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Introduction

Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves. The term “intellectual property” denotes the specific legal rights that authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself. And this already complex description becomes even more convoluted in the realm of knowledge and cultural production. The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit of innovation and the disclosure of knowledge into the public domain for the common good, by granting authors and inventors exclusive rights to exploit their works and invention for a limited period. From the perspective of economics, intellectual property is a temporary monopoly on the use or exploitation of that good, supported by legal enforcement mechanisms.
Intellectual property laws are designed to protect different forms of subject matter, although in some cases there is a degree of overlap.

Copyright may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time.

A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application).

A trademark is a distinctive sign which is used to distinguish the products or services of different businesses.

An industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).

A trade secret (which is sometimes either equated with, or a subset of, “confidential information”) is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal.

Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes

Copyright
Copyright is a form of intellectual property law alongside patent and trademark law regulating cultural creation and reproduction. Broadly speaking, copyright seeks to protect the creative mental process embodies or materially expressed in different types of cultural media including artistic, literary, dramatic and musical works by giving owners (usually or author) the right to control and exploit the work in which the right subsist. This includes the right to copy the work and perform it in public. Other users must obtain the consent of the copyright owner to undertake these acts in relation to the work, otherwise they risk infringing the copyright. Civil and criminal remedies exist for the owner when the rights are infringed. The rights of copyright owners in most jurisdictions, last for the lifetime or the author plus seventy years post-mortem.

Copyright ownership is distinct from physical ownership of the work because copyright protects what is intangible in the work. In addition, multiple copyrights can exist in a single work. For example, in a film, individual copyrights may protect the film itself (the artistic work) the spoken words (the literary work), the script (the dramatic work) and the sound track (the musical work).

In addition to copyright, moral rights exist to protect authors. These rights, according to Ruth Redmond Cooper, include the right to be identified as author (paternity), to prevent false attribution (attribution) and to prevent derogatory treatment of the work (integrity). In contrast to copyright, moral rights are unassignable and under some jurisdictions, like France, perpetual, Derogatory treatment encompasses both mistreatment of the original work and acts of copying which are prejudicial to the honour of the author, including distortions and caricatures. Moral rights, as understood by Anthony Julius imply that an indissoluble bond exists between author and work and that in damaging a work or failing to ascribe proper recognition, the creator is somehow harmed.

For defenders of copyrights, the purpose of copyright is to protect artists from acts of intellectual ‘theft’ by others. However, for many artists and curators, the ‘intrusion’ of law into the hallowed sphere of artistic production in perceived to be, at the least, nothing short of perverse and, more ominously, to set a precedent for state restrictions on artistic freedom and individual creativity.

Absolute originality is an untenable ideal, it is clear that all ideas are based upon existing ones. Critics of copyright law argue that it is in the nature of art and creativity to copy, quote and gather from all sources, including art itself and popular culture, and that the current law unfairly restricts and regulates the activities of artists; a problem exemplified where copyright holders refuse to allow their material to be used or seek to demand unreasonable fees. They also point out that the law is perilously out of step with the ‘post-modern’ practices of contemporary artists who used and re-contextualize the readymade imagery and material of our culture, thereby calling into question the values of originality and authorship upon which both modernist aesthetics and copyright law are seemingly built.

Yet the artists have found themselves to be the victim of copyright disputes, copyright law has also become commercially exploited by artists and museums a consequence of the circulation of images throughout society. Licensing agreements for the reproduction of artists’ works have become increasingly common in the spheres of advertising and publishing and copyright collection societies like DACS (in the U.K.) and SPADEM ( in France) IPRS(India) have been formed with the specific purpose of enforcing copyright licences.

But copyright actions are not only embarked upon by artists for financial reasons; they are also perused to uphold the moral rights of artists to control the context in which their work is reproduced and presented, with the intent of protecting the original form being ‘degraded’ by undesirable commercial association. A well-known example is the 2000 case in the U.K. won by the Cuban Photographer Alberto Diaz Gulterrez against an advertising agency. The court upheld the photographer’s legal right to prevent his iconic photograph of the Cuban revolutionary leader, Che Gyuevara, from being further exploited in an advertisement for a brand of vodka and he settled for out of court damages paid to the charity.

Such cases illustrate that copyright law has important ramifications on both sides of the art world fence with artists being both protected as creators and charged as plagiarizers of copyrighted material. Yet the relationship of creativity to copyright connects with much wider debates about the nature and legitimacy of copyright as a form of intellectual property law and its impact upon society in the light of vast cultural, economic and technological changes. On this, Johnson Okpaluba notes; “The debate as to the form that copyright law should take in the digital era has led to a polarization of view points between those who wish to see these rights and those who believe that copyright is already over-strength and that users need to be considered so that creativity and creation of culture products are not shifted”.

It is clear that copyright raises complex cultural, philosophical, political and ethical questions regarding both its assumptions of ‘authorship’ and ‘work’ and its justification as a property right in particular the premise that ideas can be owned as private property when disseminated in the public domain and that legally enforceable restrictions can be placed upon other users. For critics of copyright law, as Kathy Bowrey points out in her contribution, these restrictions are seen as unjustifiable, as the proliferation of reproduction in the digital environment renders legal mechanism for controlling information redundant.

The need to balance private authorial rights with wider public rights (e.g. free expression) is key to the shape of copyright law, which can be seen as an uneasy compromise between these two competing principles. Copyright laws recognize that new cultural creations are inevitably inspired by existing forms, the do not give authors unfettered rights over their ideas. These limits are encoded in devices such as the so-called idea-expression dichotomy, which implies that copyright cannot apply to ideas alone, but only to their material expression. They are also reflected in fair use exemptions. Where the limits should be drawn, however, is a matter for continuous debate and revision.

Copyright is both a right of authorship and a property right. Inscribed within its structure is a tension between its existence as a right to protect authorial expression and its locus as a commodity that can be assigned, sold and licensed to others, including publishers. Paradoxically, as Jane Gains has observed, the growth of copyright law has witnessed the disappearance of the individual author as copyright holder and the emergence of the corporation as owner – exporting its economic benefits long after the death of the author. In a globalized capitalist society predicated upon the rapid reproduction, dissemination and consumption of information and images, it may seem inevitable that copyright law should assume this central role as a mechanism in exploiting what are valuable, intangible commodities. But to copyright sceptics like Peter Drahos, the corporate ownership of copyright in further evidence of its negative influence as a constraint upon communication and its role in the erosion of the public domain. This is reflected in some alarming cases, as for example when the Walt Disney Corporation demanded that the artist, Dennis Oppenheim remove his public sculpture, incorporating the figures of Mickey Mouse and Donald Duck.

On close inspection, copyright emerges as a complex constellation of legal, cultural, economic and technological forces raising a multitude of demanding questions. How are we, for example, to measure originality and creativity? How do we differentiate between inspiration, interpretation and plagiarism? How do we balance intellectual ownership with the rights of others to free expression? Despite its growing importance both within the artist community and within culture at large, there is a remarkable lack of understanding of the basic structure of copyright, as well of the relationship implicated between the law, culture and art.

In view of the growing significance and its consolidation over the sites of conflict i.e the production and control of knowledge and culture, this research aims to understand the chequered history of Copyright, its manifestations, implications, processes of signification and the claims and counter claims.

Locating the Author

There is a strange irony in the term author. In most usages across the world, the “author” is a common sense and an obvious term. An author is a person who writes something. However, the literary theories sought to address the complex process of creation. Thus, often deeply metaphysical concepts, the positions and discourses around the author have vacillated across centuries and across countries. This discussion attempts to bring together and shape the geographical contours of the term “author” and how the boundaries became enmeshed with the status and nature of copyright law of the land. Much of the discussion here also aims to examine the role that copyright law has played in the genealogy of authorship, in the way in which copyright law puts a stamp of identity on the author as “the author”. Copyright assumes as the subject of its enquiry the rights of the author. Simple as it sounds, this assertion is of great import for our understanding of the conflict over copyright. At the heart of the statement lies the presumption that we can clearly and without any problem make sense of the idea of authorship. To juxtapose this statement with another, ask any person to rattle off the names of the greatest authors, and you will find a varied crowd ranging from Shakespeare, Chaucer, Kalidas, Valmiki to Salman Rushdie and perhaps Jeffrey Archer. This is, quite obviously, a list of authors; it is not difficult to come to that conclusion. However, this commonplace understanding of the author as a category needs to be challenged. The discussion then expands to the territory that perhaps law and culture are not such distinct units of analysis but generate ideas and actions in simultaneity.

Lawrence Liang in his article “Conceptualizing Law and Culture: Rajnikant and the Sign of our Times”,quotes Rosemary Coombe in this regard who says that “an exploration of the nexus of law and culture will not be fruitful unless it can transcend and transform its initial categories. A continuous mutual disruption–the undoing of one term by the other—may be a more productive figuration than the image of relationship or joinder”. According to Liang a new way of thinking and meaning making then emerges on viewing both law and culture as practices that are constantly changing, and in trying to make sense of law as culture and culture as law, and to begin to think about how to talk about and interpret law in cultural terms. His paper then goes on to locate a particular instance of interaction between legality and film cultures.

Before we go on to understand the wider ramifications of this idea, it is perhaps pertinent to start at the beginning and look at the approaches of Roland Barthes and Michel Foucault in discussing the notion of the Western author.

French literary theorist, Roland Barthes in an essay titled “The Death of the Author”, urged a shift in critical attention away from the creator of the text, to the reader who reads and makes meaning of the text. By taking the historical or biographical author out of the text, the reader is liberated from the interpretive tyranny of the text, rendering the author a mere “scriptor” (a word Barthes uses to disrupt the traditional continuity of power between the terms “author” and “authority”) who exists to produce but not to explain the work.

In response to Barthes, philosopher Michel Foucault redefined and thus revived the author as a relevant function of reading, criticism and analysis. He defines the author in his work “What is an author?” as-

The coming in to being of the notion of the “author” constitutes the privileged moment of individualization in the history of ideas, knowledge, literature, philosophy and the sciences.

Even today when we reconstruct the history of a concept, literary genre, or school of philosophy, such categories seem relatively weak, secondary, and superimposed scansions in comparison with the solid and fundamental unit of the author and the work.

Foucault noted that without a legal definition of an “author”, the language of critical discourse would lack its operational vocabulary because without a name to attach to a piece of work, no one could be held responsible for the contents and ramifications of the work. Cultural theorist, Siva Vaidyanathan in his book Copyrights and Copywrongs, The Rise of Intellectual Property and How it Threatens Creativity, discussing the genesis of the author, shows that for Foucault the author is a legally prescribed and described entity, not necessarily a flesh and blood human being and certainly not a brooding romantic “genius”. For him, an author is not just a “writer” but a figure built when the domains of culture and law collapse. And the author functions as a locus for a complex network of activities and judgments that deal with ownership, power, knowledge, expertise, constraints, obligations, penalties, and retribution. The author resides in the legal and cultural function, but what also matters is what he does in a culture and not necessarily whom he represents. This depersonalized “author-function” according to Vaidyanathan has four traits.

-It is linked to the legal system that regulates discourse within a culture.
-It operates differently in different cultures.
-An “author” does not precede a work, but comes in to existence because of the work.
-Lastly, an author has multiple identities, perhaps even conflicting with or independent of each other.

Vaidyanathan however, goes on to critique the usage of the term “author-function” in Foucault’s analysis, which presupposes that the author, who has a legal and cultural status could not exist before the 18th century, when the first legal codifications of authorship emerged from European courts and Parliaments. This invention has been dubbed “Romantic authorship”, and most scholars ascribe to Foucault’s definition unquestioningly. Vaidyanathan cites the example of Bhagavan Vyasa (author-function of Mahabharata) to show that author- function did precede 1709 and presents a fascinating account in the history of authorship. Vyasa was not an earthly scribe for divine words. Instead, the sage enlisted the help (and four arms) of Lord Ganesha as a scribe for Vyasa’s narration of the story of Mahabharata. Vyasa had and still has tremendous cultural power and matches all of Foucault’s criteria of author-function.

Vaidyanathan suggests that instead of looking purely at the dimensions of “romantic” authorship, which neither explains the development of copyright laws, nor provides an insight on to the concentration of content, ownership and control. He defines the “author” primarily as a cultural entity: a “producer”, the “unromantic author” who might be a young rapper or a corporation like Disney.

Author and Copyright: 3 problematic assumptions

1. Every Author is a Genius and Only Produces Works of Genius
This isn’t something that the law says explicitly, but in fact ends up meaning. The idea of a creative genius – the free and autonomous human being who creates unique works of art unhindered by external influences – is a product of the humanist ideas of the Enlightenment period in Europe. Martha Woodmansee traces the process by which in the 18th century, the element of “inspiration” or the genius in writing came to be regarded as something internal, personal, rather than external. In her view, this change was necessary to secure the writer whose arena had, over the course of the 18th century, shifted to the marketplace. For writing to be seen as an economic activity, it had to be regarded as the product of the individual mind, which was achieved by the notion of the genius.

In the specific context of the Indian Copyright Act, this notion plays itself out in, say, the way that all works of an author enjoy a uniform copyright of lifetime of the author plus sixty years. The author is presumed to be always expressing himself. Additionally, in the way that the law couches the requirement of originality in negative terms (original = “not copied”), every work of every author is immediately created on an equal footing. Mark Rose points out that this loose standard is concomitant to a law that bases its protection on the uniqueness of the identity of the individual who is its apparent source. This could either mean that all works of an author are equally protectable because each carries her/his imprint, or that some authors are devoid of personality. The law prefers the former approach.

2. The Author is the Originator of Meaning
This is, again, an assumption implicit in the romantic humanist tradition outlined above. In the new theory of genius and originality, as William Wimsatt in Literary Criticism: A Short History puts it, “the only way to be sure of having any worth was to be in on the threshold of literary history, to get there first, even if with the least. “.It is not hard to see how this concept has been imported into contemporary copyright law. For instance, the way in which the author retains control over derivative works –translations and adaptations – or the exception in an infringement action where the work has been independently produced. Advances in literary theory in the previous century, however, rebut these assertions of the humanist tradition. Structuralist literary theory, for instance, argues that any piece of writing or any signifying system has no origin and that authors merely inhabit pre-existing structures that enable them to make any particular sentence. Hence the idea that ‘language speaks to us’ rather than us speaking language. So what we mis-perceive as our originality is simply our recombination of some elements in the pre-existing system. Hence every text we write and sentence we speak is made up of the already written.

3. The Author is a Constant Entrepreneur, Rationally Interested in Maximising Reward
This attitude of the law is best summed up in statements such as the following passage from a Ministry of Human Resources and Development report on piracy. “The basic idea behind such protection is the premise that innovations require incentives. Copyright recognizes this need and gives it a legal sanction. Moreover, commercial exploitation of copyright yields income to the creators and thus making pecuniary rewards to individual’s creativity.”

The law delineates in painstaking detail each of the rights the author has, it gives them a term of lifetime-plus-sixty and then makes the rights wholly assignable. What is more, it places inconvenient obstacles to renunciation that prevents those who disagree with the system from opting out.

One criticism of this approach is that it leads to, in NYU law professor Rochelle Dreyfuss’ words, the “if value, then right” theory of creative property — If there is value, then someone must have a right to that value. One may observe this principle in operation in such actions as those by a composers’ rights organization, ASCAP, which sued the Girl Scouts for failing to pay for the songs that girls sang around campfires. More recently J.K. Rowling’s publishers instituted legal proceedings to prevent “unauthorized” cardboard installations of Hogwarts from being erected during celebrations of a popular festival in India.

At a basic level, however, this approach also obscures the distinction between the incentives required to create a work and those that are required to disseminate the works to the public. So not only is the author’s behavior expected to be entrepreneurial in her creative endeavors, she is also supposed to be entrepreneurial in terms of business acumen. Having secured for her works an assignable right, the law expects the author to show so much prudence as to determine the right price at which to sell his wares in the open market. Even if we are coaxed into believing that authors are instinctively entrepreneurial when they create, it is intuitively evident that they may not exhibit the same sharpness while negotiating business deals that precede the publication and distribution of a work. In India, in most cases, royalty to authors varies from six percent to a maximum of 10 percent of the book’s price. By contrast, as much as 40-50 percent of the price goes to retailers. In some cases, authors are offered a bulk amount in return for the transfer of the “copyright” itself (as opposed only to the right to reproduce/publish). Some agreements have clauses which bear no connection with the rights granted under traditional copyright law, for instance, a “right of first refusal” clause, by the terms of which an author would be obliged to offer her/his subsequent works exclusively to the same publisher for publication, who would retain the right to decline to publish. Instances of publishers incorporating works of smaller authors into the works of “big name” authors without permission are not uncommon.

This shows up copyright as an instrument that does not do much to aid the author-in need, but rather facilitates the easier appropriation of works by publishers and other rentiers of the IP system.

The History of Ideas

“Steal not this book, my worthy friend

For fear the gallows will be your end;

Up the ladder, and down the rope,

There you’ll hang until you choke ;

Then I’ll come along and say -

Where’s that book you stole away?”

– Medieval Book Curse

Pre History of Copyrights

The idea that an idea can be owned – is a child of the European Enlightenment. It was indeed in the eighteenth century that the language of “ideas” and “property” first came into contact with one another, and first forged a legal bond. And it was here, too, that the very idea of a property right in ideas was most sharply contested – at the outset, and to the present day.

Ancient Greeks did not think of knowledge as something that could be owned or sold. Plato thought that all ideas were held from birth in the mind, where they had transmigrated from earlier souls. A scribe could be paid fees for his labour, an author awarded prizes for his achievement, but the gift of the gods was freely given. Thus the libraries of the ancient academies were not sold, but were instead transmitted as gifts to the teacher’s most worthy successor. Socrates held the sophists in contempt for charging fees for their learning.

Even during a period of a prospering book trade, during the Roman Empire when no copyright or similar regulations existed, copying by those other than professional booksellers was rare. This is because books were, typically, copied by literate slaves, who were expensive to buy and maintain. Thus, any copier would have had to pay much the same expense as a professional publisher. Roman book sellers would sometimes pay a well regarded author for first access to a text for copying, but they had no exclusive rights to a work and authors were not normally paid anything for their work.

During the centuries following the destruction of the Roman Empire, European literary undertakings were confined almost entirely to the monasteries. The Roman usage, under which authors could dispose of their works to booksellers and the latter could be secure of some commercial control of the property purchased, was entirely forgotten.

A tour of the other great civilizations of the pre-modern world – Chinese, Islamic, Jewish, and Christian – reveals a striking absence of any notion of human ownership of ideas or their expressions. In the Lun-Yii, or Analects, compiled in China in the Fifth century B.C., the philosopher Confucius is recorded as saying,

“I transmit rather than create; I believe in and love the ancients.”

The measure of the greatness of a Chinese scholar was not to be found in innovation, but rather in his ability to render or interpret the wisdom of the ancients, and ultimately god, more fully and faithfully than his fellows. Wisdom came from the past, and the task of the learned was to unearth, preserve, and transmit it. Confucian thought despised commerce and thus also writing for profit; authors practiced their craft for the moral improvement of themselves and others. Reputation, and especially the esteem of future generations, was its own reward, even if it might, incidentally, bestow the worldly gifts of patrons upon its bearer1. This is not to suggest that there was no commerce in books in china. In the land that invented movable type, a book trade flourished as early as the Eleventh century. Still, Chinese authors had no property right to their published words. The contents of books could not be owned. Not even the particular expressions an author might employ could be claimed as his. Chinese characters were thought to have come from nature, and no human being could make a claim upon them that would exclude their usage by others. Only the paltry vessel – the paper and ink of a manuscript or a printed book that bore the ideas and expressions – could be bought or sold².

Throughout the Islamic lands, too, there was no concept of intellectual property for many hundreds of years. All knowledge was thought to come from God. The Koran was the single great scripture from which all other knowledge was derived. A text that embodied the word of Allah, it belonged to no one. There were guardians of its true meaning, to be sure – the great imams who formed schools at the sites of the most important temples. But the principle means of transmitting Koranic knowledge was oral recitation – from teacher to student, in an unbroken lineage from Muhammad himself to his disciples, and from these chosen few forward through the generations. The word “Koran” itself means “recitation,” and oral transmission of the living word was always to be preferred over a written transcription. The book was merely an instrument, a lowly tool, to facilitate faithful memorization of the word, and manuscripts were continuously checked and re checked against oral memory to ensure their accuracy and the authority of their lineage. The Islamic belief that oral recitation, rather than written transcription, best preserved the word of God and kept it pure across the generations meant that the technology of printing was very slow to penetrate into Islamic lands, and it was only widely adopted throughout the Middle East with the advent of the mass newspaper press in the Nineteenth century³. To be sure, a certain notion of legal “authorship” did emerge from Islamic scribal practices. But a concept of intellectual property did not. Sha’ria a law against “imposture” or “fraud” was used to prevent the unauthorized appropriation of the reputation or authority of a great teacher through false attribution of written texts⁴. But the teacher did not own the ideas expressed within his books. A thief who stole a book was thus not subject to the punishment for theft – the amputation of his hand. Islamic law held that he had not intended to steal the book as paper and ink, but the ideas in the book – and unlike the paper and ink, these ideas were not tangible property⁵.

The Judeo-Christian tradition elaborated a similar view of knowledge. Moses received the law from Yahweh and freely transmitted it to the people chosen to hear it. And the New Testament sanctified the idea of knowledge as a gift from god in the passage of the book of Matthew in which Jesus exhorts his disciples, “Freely ye have received, Freely give” (10:8). Medieval theologians interpolated this passage into the canon law doctrine “Scientia Donum Dei Est, Unde Vendi Non Potest” (knowledge is a gift from god, consequently it cannot be sold). Selling something that belonged to god constituted the sin of simony. University Professors, Lawyers, judges, and Medical Doctors were thus admonished not to charge fees for their services, although they might receive gifts in gratitude for the wisdom they imparted⁶. Indeed, the language of gift-giving permeated all forms of knowledge exchange in the pre-modern period, and nowhere more so than in the dedicatory prefaces to books through which authors sought patronage in recompense for the symbolic offering of their works. The renaissance elevated the poet, the inventor, and the artist to unprecedented social heights, but their “genius” was still understood to be divinely inspired rather than a mere product of their mental skills or worldly labours. In the Sixteenth Century, Martin Luther could thus preach confidently in his warning to printers, “Freely have I received, Freely I have given, and I want nothing in return.”

In Ireland in the mid-6th-century AD, power depended on connections and access to and control of information. Not a great deal has changed in fourteen hundred years. The short story of Colmcille and the Battle of the Book at Cooldrumman goes something like this-

While studying with St. Finnian in Moville, he secretly copied a book of Psalms, the property of St. Finnian. When St. Finnian found out he demanded both the book and the copy back. Colmcille refused and found himself in court. The High King of Tara, Diarmuid (who was a cousin of Colmcille), gave the following judgement, thought to be the first ruling on copyright in history;

‘To every cow it’s calf, and to every book it’s copy’.

The book and copy was returned to St. Finnian, much to Colmcille’s annoyance. Part of the reason for the ruling was that the King was angry with Colmcille for he had previously given refuge to a murderer.

After he had given the book back fighting broke out over it with Colmcille eventually gaining the book back. After that battle the book came to be known as the “Cathach” (Battle Book). Legend has it that a shrine, Cumhdach, was made for the Cathac. After the Treaty of Limerick in 1691 the book was taken to Trance by the O’Donnells and brought back to Ireland in 1813. It is now housed in the Royal Irish Academy and is the oldest surviving manuscript of the psalms.

Royal Grants/ Censorship

Well into the Eighteenth century, the idea of the writer as God’s handmaiden held sway. Alexander Pope, in 1711, still conceived of the poet as a reproducer of traditional truths rather than an inventor of new ones, and Goethe could write fairly of the German poets of the early Eighteenth century that “the production of poetical works was looked upon as something sacred. It was considered almost simony to accept or to bargain for payment of them. This theologically informed moral revulsion to the idea of an individual profit motive in the creation and transmission of ideas continued to circulate in the United States well into the Nineteenth century. Francis Wayland, the President of Brown University in the 1830s, wrote in his college textbook the elements of moral science that “genius was given not for the benefit of the possessor, but for the benefit of others⁷.”8 and an intellectual of no less stature than George Bancroft added a Hegelian twist to the Christian tradition, writing in 1855 that: every form to which the hands of the artist have ever given birth, spring first into being as a conception of his mind, from a natural faculty, which belongs not to the artist exclusively, but to man…. mind becomes universal property; the virtually universal proscription of private ownership of ideas in the pre modern world did not, of course, mean that ideas flowed freely within pre-modern regimes. It fell to God’s agents upon the earth to determine how much of the knowledge putatively transmitted from God was actually divine in origin, as well as how widely and by whom such knowledge should be circulated within their kingdoms, empires, and cities. Rulers forged alliances with religious authorities to control the production and circulation of ideas and information – both spiritual and technical – within their realms. Throughout the world, the early modern period witnessed the emergence of elaborate systems of prepublication censorship, state-licensed monopolies to control the burgeoning printing and publishing trades, and the use of royal letters of patent or “privileges” to give exclusive monopolies for the printing and publication of authorized texts. In China, as early as the Tang Dynasty (A.D. 618 – 907), the legal code prohibited the transcription and distribution of a wide range of literature in order to protect the emperor’s prerogatives and interests. The first known ordinance regulating publication was that of the emperor Wen-Tsing, in 835, forbidding the private publication of almanacs. An extensive regulatory apparatus was created around the industry of printing under the Sung Dynasty (960-1179), and official government printing houses were established in the major cities. Exclusive state privileges were implemented for categories of sensitive literature, from astrological charts, prognostications, and almanacs to official promulgations, dynastic histories, and civil service examination literature. Private printing houses could register but privileges were not a form of property right in the modern sense. They were a grace, extended by the pleasure of the authorities, and they were revocable at any time. By the Eighteenth century, a comprehensive system of prepublication censorship and licensing, even of private writing, was in place throughout Imperial China. European monarchies, empires, and city-states created similar legal and institutional structures in response to the introduction of the new technology of printing in the 1450s. Less than a hundred years later, the Reformation rent western Christendom. With the spread of ideological division, regulation of the printed word intensified rapidly. Rulers granted commercial monopolies, or “privileges,” in exchange for submission to state censorship and control. The earliest European initiative occurred in the Republic of Venice in 1469, where Johann Speyer was granted an exclusive monopoly on printing in Venetian territories for a period of five years.11 This monopoly spread rapidly from Venice throughout the Italian states, and from there to France and England.

The republic of Venice granted its first privilege for a particular book in 1486. It was a special case, being the history of the city itself, the Rerum venetarum ab urbe condita opus of Marcus Antonius Coccius Sabellicus. Venice began regularly granting privileges for particular books in 1492. The first, 3 January that year, went to Petrus Franciscus de Ravenna, a teacher of canon law at Padua University, who had devised a system of training the memory, which he embodied in a book entitled “Foenix”.

Most early Italian enactments in regard to literature were framed not so much with reference to the protection of authors as for the purpose of inducing printers (acting as publishers) to undertake certain literary enterprises, which were believed to be important to the community. The Republic of Venice, the dukes of Florence, and Leo X and other Popes conceded at different times to certain printers the exclusive privilege of printing for specific terms (rarely exceeding 14 years) editions of classic authors; not so much to secure profits for the printers, but rather to encourage, for the benefit of the community, literary ventures on the part of the editors and printers.

The earliest German privilege of which there is trustworthy record was issued in 1501 by the Aulic Council to an association entitled the Sodalitas Rhenana Celtica, for the publication of an edition of the dramas of Hroswitha of Gandersheim, which had been prepared for the press by Konrad Keltes. In 1512 an Imperial privilege was issued to the historiographer John Stadius for all that he should print, the first European privilege which was made to cover more than a single work, or undertaking to protect books not yet published.

England presents an exemplary case. The first royal grant of a privilege to the book trade was the creation of the title of “King’s Printer,” which was given to one William Facques in 1504. This position afforded him the exclusive right to print royal proclamations, statutes, and other official documents.

Hegemony of the Publishers Guilds

In 1557 the Catholic Queen Mary Tudor initiated a 120-year-old monarchic struggle to censor printing presses in England by issuing a charter to the Stationers’ Company, a guild of printers. The intention was to control what was printed to ensure nothing contrary to the views of the crown reached the people. Only members of the company could legally produce books, which had to be approved by the Crown. (Censoring measure ensuring a monopoly over both production and distribution.) This is extraordinary also because the Charter of the City of London conferred the right to practice any trade whatsoever to its citizens. The Stationer’s Charter abridged that right.

The printers paid authors for their manuscripts and in return received exclusive rights to them. This thus gestures towards two fundamental principles of the original English copyright law.

1. It came out from a government decreed statute, not some revealed natural right of authors.
2. It granted a monopoly, which meant that the publisher could charge a price without considering market pressures.

