Interview with Peter Jaszi on the Romantic Author in Copyright
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Summary: These interviews were conducted as a part of the Contested Commons/ Trespassing Publics conference organized by Sarai: CSDS and the Alternative Law Forum in January 2005.
Peter Jaszi teaches at the Washington College of Law of American University in Washington, DC, where he also directs the Glushko-Samuelson Intellectual Property Law Clinic. He has published widely on copyright history and theory, and is an experienced copyright litigator and specialist in domestic and international copyright law. In this interview Peter Jaszi discusses the history of copyright and literary theory scholarship, as well as examining the persistent figure of the author in Copyright discourse.
Copyright and Literary theory
New Delhi, India Habitat Center
LL: Before I get into substantial issues of copyright, let me ask with regard to one of the things I'm very curious about: how you began your collaboration as a legal scholar with Martha
Woodmansee, who is a literary theorist and historian.
PJ:That's a really interesting question. Let me respond to it with a specific anecdote. I had come to a certain point in my career with a feeling that I had more or less exhausted the strictly legal
discourse of copyright. After doing that work for about 10 years, I felt a little bit like a squirrel in a cage, running around and around in a circle, saying the same things, thinking the same thoughts, and not being very effective.
An important movement in critical scholarship on intellectual property has been the coming together of literary theory and legal theory in the form of the critique of the myth of authorship in copyright law and theory. Scholars like Peter Jaszi and Martha Woodmansee have been highly critical in inaugurating a critical interrogation of the figure of the author as an isolated romantic genius, through a historical identification of the emergence of the author function, as well as problematizing the idea of the romantic author in the age of digital production. This strand has also seen its cultural equivalent in experimental moves in the world of net art and new media practices. Relying on the work of thinkers like Roland Barthes, Foucault and Derrida, these scholars have successfully questioned the idea of the romantic author. This interview attempts to locate the history of the movement, and also survey where it stands today
See the following works for a history of this area:
Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics, (New York: Columbia UP, 1994),
Martha Woodmansee, The Construction of Authorship: Textual Appropriation in Law and Literature. Ed.Martha Woodmansee and Peter Jaszi. Durham: Duke UP, 1994. 15-28,
Mark Rose, Authors and Owners:The Invention of Copyright. Cambridge, Mass.: Harvard UP, 1993
PJ: So one day I decided to do something that is very radical for a lawyer. I would go to the library - not the law library but the real library - to see what else was being done outside of law, on the subject of copyright. I literally discovered Martha's work on copyright through the Modern Languages Association bibliography, which led me to her 1984 article, 'The Genius and the Copyright: Economic and Legal Conditions of the Author', published in Eighteenth-Century Studies, Vol. 17, No. 4. I began to
read, and appreciate the work. Purely by coincidence, at a conference on an unrelated topic, Martha and I were thrown together about one-and-a-half years later. Over dinner, we began to
develop the project of collaboration that has continued ever since.
PJ: That's a story about how accidental, in a way, the beginnings of this sort of interdisciplinary collaboration can be. From that face-to-face meeting on, it was not an accidental collaboration but a
premeditated one. Our goal from the beginning was to get more people from the disciplines of law, on the one hand, and the disciplines of critical theory on the other, involved. The first real effort to do that was the Cleveland-Case Western Reserve 'Construction of
Authorship' conference, which finally was represented in the 1994 Duke University volume of the same name. That three-day conference was an amazing experience. We worked very hard organising it, and we were very strict with our participants, insisting on people submitting either papers or detailed abstracts. We spent days organising the panels, and we were careful, or thought we were careful, to distribute the lawyers and critical theorists in a way that would being them into contact with one another, and force conversation.
literary theorists and lawyers
PJ: It began absolutely disastrously. The first day of that conference was the one of the worst days of my life, because after all our efforts to lay the foundation, to get the abstracts, to circulate them in advance of the meeting and compose these panels, it became clear that these people were just like dogs and cats. They didn't understand each other, they didn't want to understand each other, they were mutually suspicious, and disciplinarily defensive to an extreme degree on either side. It was a terrible day.
