Skipping through the desert of the real: copyright landscapes and the future of creativity



Copyright landscapes and the future of creativity1




The nation-state of the future is the individual human being.2

The democratization of technological power has made the shape of the future hard to know, even for the best informed. The individual holds more power than at any time in the past century, and literally in the palm of his hand. Whether or not he can hold on to it is another matter.

Tim Wu, The Master Switch, 298

The commodity economy has always been a globalizing force, but under the rule of capital, the global served the interests of the powerful ruling states, whereas under the rule of the vectoral, states come to serve the interests of an emerging global power. The vectoralist class detaches power from its spatial fixity. It dreams of a world in which place gives way to space, where any and every locus the vector touches becomes a node in a matrix of values, yielding objects that can be freely appropriated in their productivity, freely combined with any and every other object, regardless of distance, or the particular happenstance of origin.

McKenzie Wark, A Hacker Manifesto, 360

To refresh the argument made in the earlier chapters of this book, we have seen a massive reconfiguration of the legal and policy structures around the world to deal with the emerging information age, where intangible property has taken on a level of significance previously only linked to real property. During the 1980s, while most people in the world had yet to pay much attention to the legal regimes of copyright and patent law, those interested in securing strong property rights in intangible products were shaping the legal environment of the future by fashioning national and international laws to support their particular paradigm of ownership and control. By the end of the 1990s, much of the legal system that would govern intellectual property was in place—from domestic laws detailing the relations of industries associated with the exchange of intellectual property to international laws establishing a minimum amount of protection that everyone needed to provide.

Resistance has always been part of the process of expanding intellectual property rights and was documented during the debates over TRIPS as well as most proceedings surrounding IP at the WTO since then. Resistance has come not only from a growing number of voices in the West, but also from the global South, where the consequences of a new method for extracting wealth has been understood as reconfiguring the old colonial landscape under the same management but different terms.3 It was the culmination of several watershed events occurring during the 2000s that helped draw public attention to the intellectual property expansion going on globally as these controversies took the idea of patents, copyrights, and trademarks out of the realm of the abstract and relocated them in the everyday lives of people struggling for survival, seeking to share music, and innovate without litigation.4 Each of these resistances is an indicator of one possible future that could be built upon a different set of assumptions regarding access to knowledge, the production of culture outside the culture industry mandate, and the importance of democracy at a global level.

First, the public health crisis of access to medication in South Africa as it related to an unjust international patent regime became part of the counter-globalization debate. Second, beginning with the file-sharing service Napster, peer-to-peer programs opened up the content of the culture industry to widespread sharing, thus undermining the dominant mode of industrial cultural production. Third, the free and open source software (FOSS) movement in conjunction with the creation and evolution of the Creative Commons and other open access movements reached a critical mass and produced a viable alternative to monopoly rights enshrined in copyright and patent protection. These events, combined with the more recent decision by major content industries in the United States to sue their fans, and countries as far-ranging as France and South Korea to enact “three strikes and you are out” laws, thus demonstrate that intellectual property law had gone personal and helped to generate world-wide public interest in the issues of IP. Numerous other controversies from biopiracy and the ongoing debate over traditional knowledge, as well as the increasingly global flow of culture discussed in earlier chapters, have all helped create a sea change in how property rights in intangibles are being conceptualized by the global public.

As a result, many around the world began fighting back against what James Boyle called “the new enclosure” movement.5 Today, because copyright and patent issues have also become social justice issues, the policy framework that will affect our future is developed within a culture of resistance to intellectual property, or at the very least, much more public consideration of the issues involved. That resistance has made some headway by inserting issues of open access onto the international agenda. The recent public outcry and internet blackouts associated with the proposed Stop Online Piracy Act is an indication of how significant the change in terms of resistance has been. Where previous laws impacting intellectual property have met with little to no public concern, SOPA elicited enormous public outcry and technology company protests.6 ACTA received similar attention and reaction at the international level.

As this book has sought to demonstrate, the structure of copyright and patent law is not neutral, but instead produces a new political economy where individuals are subjected to surveillance and control in an effort to manage intangibles and to enhance the profits of what McKenzie Wark has called the “vectoralist class.”7 What is less clear is how the public benefits from the contemporary configuration of intellectual property policy at the domestic or international levels. Certainly, they have been given access to the entertainment products that allowed the United States to “win” the Cold War and they have been subjected to the increasing branding of everything, and, as discussed in the previous chapter, a top-down formation of cultural creativity that undermines the possibility of the “user-generated” has been produced. The concentration of information, entertainment, and knowledge as property is made possible through the system of intellectual property rules that have been created. The question is how to put people back in the intellectual property policy process. While most IP policy is designed to protect the status quo, it is possible to remain hopeful about alternative trajectories.