In 1559, as part of her attempt to resolve the religious controversies that wracked the realm, Elizabeth I issued an injunction against publication of any text unless it had been licensed by censors appointed by the Crown. The Stationers’ Company kept a registry of licensed books and the Crown could, in principle, extend or revoke a license at will and limit it for whatever term it deemed appropriate. Rights to profit from a book derived not from property in ideas, but from a “privilege” extended by royal “grace” alone¹⁰.12 These licenses were “copied” into the registry book of the guild and soon came to be treated by members of the guild as exclusive rights to print a particular “copy.” Though created by Royal Prerogative, these “copy” rights were bought, sold, and traded amongst Guild members, as though they were a form of perpetual property. By the 1570s, four prominent members of the Stationers’ Company came to have a monopoly control, through “Letters Patents” that they claimed as their perpetual property rights, over the most lucrative books in print: Christopher Barker, the queen’s printer, controlled the Bible, the New Testament, the Book of Common Prayer, and all Statutes, Proclamations, and other Official Documents ; William Serres had a monopoly on private prayer books, primers, and schoolbooks ; Richard Tottel had a monopoly on common law texts ; and John Day laid claim to alphabet books, the catechism, and the psalms in meter.

A similar process of consolidation of great publishing empires, founded upon monopolistic claims rooted in royal privileges, occurred throughout Christian Europe. By the middle of the Seventeenth century, the Paris Book Publishers and Printers Guild, like its brethren in London, had used its strategic proximity to the royal court to achieve a monopoly on the most valued ancient and religious texts as well as the most lucrative contemporary publications¹¹.Each of the more than three hundred German principalities and cities developed its own particular mechanisms to censor books, distribute privileges, and regulate guilds. Authors could not publish their own books, and unless they obtained a privilege in their own name, they were denied any profits from the sale of their books. These went to the publishers alone. Throughout the early modern world the development of commercial printing and publishing thus first occurred through a system of state-licensed monopolies, sanctioned by religious ideologies, that made no mention at all of intellectual property rights. The prevailing theories of knowledge and of political legitimacy made such rights inconceivable.

In the 1700s, cultural life in Europe underwent a dramatic transformation. A shift from intensive to extensive reading and the rise of a middle-class reading public led to an explosion of print commerce in the Eighteenth century. In England, it is estimated that annual book production increased fourfold over the course of the Eighteenth century. France, too, saw a marked increase in the literacy rate and a dramatic increase in the demand for modern secular literature. Whereas in 1747, Johann Georg Sulzer lamented that in Berlin “the general public does little reading,” a half century later Immanuel Kant recorded a literary world transformed: “this incessant reading has become an almost indispensable and general requisite of life.” “People are reading even in places where, twenty years ago, no one ever thought about books ; not only the scholar, no, the townsman and craftsman too exercises his mind with subjects for contemplation.” Increasing literacy and the emergence of a large middle-class readership throughout Europe in the first half of the Eighteenth century put unprecedented strains upon a system of publication that had been predicated on the notion that there was a fixed amount of divine or ancient knowledge to be known, transmitted, and interpreted. These developments put enormous pressure on traditional notions of authorship. The increased demand for printed matter, and especially for modern secular literature (in particular, novels, theatrical works, and self-help manuals of various sorts), tempted an increasing number of young men (and women) to aspire to become writers. And they were writers of a new sort – oriented more toward the commercial potential of their contemporary readership than toward eternal glory. For the first time, in the Eighteenth century, writers like Daniel Defoe in England, Denis Diderot in France, and Gotthold Lessing in Germany began to try to live from the profits of their pens rather than from elite patronage. And, not surprisingly, they began to make claims for better remuneration for their products. Older notions that a fixed “honorarium” or fee was an appropriate reward for the composition of a manuscript gave way to bolder assertions that the author deserved a share in the profits earned from his creative labour. Rather than selling a manuscript to a publisher, authors increasingly sought simply to sell the “rights” to a single edition. With greater frequency, secular authors began to claim that they were the creators of their own works rather than the mere transmitters of god’s eternal truths. As they came to view themselves as the originators of their work, they also began to claim that their creations were their own property, as susceptible to legal protection and as inheritable or saleable as any other form of property. Daniel Defoe wrote in 1710, “a book is the author’s property, ’tis the child of his inventions, the brat of his brain: if he sells his property, it then becomes the right of the purchaser.” authors thus began to assert that their works were their own property, transmissible by contract to others if the authors desired, but that authors should no longer be constrained to sell their manuscripts in order to see them published. The rise in public demand for printed matter also led to a dramatic expansion in the practice of literary piracy.

Sensing unsatisfied market demand and acutely aware of the artificial inflation in the price of some books due to publishers’ perpetual privileges, less-scrupulous printers and booksellers throughout Europe paid diminishing heed to the claims to exclusive perpetual privileges on the best-selling and most lucrative works. Cheap reprints, produced most frequently across national frontiers or in smaller provincial cities, began to flood urban markets. Publishers of pirate editions successfully represented themselves as champions of the “public interest,” against the monopolistic members of the Book Guilds. Why, they argued, should any particular publisher have an exclusive claim on a work whose authors or heirs were no longer living – by the middle of the Eighteenth century, the traditional system of publication was everywhere in shambles. First in England, and then in France and Germany as well, calls for reform of the regulation of the book trade were coming from all parties involved. Readers wanted cheaper books. Government legislators sought to increase commerce and to encourage a more educated population within their realms. Foreign and provincial publishers – most notably in Scotland, Switzerland, and secondary French cities like Lyon – clamored against the perpetual monopolies of the London and Paris Book Guilds on the most lucrative books. Authors wanted their property rights in their compositions recognized as absolute and perpetual. And even the privileged guild publishers, especially in Hamburg, Leipzig, Frankfurt Am Main, London, and Paris, hoped to see their traditional privileges recognized as perpetual property rights that could be defended against pirates in the courts. Satisfying and sorting out these conflicting claims provoked a host of pressing new questions :
• Were ideas in fact a gift from god, as traditional authorities had claimed, or were they the property of those who made them manifest, as authors now asserted?
• Was a “privilege” a “grace, ” or was it rather the legal ratification of an anterior, natural right to property?
• Upon what basis could the governments of nations or cities restrict or confirm traditional privileges?
• Could a secular foundation be articulated for the regulation of the publication and circulation of ideas?

Philosophical Discourses

The reform of the publishing industry in Europe thus entailed a rethinking of the basis and purpose of knowledge. A variety of European thinkers entered into a momentous debate about the origins and nature of ideas. As a result, a series of philosophical (or, more specifically, epistemological) problems were shown to lie at the heart of what at first glance seemed merely to be questions of commercial policy.

One influential view – that authors have a natural property right in their ideas – was articulated first in England and associated with two key texts : John Locke’s second treatise (1690) and Edward Young’s “Conjectures on Original Composition (1759). In his treatise, Locke famously wrote that “every man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.” Three generations later, the poet Edward Young, writing with the assistance of the novelist Samuel Richardson, asserted that the author contributed more than simply his labour to a book – he imprinted its contents with his original personality. according to Young, the labour of an author was thus of a higher order than the labour of an inventor, never mind the labour of a farmer, for the author not only worked upon nature, but produced something from himself, which bore the indelible stamp of a unique personality. While limits might be imposed upon patents for mechanical inventions, products of the mind – bearing the personhood of their author – ought to belong perpetually to their creator. Intellectual property, an invention of the Eighteenth century, thus burst into the world claiming to be real property in its purest form. Young’s reflections, like those of John Locke before him, constituted a dramatic secularization of the theory of knowledge. If all knowledge was derived from the senses working upon nature, as Locke had argued in the essay concerning Human Understanding (1689), there was no role left for divine revelation. In the secular epistemology of Locke, inspiration is internalized and redefined as cognition. Young in turn applied Locke’s epistemology to argue that cognition emanates from the workings of a unique mind. The individual personality supplanted God as the divine font of knowledge. Young’s “Conjectures on Original Composition” was rapidly translated into German and went through two editions there in the two years after it first appeared in English. Meanwhile, in France, both Locke and Young were widely influential. In 1726, for example, the French jurist D’hericourt seized upon Locke’s critical passage to argue in court on behalf of perpetual book privileges for authors, asserting that products of the mind are “the fruits of one’s own labour, which one should have the freedom to dispose of at one’s will” and forever. One could own one’s ideas just as one owned land that one had cleared with one’s own labour. D’hericourt concluded that a royal book privilege was not merely a grace accorded by the king, to be granted or revoked at his will, but rather a legal confirmation of an anterior natural property right, secured by the author’s labor¹³. The author could sell or retain those rights as he or she wished. Once sold, they belonged to the publisher in perpetuity. In 1763, the encyclopedist Denis Diderot took up the same argument after he was commissioned by the Paris Book Guild to write a letter on the book trade. In Diderot’s words, we can hear the resonance of both Locke and Young: what form of wealth could belong to a man, if not the work of the mind… if not his own thoughts… the most precious part of himself, that will never perish, that will immortalize him? what comparison could there be between a man, the very substance of a man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and which the individual has only appropriated though cultivating it¹⁴? Like Young, Diderot argued that products of the mind are more uniquely the property of their creator than land acquired through its cultivation. Literary property should, therefore, be even less susceptible to social regulation than land. It was Gotthold Lessing, the greatest writer of the German Enlightenment, who most forcefully developed the notion of the author’s unique personality as a source of property rights in ideas. In a 1772 essay, Live And Let Live, Lessing proposed a reorganization of the German Book Trade that attacked the foundations of the old system. He challenged directly the traditional ban on profits received from writing: “what? the writer is to be blamed for trying to make the offspring of his imagination as profitable as he can? Just because he works with his noblest faculties he isn’t supposed to enjoy the satisfaction that the roughest handyman is able to procure? Freely hast thou received, Freely thou must give! Thus thought the noble Luther_ Luther, I answer, is an exception in many things.” From Lessing forward, German writers clamored insistently for recognition of their claims upon their writings as a form of unique, perpetual, and inviolable property. A generation later, Johann Gottlieb Fichte, a philosopher and disciple of Kant, probed the complexities of the problem even more deeply. Fichte posed a difficult question: if creations of the mind were indeed “property,” what exactly was immaterial property? Literary property seemed to lack the singular physical form that characterized other forms of real property. But this was not the only difficulty with the idea of a property in ideas. After all, a great many people seemed able to share the same ideas, and it seemed intuitively just that as many people as possible should be permitted to express freely the same ideas independent of one another. Fichte’s solution to his puzzlement proved widely influential. For an idea to be regarded as a piece of real property, Fichte argued, it had to be assigned some distinguishing characteristic that allowed one person, and no other, to claim it as his own. That quality, he suggested in 1791 in his essay Proof of the Illegality of Reprinting: a rationale and a parable, lay not in the ideas per se, but rather in the unique “form” in which an author chose to express these ideas. Once published, the ideas in a book belonged to all – but the singular form of their expression remained the sole property of the author. Even ideas that had been “in the air” could become a piece of property through the unique way in which an author expressed them. Fichte’s distinctions – between the material and the immaterial book, and between the content and form of ideas – were to be critical in establishing a new theory of copyright based on the natural right to property in the unique expressions of ideas, rather than in the ideas themselves.¹⁵

In 1776, the French mathematician and philosopher, Condorcet expressed even deeper reservations, for philosophical rather than commercial reasons. Writing in direct response to Diderot’s letter on the book trade, Condorcet disputed his Lockean line of argument: “there can be no relationship between property in ideas and [property] in a field, which can serve only one man. [Literary property] is not a property derived from the natural order and defended by social force; it is a property founded in society itself. It is not a true right; it is a privilege.” ideas, Condorcet asserted, are not the creation of a single mind. Nor are they a gift from God to be regulated by royal authority. Ideas inhere in nature and are equally and simultaneously accessible to all. Ideas are intrinsically social: they are not produced by individuals alone; they are the fruit of a collective process of experience. Moreover, Condorcet could see no social value in granting individual claims upon ideas. Since true knowledge was objective, particular claims on ideas could consecrate nothing more than mere style, what Fichte had called “form.” Condorcet, as a man of science rather than literature, had little use for style. Style merely distorted nature’s truths, and to encourage the individuation of ideas was simply to encourage pleasant fictions and personal gain rather than the pursuit of knowledge and the public good: “it is uniquely for expressions, for phrases, that privileges exist. it is not for the substance of things…. privileges of this sort, like all others, are inconveniences that diminish activity by concentrating it in a small number of hands…. they are neither necessary nor useful, and… they are unjust.” While Diderot, Lessing, and Fichte celebrated romantic originality, Condorcet sought to ground public literary culture in scientific rationalism. According to Condorcet, the model of publication based upon authors’ property rights could be replaced with the model of periodical subscriptions, like the Journal Des Savantes. People could subscribe to useful publications and the authors could be remunerated as salaried employees or freelance writers for a nonprofit organization. More important than his specific policy suggestion was Condorcet’s claim that if ideas, as social creations, were to be recognized as a form of property, it must not be on the basis of an individual natural right but rather on the basis of the social utility of a property-based regime. Condorcet thus erected a second, alternative pillar for the modern notion of intellectual property: social utilitarianism. Condorcet argued that knowledge was objective and thus fundamentally social in character, belonging to all. Diderot, along with Young, Lessing, and Fichte, viewed ideas as subjective, originating in the individual mind and thus constituting the most inviolable form of private property.

Two strains of legal interpretation developed from these competing philosophical doctrines. those legal thinkers who sided with the objectivist position of Condorcet elaborated the utilitarian doctrine that there was no natural property in ideas, and that granting exclusive legal rights to individuals for unique forms of their expression could only be justified because such an arrangement was the best legal mechanism for encouraging the production and transmission of new ideas, a manifest public good. Conversely, those who sided with Locke, Young, Diderot, Fichte, and the subjectivist camp argued that there was a natural right to perpetual property in ideas and that legal recognition of that right was simply the confirmation in statute of a universal natural right. The utilitarian position thus understood the public interest as the highest aim of the law, while natural-rights proponents argued that the sanctity of the individual creator should be the guiding principle of any legislator. Over the course of the Eighteenth century, every European country witnessed a series of legal battles over which of these principles would prevail. Vested interests on both sides of the debate vied to capture the legislative advantage.

Traditional Narrative of Copyright

The English were the first to take up the question after the lapsing of the Licensing Act in 1695, which had regulated the book trade and censorship. Intending to end prepublication censorship by suppressing the obligation to submit to prior licensing before publication, parliament inadvertently also called the whole system of privileges into question. If a work were not registered prior to publication, no mechanism existed to protect literary privileges against pirate editions. The Stationers’ Company clamoured for recognition of their traditional privileges as perpetual property rights, while pirate publishers insisted that the lapsing of the act meant that all previously published works were now free for all to reprint. Parliament finally filled the legal vacuum in 1710, when the so-called Statute of Anne definitively separated the question of censorship from that of literary property. The statute ruled that authors, and those who had purchased a manuscript from an author, would have an exclusive right to publish the work for fourteen years (the term that had previously been established for patents on mechanical inventions). This right could be renewed for an additional fourteen years. But after this period (of fourteen or twenty eight years), the work became part of the public domain, and anyone was free to publish it. As a result, all of the monopolies held by the Stationers’ Company on classical texts were abolished. In effect, the Statute of Anne – its full title, appropriately enough, was “a bill for the encouragement of learning and for securing the property of copies of books to the rightful owners thereof” – represented an uneasy compromise between the position of the Stationers’ Company and the advocates of authors’ natural rights on one side and the position of the pirate publishers and advocates of “the public interest” on the other. Needless to say, neither side was entirely satisfied with this compromise.

The Statute of Anne, often erroneously dubbed the first copyright law, established two levels of copyright.

1. The first level was issued in the name of the author for all books that would be published after the act took effect. The term of protection was for fourteen years, renewable for another fourteen years. (To be seen as an “encouragement of learning”)
2. The second level reinforced the Stationers’ exclusive rights to previously published works for a non-renewable 21-year term. The addition of these term limits created the first codified notion of a “public domain”, a collection of works old enough to considered outside the scope of the law and thus under the control of the public and the culture at large.

The Statute of Anne was an elaborate attempt to regulate publishers, a way to balance the interests of the book printing industry with the concerns that monopolies were growing too powerful in England.

Two groups emerge here:

• It pitted publishers (pro-monopoly agencies) against the book buying public, which wanted access to inexpensive material.
• It also pitted a new breed of publishers-the pirates-against the established members of the Stationers’ Company.

Another point to be noted here is that, the author is for the first time introduced in the legal matrix of the copyright. The contradictory philosophical assumptions it codified left plenty of room for subsequent court challenges.

A series of cases that pitted London publishers against foreign rivals – Tonson v. Collins in 1760, and Millar v. Taylor in 1769 – led briefly to a recognition of perpetual property rights in the unique expression of an idea.

When the twenty-one years monopoly granted by the Statute of Anne was up, the booksellers–for copyrights were held by publishers and booksellers, not authors–asked for an extension. Parliament declined to grant it.

Thwarted by Parliament, the booksellers turned to the courts for relief. They attempted to secure a ruling that there was a natural right to ownership of the copyright under the common law. The booksellers arranged a collusive lawsuit, Tonson v Collins, but the courts, realising that it was fake, threw it out. A real lawsuit was brought, Millar v Taylor, concerning infringement of the copyright on James Thomson’s poem “The Seasons” by Robert Taylor, and the booksellers won a favourable judgment. (It helped that Lord Mansfield, the chief judge on the case, had previously been counsel to the booksellers.) An appeal was brought to the Lords, but the booksellers, fearing an adverse judgement there, settled. Lord Manesfield who heard the case wrote an opinion that reflected this new theory of “literary property” and the natural law justification for literary copyright: “because it is just, that an author should reap the pecuniary profits of his own ingenuity and labour. It is just, that another should not use his name, without his consent. It is fit that he [the author] should judge when to publish, or whenever he ever will publish. It is fit he should not only chose the manner of publication; how many; what volume; what print.”

But Donaldson v. Becket in 1774 reversed this decision, and definitively established as British law the compromise concept of a “limited property right” in the unique expression of an idea. After Miller’s death, his estate sold the rights to “The Seasons” to a syndicate of 15 printers including Thomas Becket. A Scottish publishing company run by John and Alexander Donaldson issued an unauthorised copy of “The Seasons” to exploit the flaw in the new common law copyright, appeal it, and once and for all establish a public domain for available works. The case of Donaldson v Beckett, in 1774, brought disagreements on the length of copyright to an end. The outcome of the case resulted in the decision that Parliament could, and had, put a limit on copyright length. This decision reflected a shift in English ideas of copyright. The English lords who made the decision in 1774 decided that it was not in the public’s best interest to have London publishers control books in perpetuity, particularly as English publishers commonly kept prices high. There were some notions that this was a cultural or class issue. Works in perpetual copyright were seen to have limited access by some citizens to the cultural history of their own land.

The Lords rejected the notice of a perpetual copyright and held that it had not previously existed before the Statute of Anne and older works fall into the public domain and are available to everyone when the copyright term expires. “Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated,” wrote Camden.

The Lords addressed the following questions:

1. “Whether, at common law, an author of any book or literary composition, had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same, without his consent?The Lords answered this question in the affirmative with a vote of ten to one.
2. “If the author had such right originally, did the law take it away upon his printing and publishing such book or literary composition, and might any person afterward reprint and sell, for his own benefit, such book or literary composition, against the will of the author?The Lords answered this question in the negative with a vote of seven to four.
3. “If such action would have lain at common law, is it taken away by the statute of 8th Anne: and is an author, by the said statute, precluded from every remedy except on the foundation of the said statute, and on the terms and conditions prescribed thereby?”

This question was answered affirmatively, six to five.

The resulting decision indicated that a common law perpetual copyright may have existed before the Statute of Anne was passed, but that any such right was entirely precluded by the statute. Perpetual copyright was thus effectively ended as a legal concept in Britain.

The Donaldson v. Becket decision was crucial in two respects. First, despite the dissenting voice of Eighteenth-century England’s most distinguished jurist, William Blackstone, it established the “encouragement of learning” as the highest aim of the laws regulating books. Second, even though copyright was acknowledged to be a natural right rooted in common law, the Donaldson v. Becket decision held that copyright in practice hinged on government legislation. In England, the utilitarian doctrine of a higher public good trumped the idea of intellectual property rooted in natural right.1618 Authors and publishers in Britain realised that they both benefitted from copyrights and the emerging star system.

In 1837, William Wordsworth’s friend Thomas Noon Talfourd, an author and a member of parliament opened a campaign for revision of the copyright act in favour of authors. He proposed a term of the author’s life plus sixty years for the duration of protection. This drew opposition from Thomas Tegg, who specialised in cheap reprints. This opposition roused Wordsworth to action and he organised a petition drive among British authors in support of the extension of the term. Finally, under the stewardship of Lord Mahon, Parliament passed the Copyright Act of 1842 which lasted up to the 20th century.

It repealed the former Copyright Acts, and provided that in future the copyright of every book published in the lifetime of its author would endure for the remainder of the author’s life and for a further seven years after their death. If this period was less than forty-two years from the first publication, then the copyright would persist for a full forty-two years regardless of the date of their death. Any work published after the author’s death would remain the copyright of the owner of the manuscript for the same forty-two year period.

American Experience

Noah Webster and the Birth of American Copyright

In early America, both natural rights and utilitarian doctrines were debated within the British colonies, and colonies differed as to which theory formed the basis of their laws.

Noah Webster, a young schoolmaster was the most vocal campaigner for copyright in the state legislature. Fearing the loss of profits from his Grammatical Institute of the English Language to pirate editions, he petitioned state legislatures one by one, to grant him copyright in his book either through a general copyright statute that like the Statute of Anne would encompass the works of all writers in America or through a specific law that would bestow copyright on the Grammatical Institute. Other copyright advocated like Thomas Paine and Joel Barlow lobbied for a general act.

Backed by the efforts of Noah Webster, the Connecticut legislature passed the first American Copyright Statute in 1783; an act “for the Encouragement of Literature and Genius.” By 1786, twelve of the thirteen states had enacted copyright statutes, all in the form of a comprehensive general act.

Webster did not give up his campaign for copyrights, and wanted to maximize the rewards by pleading for perpetual copyrights. In 1982 he succeeded in bringing an amendment to the Act to include the protection of design, engraving and etching of paintings.

In 1831, through another amendment the term of copyright extended from fourteen (renewable for fourteen more) to twenty-eight years (renewable for fourteen more). Copyright protection came under the purview of the patrimonial descent. The law also allowed the author’s widow and children to file for a renewal.

National Interest and the Growth of Copyright

As the constitutional convention drew near, it became clear to many, including James Madison that the national interest required a national copyright. Lamenting the confederation’s “want of concert in matters where common interest requires it,” Madison noted as an instance of “inferior moment” the lack of uniformity in the laws concerning literary property. The convention did not have to revisit the question of the need for copyright, for many of the delegates, George Washington included, had been present at the debates over the state copyright acts.

On September 5, 1787, less than two weeks before the constitutional convention ended, David Brearly of New Jersey presented the proposal of the Committee of Detail for a clause in the constitution empowering the Congress to enact a national copyright law. The clause, modeled on the Statute of Anne, passed unanimously and evidently without debate, linked copyrights to patents,

“Congress shall have the 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.”

The law entitled “Act for the encouragement of Literature and Genius”. It granted the author control over the printing, publishing, and selling of a work for a term of fourteen years, renewable for another fourteen years. The law also required that the author “furnish the Public with sufficient Editions”, such that the author could not benefit from the protection of the law while restricting access to his work.

This article in turn became the basis of the United States Copyright Statute of May 31, 1790. This was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War. The author or inventor was acknowledged as an individual with special claims upon her own ideas – but the public good dictated that those claims be limited. It secured authors the “sole right and liberty of printing, reprinting, publishing and vending” the copies of their “maps, charts, and books” for a term of 14 years, with the right to renew for one additional 14 year term should the copyright holder still be alive. It did not however, afford any protection to materials originating outside the US.

Wheaton V. Peters
The great question of whether authors have a perpetual right at common law, a question that had earlier confronted the English courts might have appeared to have answered when the constitution empowered congress to extend copyright only for limited times. The constitutional clause, however, constrained only the Congress and not the states, and in the U.S., it is the states and not the federal, national government, that are the repositories of common law. The first lawsuit that addressed this question in the United States was that of Wheaton v. Peters.

The case arose out of the printing of the Supreme Court’s own opinions. Henry Wheaton, the third reporter of decisions, had compiled with great care the opinions of the Court, complete with annotations and summaries of the arguments in Court. Useful material but which made the volumes of his reports costly and out of the reach of most lawyers. His successor as reporter, Richard Peters, in addition to publishing the current volumes of reports, had gone over his predecessor’s work, eliminating the arguments and other extraneous material, and publishing an abridged edition in which he reduced twenty-four volumes into six. Peters knew that at $ 7.50 per volume, Wheaton’s reports had been beyond the reach of many lawyers. He also understood that busy lawyers preferred a summary and synthesis to learned annotations. While the reporter did receive a $1,000 per year salary from the government, it did not cover the full expenses of preparing the reports and the reporters relied on the sale of the books to recoup their costs. By creating more affordable volumes, 75% lower, Peters devastated the market for Wheaton’s more expensive books.

Wheaton turned to his former law partner Elijah Paine to file a suit against Peters. After a two year standoff between the two judges, the case went against Wheaton. The judge, Joseph Hopkinson, ruled that copyright is purely the creation of statute and one must comply with the requirements of registering a copyright, putting a notice in the work covered, etc., in order to receive protection. Judge Hopkinson also ruled that there was no federal common law, one must look to the states and, even then, the states did not necessarily adopt the entire English common law — assuming there was a common law copyright.

Wheaton then appealed the case to the Supreme Court. Through Paine, he retained Daniel Webster to argue the appeal. In late September 1833, Wheaton sailed back to America from Liverpool to assist in the case. Wheaton’s complaint asserted rights under both the copyright act and the common law. Although the statutory period of extension for Wheaton’s Reports had not yet expired, he pleaded the common law court as a precaution against the ruling that he had failed to comply with all the Act’s formal requirements for protection including the deposit of his copies with the Secretary of State within six months of publication.

The Supreme Court dealt a blow to the natural law mystification of the author by ruling that the copyright is a privileged monopoly and that it should be limited to allow competitive printing to disseminate knowledge cheaply. Justice John McLean, who himself had publishing experience as the founder of an Ohio newspaper, wrote the opinion of the Court. In it, he declared that while the common law undoubtedly protected the right to one’s unpublished writings — e.g. a diary, personal letters — “this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.” McLean declared there was no common law right: “Congress, then, by this act, instead of sanctioning an existing right, as contended, created it.” McLean also rejected Wheaton’s contention that requiring registration and the other conditions of the law were improper. Congress was giving Wheaton and other creators a special protection and it was not unreasonable to expect them to observe the formalities, the Court ruled.

Pirate Printers and Public Interest

In early-nineteenth-century America, the first great publishing houses in New York, Philadelphia, and Boston built fantastic fortunes on unauthorized, and unremunerated, publication of British writers. They justified their practices on the utilitarian grounds that copyright was statutory and that it was in the American public interest to have great works available for the cheapest possible prices. Harper’s Monthly, for example, was created exclusively from unauthorized reproductions of copies from British magazines. The Reverend Isaac K. Funk, founder of Funk and Wagnalls, made his initial fortune by pirating Ernst Renan’s The Life of Jesus.

Unlike Britain, in America it was the authors and not publishers who lobbied for greater copyright protection. For decades, American authors voiced frustration over getting under priced in the American marketplace by pirated versions of the works of Charles Dickens and Walter Scott. Likewise, British authors and political leaders pushed the U.S. Congress to adopt a reciprocal copyright agreement to limit piracy. However, throughout the 19th century, the agreements against copyright protection for foreign works remained far stronger than those for extending protection.

Those who propagated international copyright protection used two arguments. The first was that lack of protection for British authors was bluntly unfair to them. And second that international copyright would lead to the development of a national body of literature in America in the same league as the British tradition and not merely its offshoot.

The logic of copyright and economic gains as incentive for creativity did not hold much ground as the arguments against international copyrights were much more persuasive. The anti copyright brigade argued that expanding American literacy especially on the frontier demanded cheap yet excellent books. There was no inherent “property right” in literature (courts on both sides of the Atlantic had upheld this argument). Moreover, property rights for foreigners meant granting a monopoly to them at the cost of the American reading public. Lastly, it was argued that the American publishing houses and the labour they employed needed the de-facto protectionism that piracy afforded.

Undeterred by the cultural, political and economic forces rallied against them, a corps of 55 British writers and poets petitioned the US Congress in January 1837 to approve a bilateral copyright treaty. This included Carlyle, Southey and Maria Edgeworth. Senator Henry Clay backed the British authors but few others did. Clay submitted a bill five times between 1837 and 1842 but all five attempts failed. Several prominent American authors and political leaders including Washington Irving, Edward Everett and John Quincy Adams supported the bills. Only two major American publishing houses, Appelton and Putnam were in support.

Frustrated by the Americans’ unwillingness to agree to a level literary playing field, in 1842, British Prime Minister Palmerston made high level contacts with the executive branch to get them to agree to a copyright treaty, which, unlike Clay’s bills would have to be approved only by the senate. This also made no difference.