We went through a series of panels, and in the discussion following every one of them, the story was essentially the same - The members of these factions - the legal faction and the critical theory
faction, would end up not exactly shouting at each other, but the equivalent, you know, the way polite people do when they are really, really annoyed: saying basically, "I don't know what you are
talking about, I don't understand your jargon, I don't understand your point of view and perspective, what you're saying seems trivial to me", and so on and so forth.
PJ: Finally we decided we really had to address this head-on. So we interrupted the planned meeting for an improvised plenary. Basically, we spent two or three hours just trying to force these people to talk to one another about their basic premises and assumptions and vocabularies. It was a cathartic experience. There was a huge amount of hostility in the room, and there were also a few
people there, I always will remember with gratitude, for example, the role that Monroe Price (then of Cardozo Law School) played at that meeting, who tried to function as peacemakers and go-betweens. I was not sure what would happen during those three hours: whether we would manage a breakthrough or whether we were going to have two more days of hell.
PJ: And as it turned out, it was a breakthrough. Everyone had dinner together that night, they drank a lot, and they came back to the meeting in a very different frame of mind. And from that point onwards, there was a good deal of mutual understanding, a good deal of constructive criticism - there was still mutual suspicion, still conflict, but it was then that I became convinced that it was at least possible to do this kind of interdisciplinary work. Although looking back on it, I wouldn't have begun in the same way had I known how high the barriers of mutual interdisciplinary suspicion were going to be. That is only to say that it is genuinely hard to do. And also to say that it is genuinely worth doing.
LL: Despite all the progress in critical scholarship on the mythical idea of the author, there seems to be a certain stubbornness with which the author is invoked and resurrected in copyright law.
PJ: I too am surprised by the resilience and 'persistence' of the author construct. I am sometimes reminded of these horror movies in which the monster never really dies, it dies a thousand deaths, and in the next shot you see the gory hand thrusting from the floorboards, and you realise you have to do battle again. Over the last 15 years, I have come to respect the author figure, in a way that I did not when I began working on this project. When I started doing this work, I was initially impressed at the contingency, the artificiality, the superficiality of this construct, and I didn't give nearly enough attention to the ways in which the authorship construct is embedded in other larger persistent structures of thought.
On the question of Locke and his contribution to ideas of property, I had written something which might be of some interest in locating Locke historically.
Excerpt from Lawrence Liang, The Man who mistook his wife for a book, from Corrine Kumar Ed., Asking we walk: The South and New Political Imaginary (2007)
The philosopher who is most often identified with this theory of property and the self is of course John Locke. Locke remains one of the exemplar philosopher of the seventeenth and eighteenth century, a period in which many of our ideas of selfhood emerges. In many ways, the question of personal identity was the prime question that motivated Locke's enquiry, and his theories set the stage for the philosophic and juridical establishment of what Macpherson calls the theory of "possessive individualism". While the question of personal identity troubled many philosophers even before Locke, it was with the publication of Locke's Two Treatises on Government and Essay Concerning Human Understanding that you have the establishment of the most coherent argument linking theories of identity to property. It is interesting to note that Locke initially did not have a chapter on consciousness and identity, and it was at the suggestion of William Molyneux, that he included a section on principium individuationis to the second edition of his essay.
Consider for instance the following statement by Locke
"Identity of persons lies not in having the same numerical body made up of the same particles, nor if the mind consists of corporeal spirits in their being the same. But in the memory and knowledge of ones past self and actions continued on under the consciousness of being the same person whereby every man ownes himself".
In Locke consciousness is the question of mental operations that appropriates the self to itself, where to appropriate means to identify with or to make a property of. The use of the word own is both as an adjective (my own thought) and as a verb (to confess). The relationship between the self and the own is therefore dependent on a circularity whereby ideas of identity and identification on the one side and appropriation on the other continuously exchange their function and become virtually equivalent. The relationship between the self and the own is dependent on a self fulfilling prophesy where "what I can consider as me, myself is my self and 'my' self is some 'thing' that I own, or that I must own (confess) is mine, was done or thought by me, has become my own because I appropriated it to me by doing it or thinking it consciously".