In the previous chapter, I tried to propose some moderate revisions that remain within the frame of the law. These revisions, while certainly not original, could better balance the legal system with the types of creativity that abound. While labeled a manifesto, the types of changes we could deploy are not actually all that radical, but instead reframe the legal code within the scope of actual creativity and protection. However, in this chapter I want to talk about creativity unhinged from the nationstate and from the legal system, at least as much as possible.

To frame the idea of this world, I will talk about copyright landscapes that can be evoked from a different set of starting assumptions than the traditional economic view. As with each of the last three chapters, following different assumptions leads to different futures for intellectual property. The mainstream world of intellectual property, as established in the second and third chapters, focuses on the economic rationale for creativity and then leads to specific assumptions about how to protect the fruits of creative labor. However, if one were to switch out the starting assumptions, it is possible to develop different futures.

Thinking about possible futures is a tactic used by futurists to critically assess starting assumptions, trends, and emerging issues. Investigating trends and emerging issues allows us to develop alternative future landscapes. As noted futurist Wendell Bell argues:

Among other things, futurists work to expand the alternative possibilities that people consider before they decide to act one way or another. Present possibilities for the future are real, but many are often ignored as people go through their daily lives blindly following past routines of behavior. Futurists encourage people to look beyond the familiar and to search for opportunities for themselves and their organizations; to add medium- and long-term visions to their decision making; to use their imaginations to consider things, including social arrangements, that do not now exist; and to plan deliberate actions—solely or cooperatively with others—to achieve more desirable futures.8

Taking the approach of a futurist to copyright landscapes allows one to follow a variety of different pathways towards different possible future outcomes. It allows one to assess the policy choices that have been made, the possibilities for different choices, and to envision futures that fall outside the mainstream. In this chapter I am concentrating my focus on an alternative to the conventional way in which we see intellectual property.

The next section offers the status quo assumptions and the consequences for art, a description that summarizes the prevailing narrative articulated in the prior chapters. This section builds upon the critique of the culture industry developed in the previous chapter and seeks to demonstrate from the position of creativity how property rights claims become problematic. I then examine the trends that could lead us towards a more desirable creative future. The final section offers a brief conclusion. Ultimately, each of the trends discussed here will interact in ways too complex to fully address. However, by more consciously choosing our future path, we can perhaps more actively chart the creative possibilities opening up in the land of the desert of the real.

TRIPing through the desert of the real

I have chosen the term “copyright landscape” because I want to broadly evoke what might be in terms of creativity as well as what is in terms of the laws that form the backdrop for creativity. A landscape has stable features but is always open to both radical as well as subtle changes. As I developed in the introduction, the landscape forged by copyright law is both a frame for cultural work as well as a prison hindering the use of this work by others. To reiterate, as a frame and a prison, it can be used to protect work that was generated from the bottom up, but is primarily used as a mechanism to ensure that cultural exchange only happens within the prison of property rights. As a frame, copyright law defines the types of culture that can be created—focused upon commercial culture targeted for consumption. One might also call this type of targeting the prison of copyright as well.

Many of the complexities of the copyright landscape have been developed throughout the previous chapters. To elaborate on these complexities further, it seems appropriate to begin with a popular film reference. This film exists because of, or perhaps despite, the complex legal world of copyright. It exists as an example of creativity within the culture industry, possible copyright violations, and of course intellectual appropriations that allow it to be both original and a replica at the same time. As an aside, to use popular culture as a reference in itself demonstrates the power of creative work to influence our lives and shape our understanding of the world—it is our collective strategy for communication, and the fact that we communicate with each other using commercial references is another aspect of the frame/prison of the copyright landscape. It also demonstrates the limits to understanding culture as property—appropriation and reuse are the anathema of copyright, but essential to the active construction of meaning in everyday life.

In The Matrix, there is a scene where Morpheus shows Neo the construct for the first time and describes the elaborate simulation that constitutes the lives of all trapped within. As he demonstrates the power of the computer to imprison the human mind and body, he states, “Welcome to the desert of the real.”9 This layer to the plot means that the movie can be seen either as just another action flick, or it can be read at a more complex level regarding our understandings of reality.

I am of course not the first to notice or comment on the fact that the phrase “desert of the real” is not original to the Wachowski brothers, but is borrowed from the first page of Jean Bauldrillard’s Simulacra and Simulation10—which is cited, in a way, in the movie as the book in which Neo hides his pirate computer work before he discovers the reality of the matrix. Baudrillard uses the phrase “desert of the real” to refer to the experience of living our lives in a simulation—the media-saturated, image-focused world is not an authentic experience, but a simulation of one. For all intents and purposes, reality and simulation are the same, termed by Baudrillard as the hyperreal.

