to bribe his way in with 15 talents of silver.
Innovations do not bloom in an intellectual vacuum where access to knowledge is controlled. Jared Diamond, in Collapse: How Societies Choose to Fail or Succeed says that societies that restricted mobile exchange of ideas sowed the seeds of their own demise.
Mobility of ideas
Creativity relies on the rich common heritage of prior works. In science and art, revisiting, revising, reusing and transforming ideas from prior works is an age-old phenomenon. Ancient Greek texts from the library in Alexandria survived the Middle Ages only through the copious copies made by Arabic translators.
During Europe's Dark Ages many treasures of classical antiquity almost disappeared in book burnings by religious zealots. They were only saved from oblivion by a few pious Irish monks committed to copy and share works of learning.
The modern concept of Copyright evolved with the development of the movable type printing press, which made it relatively easy to produce multiple copies of works at a small additional cost. Publishers, not authors, were the first to seek restrictions on copies of printed works. The predecessors of Copyright law were arbitrary grants of monopoly rights sold to printers by cash-strapped monarchs. Such monopolies rarely benefited the author or the consumer.
Copyright goes legal
The first modern Copyright law was the English Statute of Anne enacted in 1710. It granted 14 years of exclusive rights to the author and could be optionally extended for a further 14 years. The Statute was a revolutionary piece of legislation that even protected the rights of consumers by ensuring that printers could not control how a work was used by its purchaser. Similar legislation that brought the right economic balance between maximising the distribution of works and encouraging their production followed soon in other countries.
A feature of early Intellectual Property laws was the classification of Copyright as a limited and not natural right. Works under Copyright were not entitled to the same protection accorded to tangible physical property. Constitutions and courts have repeatedly interpreted Copyright as a means of encouraging the production of creative works for public benefit. It is with this in mind that Copyrights give exclusive rights to creators for limited terms and not perpetuity. The creator of a work exclusively enjoys the benefits, including possible monetary ones, during the limited term of the Copyright. At the end of this limited term, the work passes into the Commons of the Public Domain.
New works draw ideas and inspiration from tens, even hundreds, of previous works. Much of the author Neil Gaiman's works, for example, draw from Shakespeare, and Greek and Hindu mythology. The original elements in the new work are still entitled to protection under Copyright law. Copyright laws try to balance giving incentives in the form of limited exclusive rights to individuals to innovate and the benefits to society and future creators from an enriched Commons. Sir Issac Newton, expressing his gratitude to his predecessors, said, "If I have seen further, it is by standing on the shoulders of giants." In an Escheresque pun, Newton borrowed the phrase "on the shoulders of giants" from earlier sources.
The Commons are a shared spring from which we all draw sustenance and inspiration without diminishing or polluting it.
But these days the Commons are becoming stagnant and brackish. There is a real danger that the Commons will dry up and hamper the ability of future generations to be inspired by contemporary works of our time. The digital revolution has made reproducing music, books and movies trivially easy at negligible cost. We need a Statute of Anne for our times. Instead, nations are propping up antiquated ideas of intellectual property ownership and extending the lives of Copyright in ways that greatly impoverish the Commons.
Lobbies at work
Works are increasingly owned by Corporations rather than individuals. Individual authors have little to gain from copyrights that extend beyond their graves. Walt Disney Corporation and Time Warner, on the other hand, live longer than individuals. In their avarice to not lose their cash cows to the Commons, they have successfully lobbied for copyright term limit extensions. Such extensions do not encourage the Corporations to produce new works. This is ironic considering that many of Disney's famous animated films like "The Jungle Book", "Snow White" and "The Little Mermaid" are themselves works derived from copyright expired works in the Commons.
The Sonny Bono Copyright Term Extension Act of 1998, derogatorily called "The Mickey Mouse Protection Act" by its detractors, extended copyright terms in the U.S. by an additional 20 years. The Act effectively prevents works from enriching the Commons until 2019. Mary Bono, Sonny Bono's widow and political successor, has gone on record as saying that since perpetual Copyrights would violate the U.S. Constitution, she would consider a proposal for a copyright term of "forever less one day".
The European Constitution that was recently voted down by the French and the Dutch contains neither a "limited time" nor a "to promote the progress of science and useful arts" clause. Critics of the EU constitution claim that this is a deliberate omission aimed at bringing forth perpetual Copyrights and Patents.
Copyright terms are being repeatedly extended to last far beyond the lifetime of the audience which experienced the original work. Delaying the entrance into the commons of contemporary works like "Star Wars" denies contemporary creators the legitimate right to make derivate works that relate to the original. If and when "Star Wars" eventually enters the Commons, it might be met by a generation that finds it irrelevant to a future in a galaxy far, far away...
(Sudhakar Thaths Chandrasekharan is a slacker without borders who considers Project Gutenberg to be the epitome of what the Internet should be. Send him your comments at thaths@openscroll.org.)
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