This duality also informs much of western metaphysics and political theory, whereby consciousness sets the criteria of personal identity, and a political theory where the possessive individual can become generalized or universalized because any individual ought to be considered as proprietor of his own person or a self owning personality tot the extent that s/he is such a proprietor. Balibar, citing Derrida, claims that this reason for this equivalence is the metaphysics of (a)propriation where linguistic expression is provided by the circularity of meanings between my self and my own; or the fact that you can explain self only by referring to own and own only by referring to the self; This is at the heart of European psychological, moral and juridical and political individualism and at the surface of it, it does seem that my self and my own is one and the same thing.
In a fascinating re-reading of Locke, Balibar begins with what seems to be a linguistic problem within Locke, but soon turns out to be plagued with all kinds of metaphysical problems. The co-terminus of the self and the own in Locke appears at first glance to pose a problem of translatability. For instance if you attempt to translate the dual terms self/own into French, then while the self can more or less accurately be translated as Moi/ Soi, the closest French word for Own is Le Propre or Propre (with its very close relation to property). The pair self/own and Moi/proper however cannot be considered as accurate equivalents. One could blame the inherently flawed project of translation, but this linguistic problem for Balibar becomes a far more serious problem. Balibar for instance argues that this problem could well be treated on par with other conceptual/linguistic problems that have plagued philosophers for years such as the precisely meaning of the word being in different languages. He wonders if it is the semantic coincidence available in English that enables an easy co terminus between the self and the own that provides for Locke's theory of identity and property.
To test Balibar's hypothesis, I attempted to look for an equivalent in Hindi of the idea of my self and my own; The closest translation that I could find emerges from the phrase "Mere Apne" which is the equivalent of "My Own". Where the word Apna refers to the idea of own, but not merely in terms of possession. The phrase Mere Apne could refer to something as being mine, but at the same time this claim is not limited only to an assertion of delineation and exclusion, but refers instead to a certain idea of relationship of proximity between the self and an other. The word Apnaapan for instance translates as closeness, so that Mere Apne is a reference to the idea of a relational proximity;
This is interestingly mirrored by Balibar's reading of a poem by Browning
My own, confirm me! If I tread This path back, is it not in pride To think how little I dreamed it led To an age so blest that, by its side, Youth seems the waste instead?
Baibar initially reads the poem the poem as being addressed to oneself, or as self interpellation, and an appeal to memory, but later realizes his mistake when discovers another segment of the poem
My own, see where the years conduct! At first, 'twas something our two souls….
My perfect wife, my Leonor,
Oh heart, my own, oh eyes, mine too,
Whom else could I dare look backward for,
With whom beside should I dare pursue
The path grey heads abhor?
So what began as a mere linguistic dilemma drives us back to the foundational question of the nature of self and subjectivity which are invoked when we speak of something being our own. The idea that 'my own' could possibly refer not merely to a sovereign claim but also to a relationality conflicts with the world of property norms where a reference to an own is an act that makes a claim of absolute possession; declares the ability tot exclude others and asserts the legal ability to alienate what you own.
And yet at the same time it seems that there indeed does exists a large set of claims within diverse cultural traditions where a claim towards something or someone may lie more in the domain of your relation to the person or object than as a claim of possession. In nehiyawin (Cree cosmology) to refer to something as mine does not imply necessarily ownership, but refers instead to a relational proximity to objects (animate and inanimate) and beings and the accompanying responsibilities and obligations that emerge from such a relational proximity.
PJ: The longer I work on this, the more conscious I am that authorship is not really an autonomous phenomenon, but is an embedded part of the general structure of possessive individualism. And possessive individualism is not, by any means, a thing of the past. These, call them liberal, call them neoliberal, structures are highly persistent. And in fact, these structures and concepts are
the beneficiaries of one of the most remarkable marketing campaigns in the history of human thought. We have been exposed in the last 10-15 years, as a linked group of societies throughout the world, to a great deal of very effective publicity for the advantages and benefits of what is in effect a Lockean world vision. It doesn't surprise me that possessive individualism in general, and the author in particular, are alive and well.
common opinions on intellectual property
PJ: The other thing that interests and impresses me, something that I didn't fully appreciate and understand when I began the work and that I am sure I still don't fully understand, is how much resonance the authorship story, the narrative of authorship, has for citizens and consumers. I had an opportunity last year to work a little bit on a project that involved asking focus groups of randomly selected people from different demographic groups in the US, what they thought about intellectual property issues. We were trying to see whether, by doing these interviews, we could discover some way of better expressing to a broad cross-section of the population, from different educational and economic backgrounds, the values that are at stake in contemporary IPdebates.