To Baudrillard, “culture is little more than a “hallucination of the real,” a “simu-lational” world characterized by an endless series of copies of previous forms… “TV is the world.”11 Of course, it is not to Baudrillard that the Wachowski brothers owe their greatest debt since the underlying story of The Matrix is as old as Plato’s Republic. Replace the shadows on the wall with a computer simulation and one soul breaking his chains to see the sun with Neo’s taking of the red pill and you have virtually the same story, ripped and remixed for centuries. Fortunately, The Republic is out of copyright (and of course was produced before such a law was ever conceived). However, the story of The Matrix does not end with obscure philosophical references used to demonstrate that it is not a particularly original plot.

To bring the story full circle, from appropriation, to remixing, and life within the simulation, the Wachowski brothers and the film’s producers were sued for copyright infringement by Sophia Stewart who claimed to have written the script years before the movie was ever made.12 Stewart said that she had responded to a contest and submitted a short story remarkably similar to The Matrix, but had never heard back about her story or the contest. After making these allegations, Stewart failed to show up for the preliminary hearing, and her legal claims were dropped. However, the controversy itself helps raise what is at stake when creativity meets the law and the myriad issues that can emanate from cultural co-optation within the culture industry.

If Stewart’s claims are true and she had sent a short story remarkably similar to The Matrix to a story contest, and if the Waschowski brothers then took the idea and transformed it into The Matrix years later, it demonstrates how the underlying appropriation of ideas is commonplace and foundational to the evolution of art. Obviously, the original short story may be similar at many levels, but the ultimate production of the movie, which included thousands of hours of production including acting, special effects, music, not to mention the screenplay itself, is clearly something different from the original story. What debt would they owe Stewart? It is likely they would owe her no debt simply because of the types of contracts related to intellectual property that would have been signed when she submitted her original story. Has something been stolen from Stewart, if indeed her claims are true?

It is copyright law that provides the landscape for making claims about authorship, ownership, and control. One possible scenario (and I am using this as an example, not as fact) would suggest that it is very likely Stewart did not read the fine print on the story contest, which would have required her to waive any proprietary rights to her ideas upon the submission of her story. This type of language is fairly standard in contracts and end-user license agreements associated with both solicited and unsolicited stories that are provided to entertainment conglomerates.13 In other words, entertainment companies, including video game producers and Hollywood, have built an architecture of legal control that allows them to appropriate others’ ideas simply through the act of having those ideas submitted to them. Because copyright is alienable and assignable, unknowing creators, hoping to perhaps sell their story, can instead have it stripped from them through the legal system, which only professional players might understand.

Furthermore, given the legal architecture of the idea/expression dichotomy, it is likely that, if indeed a general idea has been shared, it would not be sufficiently similar to the end product of The Matrix, to count. To heighten the hypocrisy surrounding claims of piracy and theft, it should also be noted that, if someone were to download or stream the movie without authorization, the copyright owners would cry loudly about their victimization at the hands of thieves and pirates who are out to destroy the incentive to create that strong and absolute copyright laws can ensure. They would then deploy the criminal and civil procedures now in place to crush the pirate.

So, if indeed Stewart’s claims were true, she only helps to highlight how the legal system functions to protect and secure the rights of some copyright interests against others. One might also remark on the huge cost of mounting a legal campaign against the entertainment industry and the likelihood that, even if Stewart were to have pursued her case in the courts, she could not have afforded the lawyers to fight Warner Brothers. The same holds true in reverse when the recording industry or movie industry pursues litigation against college students and single moms. They have no way of resisting the power of the team of corporate attorneys paid to work on such cases. The legal system will not work equally because first, the laws have been constructed to protect the interests of one side over the other and second, to even try to resist would be too big a financial burden for most people to bear.

Getting back to Stewart’s claim, it could also be the case that her claims are false. Perhaps she has manufactured the claim that she submitted a story, or she did submit the story, but the similarity to The Matrix was only in passing. After all, at a certain level of abstraction, there are only a few plot lines out there and The Matrix falls well within the genre of cyberpunk (or The Republic) that had been making the rounds of fiction for at least a couple decades.