That year, an Englishman who had the ear of many Americans, Charles Dickens, toured the United States. At many stops, Dickens pleaded a case for international copyright. His audiences, however, were filled with fans who had paid very low prices for American printed, leather bound copies of his works that earned no income for Dickens. They were in no mood to pay more money for the books, which is what Dickens was asking them to do. He returned to England bitter and frustrated, more, over the slavery in the United States than the copyright situation. When his account of his tour, American Notes came out in 1843, 50,000 pirated copies sold in the United States in three days.

The more intensive lobbying by the American publishing industry in the name of the public interest repeatedly thwarted the movement for extended copyright protection. Thus the Sherman and Johnson publishing house text to the Senate and the House in 1842:

“All the riches of English literature are ours. English authorship comes to us free as the vital air, untaxed, unhindered, even by the necessity of translation, into the country; and the question is, shall we tax it, and thus impose a barrier to the circulation of intellectual and moral light? Shall we build up a dam to obstruct the flow of the rivers of knowledge?”

Knowledge was there for the taking if public good could justify the grab. American readers were hooked on inexpensive books and British works not only carried heavier social and intellectual value but also were cheaper. In 1843 a copy of Charles Dickens’s A Christmas Carol sold for six cents in the United States, while in England it cost the equivalent of two dollars and fifty cents.

Cultural Transformation and Copyright Control: stowe v thomas

An 1853 case pitting Harriet Beecher Stowe against writer F.W. Thomas who had translated Uncle Tom’s Cabin into German without her permission directly raised the issue of natural rights and control over the work and the new forms it may take. The publisher of a Philadelphia German Language Newspaper, Die Friei Presse, Thomas had translated Uncle Tom’s Cabin without permission or payment and sold the book in the United States.

The copyright Act then in force in the U.S. was silent on the issue of translation. The courts interpreted the copyright act narrowly and ruled in favour of the defendant. The court ruled that the 1831 Copyright Act protected only the precise words Stowe used and not her ideas, which were really the subject of translation. Judge Grier wrote in his decision “the claim to literary property, therefore, after publication, cannot be in the ideas, sentiments of the creation of the imagination of the poet or novelist, as disserved from the language, idiom, style or the outward semblance and exhibition of them.”

Seventeen years later, this reading of the law would be turned around and translations were included in the bundle of rights handed to the author. It would also include the transformation of a literary work into a new form such as dramatization of cinema. Here however, the courts strictly interpreted the idea expression divide, making the transformation of cultural works for wider dissemination easier.

Gentlemanly Publishing and the Collapse of Courtesy

By the 1870s the American debate became sharply focused. On one side, trade protectionists, printers’ unions, and publishing houses whose fortunes were rooted in pirating British literature argued against any international agreement. On the other side, advocates of indigenous authors allied themselves with partisans of free trade and international copyright, claiming universal natural rights of authorship. After the civil war, the British government made several attempts to convince the US government to agree to a treaty and authors strengthened their organization.

The resistance to internationalization of copyright was also possible, in part because the American publishers colluded to keep prices artificially high through a courtesy principal. Any major publishing house would announce its intention to bring out a foreign publication through a trade journal or through letters to other publishers. The venerable publisher Henry Holt championed the courtesy principal. He wanted to be able to sell pirated editions of books without many other cheap editions coming out in competition, but also to push American publishing towards “gentlemanliness”.

Holt had prided himself on introducing Thomas Hardy to the American reading public and had monopoly over the publishing of his works. On more than one occasion, he berated other publishers such as the Harper Brothers, for trying to bring out competing editions to Hardy’s work. More often than not, other publishers deferred to Holt and let his house retain the monopoly.

“we of course claim Hardy as our man as we have introduced him to the American reading public and when we add that we have published all his works with direct arrangement with the author, we trust that you will withdraw in our favour.”

He wrote to Lippincot in 1875. Lippincot allowed Holt to publish The Hand of Ethelbert without competition. Holt paid Hardy, but did not have to. Hardy was in no position to negotiate a better deal.

However, by the 1870s, a host of new players entered the field, who did not adhere to the courtesy principal, thereby substantially raising the competition. In 1874, the Chicago publishing firm of Donnelley, Gassette and Lloyd recognized that every respectable middle class American household would seem more respectable with a sizeable library of British works lining the walls of its parlour. The firm started the Lakeside Library, selling books at startlingly low prices of ten, fifteen or twenty cents per volume. Within five years the Lakeside library carried 270 titles. Soon after the Lakeside Library announced its intentions Erastus Beadle, the baron of the civil war era dime novels, introduced a competing list, the fireside Library. George P. Munro, a former Beadle employee started the Seaside Library which grew to be the most successful of the cheap books line. By 1877, American public had its choice of fourteen cheap book libraries. The paper was uniformly cheap and flimsy, the typesetting sloppy and the format hard to read. But as the publishers soon realized, the spine was the most attractive and visible part of the book. By the 1880s most libraries appeared in cloth bindings at a slightly higher price, but with the same cheap paper inside. Of course none of these publishers were part of the eastern seaboard elite club of publishers who were led by Henry Holt so they did no conform to the courtesy principle.

The system began to collapse and by the late 1870s there was complete chaos in the publishing market. Munro cut a deal with a soap company and started giving out a volume with each bar of soap sold. Cheap libraries started bringing out works by authors who had no public reputation in the United States. As American works from earlier in the century entered the public domain, the publishers started bringing out libraries of American authors.

By the late 1880s major American publishers and authors united to champion international copyright in an attempt to bring some stability back to the market. In 1882, Author’s Club, the major vehicle for American authors to express themselves changed itself into the American copyright League under the stewardship of journalist and novelist Edward Eggleston, Century Magazine editor Ricahard Watson Gilder and lawyer and critic Brander Matthews. Gilder was also a close friends with Richard Roger Bowker who ran both Publishers Weekly and the Publisher’s Copyright League. As a result, both leagues worked in concert when testifying of pleading in print for international copyrights.

Photography was the first new technology to challenge copyright law. In 1865, the Congress had amended the copyright Act to include photographic prints and negatives to the classes of copyrightable works. Twenty years later, the Supreme Court first addressed the constitutionality of this action.

Napoleon Sarony, a noted New York photographer sued the Burrow-Giles Lithographic Company for infringing his copyright in a picture of Oscar Wilde. Burrow –Giles had reproduced and sold 85,000 copies of the picture without Sarony’s consent. The Supreme Court quickly dismissed the printer’s argument that because it consisted of images not words, a photograph could not be a “writing” of the sort the constitution intended.

Burrow-Giles’s second argument was more nettlesome: “ a photograph being a reproduction on paper of the exact features of some natural object of some person, is not a writing of which the produce is an author.” The Court accepted that this may be true of “ordinary” photographs, but this was not in the case of Sarony’s image of Wilde. Only five years earlier, in the Trade-Marks Cases, Justice Miller who presided over the case had ruled against protection of symbols and devices used to advertise goods as they were neither original, nor creative. Nonetheless, Miller again writing for a unanimous Supreme Court, now upheld Sarony’s copyright on the grounds that the photograph was art, not commerce.

The court had found that Sarony had posed Wilde in front of the camera and suggested his expression, and selected his costume, the background and accessories to create a particular composition of line and light. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the “author” of “an original work of art” over which the Constitution intended Congress to grant him exclusive rights.

The court’s decision hinged on the assumption that congress and the courts could confidently distinguish between works that were sufficiently artful to qualify for copyright and those that were not.

Mayhem in the Market: tilting the balance

A critical shift in the political balance occurred in the 1880s as the older American publishing houses on the east coast began to see their profits eroding in the face of a new generation of mass penny-press publishers, expanding especially in the mid-western states, who undercut their costs and reached yet wider markets. In the face of this challenge the older houses reshaped their business strategies and their arguments about intellectual property. They now realized that they would be better positioned than the new generation of publishers to sign exclusive copyright agreements with foreign authors that would be enforceable within the United States.

The signing of the Berne Convention in Europe in 1886 added further momentum to a shift in the views of major publishing houses like Harper’s and Scribner, who recognized the advantage of the movement for American adherence to some form of international agreement, at least with England. American theologians, including the Reverend Isaac Funk, now denounced the “national sin of literary piracy” (which had allowed him to make his fortune on his pirated Life of Jesus) as a violation of the seventh commandment. And their voices resounded on the floor of Congress.

The publishers and authors came together in their championing of international copyrights but the Senate did not respond for a long time. The best efforts were in January 1886 when the Senate committee on Patents held hearings on the international copyright bill. Witnesses in favour of the bill included Bowker, George Putnam, Lowell, Henry Holt and Mark Twain. Bowker presented a petition signed by 145 of the most noted American authors including Louisa May Alcott, Henry Ward Beecher, Walt Whitman, Oliver Wendell Holmes Sr. and Joel Chandler Harris.

Testifying against the bill, Philadelphia pirate Henry Carey Baird made a succinct attack. He had five major points

1. Only unexpressed thought is property, but expressed thought belongs to the public.
2. Property laws are domestic concerns, and should not be the subject of treaties.
3. British authors are welcome to naturalise in the U.S. if they want protection equal to American authors.
4. United States should not trade away its public interest to protect the rights of foreigners and
5. Foreign authors should not have the power to influence or fix the price of American books.

The printers had with them the force of organised labour on their side. Between January and March of 1886, unions and trade groups deluged Congress with petitions opposing the measure and it died soon after.

Ironically, the last part of the political machine that would eventually convince Congress to agree to international copyright protection was the printers unions in various cities. With the downward spiral of book prices squeezing the profits from the cheap editions, publishers had to cut costs as well. Most pirate printers operated from small cities were workers unions were weak and they abandoned the unionized white men who were unwilling to print and bind for pennies per day. Instead, many employed nonunion women and reused printing plates to set type. The unions realised that though the lack of international copyright was protecting more jobs, the workers were of the wrong kind – women instead of men.

By the late 1880’s the unions flipped sides and joined the major publishers and authors in support of copyright. In 1888, the typographical union passed a resolution in favour of the bill then pending in the congress. Local chapters soon sent messages to their representative in favour of the passage. The debate lasted through the winter of 1890-91 and the bill was eventually passed by both houses in March of 1891 and promptly signed by President Benjamin Harrison.

Prior to the International Copyright Act, protection required American authors to gain residency in the country in which they desired copyright protection. For example Mark Twain obtained residency in Canada to protect his publication of The Prince and the Pauper. To protect foreign literature in the United States, British authors would have an American citizen serve as a collaborator in the publishing process, and then have the book registered in Washington, D.C. under the collaborator’s name.

When the International Copyright Act of 1891 was finally passed, foreign authors had to have their works in Washington, D.C. “on or before the day of publication in this or any foreign country.” This too would create a problem, but by the early 1900s British authors were granted American Copyright since it was published abroad thirty days from its deposit in Washington, D.C. This would then allow American publishers time to release an authorized edition.

By the opening of the twentieth century, as America came to be a full-fledged competitor in international commerce in intellectual property and a net exporter of intellectual property, American legal doctrine began to move toward an increasing recognition of unique authorial rights rooted in the sanctity of the personality of the creator, rather than simply in commercial privileges extended for utilitarian ends. The personality theory of intellectual property had been present in the Anglo-American tradition since the eighteenth century, but the single most important source for this shift in principle was the Supreme Court decision written by Justice Holmes in Bleistein v. Donaldson (188 U.S. 239) in 1903.27

The case was between two printers, the plaintiff claiming that the defendant had infringed its copyright by reproducing three posters it had prepared to advertise a circus. The trial court and Circuit court had held for the defendant following a long line of cases that excluded advertising from copyright. The argument of the defendant, Donaldson, was that the images were of such a generic nature as to contain insufficient originality to qualify as artistic creation susceptible to copyright protection. The Holmes court demurred, arguing that the courts were not to be put in the role of literary or artistic critics, that is, judges of the artistic merit of a work, and that moreover, any created image “is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.”

Through the Holmes decision the rhetoric of authorial originality and natural rights made its way into American jurisprudence at the very moment when America began to supplant Europe as the hegemonic global economic power.

The course of twentieth-century American copyright law – from Bleistein v. Donaldson through United States adherence to the Berne Convention in 1988 to the Digital Millennium Copyright Act of 1995 – has been a story of the steady strengthening of the proprietary rights of intellectual property owners at the expense of public access and interest. It is a history of the tipping of the balance in the founding principles of eighteenth-century intellectual property law away from the aim of public utility through “encouragement of learning” toward the enhancement of private commercial gain.

Story of France

Carla Hesse in her study of the copyright in the 18th century France argues that the French revolution provided a distinctly different starting point for the debate over authorship. As Hesse noted “The French Revolution offered the occasion for an usually explicit and fascinating debate in France about the identity and role of the author in modern life, a debate whose legal resolution continues to provide the foundation for French Copyright Law.”

In France, the Crown endorsed the notion of ideas as property, whereas the will to overthrow the absolute author was the position of the French revolutionaries. At the beginning of the Eighteenth century, the French crown, hoping to strike a compromise between Parisian publishers and their provincial competitors, had declared that privileges were not a form of perpetual property, as the Parisian publishers claimed, but rather “a grace founded in justice”; as a result, privileges could be limited, renewed, or even revoked, at the King’s will. This ruling permitted the Crown officers administering the book trade considerable latitude in redistributing privileges. The ruling did little, however, to undermine the monopolies of the Paris Book Guild, or to forestall a growing flood of books illegally produced by provincial and foreign printers. In 1777, the French Crown, confronted with mounting criticism, was forced to revise the system of privileges. While still refusing to recognize the concept of “literary property,” the King for the first time granted authors their own category of privileges (privileges d’auteur). These new privileges were to be perpetual and inheritable, like any other form of personal property. However, once an author sold a manuscript to a publisher, the publisher’s claim would be limited to ten years, with the possibility of a single renewal. This meant that the publisher’s privileges were to be restricted at the same time as unlimited privileges were extended to authors. The Paris Book Guild, predictably enraged, refused to acknowledge the new law and essentially went on strike against crown officials until the revolution in 1789. The revolution changed everything. “Freedom Of The Press” was declared and literary privileges abrogated. The royal administration of the book trade was abolished, and so were the Parisian Book Guilds. Authors were now widely celebrated not as private creators and possessive individuals, but rather as civic heroes, servants of public enlightenment. Hoping to establish the French Book Trade on a new, secular footing, the Abbe Sieyes in 1791 proposed passing a “law on the freedom of the press” that he had written with the help of Condorcet, among others. Like the English Statute of Anne, the Sieyes law recognized authors’ texts as a form of property, originating with their creators, and susceptible to legal protection; yet at the same time, the Sieyes’ law reflected Condorcet’s concern for the “public interest” by limiting exclusive claims upon literary property to the lifetime of the author, plus ten years. In the heated climate of revolutionary Paris, the law proposed by Sieyes satisfied no one. Many journalists rejected any law that threatened to limit the free circulation of texts. Revolutionary pamphleteers denounced it as a resurrection of discredited feudal privileges. Veteran book publishers demanded a restoration of their former rights and privileges. It was only in 1793, after the Paris Book Guild had ceased functioning as a lobbying group, and after the seizure of power by the Jacobins, that the national convention was able to pass a slightly revised version of the Sieyes law, now touted as a “Declaration Of The Rights Of Genius.” The law of July 19,1793, became the basis for all subsequent literary property law in France. It ratified the compromise proposed by Sieyes in 1791 and, like the British Donaldson v. Becket decision of 1774, enshrined the concept of a limited property right as the best means to strike a balance between remunerating authors and protecting the public interest in the advancement of learning.

German Experience

German writers and intellectuals closely followed the debate over intellectual property in France. As observed by Martha Woodmansee, since there was no unified German state until 1870, there was no centralized authority to regulate the book trade. Still, a number of individual German states did pass laws similar to the revised Sieyes law. In 1794, for example, the largest German state, Prussia, revised its general legal code to reaffirm the privileges of publishers, but also to extend similar privileges to authors. During the Napoleonic period, when the French Civil Code was imposed on many German states, even more principalities followed the French model: Baden was the first German state to grant real copyright to authors (1806, 1810), and the phrase Rechten Des Urhebers (authors’ rights) was first used in Bavaria in 1813. Beginning with the Congress of Vienna in 1815, authors’ rights were increasingly and more uniformly recognized in German law. It was not, however, until 1870 that imperial Germany successfully adopted a uniform copyright law similar to those of the French and the English.¹⁸21

Russia and China

In Russia and China the eighteenth century battles were fought in much the same terms, although with different actors. Theocratic authority gave way to secular power within a Marxian framework, which drew upon the Lockean notion that new ideas and inventions were the result of the mind working upon natural resources. This led to a labour theory of intellectual production that was assimilable to the Marxist notion of the labour theory of value. But Marx gave it a twist la Condorcet. He argued that labour was inherently social rather than individual in nature, even in the case of mental labour, when the mind worked alone with its own resources. In his early manuscripts, Marx suggested that this was because the creating individual was the product of social experience – he owed his livelihood and education to the society that produced him. Because he worked with natural resources that should belong to all, his mental labours were social, and hence the products of them should belong to society as a whole. The people, in the form of the revolutionary people’s state, were thus to lay claim to the right to exploit the creations of individual authors and inventors. The early Bolsheviks thus famously “nationalized” a list of great Russian writers following the 1917 revolution. And Chinese authorities during the Cultural Revolution promulgated the following popular saying: “is it necessary for a steel worker to put his name on a steel ingot that he produces in the course of his duty? If not, why should a member of the intelligentsia enjoy the privilege of putting his name on what he produces?” The story of intellectual property in Russia and China, despite brief experiments with liberal property-based regimes in the early twentieth century, has essentially been a story of the devolution of a monopoly on ideas and inventions from theocratic regimes to communist states. In both the soviet and Chinese communist regimes, however, there was an increasing recognition of the necessity to create non property-based incentives for individual authors and inventors. A system of state-issued awards, prizes, and privileges became the socialist mechanism for encouraging creation and invention. The Soviet Union created a system of “authors’ certificates” that recognized individual contributions to the public good, and the Chinese, after the Cultural Revolution, followed suit. While the state retained the power to exploit, or not exploit, the contributions of these individuals, the certificates made their bearers eligible for material rewards and for remuneration from the profits generated by their creations. In socialist countries, the logic of utilitarianism – married to a state monopoly on the distribution of knowledge – led to a system of public patronage of authors and inventors rather than a recognition of their individual property rights.

Islamic States

Islamic states have followed yet another path. These states have remained theocracies, and so Sharia, or Koranic law, remains the highest authority, even for secular potentates.

Koranic property law traditionally applied only to tangible things that could be apprehended by the five senses. It is notoriously silent on the question of ownership of ideas²⁰.30 In Islamic jurisprudence, however, where the Koran is silent, governments are permitted to make a new law, as long as it does not explicitly conflict with Koranic injunctions. As a consequence, in the twentieth century a body of intellectual property law has emerged in most Islamic states, based on western legal codes. These western-style copyright laws have recently come under new scrutiny by Muslim jurists, and a lively debate has emerged between legal scholars as to whether any concept of ownership of ideas is compatible with Sharia. Some scholars argue that the concept of “intellectual property” is inherently incompatible with the Koranic injunction against the ownership of anything intangible, suggesting that it will only lead to private monopolies of some individuals over knowledge. Others make the distinction between ideas and their tangible expression and defend the modern concept of copyright²¹.31 Because these states remain essentially theocratic in nature, however, the law has preserved the state’s right to censor all publications as it deems necessary, and to assert the broad discretionary power of the government to set limits on the terms and duration of an author’s or inventor’s rights in relation to his creations. In Iran, for example, the duration of private copyright claims is set at thirty years after the author’s death. The state then retains an exclusive right on the creation for another thirty years before it is made accessible to the public at large. Moreover, Islamic states in general do not extend copyright protection to non nationals, although some bilateral agreements have been signed between Arab nations. In the international arena, Islamic law has thus tended toward the utilitarian position that the state’s interest is higher than any notion of the universal natural rights of authors or inventors.

Global Copyright: Expanding the Regime

lt is no coincidence that the English phrase “Intellectual Property” should first appear in 1845, according to the Oxford English Dictionary. By then, a broad consensus had emerged that “copyright” should strike a balance between the interests of the intellectual property owner and the public good: authors and inventors could profit from their works and their ideas, but only for a limited span of time.

Because the modern laws regulating intellectual property rest on a largely unexamined set of contradictory philosophical assumptions, these laws have been uniquely vulnerable to challenge – not least by the continuing rise of new methods of distributing ideas and information across national boundaries. As a result, the philosophical tensions at the heart of modern concepts of intellectual property have been played out on an increasingly global scale, reworking the balance between private rights and the public interest, often in dramatic new ways. The industrial revolution created an international market for literary works and mechanical inventions – and so created a new need for a regime of international intellectual property rights.

Industrialization and Global Expansion of Copyright

In the nineteenth century, industries grew to serve new markets. Artisanal workshops were replaced by ever-more rationalized and highly capitalized enterprises that operated on increasingly global scales. In response to industrialization, copyright was augmented both with new economic and moral rights, while it was transplanted worldwide. New economic rights allowed culture industries to undertake greater risks in producing more capital-intensive works and disseminating them in mass markets. Moral rights allayed authors’ fears regarding just such industries and markets.

1. The Rise of the Culture Industries

The industrial revolution increased the production of hard goods. Better transport, starting with the railway and steam ships, enabled these goods to be distributed across longer distances. From the nineteenth to the twentieth century, media technology improved in great leaps forward that allowed cultural goods to be made in more easily reproduced forms and to be marketed more broadly and quickly. Culture industries arose to exploit these goods, but they had to secure returns on their investments to continue production cycles. At the same time, the very power of new media increased risks of piracy. Authors in turn had new concerns for their reputations on the mass market. To start, more capital had to be sunk into improved printing presses that increased outputs for larger markets at lower costs. Then, in accelerating waves of technological innovation, came photography, the cinema, sound recording, radio, and television, each medium with its own needs for investment and all helping to address markets on continental and finally global scales. Directors like D.W. Griffith and Abel Gance pioneered epic motion pictures, with sets, costumes, and casts at unheard-of costs, contributing to the very “aura” with which new works captured the popular imagination. Highly paid stars, like Valentino in the film industry and Caruso in the recording industry, brought name recognition, comparable to that focused by trademarks, to crystallize and stabilize mass demand for cultural goods. Thus culture industries have had needs for constant capitalization and for securing reliable markets that matched their mass scale. Furthermore, investment risks have increased as technology has made copying media more widespread, putting these media not only into pirates’ hands, but also ultimately into users’ homes. In the twentieth century, copyright has therefore been looked to as a means for securing and protecting income streams, and it has been expanded accordingly. For example, neighboring rights have been accorded to media producers, along with royalties from an increasing range of sources, such as the sale of blank tapes for home recording.

2. Rights Extended to New Media

In the nineteenth century, three French authors went to a cafe where they heard a popular song written by one of them and saw a stage number based on the work of the others. They refused to pay for their refreshments, stating to the cafe owners: “You use our work without paying us; there’s no reason for us to pay your bill.” Litigation ensued, the authors’ claims were vindicated, and they went on to associate with their publishers to collect royalties for public performances of music. Ultimately, such associations came to collect royalties for manifold uses, most notably for publicly broadcasting works, especially music, into private businesses and homes. At the same time, copyright was contractually allocated out into diverse entitlements that allowed the same works to be exploited in diversified forms and media. English courts, before and under the Statute of Anne, had dealt with translations, compendiums and abridgments of prior works, but the courts had shied away from imposing liability absent close copying. French courts, under the Laws of 1791 and 1793, were initially reluctant to find infringement in what leading French commentary then called “[t]he trans-mutation of form that the translator causes the original to undergo.” But in the course of the nineteenth century, as trade in books became increasingly globalized, authors and publishers started to claim rights to stop translations in foreign markets. Ultimately, the right of translation was subsumed under the more general right to control the making and exploitation of derivative works. It was no longer merely a matter of protecting a work against being replaced by literal or close copies in the market that the work initially targeted. Rather, copyright reached new markets in new media: for example, it allowed controlling whether literary works were adapted to the stage or film. It is, however, difficult to delimit this right to control deriving new works from prior works. When do new authors pass from taking the “substance” of prior works to merely drawing “inspiration” for their new works from old ones? If no clear line is drawn, rights of translation, adaptation, etc., could be asserted to stop virtually all new authors from elaborating on prior works and from releasing still newer works to the world. In response, courts devised limiting doctrines in cases of derivative works, most notably ruling that copyright does not protect “ideas,” “themes,” “facts,” etc., but rather only “expression” or “forms.” At much the same time, courts also came to ask whether plaintiff’s work is copied in defendant’s “substantially” similar work or whether “essential” or “characteristic traits” of one work are taken in the other. Where, in transforming plaintiff’s work, defendant left little of significance in its expressive texture recognizable in a new work, no infringement would be found. The very wealth of the case law on point testifies to how acute the tension has remained between copyright, as expanded to derivative works, and such limiting doctrines. Furthermore, the ideal of “art for art’s sake” was invoked in the nineteenth century to legitimate aesthetic indifference to profit and popularity. Authors became concerned with violations of more intimate interests, for example, the misattribution of their authorship or the alteration of their works, notably as these reached the mass market. French judges were pioneers in recognizing and protecting such interests: “confronted with the facts, they found equitable solutions” in the case law, out of which grew the moral rights to control the disclosure of works, to obtain the attribution of authorship, and to maintain the integrity of works. For example, in a seminal case, a French court vindicated the American artist Whistler’s right to withhold disclosure of a portrait, which he had been commissioned and paid to make and deliver, although it ordered the artist to return the payment received on the commission. In subsequent cases, the courts initially referred to creators’ interests in protecting their “reputations,” and ultimately to their “moral rights” as such, in ordering that credit be given to them as authors or that their works not be altered against their wishes.

3. Rights Transplanted Globally

During the nineteenth century, media markets expanded rapidly. English novels quickly crossed the Atlantic by steamship to be pirated in cheaper editions on the mass market in the United States, thanks to improved printing and the refusal to recognize copyright in foreign works. At the same time, France was already a major publishing center, while Belgium was a center for pirates copying French books, and the French government threatened Belgium with trade reprisals until it concluded a treaty and made law to assure copyright protection for French works. French competition with Belgian and Swiss publishers had led to the first major International Copyright Treaties. In 1858, a Congress of Authors and Artists convened by Victor Hugo held its first meeting in Brussels in an effort to formulate a truly international basis for the universal protection of authors’ rights. Unable to secure agreement on such a universal regime, the Congress instead enunciated a doctrine of “National Treatment,” asking each nation to extend the legal protections it offered to domestic writers and inventors to foreign writers and inventors as well. Some visionaries proposed imposing the same “law of copyright. . . [in] a single code, binding throughout the world.” A more modest proposal prevailed: simply conclude one copyright treaty, binding as many countries as possible, to compel the same choice of laws in cases of foreign law, works. After years of negotiation culminating in 1886, a handful of countries concluded the Berne Convention. Most were European, and some had vast overseas empires to bring into the Berne Union, making it a global institution. From the start, the Berne Convention imposed the principle of national treatment. Each country protected qualifying works as if authored by its own nationals. That is, it applied national law to protect these foreign works on its territory. It was no accident that Great Britain and France, both moving forces in international copyright in the nineteenth century, were then major exporters of literature. By contrast, “[u]nlike the British and the French, the American book industry was not linked to an international cultural project or ethos of world ascendancy in literature and the arts.” Through most of the nineteenth century, publishers in the United States were largely content with a home market on a continental scale, and most of them prompted their legislators to refuse copyright in foreign works.

As a result, national authors were placed at a disadvantage relative to foreign authors on whose works no royalties had to be paid: either national authors had to settle for lower royalties, or their publishers had to price their books above the market to recoup their royalties. Starting in 1891, the United States began to protect the copyrights of foreign authors through bilateral arrangements, and U.S. publishers had to pay royalties on works of foreign authors, enabling U.S. authors to compete on an even footing with them. Before that date, most of the books published in the United States were by foreign authors; afterwards, most were by U.S. authors. The Berne Union became the global forum where competing industries, media, and other groups reached compromises in revisions every few decades. Over the twentieth century, the Berne Convention came to include a growing panoply of minimum rights that covered increasingly diverse works. The original Berne Act of 1886 included the right to control translations, and later Berne Acts confirmed rights to control new media such as the cinema, broadcasting, and reprography. Most often, treaty countries incorporate minimum rights into domestic legislation; however, where they do not, the courts in most countries may grant these rights to Berne claimants above and beyond national treatment. For example, when a French film was televised in Germany and retransmitted by cable into Belgium, suit was successfully brought in Belgium on the basis of article 11bis of the Berne Convention itself, which sets out the minimum right prohibiting such retransmission. The Rome Convention has accorded minimum rights in live performances, sound recordings, and broadcasts, and the TRIPs Agreement applies almost all Berne and most Rome rights in all W.T.O. countries. Thus minimum rights have served to transplant copyright and related rights worldwide.