One way perhaps of rethinking this entire issue of authorship is rather than declaraing the death of the author, which seems to be a very touchy issue as far as creators and artists are concerned, it might make more sense to think about the multiplication of the author. Contemporary artistic and creative practices can then re read the history of authorship as one which is multiple and diffused, rather than through a polemic declaration of the death of the author.
author and affect
emotional appeal of author
PJ: Once again, what surprised me was how strongly people in general responded to the idea of authorship. There was an emotional appeal in this idea that one creates out of inspiration, and that one owns the result of what one's inspired creation produces, that seemed elemental and foundational. It was still possible to talk about the issues, by reframing the questions away from authorship and towards issues of corporate control and corporate greed. But as long as the
discussion remained author-focused, as long as it remained a discussion of the entitlement of creative people, these everyday men and women who would not themselves have identified directly with the author community, still were enormously sympathetic.
PJ: So there is something about this construct that has a much, much stronger ability to endure, than I once credited it with. Now, I don't have an explanation for that. Part of it has to do with the embeddedness of authorship in the larger structures of possessive individualism; and some of it has to do, I think, with the fact that creative activity is, broadly speaking, widely respected and admired in general society. And so the representation of creative activity as being within the category of authorship is actually one to which people in general are remarkably responsive. The core issue of the next phase of a project to look critically at authorship probably should be to investigate, unpack, and interrogate the persistence of authorship.
critique of creative commons
LL: How would you see developments like the Creative Commons initiative in relation to some of your own work and concerns?
PJ:I have a critique of some of the ways in which the Creative Commons Licence is being implemented, and I have some concerns about the potential reach of the Creative Commons project. But I am a tremendous admirer of this effort. It is one of the most positive and optimistic efforts that exists, at least in the US, on the intellectual property scene. Where the topic of the persistence of authorship is concerned, there are two ways of accounting for the continuing prominence of the author-effect within the Creative Commons project.
A similar critique can be found in the works of Niva Elkin-Koren who argues that the limitation of a Creative Commons approach is that rather than addressing the political nature of copyright, it tends to create a volunteer system which is still dependent on the benign genrosity of the author.
See, Niva Elkin-Koren, WHAT CONTRACTS CAN'T DO: THE LIMITS OF PRIVATE ORDERING IN FACILITATING A CREATIVE COMMONS, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=760906
PJ: And I have no way of knowing, being an outsider to Creative Commons, if either of these explanations has any validity; or if so, to what extent. First of all, I think there may have been some strategic calculations at work here. I think that the designers and promoters of Creative Commons have done a lot of work, appropriately, on how to make what they are proposing people do, appear as acceptable, as natural-seeming, as transparent. This implies that if retaining attribution rights turns out to be the statistical preference of an overwhelming number of potential Creative Commons participants, then it makes sense to provide it as a default. Likewise, I think that if most ordinary people do think about copyright issues in terms of the categories of authorship, then it makes perfect sense for Creative Commons to cast its explanations of the project's mechanisms on the website and elsewhere, in those terms.
PJ: And that is what my reading of the Creative Commons website suggests has been done, that in an attempt to reassure users of Creative Commons that participating in the system is a modest, rather than a radical step, the designers may have chosen to rely strategically on author-talk as a way of naturalising the project. They seem to be saying: "This is not a big step; you retain everything, you don't give away much, your work remains protected, etc." So that's one possible explanation: that this is all a strategic development.
PJ: The other explanation is that even the designers and promoters of the Creative Commons system still may be, to a certain extent, under the spell of authorship. I know I am, so I can't imagine why they shouldn't be. It takes constant, self-conscious effort, struggle even, to avoid falling back into the force-field of the author-effect. And it's at least possible that in a complicated project of that kind, with many individuals involved in the design and implementation, there may be some who actually take the premises of authorship relatively seriously, and view the Creative Commons alternative as an important variant on the regime of total authorial control, rather than as an abrupt and complete departure from it.