Even if Stewart’s claims are manufactured, they still highlight one of the problems associated with the current copyright landscape—that litigation over the ownership of an idea (and this is true for both copyright and patent law) has become so central to the creative process and the rules so convoluted and unclear that we have created a system where creativity must be determined by a court. What constitutes too much appropriation for a song, what might be considered a parody, what is a similar plot line, all become subject to the legal system, where assessments about creativity, originality, and the scope of authorized appropriation are made by judges (and sometimes juries). Such a system encourages copyright and patent trolls who use the system to profit from claims that they own a more general manifestation of what has been created. While I am not saying Stewart is a copyright troll, if she is using the system to extract profits for something that is marginally similar, while having produced nothing substantial herself, her actions also highlight that copyright is not about innovation, creativity, or originality but about extortion, getting rich, and using the legal system to make unwarranted claims.14

In either case, the landscape of copyright is revealed—it is one of profit maximization, framed by the law as both a club and an opportunity. Ivey notes that:

The absence of public-interest priorities in intellectual property law, trade in cultural goods, creative education, and access to heritage has allowed an unrestrained marketplace to cobble together an arts scene that serves narrow commercial interests. And to be blunt, over the decades things have gotten worse, not better.15

Without any balancing public policy, those who control the market are able to decide the law.

At one level, it is clear that all creative work is appropriation and remixing. At another level is the issue of who exploits whom, and which party might be able to maximize their profits by using the law to reap benefits that they may or may not deserve. As we ultimately deal with the legal tools created to structure the desert of the real, it is important to remember that copyright is not the sum of our creative lives and is far more often used as a reactive weapon than a tool for creativity. While copyright can be used by creative people to protect their work, it is at least as often used, if not more often used, by those who have not created anything, but use copyright to commodify the creativity of others.

The landscape defined here is one where corporations rule the world.16 In the landscape of corporate control, we are all consumers, and creative work is a product to be bought, sold, and commodified. This is the landscape of the status quo mapped onto our most likely future. I am using the concept of tripping here to imply a lack of attention. When one lets the landscape control behavior instead of consciously understanding one’s relationship to the world, it is likely that tripping will result. Paying insufficient attention to where you are going or the surrounding environment allows for others to set the agenda and create the framework within which our lives are lived. It is living a life within the simulation and not even recognizing the simulation as such. Most of us have simply tripped along, paying little attention to the trajectory of the law and where it might lead. A significant trend is that those with an interest in strong copyright protection are continuing to attempt to strengthen copyright law, concentrate ownership of intellectual property products, and allow for more corporate dominance over intellectual property. This trend has implications for our future, a future as seen from the perspective of corporate control.17

Information monopolies dominate the world economic scene and are at the center of neo-liberal globalization. As noted by Okediji, “Globalization thrives on the ascendancy of information as the subject of, and the agency for, socioeconomic activity worldwide. In sum, information and information technology constitute the centripetal forces of globalization.”18 These information monopolies are not under the control of any specific nation-state. These info-monopolies control access not only to the primary media forms of the twentieth century, but also access to the internet, a medium that is rapidly becoming privatized at the beginning of the twenty-first century as the open standards upon which it was built are being transformed into closed and private standards.19 As Garon notes:

Although once idealized as the perfect democratic medium, the Internet and the “portal” metaphor return once again to a format of content-controlled safe zones that are predetermined by demographic trends and dictated by millions of dollars in advertising designed to lure viewers. The portals provide the primary access to the Internet and control the content that is most readily available to consumers. Only with concerted effort can a viewer find material that has not been designed by one of these companies. The flow of information leads to economic power that leads to the control of the flow of information.20

Neo-liberal corporate globalization has reframed the world conceptually into an information and economic elite dispersed throughout the world, but not necessarily tied to any particular state. The remainder of the world’s citizens constitute a vast disenfranchised majority. As Chrystia Freeman notes:

Perhaps most noteworthy, they are becoming a transglobal community of peers who have more in common with one another than with their countrymen back home. Whether they maintain primary residences in New York or Hong Kong, Moscow or Mumbai, today’s super-rich are increasingly a nation unto themselves.21

Elites within the global South may have more in common with U.S. elites than U.S. elites do with the poor in the United States.

Aside from the implications for political economy extending from a critique of the globalization of information and the transnational, and deterritorializing of the economic elite, in this tripping scenario, I want to also think about the future of creativity as it relates to copyright, the state, and culture. While many might see the Frankfurt school as offering an antiquated critique in the age of new analysis, their assessment of the culture industry remains quite relevant. Thus, to fully understand how the corporate model shapes the future of creativity, this section is informed by the intellectual work of critical theorists Max Horkheimer, Theodor Adorno, and Herbert Marcuse.22

The seminal work of Horkheimer and Adorno on the critique of the culture industry sets the stage for understanding what it means to trip through cultural creativity. Most importantly, Adorno offers up a critique of the quality of culture under the culture industry, the lack of revolutionary potential available through art, and the ways in which entertainment products serve authoritarian principles by co-opting critical thinking and replacing it with docile consumption. Marcuse calls this state of mind one-dimensionality.