Despite the doctrine of “National Treatment,” the process of internationalizing copyright protection tended to strengthen universalist claims for protection of inviolable natural rights against statutory limits imposed by particular nations on utilitarian grounds. This progressive shift in the legal spectrum toward the enforcement of natural rights has led to a steady strengthening of private intellectual property right claims over the doctrine of the public interest. Thus, over the course of the Nineteenth and Twentieth centuries, the private claims of holders of authorial rights or copyrights have been repeatedly extended from the initially modest ten to fourteen years after the author’s death to the current terms of fifty and sometimes seventy five years after the author’s death in most countries with liberal copyright regimes.

Positions on copyright were clearly not the product of disinterested jurisprudential reflection. By the Nineteenth century it became clear that nations that were net exporters of intellectual property, such as France, England, and Germany, increasingly favoured the natural rights doctrine as a universal moral and economic right enabling authors to exercise control over their creations and inventions and to receive remuneration. conversely, developing nations that were net importers of literary and scientific creations, such as the United States and Russia, refused to sign on to International agreements and insisted on the utilitarian view of copyright claims as the statutory creations of particular national legal regimes. By refusing to sign international copyright treaties, the developing nations of the Nineteenth century were able to simply appropriate the ideas, literary creations, and scientific inventions of the major economic powers freely. The United States offers an exemplary case. As it evolved from being a net importer of intellectual property to a net exporter, its legal doctrines for regulating intellectual property have tended to shift from the objectivist-utilitarian side of the legal balance toward the universalist-natural-rights side. The tension between utilitarian interests and authors’ natural rights has also played itself out in modernizing societies beyond the United States and Western Europe.

Developing nations, which are net importers of cultural goods and technology, find themselves in the position of the United States in the nineteenth century. And the tendency has been for these nations to hold fast to the utilitarian claim that the national public interest should come before recognition of the natural right to property in international copyright, patent, or trademark claims asserted by exporting nations.

TRIPS as a Watershed
For the first time since the General Agreement on Traffic and Trade was originally launched in 1947, the Uruguay Round of multilateral trade negotiations included an attempt to harmonize international intellectual property rights protection. At the end of these negotiations in 1994, the final Act signed by the negotiating states included an agreement to regulate and protect trade related aspects of intellectual property rights (TRIPs). This incorporated much of the Paris and Berne Conventions previously administered by the World Intellectual Property Organization (WIPO) bringing intellectual property into the trade regime overseen by the new World Trade Organization (WTO).

The incorporation of the regime for the protection of intellectual property into the WTO recognizes that widely perceived threats to the rights of owners of intellectual property are not only caused by differences in the legal construction of intellectual property in different national legislation, but also by the (non-) inclusiveness of such legislation and the impact this has on the trade in intellectual property. Previously, in many jurisdictions formal legislation had been devised to emulate the main aspects of the protection that owners might enjoy in the developed states. However, WIPO did not have the power to address international enforcement issues in any effective manner. Therefore, one of the major shifts that the TRIPs agreement represents is a move to a more effective and stringent dispute resolution mechanism for intellectual property within the organizational structure of the WTO.

An Outline for the TRIPS Agreement

On 15 April 1994 in the Moroccan city of Marrakeech the negotiating states formally brought the Uruguay Round of negotiations to a close by signing and adopting the Final Act. This established the World Trade Organization as a formal institution incorporating the legal structure of the 1947 General Agreement on Tariffs and Trade, as well as the subsequent additions which were agreed in the successive round of negotiations. As part of this Final Act intellectual property rights (IRSs) were included in the international trade regime for the first time and as such, the agreement ‘is probably the most significant development in international intellectual property law this century’ (Blakneney 1996:v). The WTO included 111 states in its initial membership who became signatories to the TRIPs agreement, rising to 128 in 1995 with some 20 further prospective members waiting to join. The previous governance structure for intellectual property overseen by WIPO included 135 states, though of the 18 convention administered, the Paris Convention had the most signatories standing at 108. With the exception of the Berne Convention (95 signatories) other agreements overseen by WIPO had between 20 and 50 signatories. The membership of the United Nations, which is a reasonable proxy for the number of states in the global system in currently over 180 states, Joining the WTO automatically involves accession to the TRIPs agreement and so the scope of intellectual property governance will be widened considerably.

The World Intellectual Property Organization replaced the United International Bureaux for the Protection of intellectual Property (known as BIRPL, its French acronym) in 1970 and became a specialized agency of the UN in December 1974. However, it traces its legal history back to the Paris Convention for the Protection of Industrial property enacted in 1883 and the Berne Convention for the Protection of Literary and Artistic Works from three years later. And while there had been national protection for intellectual property for the least two centuries prior to these agreements, these conventions were the first attempt to further the humanization and protection of intellectual property internationally. The TRIPs agreement incorporates most of the provisions of both these treaties into the WTO’s trade regime and by doing so considerably enhances their legal enforceable mechanisms. The TRIPs agreement formally covers intellectual property in copyright; patents; trademarks geographical indications (for wine, predominantly) industrial designs integrated circuit topographic and undisclosed information (trade secrets), all of which have been subject to separate agreements under WIPO. The main aim of which agreement is to bring all member states legislation into harmony and thus to bring the same level of protection to intellectual property that was previously only available in developed states to all states in the global trading system.

The preamble to the TRIPs agreement which itself was subject to some considerable negotiations was finally agreed on the basis of the signatories desired to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, would adopt the provisos of the TRIPs, agreement (GATT 1994, AIG:2) the recognition that intellectual property rights are private rights, was only balanced by an allowance of the need for the ‘public policy objectives of nations systems for the protection of intellectual property, including developmental and technological objectives’ rather than any provision for the formalized public realm of knowledge protected by law. The historical problem of WHO’s largely ineffective ability of sanction states of their domiciled companies who did not observe the formally adopted agreements is reflected in the desire to promote adequate protection.

The Keystone of the TRIPs, agreement is the adoption of the principles that are central to the WTO (like the GATT before it) in the realm of intellectual property, national treatment, most favoured nation treatment (MFN) and reciprocity. Though they do not dissolve specific agreement within conventions under the auspices of WHO, in the main these principles will be effective across the various elements of the TRIPs agreement (Verma 1996: 337-338). National treatment requires signatories to accord the same fights and protection to both nationals and non-nationals in their jurisdiction. Though there are some exceptions these are only allowable ‘where such exceptions are necessary to secure compliance with [national] laws and regulations which are not inconsistent, with the TRIPs agreement itself (Blackeney 1996:41). The TRIPs agreement explicitly extends national treatment to cover performers producers of phonograms and broadcasting organization, where such treatment was ambiguous under the WIPO supervised conventions.

As with the WTO overall, the application of most favored nation (MFN) status to all members requires that any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country be accorded immediately and unconditionally to the nationals of all other members (GATT 1994, AIC:4). And while there are again several exceptions linked to the previous conventions which some members of the WTO have acceded to, in the main these do not compromise this requirement., Reciprocity as a principle has a long history within intentional agreements and its formal inclusion in the TRIPs agreement does little in itself to change the intellectual property regime. The introduction of MFN, however, does shift the ground for intellectual property governance somewhat and is directly the result of its inclusion within an institution concerned with international trade law. Whereas, under the auspices of WIPO there were many smaller scale treaties and conventions on various aspects of intellectual property, under TRIPs all such specialized agreement if entered into would immediately apply to all the members of the WTO. So most importantly, where there has been resistance to incorporate particular sectoral legislation covered by limited conventions in the past, these now by virtue of the membership of the WTO become as wide in scope as the main conventions. Most-favoured nation treatment is the key tool for expending trade agreements and is therefore in one sense the most important innovative aspect of the TRIPs agreement.

The central intention of the TRIPs agreement is to provide a legal framework for a single intellectual property regime throughout the international system. Through its articulation to the WTO, intellectual property has become part of the trade regime, which has been progressively widened since the original GATT-1947 agreement on trade and traffic was concluded. Though the international regime for intellectual property pre-dates GATT its institutionalization under a single administration, WIPO was delayed until the 1970s. Even then this organization was little more than an administration agency for a diverse number of multilateral agreements with varying membership. Thus, the TRIPs agreement presents WTO members with a single framework for dealing with the diverse aspects of intellectual property, replacing WIPO’s more fragmented set of treaties and sectoral agreements.

The TRIPs agreement, however, does not represent a direct legal structure for the recognition of intellectual property, It is not a model piece of legislation that can be incorporated directly into national law. Rather, it stets the minimum standards that should be reflected in the national legislation of all WTO members. It does not preclude members sitting more rigid or stronger protection for IPRs except where such extension above and beyond the minimum standards represent an infringement of the agreement’s article in some way. By incorporating the previous agreements (the Berne and Paris Conventions, and other specialized treaties) into a single framework, the agreement aims to homegenise membership and extend its coverage to all states who wish to become members of the WHO. Within all member states and intellectual property owner should have recourse to a prescribed set of procedures and remedies that will be legislated in national laws to protect their rights. The agreement is concerned with the effect of legislation not the legislation itself. National legislature are required to ensure IRPs are protected but the method for the protection is only important as regards its consequences, not its form. But national legislative enaction of the TRIPs agreement’s principles are subject to the WTO’s dispute settlement mechanism under the agreement. Therefore, unlike the WIPOs stewardship of previous conventions, the WTO offers a considerably more robust mechanism for states to appeal to where the national laws of a particular state are seen to impede the rights of other nationals.

While the character of intellectual property, what is actually to be protected, is modified to some extent by the agreement, the main area of discontinuity with prior practice is in the enforcement of IPRs. By bringing intellectual property under the purview of the WTO, the TRIPs agreement stipulates the procedure shall be applied in such a manner as to avoid the creation of barriers to legitimate trade central to intellectual property law (GATT 1994, AIG 19). The enforcement of intellectual property rights (or more often their non enforcement) should not be used to disrupt trade flows. For instance, if only nationals are protected this would act as a barrier to non nationals who would received no protection for the IPR element of goods or services they wished to export to that jurisdiction. Nondiscrimination must be explicitly part of a clear and fair registration procedure for IPRs where they require registration to be recognized (the exceptions being copyright and trade secrets – ‘undisclosed information’). The agreement provides a set of conditions which national legislation for registration must fulfill, broadly based on the requirements of openness and prompt enacting of procedures.

The perceived lack of robust enforcement procedures available under WIPO’s stewardship of the existing convention was one of the main underlying motives for the inclusion of intellectual property in the Uruguay Round and its subsequent inclusion in the WTO. The members of the WTO are required to enact suitable procedures to ensure the ‘effective’ action against any act of infringement of intellectual property… including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement. (GATT 1994, AIC:19). These procedures must be fair and equitable and available under civil law. In the section of the agreement covering Civil and Administrative procedure and Remedies there are a number of requirements which national legislations should include, ranging from the need for courts to have power to obtain evidence of infringements to the need of procedure fair settlement with regard to damages. The agreement’s significant departure from previous intentional legislation in encompassed within its adoption of precedents developed in British law to grant applicants across to the premises of the defendant to seize and discover materials that might potentially represent an IPR infringement (Blakeney 1996: 126). This represents a major extension to the manner in which the rights of intellectual property owners can be protected prior to formal infringement through actual sale and is based on the 1976 Anton Piller v. Manufacturing Processes case under the Court of Appeal in Britain. This ability to act prior to an act of infringement of rights (the legal acceptance of the likelihood of infringement) had previously been available in only a small minority of jurisdiction.

In the closing decades of the twentieth century the outlines of a serious conflict over the nature and scope of intellectual property have emerged in the international arena. In general, developing nations – including not only China, Taiwan, Russia, and the Middle eastern states, but African and South American nations as well – have employed the utilitarian argument, derived from Condorcet, that intellectual property is inherently social in nature and that the state has the right to limit the individual claims of its citizens as well as others in the name of the public good. This argument is used, as it was in Nineteenth century America, to justify these nations’ refusal to recognize copyright and patent claims by non-nationals. Conversely, the United States and Western Europe have witnessed a shift in their jurisprudential traditions away from the utilitarian side of the Eighteenth-century intellectual property balance and toward an unprecedented strengthening of the doctrine of the universal natural rights of authors and inventors to the exclusive commercial exploitation of their creations and inventions. And since the 1970s the United States and Western European nations have been increasingly aggressive in using trade sanctions and international trade agreements to coerce developing nations to recognize precisely this view of intellectual property rights. The consequences of this evolution in western, and especially American, intellectual property law are troubling for several reasons. The dominance of the natural-rights view leads to immediate suffering and to the appropriation of local knowledge for international gain. The loss of a legal balance in the global arena risks giving monopolistic power to exporter nations. Equally important, it puts at risk the liberal political balance between individual gain and the public good that was the foundational aim of the intellectual property laws within western democratic polities themselves.

A Critique of International Copyright Regimes

“How is it possible to want to deny man today, hundreds of thousands of human beings, not hundreds of thousands, I am wrong, hundreds of millions, billions of human beings who now live in poverty, in underdevelopment—how is it possible to want to block the access to technology for billions of human beings, a technology that they need for such basic things as nourishment, such as life itself”

–Fidel Castro in a speech he delivered in 1967 in Guane, Pinar del Rio, in Cuba on the problems of printing and supplying books in his country.

The words of Fidel Castro quoted above highlight the specific issues of the application of a northern copyright regime on southern states. The internationalization of copyright legislations prevailing in the western nations ignored the very different situations prevailing in the global south. Many of the southern countries gained their independence from colonial rule between the 1940s and the 1960s. Soon after they assumed self-rule, they realized the colonial nature of the international treaties such as the Berne convention that they had automatically been signed into as colonies of the northern nations. For countries struggling with poverty, illiteracy and beginning their journey as independent nations, the strict imposition of copyright regimes devised by and beneficial to the northern states became an obstacle to their growth and development.

The Copy South Dossier compiled by the Copy South Research group highlights the opposition to the inequalities perpetuated by international copyright treaties by the newly independent nations of the South.

Economic growth and development often led the list of their national priorities. Their needs in the information field – greatly expanded levels of literacy, the rapid establishment of schools and universities at all levels, getting even limited access to printed materials, especially in technical and scientific fields – were very different from those of rich nations. And their proposed solutions were very different as well. For example, the position of India was that “the high production costs of scientific and technical books standing in the way of their dissemination in developing countries could be substantially reduced if the advanced countries would freely allow their books to be reprinted and translated by underdeveloped countries.

The importance of the wording of the first 1886 Convention, as originally ratified and thoroughly reflecting Western copyright values, is reinforced by the fact that any amendments or changes to the Convention require the unanimity of all members, Moreover, ‘reservations’ (an international law concept allowing a country to make exceptions in its own legislation for its own jurisdiction) to the Berne Convention are not permitted. Hence, Berne is a particularly rigid and inflexible treaty. And although Berne has been amended – in minor ways – on different occasions between 1886 and 1971, when the Paris ‘revision’ (the current version) was formulated, its basic structure and ideology has remained in place.

As a follow-up to several UNESCO-initiated discussions in the early 1960’s, representatives from 23 African countries met in Brazzaville Congo in 1963 to begin formulating proposals to reform international copyright conventions to better reflect the needs of the “new” African nations and the southern world more generally. Through a process of consultations and meetings over the next few years, the suggestions of these groups specially regarding reduction in the duration of copyright, translation rights, easier acquisition of licensed reproduction rights from Western publishers, national jurisdiction over the regulation of uses for educational or scholastic purposes were concretized and presented as the Stockholm Protocol of 1967. Even though it contained a watered down version of the initial demands and proposals of the represented nations, it met with fierce opposition from the northern copyright industries, specifically Britian, and was not incorporated into international legislation. The final set of copyright proposals aimed at meeting the needs of developing countries became the 1971 Paris Appendix to the Berne Convention. But the Appendix contained no provisions for free educational use or for any reduction in duration of copyright. Nor did it adequately address the indigenous knowledge issue. In effect, the changes that were achieved after the years of struggle were inconsequential.

The have been a number of movements against the imperialist agenda of the international copyright regimes spearheaded by the global north which are worth mentioning.

• A 1976 seminar in Tunis produced a report entitled Information in the Non-Aligned Countries. The following excerpts give a flavour of the anti-imperialist sentiment that was being expressed:

a) Since information in the world shows a disequilibrium favouring some andignoring others, it is the duty of the non-aligned countries […] to change this situation and obtain the de-colonization of information and initiate a new international order in information.

b) The peoples of developing countries are the victims of domination in information and this domination is a blow to their most authentic cultural values, and in the final analysis subjugates their interests to those of imperialism.

• AfriTAN—the African section of the TRIPS Action Network —has focused on access to medication as part of their resistance to the TRIPS agreement. Action Aid Pakistan has developed TRIPS resistance to Agricultural Issues. The Gene Campaign has worked with the Centre for Environmental Concerns in India to focus on intellectual property, environment, and agricultural issues. RAFI (Rural Foundation Advancement International) now operating under the name Action Group on Erosion, Technology and Concentration (ETC) has also been instrumental in global south resistance to TRIPS.

• In the Pacific region, native Hawaiians and the Maori in New Zealand have also developed a position critical of TRIPS and western intellectual property rights. Mililani B. Trask, Native Hawai’ian and Indigenous Expert to the United Nations for the Permanent Forum on Indigenous Issues stated that, ‘The TRIPS agreement within the WTO which is intended to internationalise current intellectual property laws constitutes a major threat to the cultural integrity and rights of indigenous peoples, including territorial and resource rights.’

In his essay Burn the Berne, Alan Story proposes to shift the focus of the copyright discourse away from the glorified debates around the e-book and copyright piracy to the issue of access to basic information needs that still plagues a large part of the world today. Through a detailed examination of the Berne Convention, TRIPS and the WIPO Copyright Treaty, Story build a case for the rejection of the current international copyright regimes from the vantage point of the global north that finds itself left out of the balance of interests that copyrights attempt. Examining the language of the different treaties, he asserts that since the United States’ incorporation into the agreement, the Berne has expanded and later treaties such as TRIPS and WTC that emerged “under Berne’s shadow.”

The essay highlights and develops three main points of critique from which the internationalization on copyright regimes is evaluated.

a) The Concept of national treatment mandates poor countries to protect the intellectual property of rich northern nations at the cost of their own national and public interest. In that, national treatment endorses formal equality but perpetuates substantive inequality by treating as similar things that are entirely different.

b) The balance metaphor in copyrights cannot hold good at the international level as the very different conditions prevailing in the different nations make a balance impossible.

c) The value systems justifying copyrights are not universal and factual but emerge out of specific socio-cultural and economic conditions prevailing in western Europe and do not correspond to the realities of southern nations.

Towards the first critique, Story quotes a study by the IMF to show the imbalance of trade in copyrighted works. According to 1999 International Monetary Fund (IMF) figures the U.S. emerges as the principal exporter of copyrights followed closely by the United Kingdome while on the other hand, no country of the South had a surplus and, in fact, not a single one of the fifty least-developed countries had any calculable intellectual property revenues whatsoever. There is, therefore a large financial incentive for the rich northern nations to enforce their own standards of strict copyright protections in the future. The southern countries are reduced to markets for the intellectual products of the north creating linear monetary flows and freezing cultural exchange.

The clause for national treatment serves to ensure the protection of northern copyrighted works in the southern nations, often at the cost of their own development. When the Berne was established. All of its member nations were at similar stages of development. In that context, the principal of national treatment would have enabled equal flows between the member states. It would be prudent here to remember America’s refusal to join the Berne Convention to specifically avoid giving copyright protection to foreign works so as to be able to use them freely in “national interest.”

In the current scenario, where the contexts and situations of the member states are widely different, the notion of equality as espoused by the principle of national treatment needs to be examined. Story compares the context from which creative works emerge in different nations to highlight the dissimilarity of their creation. A slim book of Urdu poetry produced in India cannot be treated as the same as J. K. Rowling’s newest Harry Potter edition. Their producers do not have the same capacities to defend infringement in courts; their conditions of production and existence are so widely dissimilar that to treat the two as similar would be a gross discrimination. Story asks a few rhetorical questions to make the distinctions clear;

“Do the foreign works actually need equal treatment in countries of the South with the locally produced works? Are the consequences the same if they do not receive it? Does Rowling’s story have the same cultural meaning in the U.K. as the meaning that the Urdu poems have in India? And have they both been produced for the same reasons and in even roughly similar or equal circumstances?”

In essence, what international copyright regimes attempt to do is reduce and homogenise all forms of cultural production to a single, one-dimensional property phenomenon, that is, to a capitalist commodity, and then proclaim the essential equality of all commodities in the global marketplace; all other aspects or characteristics of such production are neglected, indeed suppressed.

The rhetoric of balance in the copyright discourse also falters when applied to the international copyright system. The convention, for instance fixes certain minimum standards to be maintained by all member nations and no maximum limits. Any changes to this minimum requirement would mean the standards of protection being raised higher. This, in turn, means that many of the information requirements for users in the countries of the South are necessarily and always under threat. “What could be more unbalanced than a “there are no maximums” agreement?”

Quoting the first sentence of the preamble to Berne Story highlights the lack of balance in the language of the convention. “the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.” leaves out any mention of fair use, public good or any of the other users rights which are left to the discretion of the member countries. In a copyright context where the owners are the rich north and the global south the users, the absence of any notion of public rights or fair use creates a sharp divide between the two groups. A convention that offers unlimited rights to the owners of copyrights without any attention to the rights of the public cannot, necessarily be a balanced system.

Story looks at the conflict resolution system as a marker of the balance possible within any system. Looking at the struggle to effect change through the Stockholm Protocol and the meager results achieved in the form of the Paris appendix as a failure of the Berne to provide a balanced approach to the needs of the southern nations. For the countries of the South, the sharp conflicts over Berne in the 1960s and the meager results achieved reveal that Berne could not accommodate their needs; it was a system that simply could not be balanced.

Moreover, the international protection regimes rely on the notions of authorship, ownership and creativity that emerge from a specific western context. The very different creative flows and practices in the south do not find a place in the economic model of copyrights and are not given the status of valuable property. This perpetuates the global inequalities prevailing in the copyright regimes at multiple levels and furthers the hegemonic dominance of the northern countries through monopolistic trade practices. A large number of creative and authorial practices in the southern nations are oral and collective. They do not subscribe to the proprietary ownership values based in individual appropriation of creativity and culture and are thus outside the scope of copyright law. There is no space in the language or the scope of the Berne Convention agreement to include alternative systems of knowledge and culture creation that are not strictly linear and commoditized. In that, along with the economic hegemony, the Berne also perpetuates an ideological hegemony regarding how creativity and communications come to life, the centrality of those individually “creating” expressive works and the individual source of their expressions, the importance and meaning of these works, and what should happen to the fruits of their creativity. There are two closely related consequences stemming from the internationalization of the Berne copyright paradigm;

• Berne’s particular approach to the creation and use of expressions is naturalised or normalised as the only way to understand and regulate expressive communications, or “works,” to use the traditional copyright term of art.

• Critical self-reflection or self-interrogation of the Berne copyright model is necessarily restrained and limited by the particular ideological spectacles through which both the world and the creation, use, and regulation of expressions are examined.

In conclusion, Alan Story acknowledges that the debate on copyright is not the primary concern on the southern nations battling much larger issues of poverty, hunger, increasing foreign debt and the like. In a context where a large number of students and academics do not have access to computers and Internet connections, the importance of digital piracy and digital freedom take a back seat. Copyright does, however, create restrictions in areas such as public health and education that are pertinent to the development agenda in favour of preserving the market share and economic benefits of the copyright rich north. It would be fruitful to quote in detail, some of the situations Story lists to elaborate these restrictions;

• In Southern Africa, nursing teachers, public health nurses, and other medical personnel who wish to distribute copyrighted materials to students and patients about HIV/AIDS, how to avoid becoming infected, and how to deal with the symptoms, are required to pay copyright royalty fees.128 As a result, circulation of such information is seriously restricted. Most such fees are paid to publishers in developed countries.

• The traditional and limited Berne exemptions such as the right to use quotations (Article 10(1)) or the “fair practice” use of works “for teaching” (Article 10(2)) fail to appreciate the much wider access requirements to learning and resources materials across Africa.

• Distance learning is an increasingly common avenue for the provision of educational opportunities in Africa, in part because of internal transportation and communications barriers. Distance learning students are particularly in need of good access to materials because they cannot easily visit a library at their schools or universities. Yet, copyright use allowances often are restricted only to those uses that occur within the physical location of a school or a library, and hence tens of thousands of students and their teachers cannot access badly needed print materials.

• There is a major problem with the translation of materials. This is particularly serious because many African countries have more than ten languages. In the production of materials across Africa, “local languages are ignored in favour of English, French, or Portuguese,” one librarian noted. There are also few translations of works from one African language into another (e.g., from Bantu (South Africa and elsewhere) into Edo, Yoruba, or Hausa (Nigeria), or vice versa). Generally, the right to make a translation must be individually acquired for each translation into a different language. The overall situation reinforces the inequality of languages, privileges European languages, and means that tens of millions of Africans are unable to get access to or read books and articles published in languages other than their own.

• Copyright clearance officers in schools and universities in South Africa regularly engage in heated negotiations with publishers, especially international publishers, regarding the cost and use of works to be photocopied for student use. The rates charged are extremely expensive, and most copyright clearers generally tend to prefer dealing with local publishers where copyright fees are less expensive.

Private Networks and Public Access:
Technology and Copyright law

The “transforming revolution” of the twentieth century, the advent of digital technology radically changed the shape of “literary works,” their production, exchange and consumption as well as the paradigm of the debates around copyright laws. The changing nature of the author, proprietary nature of ideas, ownership and control all coalesce in and are invalidated by the shifting nature of the new technical environment. According to Peter Menell, after the printing press and broadcast technology, the digital revolution is the third wave of technological revolution. Enabling new modes of creative expression, it poses a new set of challenges for those engaged in literary and cultural production and exchange of cultural works. Jessica Littman notes that the growth of the Internet has in many ways surpassed any historical analogy we can unearth, bringing an explosion of new possibilities in the process.

The multifarious compression technologies, liberation from the time-space constraints and vast information network, the digital era would logically seem a boon for the “encouragement of learning” which was the dictate of one of the first copyright legislations in History. The enlightenment concept of intellectual property: to dismantle commercial monopolies on the circulation of thought and to spread knowledge freely among our citizenry would find a close ally in the internet, expressly designed as a tool for sharing information. There is a nagging doubt, however, that plagues copyright industries, as has done historically with the advent of new technologies. We have seen how the system of copyrights, though standing on the shoulders of authors, actually preserves market share and control of the actual ‘owners’, i.e. publishers and distributors. For entertainment and information companies at the turn of the twenty-first century, the Internet held out not only the promise of vast new markets for their products but also the threat that widespread, unauthorized copying would devastate everyone of their markets, old and new.

The story of copyright, in one way, is also the story of the law’s tenuous relationship with technology. Moments of technological leaps become sites for the introspection/examination and realignment of copyright legislation with the changing face of culture, creativity and knowledge. As the ground shifts, cracks appear and technology slips through the legal boundaries, unencumbered by proprietary regimes and monopoly interests. Copyright owners have always expressed anxiety around technological changes that transform the way we create, experience and share cultural works. Each technological leap renews the discourse around copyrights, culture and knowledge, and the new possibilities for freedoms as well as control emerge, polarising the debate. While the proponents of free culture declare new freedoms, the copyright industries and policy makers aggressively reassert property rules and ownership rights to rein in the transformation.

Paul Goldstein, points out two approaches to new technology expressed in a two-day meeting convened in Amsterdam in July 1995 by the Royal Netherlands Academy of Sciences and the University of Amsterdam’s Institute for Information Law. Speaking at the meeting, John Perry Barlow, a former lyricist for the Grateful Dead, invoked the mantra, “information wants to be free” to support his claim that “we are sailing into the future on a sinking ship.” Earlier, Barlow had written about copyright law and new technologies in Wired Magazine in 1994. Using the metaphor of wine to address the idea expression divide, he said Copyright protects the bottles and not the wine. But now, the bottles have overflowed and the system makes no sense. At the conference however, it was the presentation by Charles Clark, the Legal Advisor to the International Publishers Copyright Council. In his presentation titled “The Answer to the Machine is in the Machine” thee main question raised by Clark was not how to prevent access and protect works from theft, but how to monitor access and use. He proposed the use of the new technologies to regulate the flow of information so as to provide for payment for use. The debate on copyrights in the digital arena is suspended between these two polarities. Both in one way or another reject the copyright system as adequate to contain the technological changes. Barlow rejects copyrights outright, in favour of “an entirely new set of methods” whereas Clark proposes a strict regulatory regime where owners would be able to attach price tags to all and any uses of works, overriding the public good mandate of copyright law. Historically, copyright law has tended to follow the growth of technology and similarly expanded its purview. It has come to signify ever-increasing ‘rights’, adding newer and more intricate laws to its growing bundle. As Peter Menell notes,

“more pages of copyright law have been added to the U.S. code in the past decade than in the prior 200 years of the republic, dating back to the first U.S. Copyright Act adopted in 1791.”