PJ: So my best guess is that there is a combination of factors at work. On the one hand there is the acceptance of premises of the author-centred view of copyright, and on the other hand, some strategic calculation. And again, to be clear, I don't intend to be critical of the project and its aspirations, but only to recognise it as a site of the phenomenon of the persistence of authorship, which I've been commenting on.
LL: Would your response then be to focus on strengthening the statutory exceptions that exist within copyright law, for instance the fair use defence?
PJ: Fair use certainly can use support these days. In the US, you hear some of the same critiques being made by both very progressive copyright activists and by the MPAA. One thing they say that is that fair use is just a privilege that can be invoked defensively, that it is not an affirmative right. And as such, it can't be thought of as being a part of any rights-based system of intellectual property. My response to that, whether I hear it from the right or from the left, is that the right/privilege distinction has been so thoroughly deconstructed in so many contexts over such a long time, that I hardly even feel the necessity of responding.
PJ: But if I were to respond, I would offer an analogy: another category of law, self-defence. The claim of self-defence in the face of physical assault is formally just that - a defence. But the availability of a potential defence of self-defence, in a formal legal setting, translates into the right to protect oneself, appropriately, against authors of violence in the real world. I think this is also true of fair use. The potential availability of a legal defence of fair use in a formal legal setting translates in everyday lived experience into a right to use, consistent with that defence. So the right/privilege (or right/defence) issue seems to me to be a false one.
PJ: What's not so clearly a false issue is the oft-repeated assertion that fair use, as construed in courts, is too narrow in its scope, too uncertain in its reach, too dependent for its effective assertion on expensive legal representation, and so on. Those all seem to me to be entirely legitimate practical critiques, which need to be addressed at the practical level. There are various ways to address them: some through legislative action, some through collective action, some through institutional action. Let me emphasise for a moment collective action, as it's something I've been thinking about and working on a lot, recently. One reason that fair use rights are in disarray is that disciplinary communities, that would benefit from the exercise of those rights, have arrived at no internal collective understanding, community to community, of what the content of those rights actually should be.
PJ: I think that such a disciplinary consensus is enormously important, because at the end of the day, every fair use inquiry, at least in the US courts, eventually devolves into a decision about whether the action taken, whether the use made, was reasonable and done in good faith. Thus, the ability to say that the use that one has made falls within a disciplinary consensus about what's appropriate can be enormously important. I'm trying to work with different disciplinary communities to develop consensus statements of
best practice with respect to fair use of pre-existing copyrighted material.
use) The Statement will be a source of information for documentary filmmakers themselves - that's important, because this community gets a lot of misinformation about copyright from a variety of sources, including their own professional educations. It also will be a source of information for gatekeepers - the insurers, the broadcasters, the distributors and others, because one of the biggest problems for filmmakers now is that those who make use of prior copyrighted materials are often told that their films cannot be broadcast, cannot be distributed, cannot be otherwise made available unless all rights are cleared. I hope the gatekeepers will be significantly reassured by the existence of this disciplinary Statement of Best Practices. And then finally, in the event, the very unlikely event, that any filmmaker operating within this code of practice would actually be the subject of a lawsuit, it would be an enormously powerful tool of defence.
PJ: This is an example of what I mean when I say that one can build up fair use, and other limitations and exceptions as well, including those that exist in legal systems other than that of the US, through collective action. Likewise, fair use (and other similar doctrines) can be built up with legislative action. There may be instances in which the codified form of limitations and exceptions in actual law can be improved upon; although I'm very cautious about that, because any time you open up any one of these codifications to reexamination, you run a risk. And the risk is that there is going to be an intervention from the other side, which at the end of the day might leave you less well off than when you began, rather than in a better position. And institutional action can help to build up use rights. In fact, we need institutional intervention at every level, including the international.