Copyright scholars leave qualitative judgments of content alone for the most part: so long as the creative work meets a minimum bar of creativity, the focus is on the illegal copy, the unauthorized appropriation, and the use of too many words. Copyright attornies are not cultural critics—they do not say a work of art, novel, or musical score, or movie, is a culturally inferior product, but instead measure what, if anything, was “taken” from this product and used in a derivative one. The focus on copyright as a frame for all creative work assumes a minimal amount of creativity, but does not assess the quality ofthat creative act. Thus, a child’s drawing is protected at the same level as a masterpiece (though sometimes these might be about the same quality). One is not justified in appropriating something from a bad work of art any more than from a good one.

There are important reasons for this. First, art as an aesthetic demands personal choices and, as any debate on art suggests, what constitutes art is constantly in tension and should not be imposed legally. Ostensibly frameworks should be neutral and protect all creative work, despite the fact some work is abysmally bad. Of course, when cultural commentary requires art to produce exact copies of something else, the law becomes relevant. Second, if one were to make qualitative decisions, what criteria would be used? The clash between copyright and free speech can and should be invoked when an effort is made to use copyright as a tool for censorship that might regulate content.

Thus, copyright scholars discuss the rules governing the protection of content as property, no matter what that content might be, how poorly conceived it is, how sexist, how racist, or how superficial and trite. The contribution of the critical theorists to this debate suggests that, given a corporate model of content ownership, we are treated to a highly censored, centrally managed information and entertainment product. This is culture from the top down and it is a condition of authoritarian existence devoid of any critical edge, playing to the lowest common denominator. If you can sell it or, conversely, if people will buy it, then it meets the appropriate criteria of “success.” What is lacking is any possibility of imagining culture outside the culture industry standard. The measure of “art” is what people will buy, and legitimate artists are those who can be paid.

Part of discussing the future of creativity is making the argument that there are superior models for creativity than those found within the world of the culture industry. In other words, when discussing the future of creativity it is necessary to move beyond the legal framework of copyright and delve into how this regulatory structure affects the type of content produced and the reasons for its production. To live an authentic life, if such a thing is even possible, means to think critically about cultural creativity, who produces it, and what type of world it creates.

It is time copyright scholars take seriously the critique of the culture industry. This critique goes beyond merely commenting on the problems associated with the production of creative work within capitalism and industrialization and also argues that capitalism warps creativity in such a way that it loses not only its democratic character but also its revolutionary potential. Of course, I am not the first to say any of this and so am opting to rip from an excellent essay by David Butt to help elaborate on the work of the Frankfurt School and its application to creativity today. Butt uses these theorists to examine the popular movie Fight Club, an excellent example of revolutionary potential sucked dry by the culture industry. I’ll pull his theoretical frame here and allow it to do its work in a different context. Butt notes:

The production of art has been the homogenisation of cultural styles and forms, the loss of art’s power to transcend and transform, and the creation and promotion by the Culture Industry of an illusory gratification that promises sublimity but in fact only reinforces the monotony and routine of modern life. Adorno and Horkheimer contemplate an industrialised society in grim relief, in which the individual becomes a unit of labour and an object of production.…

Most people living today in the societies of the West have since birth been under the rational influence of the industrial and economic forces the Frankfurt School warn against. We’re inside their hypothesis: the inheritors and product of the cultural universe that they predicted and described. Sixty years on, many of the effects and symptoms described in the Dialectic of Enlightenment are evident in Western societies. New technologies and industries represent an evolution of the Culture Industry into new paradigms of influence over communities and individuals [italics added].23

Especially relevant is the idea that we live inside the hypothesis of Horkheimer and Adorno. It is difficult to see the prison bars when one doesn’t realize it is a prison.

Butt goes on to say that, “the Culture Industry’s audience is degraded by the consumption of its products, which are aesthetically and emotionally hollow.”24 For Adorno, the Culture Industry creates a shift so great in how culture is produced that culture has become nothing but a commodity. Naomi Klein has eloquently articulated the scope to which we understand our lives as intricately linked to brands. We construct our lives as meaningful by the brands we align with—whether these are movies, music, clothing, or food.25 Everything and everybody is a commodity. To continue to quote Butt:

Only gold members can continue reading. Log In or Register to continue