The potential of digital technology to change the shape of existing literary works as well as the paradigm for future creation requires careful deliberation. As we will see, policy discussions on copyright legislation have a direct bearing on private individuals deemed criminal by the changing shape of the law. This chapter aims to undertake a study of copyright law in the digital age to understand the various positions, nuances and possibilities that have been articulated in contemporary copyright discourse.

The study relies heavily on developments in the United States which is the primary site for the growth of both technology and copyright law. The U.S. has also emerged as the primary site for the development of copyright discourse in current times. As stated by Fiona Macmillan and Kathy Bowrey, “both from a societal and paradigmatic view that today’s copyright law is shaped by a combination of two phenomena, which paved the way for the information Society: computer technology and millennium capitalism. All this accompanied by the ever-increasing political dominance of the USA.” As discussed earlier, with the expansion of the U.S. as an information economy, its role and stake in global copyright legislation increased manifold, largely with the agenda of furthering capitalist interests. The shift of the U.S. from an industrial to an information economy also placed it at the forefront of technological changes that became the concern of copyright legislation across the world. This study of the interaction of copyright law and new technologies attempts to look at the implications of the development of the law on the future, with American advocacy for stringent international copyright regimes as a background.

Tech Talk: Mapping new technologies on old terrain

Because digital technologies flow seamlessly and invisibly across national borders, Governments can’t patrol the cyber space. Cyberspace is indeed a new world but according to Harvard Business School Professor, Deborah Spar, it is not the only new world. There have been moments in history when the birth of a new technology has called forth a complete restructuring of our physical and intellectual landscape, bending authority to their will and reaping profits along the way. Spar tries to remove the ideology of the Internet, away from the discourses of “new technology” and instead sees the genesis in older and dimmer roots. The roots lie with Pioneers such as Thomas Edison and Marconi, who saw the fantastic opportunity of technology. And the Internet for the first time shatters our notion of what a “state” does or what a national economy is.

Theoretically this shift in geography should be a tremendous boon to firms, just as it is a rather terrifying prospect for states. Freed from Government control firms should be able to come up with their own regulation. This after all is the political thrill of the Net. Yet Spar suggests that other stories of technological advancement have also been united in their attempt to rule the State dead. However, the point to be remembered in all this as Spar says is that while eventually Governments do survive, because ironically both entrepreneurs and society want them. Government provides the property rights that entrepreneurs eventually want; they provide the legal stability that commerce craves; and they provide the stability that society demands. In the end even pirates and pioneers want order.

Spar traces the nuances of information transmission back to the 15th century when Information was an exclusive domain of the Catholic church. As each new technological leap made the dissemination of ideas easier and more rapid, the hegemonic classes grew wary of the revolutionising potential therein. She traces this trend in the reaction of the Church to the printing press, expressed first in the anxiety around the increased access that it leant to the Bible. Rules changed and power shifted, but the patterns that had dominated before Gutenberg’s time remained solidly in place.

An equally striking dynamic surrounded the development of radio, another major stage in the information revolution. In 1896, Marconi devised a small black box that transmitted Morse code via electromagnetic waves. But when he crossed the border, custom officials smashed the box to pieces, fearing that it would inspire violence and revolution. Marconi eventually created a firm for himself, designing the radio for commercial purposes and before long the Government reappeared and declared a security interest in Marconi’s device. By the start of the 1st World War, the Marconi Company had become a full-fledged contractor for the British Government and the British navy controlled the fledgling technology of radio transmission.

Looking at the patterns of both printing and radio, we see that technology challenges authority for some period of time, but then ironically, seems to invite this authority back in. Perhaps the Internet is different as Spar says and perhaps so revolutionary and so international that it will disrupt the patterns that have prevailed in the past. But what is most important to note here, in case of each technological frontier is that in each case the technological leap has created a political gap. Deborah Spar also argues that business is inherently political and the interests of commerce mark politics. This overlap is particularly strong along the edges of technological frontiers, for it is here that markets are created, where industries spring to life and then settle down in to some kind of an ordered existence. As this process unwinds, power is distributed and structures established. It is a hugely political enterprise- even if Governments are not actively calling the shots or regulating commercial activity. If there are pioneers, there will be pirates as well, because as Henri Pirenne said- “Piracy is the first stage of commerce.” Between the 15th and the 17th century, advances in navigation had literally opened up a new world of commerce. Throughout this period a steady stream of innovation had enabled European explorers to push in to what for them was terra incognita, unknown territory or virgin land. Towards the 17th century, the prospects for economics became the driving factor. By the time the merchants set sail, they were however, no longer alone. Instead the seas were full of pirates- rogue sailors or freebooters whose business lay in seizing merchant ships and grabbing whatever might be on board. But what was really the difference between the pirates (who looted on their own behalf) and privateers (who raided on behalf of the state)? In the raucous days of the 17th century, it was hard to tell. The pirates simply took advantage of a classic gap between law and technology because in the middle of the Atlantic, there were no property rights or ways to enforce them. According to Spar, life along the technological frontier moves through four distinct phases: innovation, commercialization, creative anarchy and rules.

Phase one: Innovation

This is the stage of tinkerers and inventors, a stage marked by laborious exploration and the sudden thrill of discovery. This is the phase that sparks the imagination and provided motivation for the next generation of dreamers and planners. It is not a phase where lots of commerce takes place. Even the Internet was distinctly non-commercial at the outset. It was a security tool, a means of communication among a small and specialized group. During this phase there are no rules because none are needed: innovation hasn’t developed to the point where property rights are critical; there are no questions yet of access or unfair competition; and the societal impact of the new technology is minimal.

Phase two: Commercialization

Once the technology is out the labs in to the public eye, a whole new set of characters move on to the frontier: the pioneers, the pirates, the marshals and the outlaws. In this second phase people will now see the commercial benefits of the new technology and its ability to turn in to mass market. When the technology is truly revolutionary, they can also see how it carves out new spheres of commerce, spheres that exist beyond the realm of existing markets and the reach of authorities. Speed is essential during this phase because tempted by the dual visions of anarchy and wealth, entrepreneurs of all sorts rush in to the frontier to claim their stake. Their interests during this phase are largely territorial. Apart from the pioneers, pirates too foray in to the new land, often blending with the pioneers. In the 19th century pirates plagued the nascent telegraph industry, “borrowing” the patented technology to create their own competing systems. And in recent times, pirates have stolen television signals from the skies and encryption codes from the Net. Pirates seem to adhere to a certain historical rhythm. When technology is new it doesn’t attract too many rogues. It is simply too technical and uncertain in the first phase, Once technology slips in to the commercial realm and begins to generate extraordinary profits, in the second phase that the pirates begin to flock. Because rules during this period are ill defined, pirates can operate almost without any restriction. This trend is noticeable in the case of people like Philip Zimmerman, the mathematician who created the world’s most sophisticated encryption algorithms and posted it on his website. What does one label him as: a mathematical genius or a renegade intent on violating the security of United States. During these times, the rules are just too flimsy to tell. Unless Governments manage to nip technology in the bud of innovation (like television), it is very difficult for them to control this same technology once it has entered the expansionary stage. Likewise, there are many aspects of the Internet economy that at the turn of the century at least appear far beyond the reach of any national government: content that streams in from foreign sources and information that hides under disguised names and slips across invisible borders. In this phase therefore, the politics of the frontier are decidedly libertarian, markets take over, individuals steer their own fate and governments retreat.

Phase Three: Creative Anarchy

The romantic period of phase 2 does not last very long and problems begin to burst out along the frontier, comprising the commerce that has already emerged and threatening its long-term development. And the pioneers that now people the frontier will demand their resolution. During the early phases of development, ownership is secondary and often an irrelevant concern. However, as technology matures and markets widen, a demand for property rights is liable to emerge. Now that they have carved out positions along the frontier, the more established pioneers no longer want to work in chaos or cavort with pirates. Instead, they want to own markets and keep interlopers at bay and want ways of enforcing property rights.

There are 3 problems that are often concomitant with this stage:

1. The final problem concerns competition. Often the levers of a new technology and potentially vast market are put under the control of a single firm. It is a problem of dominance, and control; a problem of innovation and a problem of justice. And like all problems these three can create the situation of anarchy. Resolving these problems becomes the final stage of the frontier.
2. Problem of the commons: In these cases the creation of the new market rests with the use of a particular resource- one which is large but far from the infinite, like the oceans or airwaves. In these situations the more established settlers would again petition for property rights.
3. Problem of coordination: when a technology is first evolving, a burst of innovation will tend to produce multiple devices and systems. But if technologies are to develop in to fully-fledged markets, they need to develop some set of common standards, some means of coordinating their systems and allow users to migrate freely among them. And the problem is that standards do not emerge by themselves.

Phase Four: Rules

Once the pioneers realize the cost of anarchy, and that the lack of rules can diminish their own financial prospects, they begin to lobby for what they once explicitly rejected. It is also not the pioneers always who clamour for rules, but sometimes also the state and the coalition of societal groups affected by the new technology. In general rules get created because private firms want them. It is fruitful to track these four phases in the digital technology and it is probably the area of music that has always embraced and yet tried to regulate the processes of technology.

Consider this rap by Chuck D:

If you don’t own the master

Then the master owns you.

Dollar a rhyme

But we barely get a dime.

In 1998 Chuck D stormed in to the cyberspace. Rather than giving his latest songs to Def Jam, the label that had produced his music for over a decade, the rap artist instead released his music directly on to the Internet, at www.publicenemy.com. With just a couple of songs he challenged how music was sold and even more fundamentally how it was owned, spelling bad news for the music business. However, for Chuck D putting music online was a matter of power and giving recording artists the influence and the money that was rightfully theirs. For decades before that, companies such as EMI and Polygram had operated under a lucrative set of rules. They signed long term contracts with the artists they deemed most attractive, and then managed the business side of the artists’ career- recording, distributing and marketing the artists. The artists received a prearranged portion of the sails, but the studio retained the legal rights to the music. Ownership of the property, in other words, rested with the studios than with the artists. By putting his music directly online, Chuck D circumvented the entire legal and commercial structure that the studios so carefully erected. He took music which had traditionally been their property and made it his again. The advent of digital technologies such as the MP3 made meant that the entire legal foundation of the old recording system was thrown in to confusion. Because these practices were so new in the late 1990s, the law was simply silent on them: there was no regulation of MP3 technology and no system of property rights that exclusively applied to online music.

Chuck D. however, was not the first one to explore the uncharted terrain of digital technology. In fact, it was in the field of music where early exploration of the technological frontier had revealed a world of new creative and commercial possibilities. Copyright scholar and author Siva Vaidyanathan traces the advent of digital technology through the transformation it brought about in the field of music. He mentions in particular, Herbie Hancock’s experiments with the electronic synthesizer.

The Digital Moment: birth of the future

As a keyboard player, Hancock soon discovered the creative potential of a new instrument-the electronic synthesizer. Synthesizers offered Hancock and other composers a new set of sounds and new ways to manipulate them. Keyboard players could generate thousands of new sounds: buzzes, chirps, whistles, solid tones (with unlimited sustain), crashes, and sirens. Players could alter the pitch, duration, and timbre of a song by tweaking a few knobs or dials.’ Early synthesizers were huge and ungainly, difficult to employ for live performances. They used analog technology. Different electric voltages created and controlled the sounds. Higher voltages generated higher notes and lower voltages created lower notes. By the rnid-1970s, several companies had introduced polyphonic analog synthesizers with attached keyboards. Soon synthesizer companies added computer memory to their systems, making it easier to use smaller synthesizers in live shows. By 1979, keyboards came with computer interfaces installed. If all of a musician’s synthesizers were of the same brand, they could operate together through a single keyboard. Hancock, enchanted by the new gadgets, customized connections for his various synthesizers so they would work in concert. Hancock’s hacking inspired the next Revolutionary move in electronic music the creation of an open compatibility standard known as the Musical instrument Digital Interface, or MIDI, in 1982. MIDI software protocols tell a synthesizer the duration of a note, the shape and pitch of a sound, and its volume.’

MIDI transforms the analog signal of a synthesizer into a digital stream, representing all the variances of sounds in a string of zeros and ones. And MIDI allows that information to flow over a network of musical instruments and input and output devices.

Within a couple of years, MIDI became the universal standard for digital music. And its success opened the music industry to the potential of converting every step in its production process to digital technology. The MIDI standards are now used by home computers to generate, share, and play music and video files. At its heart, MIDI is like the blues-based music that inspired Herbie Hancock’s career-portable, widely compatible with a variety of instruments, open for anyone to improve, and thus powerfully adaptable.’

The parallels between jazz and open technology were not lost on Hancock, who had been an engineering student at Grinnell College in the 1950s writes Vaidyanathan. In 1983, Hancock released an electronic album called Future Shock. It featured a single called “Rockit” that soon climbed to the top of dance and soul charts and garnered a Grammy award for best rhythm and blues single. The song featured sampled sounds and “scratches” such as rap artists were using over a bed of jazzy electronic keyboard riffs.

Vaidyanathan also notes some of Hancock’s experimentation with technology in music that pre-empted some significant trends brought on by digital era. Hancock released a video of the song at a time when MTV was in its infancy thereby not only inspiring the digitization of music in general and the daring fusion of pop music styles but helping establish the music video as a site of intense creativity in the early 1980s. He was also instrumental in making sampling acceptable as an artistic technique within the African American musical tradition. In 1993, Hancock allowed the rap group Us3 to sample his1964 classic “Cantaloupe Island.” Us3 worked with, the Blue Note jazz catalogue to create the hit album Hand on the Torch, which opens up with the funky dance single “Cantaloop.” Sampling requires converting a song from analog to digital signals and manipulating it to make it part of a new work. In doing so, Herbie Hancock’s musical career shows his experimentation with the various aspects of digital technology that were to cause a sea change in the way we perceive creativity, culture and knowledge.

Ones and Zeros: defining the digital revolution

The string of ones and zeroes could be used to express virtually any form of creative expression in a digital environment. Intellectual property was never before so vaporous and intangible as in the digital realm. Vaidyanathan highlights the two most significant processes inherent in the digital moment; “the digital representation of all forms of expression and the rise of the networks.” In recent times, the increasing speed of the networks as well as the storage space for digital ‘files’ has contributed to the increased acceptance of digital technology by artists, musicians, hackers, intellectuals, policy makers and business leaders.

The synergystic relationship between these two processes – digitization and networking – has collapsed some important distinctions that had existed in the American copyright system for most of the twentieth century;

• The possibility of representing Ones and zeros are the simplest possible grammar through which we can express anything. A living, breathing symphony orchestra may be the most complex medium one could choose to express the same notes. And the analog vibrations in the air that fills a symphony hall might be the most complex grammar one could use to express those ideas. Perhaps the ones and zeros are ideas, and the analog versions we inhale are the expressions. But if strings of ones and zeros operate as an alphabet, a code, for representing ideas, shouldn’t they enjoy status as expressions? Are strings of digital code expressions worthy of both copyright protection and First Amendment protection?

• The digital moment has also collapsed the distinctions among three formerly distinct processes: gaining access to a work; using (we used to call it “reading”) a work; and copying a work. In the digital environment, one cannot gain access to a news story without making several copies of it. If I want to share my morning newspaper with a friend, I just give her the object. I do not need to make a copy. But in the digital world, I do. When I click on the web site that contains the news story, the code in my computer’s random access memory is a copy. The source code in hypertext markup language is a copy, and the image of the story on the screen is a copy. If I want a friend to read the story as well, I must make another copy that is attached to an e-mail. The e-mail might sit as a copy on my friend’s server. And then my friend would make a copy in her hard drive when receiving the e-mail, and make others in RAM and on the screen while reading it. Copyright was designed to regulate only copying. It was not supposed to regulate one’s rights to read or share. But now that the distinctions among accessing, using, and copying have collapsed, copyright policy makers have found themselves faced with what seems to be a difficult choice: either relinquish some control over copying or expand copyright to regulate access and use, despite the chilling effect this might have on creativity, community, and democracy.

• The third distinction that the digital moment collapsed is that between producers and consumers of information and culture. The low price of network-ready computers and digital equipment in the United States has reduced the barriers to entry into music, literature, news, commentary, and pornography production and distribution. Technology transforms bedrooms into recording studios and chat rooms into billboards. A musician can create music on a computer sitting in a small room and instantly distribute the digital tracks worldwide. Artists and writers could publish their work on blogs and create a fan base without the aid of publishing houses and marketing campaigns. Of course, the ease of distribution and the low barriers of entry have created a cacophony of “white noise” in the digital environment. Creativity has been democratized, but it’s that much harder to attract an audience or a market.

• Digitization and networking have also collapsed the distinctions between local and global concerns. The U.S. Congress can outlaw gambling on the Internet. But the U.S. government has no authority to regulate a server on a small island in the Caribbean Sea. As with all questions of digital regulation, what jurisdiction should rule on copyright concerns?

• The distinctions among the different types of “intellectual property” have also eroded, if not collapsed. They have certainly collapsed in the public mind and generated much confusion in public discourse. The distinctions also have collapsed in practice. For instance, computer software was until the late 1980 the subject of copyright protection. Then the U.S. Patent Office started issuing patents for algorithms. As the industry has grown, so have the stakes in its legal protection. Now software can carry legal protections that emanate from copyright, patent, trademark, trade secret, and contract law. So while the phrase “intellectual property” was merely a metaphor and an academic convention in the 1960s, by 2000 it was a reality.

The collapse of some of the fundamental principles of copyright regimes presents a complex challenge to legal structures that depend on the past to encapsulate the future. The immediate response of the policy makers and the culture industry was to expand the existing laws of proprietorship from the print era on to the digital world. As with the transplanting of the rules of tangible property to intellectual works, this linear application of the existing laws to a new environment was fraught with problems. Jessica Littman critiques this easy solution by clarifying that the protection of intellectual property in the digital world through pre-existing rules necessitated the creation of a large number of rules and laws as the modes creativity and exchange entirely changed in the digital environment. Technology also enables new forms of expression that are beyond the scope of existing legislation. The tendency of the copyright regime has been to rely on existing parameters to filter the use and shape of new technology. As Vaidyanathan indicates, however, the new forms of expression explode the boundaries of the law and obfuscate the traditional categorisations.

Code of Law: the protection of software programs

The protection of computer programs brought about one of the early interactions of copyright law and digital technology. For early computer programs, there was little need for copyright (or patent) protection. Computers were few in number and most software was custom-developed for in-house applications. It wasn’t until the early 1960s that computer programs were being actively marketed by a software industry besides the computer manufacturers. Before it was widely marketed, software was easy to protect by a contract or license agreement any computer program that was being marketed.

According to the Copyright Office, the first deposit of a computer program for registration was on November 30, 1961. North American Aviation submitted a tape containing a computer program. While the Copyright Office was trying to determine whether such a deposit could be registered, two short computer programs were submitted by a Columbia University law student to determine how a computer program might be registered. One computer program was submitted as a printout published in the Columbia Law School News on April 20, 1964, while the other was on magnetic tape. The copyrights for both student computer programs were registered in May 1964, and North American Aviation’s computer program was registered in June 1964.

In the U.S., the Copyright Act of 1976, which became effective on January 1, 1978, made it clear that Congress intended software to be copyrightable. The definition of literary works in Section 101 states that they are:

“Works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. {FN7: 17 U.S.C. §101}”

Furthermore, the House Report discussing the Act states:

The term “literary works” does not connote any criterion of literary merit or qualitative value: it includes catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer data-bases, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves. {FN8: H.R. Rep. No. 94-1476 at 54}

Soon after, the 1980 Computer Software Protection Act was signed. Yet what was not clear was how much protection Congress intended to give computer programs, and whether there should be special exceptions to the exclusive rights of the copyright owners, as was the case for some other types of works.

Copyright Scholar and author Halbert goes on to analyse the construction an analogy between software and traditional literary works. She refers to the work of Anthony Lawrence Clapes, assistant general counsel at IBM as an example of the argument for strong protection. Clapes quotes from a variety of computer scientists to portray programming as an intellectual endeavour that combines both art and science. It is intuitive, imaginative and “pure thought stuff.” “A tangible form of dream and imagination.” He describes the programmer as a typical eccentric artist who loves intellectual challenge.

According to Halbert, the conflation between a computer programme and a poetic or literary work ignores two important points. First, that in highlighting the creative aspect of the individual programmer it ignores the utilitarian function of the programme, which necessitates the re-use of the code. It ignores the development of the software industry through collaborative work, which was supplanted by the introduction of the profit motive. Secondly, it ignored the fact that like traditional copyright, the ownership does not rest with the programmer, but with large companies like IBM. The myth of the romantic author concealed the political economy of software production and design. The positing of computer programs as literary works primarily serves software companies who want to maintain monopoly over their product’s market share. Many scholars have deemed the long term of protection given literary works unfit for an area that constantly changes and develops. Patent laws with their smaller term and utilitarian bent have been suggested as the more appropriate to protect computer programs.

Copyright protection of software programs involves the consideration of two important components; the source code (or the program code and the object code. The first question deals with the protection given to the literal code that can be read by the programmer. The object code is read by the computer and is indecipherable to humans. The early debates about software programs dwelled on the protection that can be granted to these separate elements. Whether the source code, which is the literal, readable code, deserves protection or does protection extend to the programming code that gives the final “look and feel” to the software program. Looking at some early cases provides an insight into the types of claims made by intellectual property owners to gain legal protection for what they see as their property. Halbert examines a series of judgements on cases of copyright violation in software in the 1980s and 1990s to highlight the contradictory readings of the courts with regard to the protection of software programs. While in the cases of Apple Computer, Inc. v. Franklin Computer Corp. and Her reading of the amicus curaie briefs in the case of Lotus v. Borland reveals that while major software companies vied for strong protection of software, a number of computer scientists, programmers, law professors and users groups all favoured the less protective stand of the courts.

Discussions at the Uruguay Round of multilateral Trade Negotiations finally put a seal on these debates when the TRIPS agreement incorporated the provision, “computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention.” This was subsequently reiterated in WCT when it stated that protection applies to computer programs whatever may be the mode or form of their expression. As Halbert indicates, the trend has been towards the expansion of the copyright regime to all forms of creativity without considering the benefits of structures of ownership and control to new forms of expression.

Sweat of the Brow: Owning Data[bases]

Originality has been one of the core principals of copyright law since its inception. The monopoly given over literary works was in essence due to the original expression of the author in which he would be given a limited monopoly. While originality is the goal, other works that involve a significant amount of labour have also received copyright protection, making two standards of copyright possible. The first is an original creation, the second is a work that is produced by “the sweat of the brow.” Both involve authorial rights the strongest of which are given to the original work. The decision of Feist Publications v Rural Telephone Inc. in 1991 brought the discourse on original authorship into the digital age. It touched on the issue of database protection and showed the continuing importance of the notion of original authorship in literary works.

A database is a collection of information or available facts such as names, addresses, phone numbers etc. different databases may be designed to organise facts according to the different and specific needs of its users. The database industry has grown considerably since computers fist made it easy to store and catalogue information digitally. The specific utilitarian value and the resulting revenue would suggest that databases would be strictly protected. However, in the case of Feist Publications v Rural Telephone Inc. the U.S. Supreme Court ruled there was not sufficient originality in the White Pages to constitute a creative work. A phone book company regardless of the time, effort and money involved in compiling a directory, could not claim copyright protection over the mere information in the text. The court defined originality as : “to qualify for copyright protection, a work must be original to the author. Original as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that possessed at least some minimal degree of creativity. To be sure the requisite level is extremely low; even a slim amount will suffice..”

The court in this case provided thin copyright protection to databases and allowed others to lift the facts from a publication for inclusion in a competing publication, the recent legislative trend, however, is to expand the protection given to databases. As with software programs, the trend of legislation with databases has also been to vie for maximum protection. Siva Vaidyanathan discussed the efforts o American and European negotiators to create a new form of intellectual property law that would consider databases protectable outside the constraints of American copyright law. Here again, the “sweat of the brow” principal is used to explain the demand for protection of the authorial efforts in compiling a database. The demands regarding databases in international conventions will be detailed later in the chapter, however, it would be useful to look at the problems with the proposed protection of databases as explained by Vaidyanathan. Writing specifically about scholastic enterprise, Vaidyanathan elaborates the threat to research posed by the protection of databases as literary works. The proposed regulations mandate the renewal of copyright each time new data is added to the database. This would, in effect, mean perpetual renewal and perpetual copyright control of the same. Moreover, if Clark’s suggestion of strict regulation of use are realized, access to the database would have to be purchased at the price the database company deems fit. A researcher would have to pay for each cross-reference and each individual statistic that is used from the database. Under traditional regimes, this might be protected by the fair use principal, but access controls would mandate a payment to enter the database and view the data contained therein. The biggest irony that database protection presents is the exclusion of the subjects of the database from accessing information compiled on them. It would allow corporate interests to monopolize information that belongs in the public sphere.

THE “DIGERATI” AND “COPYLEFT”

The increasing control over digital technology and the uses it could be put to did not go entirely unnoticed. The narrowing spaces available to software developers and technologists as well as researchers prompted the formation of the Fee Software Foundation as an ideological alternative to the proprietary regime of copyrights.

Stallman, a programmer who was working for the Massachusetts Institute of Technology, saw the rise of proprietary software systems as a severe threat to freedom and creativity. In fact, Stallman argued, too much control over software through contract, trade secrets, or copyright impeded the development of the best possible software.

The software industry was born out of collaboration among the academy, the government, and private industry. And in the 1960s and 1970s, much of the culture of software reflected the openness and spirit of community and inquiry that exist within the academy. Recalling the initial stages of the development of the software industry, Stallman wrote:

“When I started working at the MIT Artificial Intelligence Lab in 1971, I became part of a software-sharing community that had existed for many years. Sharing of software was not limited to our particular community; it is as old as computers, just as sharing of recipes is as old as cooking. But we did it more than most.”

But once the industry outgrew its own incubators, a different, conflicting value infected its practices. What was once public, shared, collaborative, and experimental became secret, proprietary, and jealously guarded.

In the 1960s and 1970s, only computer programmers used computers widely. Software companies (which were more often than not also hardware companies such as AT&T and 113M) released the source code with their software so that programmers could alter and customize it to their needs. Source code is the set of instructions that human beings write in languages such as Fortran, Pascal, COBOL, and C++. Programmable computers have a feature called a “compiler” that translates source code into “machine language,” or object code. In general, only humans can read source code. Only machines can read object code. As the software industry blossomed in the 19805, companies realized there was commercial value in keeping the source code secret. If a buyer needed a particular feature, he or she had to order it from the software company. In addition, competing software companies would have a difficult time replicating the effects of the object code without access to the source code.

Before the rise 01 Windows, UNIX was one of the most common and powerful operating systems available. It was flexible, powerful, and stable. But it was hardly user-friendly. Only professionals dared to play with UNIX. When AT&T, which distributed UNIX (although it was developed in collaboration with universities, especially the University of California at Berkeley), bottled up its source code in the 19805, it angered many computer programmers who had considered themselves part 01 the UNIX team. Among these was Richard Stallman. Stallman grew frustrated that he could not customize UNIX to run particular printers and other peripherals. II he could only get a peek at the source code, it would take him minutes or hours to create a patch and make the system work better. Instead, every time UNIX users had a problem, they had to wait months or years for AT&T to roll out another version and fix it.’ Frustrated by the unwillingness of university computer administrators to stand up for their values in the face of increasing corporate control, Stallman left MIT and launched the Free Software Foundation in 1984 to promote the use of “free software,” programs unencumbered by proprietary restrictions on alterations, revisions, repairs, and distribution. Also in 1984, Stallman wrote the “GNU Manifesto.” GNU stands for “Gnu’s Not UNIX!” In the manifesto, Stallman wrote,

“I consider that the golden rule requires that if I like a program I must share it with other people who like it. Software sellers want to divide the users and conquer them, making each user agree not to share with others. I refuse to break solidarity with other users in this way. I cannot in good conscience sign a nondisclosure agreement or a software license agreement.”

Stallman went to great lengths to define the freedom he valued. It was not the “give it away for free” freedom that idealized the foolishly generous. Stallman said that “Free Software is a matter of liberty, not price. To understand this concept, you should think of ‘free speech: not ‘free beer.”’ Stallman outlined lour specific freedoms central to the Free Software movement:

• The freedom to run a program for any purpose.
• The freedom to examine and adapt a program (and thus to get access to the source code-it would be “Open Source”).
• The freedom to distribute copies.
• The freedom to improve any program.”

Stallman started coding free programs that would work with UNIX. But he hoped for a better yet open operating system to emerge. In the 1990s, some other programmers generated LlNUX, the operating system Open Source champions needed to make free software important and powerful. The Free Software movement had grown to be a major force in the software world by the year 2000. But for this phenomenon to occur, Stallman had to come up with a way to ensure that no one company could comer the market on the work that Free Software programmers produced. If Stallman and his collaborators released their program without any copyright protection, declaring them in the public domain, then any company such as AT&T or Microsoft could bottle up that work by adding a few proprietary and highly protected features. So Instead, Stallman came up with an ingenious license that he called “Copyleft.”