PJ: That's why I am enthiastic about the movement for some kind of an international codification of an affirmative access-to-knowledge right. We have to see whether this is going to be a fruitful activity. It's interesting to note that this access-to-knowledge campaign really originates in Chile, one of the first countries to be involved in a free trade negotiation concerning intellectual property rights with the US. When the US-Chile Free Trade Agreement was concluded several years ago, it was supposed to be the pattern agreement for the Free Trade Area of the Americas agreement. The US
invested a tremendous amount of diplomatic energy and coercive pressure in getting an agreement with Chile that was as favourable as possible to getting high protectionist claims.
Free Trade Agreements
One of the ways in which new forums for IP negotiations are beign created is through the use of Free Trade Agreements or bilateral agreements. With a certain maturing of the debate on IP, there is much more awareness of the stakes involved, and after the experience of Doha, the US has realised that the WTO may not be the best place in which they push their agenda, and have increasingly started moving away form multi lateral forums like the WTO into bi laterals using free trade agreements.
For more see, www.tradewatch.org
PJ: And the Chileans, for a variety of reasons, including the fact that they were even more interested in other terms of the FTAthan in intellectual property issues, more or less complied with US demands. Then they experienced a kind of buyer's remorse, and began to realise how much they had conceded in those negotiations on intellectual property rights. Ever since that time, Chile has been a real hotbed of interesting thinking on how it may be possible to push limits and exceptions within the set framework of IPR norms that they're stuck with under the FTA. There's a tremendous amount of potential there: not only in general, but also within the enabling TRIPS framework, for the recognition of significant access-to-knowledge rights. That potentially really has not been exploited to date.
PJ: What I'm hoping very much will happen as a result of this international campaign for the articulation of access-to-knowledge rights, is that groups of people will begin thinking together, across national boundaries, about the potential that there is within the existing set of arrangements; that this will have a healthy effect for the development of national legislation; and that it also will have the secondary effect of making it harder, in future negotiation international rounds, for the US and others to deny that potential.
PJ: All these possibilities for building limitations and exceptions to copyright are very exciting to me, but I have to acknowledge that they are in some ways a second-best alternative. The best alternative for gaining recognition of the rights of spectatorship, the rights of information practice, the affirmative rights of public access to information, would of course be to somehow roll back the fundamental guarantees that we afford to authorship (and inventorship) in the first instance. themselves. As a political matter, however, I do not see this as a realistic alternative. Hence my investment in the project of translating limitations and exceptions into affirmative rights of access to knowledge.
LL: My own reading of the fair use doctrine is that there are two primary strands to it: one strand pushes the idea of fair use vis-a-vis content, and this is exemplified in a number of cases like Campbell vs. Acuff Rose(the Pretty Womancase), where the focus is on the ability to engage in transformative authorship. But there also seems to be another strand of the fair use argument, which looks at questions of monopolies and demonopolisation. This is evident, for instance, in the landmark case of Sega vs. Accolade. This held that even if there was a commercial element, fair use could not be ruled out. Sega developed a game console called Genesis, and Accolade, an independent producer of software, used a two-step procedure to make its own games compatible with Genesis. They reverse-engineered to discover the functional elements, disassembled and decompiled, i.e., transformed the machine-read code into human-read code. They were then sued for copyright infringement. Accolade argued that intermediate infringement is not infringement unless the end product is substantially similar; and that disassembly of the object code is lawful since there is no protection in ideas alone. Finally they claimed fair use exception (to understand the ideas and functional elements in the software). Copyright for commercial use is presumptive unfair but that presumption can be rebutted by characteristics of commercial usage. While the ultimate purpose may have been to create their own games, the direct purpose was to study the functional requirements for Genesis compatibility. Public benefits notwithstanding, the alleged infringer may benefit commercially from the act of transforming the software.
How can these two strands, of fair use vis-a-vis content, and monopolies/demonopolisation, be woven together? I think this is important because sometimes the over-determination on content and creativity makes it impossible to understand other modes of practices (like piracy) where the creativity may not lie only in the content side, but perhaps in the infrastructure side of things.
