Tip:
Highlight text to annotate it
X
Copyright, Copyleft and the Creative Anti-Commons, by Anna Nimus
Part 2: Intellectual Property as Fraud:
If property is theft, as Proudhon famously argued, then intellectual property is fraud.
Property is theft because the owner of property has no legitimate claim to the product of
labour. Except by denying workers access to the means of production, property owners could
not extract any more than the reproduction costs of the instruments they contribute to
the process. In the words of Benjamin Tucker, the lender of capital is entitled to its return
intact, and nothing more. When the peasants of the pre-industrial age were denied access
to common land by the new enclosures, it can be said that their land was stolen. But if
physical property can be stolen, can intelligence or ideas be stolen? If your land is stolen,
you cannot use it anymore, except on the conditions set by its new private "owner." If ownership
of an idea is analogous to the ownership of material property, it should be subject to
the same conditions of economic exchange, forfeiture, and seizure -- and if seized it
would then cease to be the property of its owner. But if your idea is used by others,
you have not lost your ability to use it – so what is really stolen? The traditional
notion of property, as something that can be possessed to the exclusion of others, is
irreconcilable with intangibles like ideas. Unlike a material object, which can exist
in only one place at a given time, ideas are non-rivalrous and non-exclusive. A poem is
no less an authors' poem despite its existence in a thousand memories.
Intellectual property is a meaningless concept -- ideas don't behave like land and cannot
be possessed or alienated. All the intellectual property debates fought in courthouses and
among pamphleteers during the 18th century intuitively grasped this contradiction. What
became obvious in these debates was that the rights to own ideas would have to be qualitatively
different from the rights to own material property, and that the ease of reproducing
ideas posed serious problems for enforcing such rights. In parallel to the philosophical
debates about the nature of intellectual property, a monumental discourse criminalizing piracy
and plagiarism began to emerge. The most famous rant against piracy was Samuel Richardson's
1753 pamphlets denouncing unauthorized Irish reprints of his novel Sir Charles Grandison.
Contrasting the enlightened English book industry with the savagery and wickedness of Irish
piracy, Richardson criminalizes the reprints as theft. In actuality his claims had no legal
basis since Ireland was not subject to England's intellectual property regime. And what he
denounced as piracy, Irish publishers saw as a just retaliation against the Stationers
Company's monopoly. A year before Richardson's pamphlets, there were street riots in Dublin
against British taxation policies, which were part of a larger political struggle of Irish
independence from Britain. By arguing that this Cause is the Cause of Literature in general,
Richardson framed the battle over literary property in purely aesthetic terms, isolating
it from its political and economic context. But his use of the piracy metaphor recalled
Britain's colonial history and brutal repression of sea pirates. 18th century maritime piracy
has itself been interpreted as a form of guerilla warfare against British imperialism, which
also created alternative models of work, property and social relations based on a spirit of
democracy, sharing, and mutual insurance.
Richardson's account of originality and propriety excluded any notion of cultural appropriation
and transmission. Never was work more the property of any man than this is his, he claims,
portraying his novel as New in every sense of the word. His claim is especially ironic
given his own appropriation, both in the novel and in the pamphlets, of stories of piracy
and plagiarism from the popular literature of his time and from Heliodorus' The Ethiopian,
a 3rd century romance which was widely parodied throughout the 18th century. The idea of originality,
and the possessive individualism it spawned, created a tidal wave of paranoia among the
author "geniuses," whose fear of being robbed seemed to mask a more basic fear that their
claim to originality was nothing but a fiction.
Artistic creation is not born ex nihilo from the brains of individuals as a private language;
it has always been a social practice. Ideas are not original, they are built upon layers
of knowledge accumulated throughout history. Out of these common layers, artists create
works that have their unmistakable specificities and innovations. All creative works reassemble
ideas, words and images from history and their contemporary context. Before the 18th century,
poets quoted their ancestors and sources of inspiration without formal acknowledgement,
and playwrights freely borrowed plots and dialogue from previous sources without attribution.
Homer based the Iliad and the Odyssey on oral traditions that dated back centuries. Virgil's
Aeneid is lifted heavily from Homer. Shakespeare borrowed many of his narrative plots and dialogue
from Holinshed. This is not to say that the idea of plagiarism didn't exist before the
18th century, but its definition shifted radically. The term plagiarist (literally, kidnapper)
was first used by Martial in the 1st century to describe someone who kidnapped his poems
by copying them whole and circulating them under the copier's name. Plagiarism was a
false assumption of someone else's work. But the fact that a new work had similar passages
or identical expressions to an earlier one was not considered plagiarism as long as the
new work had its own aesthetic merits. After the invention of the creative genius, practices
of collaboration, appropriation and transmission were actively forgotten. When Coleridge, Stendhall,
Wilde and T.S. Eliot were accused of plagiarism for including expressions from their predecessors
in their works, this reflected a redefinition of plagiarism in accordance with the modern
sense of possessive authorship and exclusive property. Their so-called "theft" is precisely
what all previous writers had regarded as natural.
Ideas are viral, they couple with other ideas, change shape, and migrate into unfamiliar
territories. The intellectual property regime restricts the promiscuity of ideas and traps
them in artificial enclosures, extracting exclusive benefits from their ownership and
control. Intellectual property is fraud -- a legal privilege to falsely represent oneself
as the sole "owner" of an idea, expression or technique and to charge a tax to all who
want to perceive, express or apply this "property" in their own production. It is not plagiarism
that dispossesses an "owner" of the use of an idea; it is intellectual property, backed
by the invasive violence of the state, that dispossesses everyone else from using their
common culture. The basis for this dispossession is the legal fiction of the author as a sovereign
individual who creates original works out of the wellspring of his imagination and thus
has a natural and exclusive right to ownership. Foucault unmasked authorship as a functional
principle that impedes the free circulation, the free manipulation, the free composition,
decomposition, and recomposition of knowledge. The author-function represents a form of despotism
over the proliferation of ideas. The effects of this despotism, and of the system of intellectual
property that it shelters and preserves, is that it robs us of our cultural memory, censors
our words, and chains our imagination to the law.
And yet artists continue to be flattered by their association with this myth of the creative
genius, turning a blind eye to how it is used to justify their exploitation and expand the
privilege of the property owning elite. Copyright pits author against author in a war of competition
for originality – its effects are not only economic, it also naturalizes a certain process
of knowledge production, delegitimates the notion of a common culture, and cripples social
relations. Artists are not encouraged to share their thoughts, expressions and works or to
contribute to a common pool of creativity. Instead, they jealously guard their "property"
from others, who they view as potential competitors, spies and thieves lying in wait to ***
and defile their original ideas. This is a vision of the art world created in capitalism's
own image, whose ultimate aim is to make it possible for corporations to appropriate the
alienated products of its intellectual workers.