Copyleft licenses require that anyone who copies or alters Free Software agree to release publicly all changes and improvements. These changes retain the Copyleft license. Thus the license self-perpetuates itself. It spreads the principle of openness and sharing wherever someone chooses to use it. This prevents any company from trying to release proprietary versions of free software. If a company were to release a “closed” or “unfree” version of the software, it would be Violating the original “GNU General Public License” (or GPL) that it agreed to in the first place. The code and the freedoms attached to it become inalienable. The proliferation of free software could not have occurred without this license, which uses the power of the copyright system to turn copyright inside out. Copyleft’s power and popularity have allowed many people to examine the foundations upon which copyright rests and ask whether its powers have actually worked to impede creativity. By the year 2000, the principles behind Free Software and Copyleft remained fringe views, even though the software they inspired and enabled had worked its way into the mainstream of the computer industry.

Controlling the Digits: Legislative Expansion of Control

As digital technology developed in America, specific constitutional and public policy recommendations created a climate of strict protection. The 1976 National Commission on New Technological Uses (CONTU) set the stage for the absorption of new technology under copyright law. Much had happened since then including the development of the Internet and in 1976, it could not have been possible to envision the types of changes that might occur in future. Subsequent reports and recommendations of the American government offer significant insights into how the changing technological realities were perceived and addressed in legislative policy. Debora Halbert takes up a detailed analysis of the Office of Technology report presented in 1984 and the NII findings in the 199s, tracing the constitutional response to new technology till its fruition in the form of the Copyright Protection Act in 1995. A comparison of the reports makes clear that between 1985 and 1994 a desire to increase control over intellectual property developed.

1985 Office of Technology (OTA) Report

The office of Technology (OTA) wrote an extensive report in 1985 detailing the impact of technology on intellectual property. This report began by describing intellectual property as an outgrowth of 18th century technology and also defined IP as dynamic in nature, in effect, sifting in response to social, cultural and political circumstances. It focussed specifically on authorship as defined by the emerging technological changes. Unlike the CONTU (1976) report that clearly designated computers as objects, rejecting that they could have a claim in authorship, the OTA report looked at the ability of technology to produce new forms of authorship.

The OTA report left room for the claim that authors/creators may not be as distinct from the users as originally thought. In case of interactive computer technology, the user became the author because the program was designed to blend the author and user’s ideas. The computer was seen as a tool that could blend these distinctions into new possibilities.

The recommendations of the OTA group however, did not take into account the full potential of the technological landscape. They concluded that the Congress should either expand the existing agencies of create a new central agency to deal with intellectual property issues. This agency could monitor the changes in technology and assess how the traditional copyright doctrine might be applied to the emerging scenario. The report also delved into the need for public support to the enforcement of new legislation and advocated for public education as crucial towards that end.

The subcommittee on Patents, Copyrights and Trademarks joined together with the subcommittee on Courts, Civil Liberties and the Administration of Justice in April 1986 to hear the final report of the OTA on Intellectual Property Rights in an age of Electronics and Information. D. Linda Garcia spoke about the far reaching changes brought about by the new technologies and argued that the Congress must consider who would benefit from the elaboration of an intellectual property system designed around new technologies. New technology problematises among other things, authorship, private use, intangible works, educational use and ethical dimensions of intellectual property use.

Some legal scholars disagreed with the conclusions of the report arguing that the intellectual property system is flexible enough to adapt to the new technologies (one of the conclusions of CONTU). At the heart of Goldstein’s disagreement with the report was the issue of authorship. The report stated that, “copyright law, based on originality of ideas and individual authorship, may become too unwieldy to administer when works involve many authors, worldwide collaboration and dynamically changing materials. The promise that OTA saw in this potential is clear from the introductory paragraph of Garcia’s presentation:

“Our report is a product of the times; it is a jointly authored work, which has benefited from the collaboration, comments and review of over three hundred people. These contributions have come from all over the country, and they represent a wide variety of perspectives.”

Instead of mentioning proprietary authorship of the report, embraced the possibility of collaborative work. Goldstein however, perceived this as a problem and confirmed to a “sovereignty impulse.” His response to the new technology was to use it to be able to monitor and regulate all uses of copyrighted works so as to be able to allocate royalties.

The OTA report remained inconclusive on many counts and ultimately recommended that a reserved attitude towards technology be adopted as much would change over the next decade. Its ambiguousness on the protection of intellectual products made it unpopular in both legal and business circles. With the expansion of the information economy, information once shared as a free resource came to be treated like a consumer item. The governmental recommendations for the new National Information Infrastructure (NII) and intellectual property were a further step towards stronger protection.

National Information Infrastructure

President Bill Clinton and Vice President Al Gore made the construction of the National Information Infrastructure (NII) a priority for their administration during the 1990’s. The NII task force helped redefine copyrights for the Internet. The NII copyright protection act of 1995 incorporated some of the task force’s recommendations into new legislation designed to control the Internet. The preliminary draft of the Report of the Working Group on Intellectual Property Rights (the green paper) was finalised in September 1995 with the publication of the final report called the white paper. In the making of this report, the group clearly sided with traditional copyright interests and ignored the potential for new types of information exchange.

The Green Paper faced strong criticism for virtually eliminating fair use in the electronic environment and for over regulating the use of copyrighted information on the Internet. The White paper backed away from some of the earlier reports more controversial proposals but generally restated its findings. It proposed some key definitions and findings.

1. It defined ‘transmission” as a form of distribution because of the ease with which copyrighted works could move through the Internet. The distribution rights belonged to the owners of the copyright and such a definition of transmission would make electronic exchange subject to copyright rules and owner approval. It significantly expanded owner’s control over the copyrighted work and made loaning a book a copyright violation. The definition of “public” was also reinterpreted in the report. The task force described public viewing as any user browsing a copyrighted document. Such definitions narrowly defined public rights and made virtually any use of the Internet a copyright violation.
2. Another aspect to be considered was the position of the report on the first sale doctrine. The first sale doctrine traditionally gave the purchaser of a copyrighted work control over its future use unless the rights were specifically retained. According to the Green paper the first sale right would not apply to the electronic transmission because a copy of the work remained with the original owner. The White Paper argued that a copyright violation takes place if a copy remains with the original owner. In that, it expanded the copyright control over not just access but also the consumption of the work by the end user.
3. The third important aspect of this report was the approach to fair use and how it applied to the Internet. The Green Paper limited the concept of fair use in an NII setting, essentially abolishing it as a meaningful concept. Public testimony had an impact on such treatment of fair use. The White Paper convened a conference on fair use responsible for drafting fair use guidelines for the Internet. The working group continued to adhere to its beliefs in strong protections against overtly broad fair use guidelines. The conference on fair use was unable to reach agreement on what types of guidelines should be used when dealing with the Internet. The summary of the conference suggested that only “end run” was possible where users pay for everything they use. The question then was how much the users must pay and not what constituted fair use.
4. Another aspect of the report was the liability of online service providers. The White Paper refused to limit the liability of the service providers and argued that they were in a better position to police traffic on their networks than copyright owners.

The paper referred to fair use and other users’ rights as a “tax” on copyright holders. It overstated the rights of copyright owners distorting the balance between private incentive and public good. According to Halbert, it succeeded in bringing a more powerful version of copyright to the Internet than had existed to protect traditional copyrighted works. In November 1995, a Joint Hearing of the Courts and Intellectual Property Subcommittee of the House Judiciary Committee and Senate Judiciary Committee met to discuss the copyright bill introduced simultaneously in the House and in the Senate. The resulting legislation was the NII Copyright Protection Act of 1995.

The rhetoric of copyright often refers to the balance between the producer’s rights and public interest. It is one of the mainstays of the copyright story that public interest is served by our system of copyright. The new definition of public interest supported by the NII appeared to emphasize the creation of jobs through intellectual property industries and not the promotion of arts and sciences. The task force viewed users as consumers who would, in the absence of proprietary systems stop consuming intellectual products and not as citizens with rights to share information and ideas freely. The White Paper paid no attention to the public interest concerns of the copyright system.

WIPO and the Berne Convention

Historically, the European countries had dominated the Berne treaty process, producing proposals opposed by American copyright owners, the United States, a relative newcomer to Berne, took this opportunity to set the international copyright agenda. Clinton Administration placed proposals that were virtually identical to those in the White Paper on the World Intellectual Property Organization’s agenda legislation for revising the Berne Convention.

American representatives attempted to sidestep the lacuna in American legislation and the loopholes left in the case laws by bringing in strict international legislation, which would bind the U.S. as well as other member countries to heighten the minimum standards under the Berne. The delegates in Geneva considered three treaties. They approved two of them and tabled the other for further consideration in pending meetings.

The WIPO Copyright Treaty provides that computer programs will be considered “protected as literary works”, thereby codifying the specific kind of protection granted to computer programs. It provides additional protections for copyright deemed necessary due to advances in information technology since the formation of previous copyright treaties before it. However, the protocol clearly considers copying software into Random Access Memory, or RAM, potentially liable copying. Representatives of telephone companies and Internet service providers explained to delegates that the proposed temporary copying provisions ignored “the reality of the digital world” in which copyrighted works by the millions are daily reproduced through temporary storage in the memory circuits of telecommunications equipment. Eventually, the diplomatic conference dropped Article 7 and replaced it with an equivocal “Agreed Statement” that the reproduction right fully applies in the digital context, and that digital storage of a copyrighted work constitutes reproduction, but it left open the question whether temporary copies also come within the reproduction right.

The anti-circumvention proposal was part of the U.S. submission to the December 1996 WIPO conference, where it fared somewhat better than the temporary copies proposal. Several delegations – most prominently from the African countries – objected that the proposal was overly broad and would bring too many innocent devices within the scope of the law. The Diplomatic Conference ultimately settled for a substantially watered- down provision requiring treaty parties to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures.” The treaty’s ‘one size fits all’ standard to all signatory countries despite widely differing stages of economic development and knowledge industry has been widely criticised.

The second Berne treaty, the WIPO Performances and Phonograms Treaty, dealt with music. Through this treaty, U.S. copyright law for the first time adopted a codification of a composer’s “moral rights.” This was a direct response to the 1994 case of Campbell v. Acuff Rose where the US Supreme court held that parody was a part of the fair use doctrine. In this case 2Live Crew created a parody of Roy Orbison’s song, Oh pretty woman, and when sued for copyright infringement made claimed a fair use exception. The court reasoned that their rendition of the song had ‘transformative authorship’, and could be considered an original by itself since it involved creativity, labour etc. Through the WIPO Performances and Phonograms Treaty a composer or even a performer can claim a right to be identified as the performer and can prevent any “distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.” In other words, performers would have veto power over parodies of their work.

The third treaty that was considered would have created a whole new area of “intellectual property” law by protected databases from piracy and unauthorized use. Basing itself on the “sweat of the brow” principal, the proposal sought to provide a 25 year term of protection for databases that resulted from the investment of resources. It also proposed that the database protection be renewed each time new data was added.

Opposing the database protection measures were representatives of underdeveloped nations who are concerned by the concentration of database access in western nations, scientists concerned about easy and inexpensive access to data, and, of course, librarians. It could limit scientific exploration, debate on public policy and render information a resource available only to wealthy people in wealthy nations. The more dangerous aspect of the proposal being tabled was that databases were subject to renewed protection term of 25 years each time new data would be added or commentaries renewed. In effect, this would subject the database to perpetual protection creating a strict monopoly over the information contained therein. Due to a severe negative potential, the proposal was not passed by the Geneva conference.

An overview of the proposals and discussions of the American and international committees highlights the tendency for strengthening copyright regimes globally. Post its entry into the Berne convention, discussions on copyright policy have been dominated by the U.S. The move as been towards international harmonisation of laws governing technological transfers and cultural exchanges through the new media. The Acts that were enacted during the 1980s and 90s also reflect the tendency to bring digital technology within the purview of copyright law. It would be useful to look at some of the Acts passed in the U.S. during this period;

Record and Rental legislation: even before the availability of home digital recording technology, the sound recording industry was concerned about the dangers of home copying on the analog recorders. In 1984, the industry persuaded Congress to amend the first sale doctrine – which affords the purchaser of an authorised copy of the copyrighted work the freedom to do as they wish with the copy – to prohibit the rental of sound recordings. The amendment also covered computer software, which had been brought under the ambit of copyright law in 1976.

The Record Rental Amendment of 1984 and the Computer Software Rental Amendments Act of 1990 both amended Section 109 to prevent all owners of software copies or phonorecords to distribute said copies through the acts of rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending unless authorized by the owners of the copyright, with an exemption for non-profit educational institutions and non-profit libraries.

Audio Home Recording Act 1992: already threatened by analog recording, digital technology posed a greater concern for the recording industry. In the 1980s just after the release of record labels’ catalogues in unencrypted digital formats (CDs), consumer electronics companies sought to introduce a host of new products that would enable the consumers to make digital copies of audio recordings. DAT was available as early as 1987 in Japan and Europe, but device manufacturers delayed introducing the format to the United States in the face of opposition from the recording industry.

Despite their strong playing hand, the recording industry failed to convince consumer electronics companies to voluntarily adopt copy restriction technology. The recording industry concurrently sought a legislative solution to the perceived threat posed by perfect multi-generation copies, introducing legislation mandating that device makers incorporate copy protection technology as early as 1987. These efforts were defeated by the consumer electronics industry along with songwriters and music publishers, who rejected any solution that did not compensate copyright owners for lost sales due to home taping. A year later the songwriter Sammy Cahn and four music publishers, unhappy with the absence of a royalties provision in the Athens agreement, filed a class action copyright infringement suit against Sony. The plaintiffs sought declaratory and injunctive relief that would have prevented the manufacture, importation or distribution of DAT recorders or media in the United States. The suit brought Sony to heel. In July 1991, Sony, as part of larger agreement between the recording industry and consumer electronics makers, agreed to support legislation creating a royalty scheme for digital media. In exchange, Cahn and the publishers agreed to drop the suit.

With all the major stakeholders satisfied, the bill easily passed both houses of Congress. President George H. W. Bush signed the AHRA into law in 1992.

For the first time in the history of copyrights, the government imposed a technological design constraint on the manufacture of copying devices. The technology allowed users to make copies directly from the compact disk, but not from digital tapes made using the technological control. It also prohibited the importation, manufacture and distribution of copying devices that did not incorporate this technological control.

As a means to compensate copyright owners for the copying that could result from these new technologies, the Act required that manufacturers and importers of digital audio recording equipment and blank tapes, discs and other storage media to pay a percentage of their transfer price (2% for digital audio devices and 3% for storage media) into a royalty pool which is distributed to owners of musical compositions (one third) and sound recordings (two thirds) based of prior year sales and air time. The Register of Copyright administers this mechanism, with provisions for arbitration of disputes.

Digital Performance Rights in Sound Recording Act 1995: When the Internet opened up a new distribution channel for sound recordings – webcasting – record labels seized the opportunity to establish a performance right, even if only with respect to digital audio performances. They voiced great concern that this new medium could seriously disrupt the market for sound recordings. If consumers could access and possibly even download high quality recordings of their favourite songs over the Internet whenever they desired, then there would be little demand for the retail record.

Interestingly, the prospect of webcasting and other online subscription services united traditional broadcasters and the sound recording industry in support of the Digital Performance Right. Recording artists and record labels could at least partially rectify the omission of a public performance right in the sound recordings white traditional broadcasters could impose new licensing requirements (and costs) upon new competitors. Since this new industry was not yet well developed, it lacked the political clout to block this new right, although owners of musical composition copyrights (and their performing rights societies, ASCAP, BMI and SESAC), which did not wish to empower another set of music licensing claimants succeeded in constraining the reach of this new right along a number of dimensions. Furthermore, Congress also sought to ensure that the new right would not unduly interfere with the development of new digital transmission business models.

The ultimate compromise amended sections 106 and 114 of the Copyright Act to establish as exclusive right to perform sound recordings “publicly by means of a digital audio transmission.” The practical effect of this provision is that record companies who hold a right in the sound recording can demand a royalty on digital “performances,” which include downloading, uploading, and streaming of the digital transmissions.

No Electronic Theft Act 1997: Congress enacted the No Electronic Theft Act in order to strengthen criminal prosecution and penalties against those who distribute copyrighted works without authorisation. It specifically responds to the ruling in United States v. David LaMacchia, in which the court held that a computer bulletin board operator providing used with unauthorised copies of copyrighted software without charge could not be prosecuted under federal copyright law because the government could not show that the operator benefited financially from copyright infringement. The NET Act closed the loophole by criminalising various international acts of copyright infringement without regard to whether the defendant received any financial benefit from such acts. It also stiffened the criminal penalties applicable to copyright infringement committed trough electronic means. A person found guilty under this provision could receive three years in prison for the first offence and be forced to pay a substantial fine even for illegally distributing sound recordings valued far less.

Digital Milinium Copyright Act: The Digital Millennium Copyright Act (DMCA) was enacted in 1998 to implement two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalized production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. It also criminalized the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightened the penalties for copyright infringement on the Internet. Passed on October 12, 1998 by a unanimous vote in the U.S. Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.

One of the most discussed additions to the copyright law in recent times, the DMCA and its provisions has been the subject of much debate. Specifically, its enforcement of anti circumvention legislation and the regulation of copyrighted works through digital rights management measures that regulate access and use of specific works.

Rights and Wrongs: analysing the legal discourse

One of the strongest proponents of the expansion of copyright law into digital technology was Stanford Law Professor Paul Goldstein. In his 1994 book Copyright’s Highway: The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox, Goldstein outlined an optimistic vision of the digital moment and its potential for both, producers and consumers. In his book, he further elaborates the views he expressed during the presentation of the OTA report as a member of the OTA advisory Board. Highlighting the technological possibility of precise and constant monitoring of the use of copyrighted works made possible by digital technology, he saw on the horizon a celestial jukebox through which infinite gigabytes of information could be streamed directly into the user’s house with minimal transaction and storage costs. He was speaking, of course, of the vast potential of the Internet, which he applied, to the traditional use of copyright in the exchange of intellectual goods.

Taking from Clark’s ideas of using technology to monitor all uses of cultural works, Goldstein elaborates on the idea of the Celestial Jukebox expressed in the Lehman Group’s White Paper. Goldstein saw three vestiges of traditional copyright policy impeding his pay-per-view utopia: fair use; private, non-commercial, non-infringing copying; and the idea-expression dichotomy. Goldstein’s reading of the law and new technologies was informed by a strict economic analysis on the copyright system. Under the system, broad appeals to values beyond material concerns-culture, beauty, dignity, democracy- invite inefficiency into social, political, and economic systems. These extra-economic principles are not bad ideas per se, according to Law and Economics concepts, but proposals that appeal to them should be justified by tests of their utility. Within this school of thought, fair use and home copying have no inherent educational or democratic value. Fair use is not a good idea per se, but only a necessary flaw in what might otherwise be a perfectly efficient and rational market for cultural goods. Fair use exists simply because the “transaction costs” of restricting copying in the home and schools would be too high to justify enforcement.

If Home Box Office or its parent Time Warner had to negotiate with a consumer every time she made a videotape copy of The Sopranos for later viewing, the consumer would probably not bother recording the show. Perhaps out of frustration she would decide not to watch the show. The transaction costs of time, money, and stress would not justify the small reward the consumer gets from home recording or the small return the company would get from charging each time the consumer recorded the show. Similarly, the transaction costs of regulating every time a teacher makes a copy of a newspaper article for thirty students would be too high to justify the hassle of extracting permission and payment. Imposing high transaction costs would only chill this use. Therefore, the Conservative Law and Economics theorists argue, society benefits from fair use and private, non-commercial domestic copying only because producers can’t exact transaction costs easily and efficiently. They can’t monitor every use. They can’t send a bill through the mail and expect timely payment every time someone records a show. But Goldstein argued that the digital moment and the potential of the Celestial Jukebox reduces transaction costs to just pennies per use.

Goldstien’s proposal of extending copyright to cyberspace gives absolute control to the owner at the cost of the public good that is meant to be the central tenet of the law. Under the strict and linear economic analysis, fair use was unnecessary, as it did not fit into the ‘incentive for creativity’ system. The owners could deny permission for specific uses such as unfavorable reviews and expression of dissenting viewpoints, heightening the potential for corporate censorship. This vision of the copyright system required a strict regime of monitoring and royalty payment and Goldstein held that the existing system expanded to the digital environment was adequate for treating intellectual and cultural goods in the digital world.

While Goldstein holds the current laws adequate for the changing scenario, Andres Guadamuz Gonzales, predicts the shift from copyrights to other systems to ensure the proprietary protection of intellectual works. He considers the current legislation inadequate to control piracy on the Internet and advocates a long turn structural change in how we perceive intellectual property theft. Equating intellectual property with real tangible property, Gonzalez supports the extension of the same norms of exclusionary ownership to ideas on the Internet. The DMCA, according to Gonzalez, is a “positive step in regulating property rights in cyberspace, but it is not yet clear how effective it will be.”

Reiterating the concerns of the culture industry, Gonzalez highlights the dangerous potential for the piracy of protected works on the Internet. The connectivity of the Internet escalates the threat of piracy making even personal uses liable to cause huge losses to the industry through a ripple effect of copying and posting online. The difficulty of regulating remote networks and the inapplicability of the law across geographical terrain pose particular problems for Gonzalez. Towards this end he proposes multiple fences that would seek to limit piracy to the extent possible. As proposed by the government committees and enacted by the DMCA, multi layered protection can be used to deter people from pirating cultural works. This includes legislative fences by making laws more stringent and putting more control in the hands of intellectual property owners, building fences in courts through acting and aggressive action against infringement and removing gaps and loopholes by making registration more precise and increasing ISP liability, as well as protection through technological measures, encryption and using electronic signatures and devices to control the specific uses that can be made of the works. Ultimately, Gonzalez considers the system of protections granted by copyrights inadequate when faces with the problematic nature of the Internet that eschews regulation and control. “More protection will probably make it more difficult to people to infringe copyright online, but it will not stop it from happening. The Internet is too vast; the possibilities for infringement are too varied.”

Subscribing to the traditional narrative of copyright, Gonzalez sees the Internet and digital technology as a dangerous space that harbours escalating piracy and the theft of other people’s works. This narrative collapses the threats of infringement and the threats of technology into a single linear strand obfuscating the possibilities for radical change in the system of creativity and exchange in new technological realms. Such an analysis takes from an economic analysis that posits a linear relationship between incentive and reward on which the current copyright regime stands.

Jessica Littman offers a radically different reading of the trends in copyright legislation and the expansion of law into new technology. She points to the changing metaphors for copyright in her analysis of the history of legislation around intellectual property. She contends that the primary model of copyright has changed drastically from its inception to its expansion into the digital arena. At the outset it was hinged on the notion of “quid pro quo.” Or exchange. “The public granted authors limited exclusive rights in exchange for immediate public dissemination of the work and the eventual dedication of the work in its entirety to the Public domain.” That model gradually evolved into one of a bargain wherein the public granted limited rights to the authors as a means to advance public interest. The balance between the protection and the public interest was the central tenet of copyright. The limited protection model offered the owners only limited rights over particular uses of their works. This balance has steadily tipped in favour of the owners of copyrights and the model has been replaced with one that emerges from an economic analysis of law, characterising copyright as a system of incentives. This system posits a direct relationship between the extent of copyright protection and the incentive for creation of new works. A direct corollary of this metaphor would be that the best practice is for copyrights to last forever, a call that has been often made.

The dominant metaphor of copyrights today then, is neither of an exchange nor of a bargain. It is one of control where the owners of copyrights decide how, where and under what conditions access tot heir work will be allowed. The question now, is of the rights of the property owner to protect what is rightfully hers. (That allows us to skip over the question of what is exactly that ought to be rightfully hers.) And the current metaphor, according to Littman is reflected both in recent copyright amendments now on the books and in the debate over that those laws mean and whether they go too far. The gradual erosion of the first sale doctrine, the fair use principal and the remarkable expansion of piracy to include any “unlicensed” activity are examples of the expansion of control.

Littman contends that historically, Congress has relied upon the affected industry to shape copyright legislation. It is the tussle of interests between various industry players such as the composers and piano roll manufacturers, the authors and the motion picture industry that has determined the provisions of the law. The congress is supposed to ensure public interest but has mostly been happy to go along with whatever the other represented parties can agree upon; “to say that the affected industries represented diverse and opposing interests is not to say that all interests got represented.” Eventually, it led to the formation of statutes that granted the broadest possible rights with exceedingly narrow exemptions. Looking specifically at the 1976 Act, it becomes clear that the narrow specific language “was bound to fail the future in predictable ways.”

The laws that emerge from inter industry negotiations are designed to solve the current problems and divisions of market share with no vision for the future and what technological innovation may bring up. The Audio Home Recording Act, for instance emerged out of negotiations between copyright owners and the manufacturers of digital audio recording equipment. The recorders and audio equipment such as tapes were taxed and the resulting benefits distributed among composers, music publishers, record companies and artists according to complicated and vague formula. The required technical fix disabled consumer digital recording systems and was perhaps one of the reasons digital recorders and tapes failed to sell well. Computers soon overtook the market and computer discs which were excluded from the specifically defined devices included in the Act.

The real constituency of the copyright office have been the owners of copyrights and not the public, giving the laws a specific bent and agenda. The White Paper and Green Paper produced by the NII commission proposed the enhancement of owners right was without question in the public interest because it was a necessary first step in the creation of an information superhighway. Laws, says Littman, must be designed from the vantage point of a “hypothetical benevolent despot with the goal of promoting new technology” instead of the point of view of current market leaders whose only aim is to maintain their hegemony and market position. Such a position would recognise that copyright shelters and exemptions have, historically, encouraged rapid encouragement and growth of new media expression. By freeing content providers from well-established rules and proprietary practices, we can allow new players to enter the game and displace monopoly control. Within the “bargain” that copyright decides, the balance should be tipped in the favour of the users by asking what public good would come from new laws instead of asking how they would benefit the owners of copyrights. This would mean making the right to make copies non-fundamental to the bundle of rights that copyright encompasses. One of the radical changes brought by digital technology is that of making reproduction much more economical (almost free) and accessible than in the era of print.

For the average user, sharing an article or a music file online is the Internet version of lending a book or a CD to a friend. The common habits of information sharing and exchange of ideas are easier to transfer to the Internet that the exclusionary discourse of private property. The bent of the current constitutional provisions as well as enforcement, however, is towards a strict control of copyrighted works to maximise the protection given to copyright owners. Looking at some cases of copyright enforcement in the digital arena, the conflict between law and technology becomes even more apparent. In the process, there also appears a clear divide between public opinion and the interests of copyright owners.

Securing the Digital Millennium

At a meeting of the Copy South research group in Kerala in 2008, Debora J. Halbert spoke about a disturbing new trend in law enforcement in the U.S. Instead of looking at nations as pirates or hubs of piracy, the copyright industries and government machinery was beginning to look at individual people as pirates.

Use of copyrighted works by private individuals had always been considered fair use and enforcement agencies had never questioned that use. The transaction costs and effort involved in such action combined with the marginal returns made it economically unfeasible. As Goldstein predicted, however, digital technology changed this practice due to two main reasons. Firstly, technological advancement made it possible to track information flows on the internet, in some case even back to the specific user involved in the exchange. Second and perhaps more important was the fact that digital technology heightened the threat posed by private use by connecting millions of individual users to each other and allowing them to share information. The fears of the culture industry were expressed in the White Paper; “ just one unauthorized uploading could have devastating effects on the market for the work.” As the culture industry aggressively protects its markets, we see copyright legislation going back to its early beginnings in censorship or ideas and expressions.

Recent cases of copyright enforcement highlight the trend that Halbert indicated, exposing the rift between copyright law, free speech and privacy. They offer insights into the use of digital technology and the internet enabled cultural exchange by the common public and the repeated attempts to curb this freedom.

Secure Digital Music Initiative (SDMI): On December 15, 1998, less than two months after passage of the DMCA, the major record companies announced the Secure Digital Music Initiative, a joint effort with leading Internet, computer, and home consumer electronics companies to design a standard technology that would block the unauthorized use of digitally recorded music.

SDMI’s initial efforts centered on the design of a common security architecture and specifications that would ensure compatibility across equipment from different manufacturers. The collaborators agreed that SDMI’s principal security technology would be watermarking, a technique that entails the insertion into recorded music of a faint background sound that, though undetectable by a listener, is virtually indelible-much like a watermark on stationery. A CD player engineered to detect the watermark will neither play nor record the watermarked work other than on specified conditions.

Once they developed an effective watermarking technique, in a canny effort to test it, the group’s executive director, Leonardo Chiariglione issued a “Hack SDMI” Challenge, offering a $10,000 prize to be shared by anyone who could liberate four pre-selected musical samles from their watermarks. The participant would submit its clean copy to an “oracle” posted on the SDMI website who would respond by email indicating acceptance, if the watermark had been removed without degrading sound quality, or rejection, if it had not.

Ed Felten, an associate professor of computer science at Princeton University, decided to accept the challenge. Felten’s had been researching security and privacy issues in consumer electronics and computer software and welcomed the Challenge as an opportunity to investigate watermarking techniques without fear of industry reprisal. Felten was joined by’ another Princeton professor and three graduate students, as well as by three researchers at Rice University and one from Xerox Parc in Palo Alto, in attacking the musical samples.