PJ:What has been lost in the discourse of fair use in the last 20 years has been the notion of personal use. We have to work very hard to recover that third strand in the analysis of fair use. To reiterate, this strand is not the one based on transformative use, nor the one based on pro-competitive use, but the one based on personal use - based on the notion that, as individuals, we are entitled to improve ourselves, to make connections with others, to participate in culture, and that engaging in those activities requires a relatively wide range of particular uses that are in potential tension with copyright, particularly digital copyright, as it extends its reach into the personal sphere. This never used to be the case. In an analog environment, personal use was protected, not so much by doctrine but by the practical characteristics of technology itself. In the digital domain, that is no longer the case.
PJ: The content providers would quite readily say, "Well, the technological change demonstrates that the public/private distinction no longer has any applicability in this field; all that is private is also public, only markets exist, etc." I think we need to speak back to that characterisation of the current situation. I think we might have to say that digitisation, far from representing the penetration of the public sphere into the private, may well represent the penetration of the private sphere into the public. I don't know if one can recover the notion of private use as a core element of fair use, by somehow blending transformative use and competitive use, or whether - and this is my inclination - it has
to be recovered in a more direct/frontal way by insisting on this third element as a primary historic and functional element of fair use. In any event, this is a crucial part of the project, and
unless it can be accomplished, I think the project fails.
LL: ...How would you respond to a political economy defence of piracy ?
PJ:Doron Ben-Atar's talk at this conference, on the early history of technological innovation in the US, was significant, but did not focus on copyright as much as it did on patent side. But a similar story could be told, referring not only to publishing
history but more generally to the growth of the cultural sector in the US, through the mechanisms of copyright piracy. This story in some ways reinforces and underlies the one about patent history.
And like the patent story, it illustrates a political economy argument. But it is not the same political economy argument that is made in Sega, which is about competitiveness and innovation, about mechanisms of market entry, and about the evils of monopoly. I think the political economy argument for piracy is a different one, harder to communicate, but still a very powerful one.
PJ: Historically, and in the contemporary environment, the emergence of national cultural industries is often founded on a history of piracy. The US is a good example of that, but there are many other examples that need to be documented. Of course, this argument may not sustain IPpiracy practices indefinitely, but only till such time as the emergence of a more ordered cultural sector either has, or definitively has not, taken place. But I think it's an argument that needs to be made, and for obvious reasons it's a terribly difficult argument for anyone in an official position to make. And so it falls on us, who are not burdened with official positions, to make it.
PJ: I remember a conversation I had a few years ago with a Russian copyright lawyer, about record piracy in that country. She told me that the account of Russian sound recording piracy that we were getting in the US was essentially completely wrong, because it was an account that emphasised the role of mafias and gangs and really evil people. But in fact, most of such piracy that was taking place in Russia in the immediately post-Soviet period was on behalf of aspiring domestic recording companies. They were seeking to build up some institutional and technical capacity, so as to begin to be able to record domestic Russian music or to become licenced issuers of imported music. And this rang true for me - it was so resonant of the old story of the US of 1790 to 1891.
PJ: I don't know if that is a sufficient account to deal with all the phenomena of piracy that are present today, especially in Asia. But this account needs to be kept very much in sight. Were IPinterests in the Europe and the US actually to succeed in extinguishing piracy in Asia, Africa and Latin America, it would be a defeat wrapped in a victory; not only from the standpoint of the populations of those continents, but ultimately also from the standpoint of IPowners in the most developed countries themselves. Because were such extinguishment possible, the cultural consequences would be so devastating that, as a practical matter, there would ultimately be far less cultural material to be traded in global markets.
PJ: The most cynical view of the US-European IPindustries is that they have absolutely no interest in Indigenous culture or the development of Indigenous culture in the rest of the world; these industries would be quite happy if those Indigenous cultures vanished so the rest of the world could function simply as markets for Western cultural production. Perhaps that's true. But if so, even from the standpoint of their own self-interests, they're taking an enormously short-sighted view of the situation.
PJ: I don't know if that is responsive to your question. Its a diffcult question and in some respects, your question is a loaded one. At least in the US, the one thing you can't be, as a respectable, progressive IPactivist or scholar, is a defender of piracy, at least in a non-historical sense. One can tell historical stories about piracy, but one really cannot afford to be labelled as pro-piracy in the contemporary. That complicates things further. Thus, I've been disappointed that in the debates over P2Pmusic distribution in the US, almost no one - and I include myself - has come forward to say, "This activity is good, and should be celebrated rather than denigrated." Instead, progressive copyright activists and scholars have said, "Well, of course we oppose piracy, we oppose promiscuous file-sharing. We think, however, that the technology should be preserved, we think there should be some compromise, that file-sharing should be licenced rather than suppressed, etc."
PJ: What almost no one has been willing to say - and I wish now that I had been courageous enough to do so - is that this exchanging music is a fundamental cultural activity, through which tastes and markets and opportunities for new production are being created. Far from being a threat to the development of a cultural sector, file-sharing is actually tremendously promising from that standpoint. What no one has been willing to say is that almost all of this music sharing goes on at the economic margins, on the part of people who are already spending absurdly large parts of their disposable income on the acquisition of cultural products in the marketplace. And no one has been willing to say this, because no one - and again I am including myself here - can afford to be tagged or labeled as a friend of piracy.
LL: Do you think the copyright debate in countries like India has yet to take on the sense of urgency as it has in the US, perhaps because the creative/artistic community have not yet faced a situation where cost of access to materials acts as a prohibitive force to their work? The documentary filmmaker community in the US, for instance, seems to be very active in debates on copyright and access.
PJ: I think that here and in the rest of the world, the documentary filmmaker community is where the US documentary filmmaker community was 20 years ago; where barriers to the use of pre-existing material have not emerged as a significant impediment to the prospects of documentary production. The last thing I would ever want to claim is that the current cultural situation in the US should represent anyone else's future, with respect to any issue. But I have to say that I would not be surprised if elsewhere in the world a transformation were to occur over the next 10-15 years, similar to the one that occurred 20-25 years ago in the US.
PJ: One of the things we discovered when we began talking to documentary filmmakers about this issue, was that people who had worked in the field for decades would tell us again and again, "Yes, 20 years ago I made films that I would never consider making today; 20 years ago I made films which I can no longer show today, because the demands for rights that existed then are completely unlike the demands today." The multi-part documentary Eyes on the Prize, made 15 years ago, pieces together the Civil Rights struggle using lots and lots of original footage, personal footage, etc.
PJ: It is an essential document which cannot be shown, distributed or otherwise be made generally available. It exists only because there still are a few VHS copies in circulation which have not deteriorated to the point that they are useless. When these copies are gone, the film will be, for all effective purposes, gone, because of the changes in the last 20 years, unless heroic efforts to relicence the copyrighted material it contains are successful. Documentary filmmakers outside the US should look at the history of the form in the US as a cautionary. I'm not saying that it will happen here, but it could. Documentary filmmakers turn out to have, themselves, a high level of rights consciousness. They are authors, they understand themselves as authors, and they can be very, very prickly about their authorial entitlements.
PJ: Our project began with lengthy interviews with over 50 documentary filmmakers, ranging from 40-year veterans to brand-new practitioners. We discovered that on almost every level, though people grumble and gripe and complain about the difficulties they face in making use of copyrighted materials, they have a relatively robust sense of their own entitlements. One can look at that either as a problem, or as an advantage. My hope is that the Documentary Filmmakers' Statement of Best Practices on Fair Use will prove to be a particularly robust document, precisely because it will have been arrived at by people who are not enemies of IP, but are in some sense strongly invested in the institutions of IP themselves.
PJ: Initially I was concerned that the divided consciousness of documentary filmmakers is going to be a problem rather than an advantage, and they they would be unwilling to cooperate in the project, or be unable to come up with standards for fair use that are sufficiently comprehensive and far reaching. Happily, however, this wasn't the case. The truth is that this mixed consciousness, this sense of oneself as author and user, as entitled owner and as the member of a public with affirmative-use claims, is typical rather than atypical. This divided consciousness is very much like the divided consciousness of university teachers, like
the divided consciousness of graphic artists, like the divided consciousness of every other category of information practitioners.
I think that we're just talking about an inherent paradox here, which is perhaps a paradox of the persistence of authorship.
LL: Thank you.
PJ: Thank you, great questions.