Despite being given very little or no information about the watermarking technologies other than the audio samples, and having only three weeks to work with them, Felten and his team managed to modify the files sufficiently that SDMI’s automated judging system declared the watermark removed.

SDMI did not accept that Felten had successfully broken the watermark according to the rules of the contest, noting that there was a requirement that the files lose no sound quality. They claimed that the automated judging result was inconclusive as a submission, which simply wiped all the sounds off the file, would have successfully removed the watermark, but would not meet the quality requirement. Also, the hacks had to be tested for replicability; it would mean little if they could not be applied to songs other than the ones used in the Challenge. Felton concluded that only peer review and publication of his results could sustain his claim. He had already prepared a paper describing the results, and in late February 2001 it was accepted for presentation at an Information Hiding Workshop-a popular venue for researchers studying technologies like watermarking-in Pittsburgh. As the April 26 conference approached, Felten feared that, even though he had declined to sign the Challenge’s confidentiality agreement thus forgoing the $10,000 cash prize-he might still face liability under the DMCA if he published his results. If exposed, SDMI’s investment in the technology for creating the watermark would go waste and they could not be expected to not react to such a public disclosure.

On April 9, Felten received a summons from his department chair, who had been copied on a letter to Felten from Matt Oppenheim. The letter noted Felten’s plans to present a paper at the Information Hiding Workshop later in the month and urged him “to reconsider your intentions and to refrain from any public disclosure of confidential information derived from the Challenge and instead engage SDMI in a constructive dialogue on how the academic aspects of your research can be shared without jeopardizing the commercial interests of the owners of the various technologies.” It also clarified the possibility of enforcement actions under federal law, including the DMCA.”A copy of the letter also went to the Workshop’s Program Chair.

At the conference instead of his paper, Felten instead read a short statement- Stating that the RIAA, SDMI, and Verance had threatened to take legal action on the disclosure of the protection techniques for research purposes. This stirred concern at the RIAA; a press release from the organization the following week stated that SDMI “does not-nor did it ever-intend to bring any legal action against Professor Felten or his co-authors.”

On June 6, Felten and his co-authors, represented by the Electronic Frontier Foundation, filed a lawsuit in federal district court in Trenton, New Jersey, against RIAA, SDMI, Verance, and U.S. Attorney General John Ashcroft challenging the DMCA as an unconstitutional restraint of free speech. Joining Felten and his co-authors as a plaintiff in the case was the USENIX Association, an organization of computing professionals that had accepted Felten’s SDMI Challenge paper for presentation at a symposium. The defendants responded that, as reflected in the earlier RIAA press release and later communications directly to the plaintiffs, they had no intention to sue plaintiffs in the past or in the future, so there was no live case or controversy, required for a federal court to take jurisdiction. On November 28, District Judge Garrett E. Brown ruled for the defendants, dismissing the action. “The irony,” Judge Brown noted, “is that the defendants, having said we’re not going to sue you, the plaintiffs decided apparently to catalyze this action by bringing a lawsuit themselves.” Delivering his opinion orally, Brown observed: “Plaintiffs liken themselves to modem Galileos persecuted by the authorities. I fear that a more apt analogy would be to modem day Don Quixotes feeling threatened by windmills which they perceive as giants.” The Electronic Frontier Foundation’s Legal Director, Cindy Cohn, tried to put a positive spin on the result. “The statements by the government and the recording industry indicate that they now recognize they can’t use the DMCA to squelch science. If they are as good as their word, science can continue unabated. Should they backslide, EFF will be there.”

DeCSS: The DMCA was a natural target for free speech claims, for it lacks the many safety valves-such as fair use and the idea-expression distinction- that have historically immunized copyright from First Amendment attack. On the same day that Judge Brown dismissed Ed Felten’s First Amendment challenge in Trenton, the Second Circuit Court of Appeals in Manhattan affirmed a lower court decision rejecting another First Amendment attack on the DMCA. The case, Universal City Studios, Inc. v. Corley, pitted the CSS (Content Scramble System)-used to protect motion pictures recorded on DVDs from being played or copied on unlicensed DVD players-against DeCSS, a computer program that disencrypted CSS-coded DVDs so they could be freely played-in-and copied–on unlicensed equipment. (A Norwegian teenager, Jon Johansen, and two Internet cronies had developed DeCSS by dismantling a licensed DVD player to ascertain the CSS encryption keys.)

Plaintiffs, the eight major motion picture studios, charged that defendant, Eric Corley, had violated the DMCA by publishing downloadable computer code for DeCSS on the website for his magazine, 2600: The Hacker Quarterly, as well as by providing links to DeCSS websites. Defendants answered that their conduct was protected under copyright law’s fair use defense and the First Amendment’s free speech guarantee. Federal District Judge Lewis A. Kaplan had already ruled against the defendants in an exhaustive opinion. Affirming Judge Kaplan’s decision, the Court of Appeals observed that although communication “does not lose constitutional protection as ‘speech’ simply because it is expressed in the language of computer code,” the functionality of code necessarily constrains the scope of its protection under the First Amendment. “Just as the realities of what any computer code can accomplish must inform the scope of its constitutional protection, so the capacity of a decryption program like DeCSS to accomplish unauthorized-indeed, unlawful-access to materials in which the Plaintiffs have intellectual property rights must inform and limit the scope of its First Amendment protection.”

DeCSS was only the beginning of the motion picture studios’ concerns. Soon enough, advances in compression technology, cheaper and broader bandwidth, and falling prices for digital storage would make it possible for home users to exchange motion picture files with the same ease as they shared sound recordings. Indeed, as early as 2002, file-sharing services such as Morpheus were offering subscribers access not only to music files but to feature films, including current releases. The problem for the movie companies was not just illicit copies; it was the prospect that free copies of new releases would destroy the carefully timed progression from theatrical release to DVD sales, to home pay-per-view, to free television.

Napster: In 1999, a 19 year old college student named Shawn Fanning, created the Napster, a revolutionary system that allowed thousands- even millions of users to trade their music online. Within months of its release Napster had virtually become a social phenomenon and a massive commercial threat. It was one of the first and most popular peer to peer networking sites although not fully peer to peer as it used a central server to to maintain lists of connected systems and the files they provided, while actual transactions were conducted directly between machines

Universities complained that Napster was consuming huge amounts of their bandwidth and the music industry proclaimed it as the most blatant sort of Piracy: Stealing. Napster’s facilitation of transfer of copyrighted material raised the ire of the Recording Industry Association of America (RIAA), which almost immediately — on December 7, 1999 — filed a lawsuit against the popular service. Soon, recording artists like Metallica, Dr. Dre and Madona joined in, angered by finding their own tracks available and being traded on Napster. In 2000, A&M records and several other recording companies sued Napster (A&M Records, Inc. v. Napster, Inc.) for contributory and vicarious copyright infringement under the US Digital Millennium Copyright Act (DMCA). The music industry made the following claims against Napster:

1. That its users were directly infringing the plaintiff’s copyright
2. That Napster was liable for contributory infringement of the plaintiff’s copyright
3. That Napster was liable for vicarious infringement of the plaintiff’s copyright.

After a failed appeal to the Ninth Circuit Court, an injunction was issued on March 5, 2001 ordering Napster to prevent the trading of copyrighted music on its network. In July 2001, Napster shut down its entire network in order to comply with the injunction.

Napster lost the case in the District Court and appealed to the U.S. Court of Appeals for the Ninth Circuit. Although the Ninth Circuit found that Napster was capable of commercially significant non-infringing uses, it affirmed the District Court’s decision. On remand, the District Court ordered Napster to monitor the activities of its network and to block access to infringing material when notified of that material’s location. Napster was unable to do this, and so shut down its service in July 2001. Napster finally declared itself bankrupt in 2002 and sold its assets. It had already been offline since the previous year owing to the effect of the court rulings

After a $2.43 million takeover offer by the Private Media Group, an adult entertainment company, Napster’s brand and logos were acquired at bankruptcy auction by the company Roxio, Inc. which used them to rebrand the pressplay music service as Napster 2.0.In September 2008, Napster was purchased by US electronics retailer Best Buy for $US 121 million. No one wanted government regulation of the music business. No one except the record companies wanted to cede power back to the recording companies and their established system of royalties.

Despite predictions of the doom of the recording industry owing to file sharing, there were those who felt just the opposite. The examples of bands like Radiohead and Dispatch who were not commercially successful and popular having become so after their music was leaked on the Napster server suggest the possibility that file sharing may actually lead to the popularization of music through peer reviews and comments and may create avenues for new players to enter a market fiercely dominated by the top selling celebrity artists.

Teaching Troubles: In 1999, Professor Horatio Potel who teaches philosophy at Universidad Nacional de Lanús in Beunos Aires set up a personal website to collect essays and other works of some well-known philosophers, starting with the German Friedrich Nietzsche and Martin Heidegger.

One of Potel’s most popular websites, www.jacquesderrida.com.ar focused on his favourite French philosopher, Algerian-born Jacques Derrida (1930-2004). The website had Spanish translations of many of the philosopher’s works, translated into Spanish as well as discussion forums, research results, biographies, images and the usual pieces of information typical of this type of online resource. Professor Potel wanted to make research material and years of his own work on the philosopher available to students who did not have access to many books or materials otherwise in Argentina.

On December 31, 2008, a criminal case was initiated against Potel after a complaint was lodged by the French publishing house Les Éditions de Minuit that has published only one of Derrida’s books in French. Minuit’s complaint was passed on to the French Embassy in Argentina and it became the basis of the Argentina Book Chamber’s legal action against Prof. Potel. He is not facing criminal charges of copyright infringement and if you access the site now, you will find a warning saying “This website has been taken down due to a legal action initiated by the Argentina Book Chamber.”

The utility of the website for educational purposes and as a tool for dissemination of research dialed to qualify it as fair use. The fact that the website did not hamper profits accruing to the publishers since the books were out of print also did not have a bearing as the works were still copyright protected and the website was technically in violation of the law. In this case, monopolistic impulse of the publishing industry lead to the demise of a valuable resourse for students who otherwise would not have quick and easy access to scholarly research for their educational use.

Demitry Sklyarov: On July 16, 2001, due to a complaint from Adobe Systems, a US company, that copy protection arrangements in its e-book file format were being violated by ElcomSoft’s product, Sklyarov was arrested after giving a presentation called “eBook’s Security – Theory and Practice” at the DEF CON convention in Las Vegas, Nevada. He was charged with distributing a product designed to circumvent copyright protection measures, under the terms of the Digital Millennium Copyright Act and arrested by the FBI as he was about to return to Moscow.

About 100 protesters marched on Adobe’s San Jose headquarters to demand his release from what would have been the first criminal prosecution under the DMCA. The day after his arrest several web sites and mailing lists were started to organize protests against his arrest, many of them under the slogan “Free Dmitry” or “Free Sklyarov”. The main point of these campaigns was that no DMCA violations were committed at DEF CON, and the DMCA does not apply in Russia, so Sklyarov was being arrested for something that was perfectly legal in his jurisdiction. A campaign to boycott Adobe products was also launched.

The company Sklyarov worked for in Moscow, Elcomsoft soon faced federal criminal charges in the USA (even though Digital Millenium Copyright Act is only a US law) after Sklyarov agreed to testify in exchange of immunity. Both the company as well as the programmer were charged of violating the DMCA by distributing a program that wilfully violated the act by allowing readers to make private copies of e-books. In December 2002, a jury found the company not guilty.

Pirate Bay: The Pirate Bay is a Swedish website that indexes and tracks BitTorrent (.torrent) files. It allows users to search for and download BitTorrent files (torrents), small files that contain metadata necessary to download the data files from other users. The torrents are organized into categories: “Audio”, “Video”, “Applications”, “Games”, “Other” and “Porn”. Users can register free by entering their email address. The website allows them to upload torrents as well as comment of existing torrents. Downloading data files from other users is facilitated by the BitTorrent trackers that also run on The Pirate Bay servers.

The website features a relatively efficient browse function which enables users to see what is available in broad categories like Audio, Video, and Games as well as more specific categories like Audio books, High resolution Movies, and Comics. The contents of a category can then be sorted by file name, number of seeds or leechers, dates posted, etc.

It bills itself as “the world’s largest Bit Torrent tracker” and is ranked as the 106th most popular website by Alexa Internet. The website is primarily funded with advertisements shown next to torrent listings. Initially established in November 2003 by the Swedish anti-copyright organization Piratbyrån (The Piracy Bureau), it had been operating as a separate organization since October 2004. The website is currently run by Gottfrid Svartholm (anakata) and Fredrik Neij (TiAMO).

On 31 May 2006, the website’s servers, located in Stockholm, were raided by Swedish police, causing it to go offline for three days. The Los Angeles Times, described Pirate Bay as “one of the world’s largest facilitators of illegal downloading”, and “the most visible member of a burgeoning international anti-copyright—or pro-piracy—movement”.

The trial started on 16 February 2009 in the district court (tingsrätt) of Stockholm, Sweden. The hearings ended on 3 March 2009 and the verdict was announced on Friday 17 April 2009: Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström were all found guilty and sentenced to serve one year in prison and pay a fine of 30 million SEK (app. €2.7 million or USD 3.5 million). The court found that the defendants were all guilty of accessory to crime against copyright law, strengthened by the commercial and organized nature of the activity. The court, however, never presented its corpus delicti (that is, it never attempted to prove that a crime was committed, but it succeeded in proving that someone was an accessory to that crime). Prosecutor Håkan Roswall cited in his closing arguments a Supreme Court of Sweden opinion that a person holding the jacket of someone committing battery can be held responsible for the battery. In its verdict the court stated that “responsibility for assistance can strike someone who has only insignificantly assisted in the principal crime”, referring to a supreme court precedent where an accountant was sentenced for accessory to crime even though his actions were not criminal per se. The court rejected the charge of preparation to crime against copyright law. All the defendants have appealed the verdict.

On 18th February, 2009 the Norwegian socialist party Red began a global campaign in support of The Pirate Bay and ‘filesharers’ worldwide that lasted until 1st May. Through the website filesharer.org, filesharers are encouraged to upload their photographs, as “mugshots”, to “let the music and movie industry know who the file-sharers are.” The site encourages participation urging people to “Upload a picture of yourself and show them what a criminal looks like!”. Red politician Elin Volder Rutle is the initiator of the campaign and she states to the media that “If the guys behind Pirate Bay are criminals, then so am I, and so are most other Norwegians.” The campaign was timed to coincide with the trial against the founders of The Pirate Bay which began on 16 February. The Pirate Bay has also been shown support from people all over the world, with more than 200.000 (as of June 2009) members currently joined to support the group on facebook.

Screenshot from www.filesharer.org

Jamie Thomas Rasset: In 2007 a jury slapped the single mother with a $222,000 verdict in her case against the RIAA, which she later appealed. Capitol v. Thomas (previously named Virgin v. Thomas) was the first file-sharing copyright infringement lawsuit brought by major record labels to be tried before a jury. The defendant, Jammie Thomas, was found liable in a 2007 trial for infringing 24 songs and ordered to pay $222,000 in statutory damages. The court later granted her motion for a new trial because of an error in its jury instructions. In the second trial, in 2009, a jury again found against Thomas, this time awarding $1,920,000 in statutory damages.

In the trial, the plaintiffs alleged that on February 21, 2005, Jammie Thomas shared a total of 1,702 tracks online. The plaintiffs, however, sought relief for only 24 of these. Thomas’ legal defense was to claim that she had not shared the files. Her lawyer suggested her computer could have been under the control of people elsewhere due to “a spoof, a zombie or some other type of hack”.

The jury was instructed that merely “making available” sufficed to constitute an infringement of the plaintiffs’ distribution right, even without proof of any actual distribution. The issue of actual distribution was raised by the defense on the first day of trial, but the court sustained the plaintiffs’ objection and did not permit the topic to be revisited until jury instructions were prepared just before the end of the trial. Despite disagreement from the defense, the court proceeded to interpret making available as distribution for purposes of instructing the jury.

On October 4, 2007, after 5 minutes of deliberation, the jury returned a verdict finding her liable for willful infringement, and awarded statutory damages in the amount of $9,250 for each of the 24 songs, for a total of $222,000. However, the judge in Thomas’ trial ordered a retrial because recent case law has cast doubt on the theory of “making available” as sufficient for infringement.

In May 2009, during preparation for the retrial, Brian Toder stepped down as Thomas-Rasset’s lawyer. Thomas-Rasset then accepted Kiwi Camara’s offer to defend her pro bono. The retrial was held on June 15, 2009 where the jury was instructed to find the owners’ copyrights were infringed provided the ownership claims were valid and provided there was an infringement of either the reproduction right (via Thomas-Rassett “downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners”) or the distribution right (via Thomas-Rassett “distributing copyrighted sound recordings to other users on a peer-to-peer network, without license from the copyright owners”). For each song reproduced or distributed, the infringement had to be assessed as willful or non-willful, and damages assessed accordingly. The jury was not allowed to be specific about which rights (distribution or reproduction) were infringed, and unlike in the first trial, the judge didn’t attempt to define distribution.

The jury found Thomas-Rasset liable for willful copyright infringement of all the songs, and awarded to the plaintiffs statutory damages of $1.92 million ($80,000 per song, out of an allowed range of $750 to $150,000

On July 6, 2009, Thomas-Rasset filed a motion asserting the statutory damage award was so disproportionate to actual damages as to be unconstitutional, and announcing her intention to appeal two prior court orders permitting the plaintiffs to present certain evidence at trial. The evidence in question includes allegedly incomplete and therefore inadmissible copyright registrations, and evidence collected by MediaSentry, which the motion claimed should have been inadmissible because it was collected in violation of state private investigator & wiretap statutes. The motion called for either a retrial with that evidence suppressed, a reduction of damages to the statutory minimum ($750 per song; $18,000 total), or a removal of statutory damages altogether.

The same day, the plaintiffs filed a motion asking for an injunction against Thomas-Rasset, which would require her to destroy all, infringing sound recordings on her computer, and desist from any further infringement of their copyrights. Their motion claims trial evidence established that Thomas-Rassett “was distributing 1,702 sound recordings…to millions of other users” and that the plaintiffs would face “great and irreparable harm” if she were to continue to infringe upon their copyrights.

Unlike most people, Thomas-Rasset never opted to settle with the RIAA, determining that she had the law on her side. Unfortunately for her the jury in this landmark case ruled she did not.

“We appreciate the jury’s service and that they take this issue as seriously as we do,” said Cara Duckworth, an RIAA spokeswoman. “We are pleased that the jury agreed with the evidence and found the defendant liable. Since day 1, we have been willing to settle the case and remain willing to do so.”

In the US juries can hand out fines up to an unbelievable $150,000 per infringement on a single song. The average settlement in related RIAA cases is around $3000, which is peanuts considering this recent verdict. In this light many people might be inclined to settle with the RIAA even when they don’t even own a computer.

Internet Ideology: Prosecuting Personal Use

Jessica Limman looks at the massive number of lawsuits aganst peer to peer sharing as a consequence of the industry latching on to the dangers of easy replication. In this aggressive enforcement strategy, “the efforts to capture control over personal use is moving further and further into the consumers homes.” Commercial use has now come to be defined as any “unlicenced activity.” She attempts to locate the space for the reader, listner, viewer and the general public in copyrights through the lens of personal use reinstating the claim that copyright law encourages authorship as much for the benefit of the public as for the authors and their distributors. Backup copying or transfering the digital media to a different player constitute unlicensed used that are still within the ambit of personal use. In the time of publishing, personal use did not require an excuse to be lawful. Fair use cases have mostly covered used that are both public or commercial or both so the use of the fair use factor for ascertaining the parameters of personal use is both clumsy and unhelpful. The problem is escalated by the large numbers of private citizens who are connected through the internet. Faced with such numbrs, the law deems the non commercial downloaders commercial as well and in that, “getting for free what you might otherwise have to pay for is a rather broad yardstick”

The copyright industries savour their role as critical intermediaries in the copyright supply chain. To this end they are continually seeking to strengthen their legal entitlements by arguing that stronger copyright incentives fuel future creative action. But the reality of creativity is different from the linear economic reward / action relationship that these industries promote. Much of this creativity occurs without reference to the incentive structure provided by copyright law and demonstrates the potential redundancy of several existing industry functions. The result has been a seemingly intractable tension between established industries and emergent modes of production and dissemination that is evident in the cases listed above. The current debates over the utility of peer-to-peer technology and the competition between proprietary and open source software development models have emerged as the primary subjects of this debate. Paul Ganely examines the “incentive for creativity” argument in the digital arena judging it against the various online creative endeavors that are not prompted by the promise of economic rewards or even popularity or attribution. The internet represents a paradigm shift in the was we think about and relate to information and creativity. Ganely looks at the examples of blogs, wikipedia, the open source software, websites, search technology and torrents as making existing information more imprtant by facilitating new ways of access.

Wikipedia as a “self-conscious social-norms-based dedication to objective writing” eschews author-centric copyright incentives, whilst still managing to create an increasingly comprehensive resource that is more widely used than traditional reference works such as the Encyclopedia Britannica. The mozilla firefox web browser developed as an open source software is available for free download. Within a few years of its launch it has been able to present a significant alternative to the windows explorer. This in part may be due to the voluntary development of new versions and fixes to problems as compared to the need to wait for microsoft to release a proprietary verision of the windows software and offer upgrades. Blogs and networking websites supplant news channels and websites as the primary sources of information and also show revolutionary potential as was seen in the case of the South Korean website www.ohmynews.com which is credited with shaping the outcome of the presidential elections in Korea in 2002 and the recent use of twitter as a means of revolution and protest in the case of Iran.

The copyright industries view all these trends as threats and rely on the DRM technology to put protection blankets around the ways of distribution and dealing with works in the digital environment. The internet explodes the sanctity of originality in the contect of creative works and encourages the creatio of continuous flows that decenter the author function. Lawmaking tends to take from the romantic author assumptions and expand digital control, thereby, bypassing the traditional safety valves operating in the body of the copyright law itself.

Deborah Halbert expands this notion of the continuos flows in her examination of the transformation of authorship in the digital realm. She argues that the author is so firmly embedded in aur thought process that we look to the author as the owner instead of looking behind the role of authorship to the production of discourses in socirty. “our language is encases in the notions of “property”, “intellectual work”, “intellectual products” and “proprietary ideas” and copyright helps solidify the notion of authorship as a textual boundary. The first possible potential for authorship in the digital realm then, is to replace the emphasis on authorship with an emphasis on dialogue. The internet is a collection of people with little concern for the economic rationale offered by copyright. it gives primacy to the potential for dialogue and connectivity. Hypertext, is an important form that facilitates this interaction as one can move from document to document with little regard for or dependency on the author function. the one to many format of mass communication where the recepient has little control is replaced by a system that puts compltete control in the hands of the recepient. The internet’s many to many format. As each reciever is responsible for filtering and reshaping the information, the author loses centrality.

This system of flows frees information from the confines of property laws and makes it more akin to traditional oral modes of communication that allow space for multiple perspectives and voices and adapting the discourse to specific contexts. The internet too, however, is not an entirely free space and is beset with its own contradictions and shaped by commercial and proprietary agendas that seek to regulate its flows. Massive numbers of users are offset by the monopolisation of cyberspace by large industry plyaers like google and microsoft. The debate on its ultimate shape stands between the monopoly and commercial interests of the industry players using copyrights as a means of expanding control and the increasing numbers of users who seek to wrest control from the industry and make the internet a public realm for the free exchange of ideas.

The Copy, Knowledge and The Author
Knowledge and the Internet: The shifting author

In this chapter we question the notions of the fixity of the author through the tropes of knowledge and the circulation of information flows. How can the position of the author be validated in the current times of increased fluidity, when the binaries of the author /reader/consumer are increasingly under question?

Lawrence Liang’s article “A brief history of the Internet from the 15th to the 18th century” discusses and questions the beliefs around points of knowledge dissemination, earlier the book and now increasingly the Internet. The emergence of the Internet encyclopedia called Wikipedia has been fraught by much anxiety amongst the academic community. The fact that this internet site, accessible by all (anyone can edit the information here) referring to the sacred cow of knowledge, Encyclopedia Britannica gestures not only to the shifts in the nature of the site of knowledge production but also depicts the authorial position in a transition. The critics of Wikipedia now argue that the task of creating an encyclopedia should be left to experts, and that Wikipedia is nothing more than a collection of articles written by amateurs, which at its best can be informative, and at its worst, dangerous. According to Liang, this shows that there is an unstated assumption on the fixed nature of authority that the book commands. Authority of Knowledge, according to him, is spoken of in a value neutral and ahistorical manner. It would therefore be useful to situate the Authority of Knowledge within a historical context, where authority is not seen to be an inherent quality but a transitive one, and one whose history is located in specific technological changes. The technology of print and paper brought about a set of questions around the issue of authority, and in the same way, that the domain of digital collaborative production of knowledge raises a set of questions and concerns; so can we impose the same Authority of Knowledge question that emerged over centuries in the case of print to a technology that is barely two decades old. Liang goes on to demonstrate that perhaps the shift in authority in not just result of a dichotomy between old media and new media, but locates the conflicts that have been associated with granting the book the privileged position of an artifact of knowledge.

The Fluidity of Knowledge

“Stenography transforms the spoken word into the written. Copying transforms the One into the Many. Notarising transforms the private into the public, the transient into the timely, then into the timeless…The notary was a symbol of fixity in a world of flux, yet the making of copies is essentially transformative – if not as the result of generations of inadvertent errors, then as a result of masses of copies whose very copiousness affects the meaning and ambit of action”
– Hillel Schwartz

There is a certain self-assuredness in the claim that the book makes upon the domain of knowledge. However this was not always the case, and certainly not the case that books were considered to be naturally reliable sources of authority. According to Adrian Johns, who has written one of most comprehensive histories of the Book, “It was regarded as unusual for a book professing knowledge from lowly almanacs to costly folios- to be published in relatively unproblematic manner that we now assume”. Reproduction of texts and cultural objects also existed both in the world of Christendom and the Dar-ul-Islam. In the west, medieval monks and notaries toiled away copying books, legal documents and contracts.

In the pre print era the mode of reproduction of manuscripts was usually characterized as being full of mistakes and incredibly unreliable. This absence of certainty in early history of the book was attributed to the mistakes made by scribes who had to copy by hand over many hours and were prone to making mistakes, since there was no fool proof method of ensuring the accuracy of the scribes methods. There were debates on the question of trustworthiness arising out the existence of many copies, all of which differed form each other. According to Liang, it is therefore important to situate the history of print technology and the ways that it changed the production and dissemination of knowledge, because it is was in many ways the ‘information revolution’ of human history, and in an uncanny way, there are many similarities between the birth of the print revolution and the contemporary moment of the internet. One area for instance which saw immense conflict was in the publication of the bible. Given that a lot of the early publishing was of the bible, the move from the scribe to the printing press was certainly not welcomed by all. In the 17th century a papal bill was even issued against publishers excommunicating them for mistakes made in the printing of the Vulgate Bible authorized by Sextus V; All copies of the 1st edition that were printed had to be confiscated and destroyed). What practices and notions of the author were considered valid before the era of the print came in to being? It is necessary to know this, since this largely set forth the beginnings of authorial conformation.

According to Mark Rose in the Middle Ages the owner of a manuscript was understood to possess the right to grant permission to copy it, and this was a right that could be exploited, as it was, for example by those monasteries that regularly charged a fee for permission to copy one of their books. This was somewhat similar to copyright royalty with the crucial difference that the book owner’s property was not a right in the text as such but in the manuscript as a physical object made of ink and parchment. 4 The value provided by the monastery and the reason for their charging for their copy fee did not emerge just from the existence of the copy alone, but also in the fact that each monastery also had their unique elements in the form of the annotations, the commentary, corrections which only that particular monastery’s copy might contain. So while the popular account of pre print cultures is of slavish copying by scribes, the story turns out to be slightly more complicated. Acting as annotators, compilers, and correctors, medieval book owners and scribes actively shaped the texts they read.

What happened when printing came in? The shift from manuscript to the printing technology was not a comfortable co-existence as it is often believed to be. Technically it had been possible for writers to have their works copied verbatim, just that the manual task of copying often led to mistakes or to creative appropriations; and technically readers could still amend a printed book as if it were a manuscript, but they were less likely to do so. This indicates the establishment of norms of print culture, and of a new kind of professional reader, whose public presence was made possible by the production of identical copies of their editions.

While the history of the print technology is simultaneously a history of struggles over the idea of Authority of Knowledge, the emergence of the Authority of Knowledge is often narrated in a teleological fashion, which assumes that it did away with the crisis of reliability and there emerged a single authoritative idea of knowledge. Liang says that it is worth bearing in mind the fact that it also did away with a range of knowledge practices that existed in pre print cultures, some of which have been resurrected in contemporary digital practices. Since the very technology of knowledge production in the pre print era was built on a very material and interactive process (the copying by hand, which also relied on the labour of the simultaneous labour of the eye and the mind), it enabled a participatory reading and writing process that was simultaneously suspicious of any source of authority. He cites the example of Chaucer and says that in the disclaimer before the Miller’s Tale, Chaucer states that he is merely repeating tales told by others, and the tales are designed to be the written record of a lively exchange of tales between multiple other tellers, each with different, sometimes opposing intents. Interestingly Chaucer seems to invite not merely an approach that recognizes the importance of retelling stories, but seems to invite a mode of reading, which simultaneously incorporates the ability to edit and to write. This invitation was accepted by late medieval readers who took great pleasure in creating copies of the tales that drastically cut, expand, edit and otherwise modify Chaucer’s work. This activity goes beyond the mechanics of scribal copying and looks very much like the Wikipedia. Thus, what emerges as the focus of the pre print era is the fact that the authority to possess knowledge was never a given and in fact, trust was the basis of knowledge. Liang thus seeks answers in the knowledge apparatuses that come in to play to establish knowledge’s authority. For the book, the authority of knowledge depended on the arrangements, assemblage and classifications by which the title and author of a work are identified play very specific functions in preparing for knowledge, as do the several kinds of documentation, attribution, citation and copyright. Accordingly the history of the knowledge apparatus also includes, in every era, instances of false attribution, misquotation, plagiarism of many kinds, and spurious appeals to authority. Nevertheless, without the knowledge apparatus, which constitutes the means by which knowledge is passed on and by which it evolves and mutates, there would be no knowledge. Knowledge might thus be regarded as simultaneously possible yet problematic at the level of the apparatus. The project of encyclopedias which aims in many ways to be the definitive Knowledge Apparatus is bound to be a project which will always be fraught with conflicts and contestations; As a project at whose heart lies ideas of classification and linking, it constitutes the ultimate challenge of a knowledge apparatus. Liang cites the work of Cheryl Gunnes, who shows fascinating linkages between the encyclopedias and the novels of the 18th century.

In the case of encyclopedias, where the entire aim of the project is to devise a system of classification of knowledge, every new encyclopedia is both a response to as well as an intervention into the question of how we know. And while Classification is at the heart of this enterprise of order giving and sustaining, its exclusions, separations and forced hierarchies haunt every classification system, its conversion of fluid emergent processes and events into stable categories. This perhaps explains why the most heated debates on knowledge and authority take place on the site of encyclopedic interventions.

In order to explain the limits and arbitrariness of taxonomy, Liang takes the example of Borges who cites a Chinese encyclopedia in which it is written that:

Animals are divided into:
(a) belonging to the Emperor,
(b) embalmed,
(c) tame,
(d) sucking pigs,
(e) sirens,
(f) fabulous,
(g) stray dogs,
(h) included in the present classification,
(i) frenzied,
(j) innumerable,
(k) drawn with a very fine camelhair brush,
(I) et cetera,
(m) having just broken the water pitcher,
(n) that from a long way off look like flies

This brilliant compilation became the inspiration for Foucault to write “The Order of Things”, a treatise into the conditions under which domains of knowledge come into being, an exploration of their classificatory logic and their enumerative reasoning. The role of encyclopedias is not just to provide greater stability and authority to our worlds, as their roots in the enlightenment would have us believe. But equally to destabilize our world by suggesting new modes of classification, new methods of compilation and generating new authorities of knowledge.

According to Umberto Eco, the encyclopedia, contrary to the intentions of its Enlightenment origins, cannot contain an absolutely ordered universe in an authoritative and rational way. It can at best supply rules, which provide some provisional semblance of order. In other words, encyclopedias are attempts at give meaning to a disordered world whose criteria of order exceed certainty. To assume that encyclopedias can fulfill the task of achieving certainty is to misunderstand the history of encyclopedia.

As Liang suggests, it then might therefore be worthwhile to think of the uncyclopedia- If the encyclopedia (with its strict rules of authorship etc) is a form that attempts to pull towards ordered taxonomy, then let us think about the possibilities that the encyclopedia can also be a form which alerts us to its own incompleteness and a little declassifying and disorderliness may not be such a bad thing.

The Author of the Copy
The Physical Copy

Imagine a medieval network of monasteries (and later, universities) as “nodes” of learning, text copying, cultural creation, and exchange of a wide variety of material, all using the universal language of Latin. Among monasteries, news traveled faster and more efficiently (when not disrupted by invasions) than we might imagine. This system of monasteries was the original Internet, albeit at fractional baud. Medieval Christians thought of themselves as connected to a greater consciousness, a community of souls, which was as real and powerful to them as cyberspace is to its denizens today. Medieval neo-Platonists imagined a mediating mystical intelligence or “Nous” between God and man that we might see as a sort of collective wired consciousness. Some wealthier members of medieval society even had laptops – traveling altars that folded up like books, or prayer books, which contained private devotional images – so that they would never find themselves out of touch. While medieval monks did not have the powerful copying technology we possess today, their literary and scholarly production was based on copying, on the physical work of reproducing manuscripts, and this heavily influenced their aesthetics. It was virtually impossible to be a reader without also being a writer; in fact, from the errors many monastic copyists made, we can infer that they may have learned, physically, to write before being able to really read. An individual reader might own a book into which he copied his own favorite romances, short poems, histories, and word play, trying out his own literary experiments in the margins. He might borrow a friend’s book and copy new material from it – much as computer users today may download interesting files, software, and games to their hard drives, and share them with friends, thinking nothing of the implications of copyright law. As long as one is not claiming to be the author or trying to make a profit, the reasoning goes, what’s wrong with copying? As Liang says, if we cannot all agree on the legal implications of copying technology, we can at least celebrate some of the freedom of the “new medieval” aesthetics: the ease with which everyone can “publish” their work; the fluidity and creative blurring of literary genres; the freedom to experiment with page layout and illustration; the underground exchange of texts that might not, for whatever reason, make it into print.

Secondly, does today’s new digital reproduction technology still allow differences to be produced? In this regard, Plato’s denial of artistic authorship in mimesis might better apply to the contemporary digital culture where plagiarism is a matter of cut and paste seemingly involved no human labor and intellect. Plato’s philosophy is criticized as indifferent to artistic values, but in the age of digitalization and extreme commercialization, maybe we can expand our horizon to understand copying or a work of art from pure aesthetics notions to focus also on other social and ideological issues pertained to the specific reproduction. Liang believes that the production of “differences” is still a valid concern in contemporary reproduction technology as long as a “different” product is resulted. However, the mediation and alternation process is invested no longer only with artistic values but also many economic concerns, cultural values, and structures of feelings that are pertinent to our everyday culture. In his defining piece of work, “The Work of Art in the Age of Mechanical Reproduction”, German cultural critic Walter Benjamin, used the word “aura” to refer to the sense of awe and reverence one presumably experienced in the presence of unique works of art. According to Benjamin, this aura inheres not in the object itself but rather in external attributes such as its known line of ownership, its restricted exhibition, its publicized authenticity, or its cultural value. Aura is thus indicative of art’s traditional association with primitive, feudal, or bourgeois structures of power and its further association with magic and (religious or secular) ritual. With the advent of art’s mechanical reproducibility, and the development of forms of art (such as film) in which there is no actual original, the experience of art could be freed from place and ritual and instead brought under the gaze and control of a mass audience, leading to a shattering of the aura. “For the first time in world history,” Benjamin wrote, “mechanical reproduction emancipates the work of art from its parasitical dependence on ritual.”

The Copy of Content

Print in fact opened up the floodgates of diversity by the 17th century: historical work on the cultural uses of print in the French revolution shows the proliferation of pornographic, anti-clerical and revolutionary texts. There were deliberate forgeries, and the insertion of parodic statements in official texts. Forgeries, re-interpretations and parodies were common to popular print culture. However, issues raised by the art forger after the emergence of the modern painting went straight to the heart of authenticity, individuality, uniqueness and historicity as the representational architecture of the bourgeois artwork. Discussions of forgeries and copies of art works existed since the Renaissance, but what is interesting for our purposes is the practice of forgery as a cultural act. The Hungarian scholar Sandor Radnoti in his book on the art fake has this to say on the practice of art forgery. “ The forger attacks originality from the point of view of historical authenticity, insofar as his work gives the impression that it contains the story that conveys the same historical evidence as the original. However the clock of history is ticking away for the forger’s work as well, it too embarks on a life of its own, and it is only a question of quality, good luck, and time that having survived in historical memory sufficiently long, it becomes authentic, a genuine forgery…” Forgery says Radnoti is a functional art form, which interchanges the interchangeable, substitutes the unsubstitutable.” The crisis of authenticity of the cultural object has been present right from the outset of modernity; it intensified rapidly after forms of mechanical reproduction. This is of course the argument of Benjamin’s important and controversial artwork essay, where copies and mechanical reproduction subvert the authenticity of cultural products. This says Benjamin, subverts the “here and now” of the artwork, “its unique existence in the actual place it happens to be.” For Benjamin the aura is the marker of bourgeois art, “the spiritualization of commodity fetishism”, something that is destroyed by new techniques of copying. Critics have pounced on the technological innocence of the artwork essay, and the re-appearance of aura in the new culture industries, but the value of the artwork essay lies in synoptic power and a bold imaginative insight into the culture of the copy in modernity. The major transformation of the culture of the copy took place in the 19th century. From the times of the Renaissance where copying of cultural products was common and legitimate, the 19th century saw the emergence of proprietary regimes of mechanical reproduction, when the culture of the non-legal copy enters a secular period of criminalization and delegitimation. Today a cluster of legality and non-legality has become common for referring to India’s techno culture. Ravi Sundaram in his article “Recycling Modernity” writes that, when the cable television revolution began in the 1990s, all the cable operators were illegal. This largely disorganized, dispersed scenario made it impossible for paid cable television to work in India. This was a pirate modernity, but one with no thought about a counterculture; it was a simple survival strategy. The computer trade has also followed the pirate modernity of cable television. Worlds like Nehru Place according to Sundaram are everyday in its imaginary, pirate in its practice and mobile in innovation. This is also a world that never makes it to the computer magazines, nor the technological discourses dominated by the cyber-elites. One can call this is a recycled electronic modernity and the illegality of recycled modernity is called “unproductive”. For recycled modernity has no discrete spaces of its own in opposition to the main cyber –elites, nor does it posit a self-defined oppositional stance. This is a modernity that is fluid and mocking in its definition. The term ‘recycling’ conjures up images of a borrowed, unoriginal modern. Originality (the eternal search for newness) was Baudelairian modernity’s great claim to dynamism. Recycling practices’ claim to modernity relies less on any architecture of mobility, but on an engagement with speed. Speed constitutes recycling’s greatest reference to activity, centered on sound, vision and data. Liang extends on this thought in his article “ Beyond Representation: The Figure of the Pirate” and says, “Piracy seems to allegorize an impure transgression, tainted by commerce and an inability to produce a discourse on itself. Pirate production of commodities and media objects fits neither a narrative of resistance nor normative critique, nor does piracy seem to fit received models of creativity or innovation. Piracy produces a series of anxieties: from states, transnational capital, and media industries and even in some liberal proponents of the public domain. The efflorescence of non-legal media production and circulation exists as a series of publicly articulated facts, constantly referred to in media panics, national security discourses, and everyday conversations.” How does the figure of the pirate enter the realms of critical understandings and the domain of intellectual property?

According to Liang, the pirate emerges as an abstract spectral figure unlike members of the public domain who has a clear visibility, and is enumerated as:

Either as demonized figure: This is of course the predominant logic, of IP enforcers who equate the pirate as the ultimate embodiment of evil. From being linked to terrorism to the underworld, from being the cause for the decline of the entertainment industry to evasion of taxes to the state, the pirate as a criminal figure invites the legal attention of the state and of private enforcers. In recent times, the criminalized figure of the pirate has also become the subject of media attention, and rarely does a day go by without some sensational account of a raid. On the other end of the spectrum, that is, within the work on IP and the Public domain, there is either an embarrassed silence about the pirate or a disavowal of the pirate. In Stallman’s work for instance, it is very clear that piracy is as unacceptable to the free software movement, as it is to copyright enforcers. What then is the exact problem of piracy and why can it not be accommodated within the terms of public domain theorists? Surely, it cannot be just the fact that it is tainted by illegality, since many other acts including downloading music are also tainted by illegality. There are ways in which these acts find redemption, which the pirate just cannot. Is it the particular problem peculiar to the nature of the illegal act, the domain that it operates in and the subjectivities that it interpolates? Piracy seems to be tainted by a few factors:

• That piracy is commercially tainted:

Since piracy operates within the logic of profit and within the terms of commerce, it gets tainted as an activity, which cannot claim the moral ground in the way that other non legal media practices can. For critics of the copyright regime dominated by media conglomerates it would be an embarrassment to admit that they are supporting any non legal commercial enterprise. Their stance against piracy may therefore stem from either a strategic or an ethical position.

• That it deals with the domain of pleasure and desire

Often a very strong reason for the suspicion of commercial piracy in relation to entertainment stems from the fact that it pertains to the domain of pleasure. Unlike access to affordable medicines or to learning materials, there is very little possibility of redeeming piracy that provides people with low costs DVD’s, MP3’s etc. In many ways the suspicion of the domain of pleasure also stems from an older developmentalist logic, and civil society groups involved for instance in the ICT4D sector are especially pedagogic in their approach to the ‘real information needs’ of the poor, and movies and music certainly don’t count within this.

• That it is not creatively transformative

One of the critiques of commercial piracy is that unlike the case of transformative piracy, commercial piracy is unable to redeem itself by an act of creativity. Thus, while the young musicians who illegally download, then remix the music to produce new music, in the case of commercial piracy, in which there is a slavish making of copies there is no transformative redemption.

• The Collapse of the rule of law and of property

Finally, any justification of piracy is seen to fall within larger accounts of the collapse of the rule of law. Scholars working on understanding the phenomenon are accused of romanticizing illegality, and a sympathetic look at piracy is equated to a support for anarchy and lawlessness.

Thus we see from the above, that the inherent problems of piracy lies in seeing at a term of political culture and the public domain, because piracy does not fit in to the categories of resistance, subversion or creativity or even citizenship. The only manner then in which the ‘copyright infringer is rescued from the accusation of being an illegal pirate is through an act of redemption, for instance by showing that their acts of infringement actually result in an increase in creativity, and this is often done through doctrines such as the idea of transformative authorship. But then what happens to entire realm of non-transformative authorship or the ‘Asian piracy’, which does not necessarily transform but merely reproduces ceaselessly using cheap technologies.

The difference between Public Domain scholars and copyright advocates lies in their understanding and interpretation of the idea of the creative. Public domain advocates would argue that the realm of creativity is enabled by various acts of copying, for it is through constant copying and additions that a re-generative culture of production is achieved. Thus if someone creates a parody or a remix or a version, there is no problem since they all add to the larger pool of raw ingredients available to all in the public domain. At the heart of the public domain lies a particular configuration of the user producer model. Lessig for instance therefore justifies P2P on grounds that people are not merely downloading music, but that they are also remixing and creating their own versions. They are therefore users producers or transformative users. It also mobilizes certain conceptual tools such as the idea of resistance since a number of the transformative users are using the content in subversive ways, which normally provide an ideological critique either of the original content. This is something that we are familiar with post cultural studies, the idea of reading resistance in acts of consumption and transformation. For most arts, this account also deals with the world of informal networked distribution, which is generally non-commercial in nature. The public domain, which imagines a particular kind of creative citizen subject, is in many ways an extension of constitutional categories of representation in general, including citizenship. The public domain is bracketed as a space of equal participation in which everyone can participate as equal rights bearing citizens. The linking of public domain theories to freedom of speech and expression is not accidental, and the very model of the public domain as the sphere of rational communication borrows from existing accounts of the public/private divide. Many postcolonial scholars have seriously contested the category of the citizen as the universal bearer of rights, and the representative capacity of the citizen to participate in the public sphere as an unmarked individual remains mythical at best. In India for instance, the creation of the citizen subject category in India demanded a move away from the over-signified body of the individual marked by religion, gender, caste etc, into an unmarked subject position, ‘the citizen’, a category based on equality and access and guaranteed rights within the constitutional framework. But, majority of people in India are only precarious citizens who often do not have the ability to claim rights in the same manner as the elite in India do. Instead, the manner in which they access institutions of democracy and ‘welfare’ is often through complex negotiations and networks, often marked by their illegal status. Liang thus says that while citizenship and modernity are normatively constructed as highly desirable, and the grand project wills everyone into a state of modernity, there arises from the start a clear lack or inability for the bulk of the population to occupy this space. So what happens when people fall off these official maps and plans? How do they find their way back into official memory and create for themselves avenues of participation. More often than not people create vibrant spaces outside of official plans through which they participate, and more often than not these spaces are marked by their high degree of illegality. One way of understanding the place of the ‘illegal’ in the Indian context is through Partha Chatterjee’s notion of political society. From the very beginning of the independent career of the Indian nation-state, he argues, there was a contradiction between its modernizing aspirations and its commitment to democracy, which was sought to be managed on the terrain of political society. This was the large and muddled field where compromises had to be made, from point to point, moment to moment. Political society, he says, constituted a field, which lacked the clarity of moral language, and legal concepts that were supposed to define the relations between state and civil society. It meant bending the rules, recognizing that the legal fiction of equal citizenship did not always apply, that the laws of property and contract might sometimes need to be overlooked. It meant speaking in both languages – of rights as well as policy – often using the one to overcome the limitations of the other. It is a world of concessions, but where concessions are the norm rather than the exception. What is perhaps essential to remember here is that pirates who merely reproduce without producing are unable to shed the illegal excesses to enable them to play a role or become a part of the reconstituted public domain. They cannot claim the representative status given to the productive and transforming creator. There are very few possibilities of the pirate occupying the normative terms set up by the public domain of the creative citizen. And yet despite the expulsion, a look at history and at the present seems to indicate that there is a certain stubbornness on the part of those who do not find a representative space in the public domain, and they refuse to disappear and instead co exist at the margins of any transformative accounts that exist. Historically for instance there is an entire realm which is inhabited by figures such as the trickster, the copier, the thief, the pirate who inhabit a marginal site of production and circulation. In many ways this simplistic divide of legality and illegality that divides the line between pirates and others renders almost impossible any serious understanding or engagement with the phenomenon of piracy.

According to Liang, one of the ways of moving beyond the impasse is to reformulate our object of enquiry. It might be more useful for us to ask the question of not what piracy is but what piracy does. The shift in focus from the discursive and moral representation of the illegal deed to the wider social world in which the deed is located allows us to bring into light the very nature of the law that names a particular act as an illegal one. Just as the way in which a map is drawn can have consequences on the ecology of a terrain, the charters of the law can too transform and erode the ground of action. The law is a creature of habit, of pattern, rhythms and repetitions. The exceptional singularity of an action, which is precisely what the law seeks to tame to the rhythm of the predictable, leaves us with a strange situation where the bareness of an act is precisely what is sought to be clothed by a ‘bare act’.” “The ‘Bare Act’ is an expression used to specify the content of law, bereft of any interpretative gloss. The Bare Act is naked legality. It expresses what the law does, and what it can do. It lays down limits to the law, even as it builds an atlas of legitimacy, punctuated by perforations, by the voids that we are accustomed to think of as ‘loopholes’, These loopholes are the ruptures through which we can sew elaborate patterns of acting and being that traverse the intervals between legality and illegality. As an instrument of the law, the ‘bare act’ frames the possibilities of action and being within the scaffolding of legality, defining the licit and the illicit deed, the right and the wrong move, the permissible and the proscribed thought, the valid and the invalid gesture. It is the bare act of law that draws the line that distinguishes access from trespass, property from theft and circulation from piracy. As befits a map, or any abstraction, this line, is more a figure of thought than an extant feature in a landscape”. Definitions of legality do not exist in a vacuum, and they are as much constituted through specificities and relationships even as they attempt to define and constitutive legal and social relations.Similarly stories of law and legality have to find a space in which they resonate, and often they exist as abstract unintelligible murmurs. For instance when the story of copyright piracy is narrated, it is usually through the language of statistics and figures and the narrative strategy of excess, designed to induce a ‘shock and awe’ response at the alarming rate of piracy and illegality’ that exists, especially in non western countries, and it rarely succeeds in its desired effect. While illegality has always been a part of the city, emerging from the hawker who has a designated place even though he is not entitled to the place in any formal manner, the squatter who pays a rent to the local policeman, the illegal slum that begs borrows and steals electricity and water from the rest of the productive city, the unauthorized revenue layout that gets regularized or legalized near election time on the basis of their strength as a vote bank, there is another layer that has become increasingly incorporated in to this realm over the past 10 years: the proliferation of non legal media practices ranging from pirated VCDs, DVDs, MP3s to grey market mobile phones now informs the practices and imagination of the illegal city. The information era props up a master plan, similar to that of modernist planning. The institutional imagination of the era relies on the WTO as chief architect and planner, copyright lawyers as the executive managers of this new plan and the only people who retain their jobs from the old city are the executors of the old plan, the police force and the demolition squad. Thus, any attempt to understand the complex networks of economic and social relations that underlie the phenomenon of piracy will have to engage with the conflict over control over the means of technological and cultural production in the contemporary moment of globalization. The ways in which the illegal media city emerges and co exists alongside the vibrant, innovative and productive debris of the older city, the schizoid relationship between legality and illegality in postcolonial cities suggest that the crisis may not lie in these relations, and we may need to turn the gaze of the law from the usual suspects of legality to legality itself and the relations that underlie its existence. The transformation of the urban experience in the past few years, and the proliferation of the labyrinth experience of media forms has made pirate cultures a significant part of the experience of our contemporary era. What is perhaps different about the media experience in non western countries, is the fact that there are no clear lines between old and new media, between physical and virtual experience, and often the virtual extends from high end shopping malls to low end cyber cafes to pirate markets and this comfortable moving to and fro between different mediatized spaces creates a sensorial experience in which different classes actualize the global experience differentially.

As Liang puts it even as the urban landscape is being transformed, and older media spaces like cinema halls give way to high rise malls with multiplexes, and even as the spaces of traditional mass media begin to shrink because of their prohibitive prices, you see the emergence of a widely distributed chain of the circulation of media commodities which challenge the regime of intellectual property. The crisis of intellectual property is narrated into the crisis of south Asian cities in general, and interventions in implementing property rules sit alongside lamentful pleas for reworking urban imaginations. The critical difference between this world of everyday media and the celebratory approach of radical new media activists or public domain scholars is that the world of quotidian media experience does not articulate itself through the terms of resistance or appropriation. Piracy obviously does not stake a claim in the world of official creativity either. It remains what it is: a culture of the copy that exists alongside livelihood and labour, profit and pornography. Liang, in this examination cites the work of Laikwan Pang who uses an example of a pirated DVD of Kill Bill in which the politics of translation results in very interesting results. The scene is of the conversation in kitchen of Vernita Green (Copper Head), when the two fighting women are taking a break after Green’s daughter comes back home from school. The dialogue between the two is as follows:

Green: “You bitch, I need to know if you will gonna starting more shit around my baby girl.”

The Bride: “You can relax for now, I’m not going to murder you in front of your child, ok?”

Green: “I guess you are more rational than Bill let me to believe in you are capable of.”

The Bride: “It’s mercy, compassion, and forgiveness that I lack, not rationality.”

But the subtitles of the pirated version translate them as:

Green: “You bitch, never want to hurt my daughter.”

The Bride: “Can we have a chat? I won’t hurt your child.”

Green: “I can’t believe you have such a temper.”

The Bride: “That’s my way, passion; not nationality.”

Brian Larkin’s work on piracy in Nigeria similarly forces us to look at and listen to, not merely the onscreen content, but also to consider the conditions under which texts are pirated and circulate. Larkin demonstrates the critical importance of paying attention to infrastructures of production in developing countries where the very process of cultural production is also tied to the relative lack of infrastructure on the one hand, and also becomes the basis for the transformation of the conditions of production by generating a parallel economy of low cost infrastructure. Piracy imposes particular conditions on the recording, transmission, and retrieval of data. Constant copying erodes data storage, degrading image and sound, overwhelming the signal of media content with the noise produced by the means of reproduction. Larkin says that since pirated videos are often by blurred images and distorted sound, they create a kind of material space “that filters audiences’ engagement with media technologies and their senses of time, speed, space, and contemporaneity. In this way, piracy creates an aesthetic, a set of formal qualities that generates a particular sensorial experience of media marked by poor transmission, interference, and noise”. Larkin uses the question of pirate infrastructure to open out the debate on intellectual property, and foreground the importance of addressing the question of content while looking at a legal aspect of culture. If infrastructures represent attempts to order, regulate, and rationalize society, then breakdowns in their operation, or the rise of provisional and informal infrastructures, highlight the failure of that ordering and the recoding that takes its place. By subjecting the material operation of piracy and its social consequences to scrutiny, it becomes clear that pirate infrastructure is a powerful mediating force that produces new modes of organizing sensory perception, time, space, and economic networks. The uncomfortable relationship between public domain scholarship and pirates also partially stems form the fact that we are entering a terrain in which the pirated commodity is a tainted one. While the question of medicine and textbooks are far easier to deal with, movies, music and software get characterised as being outside of the moral economy of development. The demand for low costs entertainment commodities is seen to be one, which is normatively more difficult to sustain. Yet at the same time, the sheer proliferation of these practices, both within the elite and also by the traditional ‘subaltern’ classes forces us to question our own assumptions about the terms through which people engage with the global economy of information, and about finding their place in the global. What then are the critical conceptual resources that we can draw on to be able to address this question of pleasurable transgressions and subjectivities that resist easy framing?

The IP debates in India have panned out primarily as developmental notions, taken up by various civil society groups working on issues of development, especially in relation to agriculture and seeds. This also extended to the question of access to affordable medicines, and the linking of the IP debate to the development sector also brings with it the inherited language, which frames the ‘subaltern subject of development’. But what happens when we move towards the realm of non-legal media practices where all of a sudden the transgression is highly pleasurable, but not in any way connected to the essential character of the ‘subaltern subject’. Liang raises the question as to how one would work through the fact that the terms set up by existing public domain scholarship end up excluding the ability to engage with practices guided not as much by necessity as by curiosity? The rhetoric of inclusiveness that is implicit in public domain discourse is necessarily accompanied by the prospect of exclusion, an exclusion that relies on either on piety or pedagogy.

Liang mentions the work of Jacques Ranciere who in his brilliant rethinking of labour history paves the way for us to start thinking seriously about the hidden domain of aspiration and desire of the subaltern subject, while at the same time thinking about the politics of our own aspirations and desires: it is a contested space where dualities of desires clash. Ranciere goes into an unexplored aspect of the labour archive of nineteenth century France, where he starts looking at small obscure and short lived journal brought out by workers, in which they were writing about their own lives. But they were not necessarily writing about their work, and if they were, they were not writing about it in glorified terms but with immense dissatisfaction. Instead they were interested in writing poetry, about philosophy and the other pleasures that non-workers or intellectuals were entitled to. At the same time of course, intellectuals have been fascinated with the world of work and the romance of working class identity. Ranciere says “what new forms of misreading will affect this contradiction when the discourse of labourers in love with the intellectual nights of the intellectuals encounters the discourse of intellectuals in love with the toilsome and glorious days of the labouring people”. One way of opening up the debate on IP may be to throw it beyond the question of information and the intangibles alone, and to instead pose a question that allows us to examine other histories and routes, which enable us to return to the question of intellectual property differently. Thus rather than examining the question of intellectual property as a disjuncture of the contemporary, we see the possibilities of looking at it through various continuums; some that navigate through the chequered histories of property, others that engage with the histories of spectral figures that hover ideas of the commons, and finally those that move beyond the domain of discourse and look at practices afresh. It may therefore be more useful to work with the idea of “Contested Commons and Trespassing Publics” as a way of understanding and theorizing contemporary conflicts around the world of intangibles as property. It is perhaps also pertinent to note the difference between the idea of the trespasser, as an isolated spectral figure of deviance and the idea of the trespassing public. The sheer range of people and practices that would be necessarily implicated within the idea of trespass is worthy of note. From the unauthorized artists who appropriates images, to the pirate using low cost technologies of reproduction to compete with media empires, to the counterfeit that passes itself off as a genuine brand, to the medical patients demanding lower cost medicines, there seems to be few safe spaces left where one is not identified and reprimanded as a trespasser.

Some absurd cases of censorship:

• The Church of Scientology took a drastic action against the search engine Google.com in 2002. The Church of Scientology used a “notice and takedown” letter (authorized under the DMCA) to persuade Google.com to block links to a Norwegian site that includes some criticisms of the wealthy cult.

• In January this year, newspapers and slowly, much of the blogosphere was abuzz with rumours of an imminent suit by Mattel/Hasbro – current owners of the trademark in the popular word-game ‘Scrabble’ – against Scrabulous, a wildly popular website that offers the game to enthusiasts online for free. Mattel alleged that the creators of Scrabulous – Rajat and Jayant Agarwalla, two Indian hobbyist programmers based in Kolkata – were guilty of infringing their trademark and copyrights in the game. (Simultaneously, although this event is lesser known, Mattel also reportedly sent a Cease and Desist notice to the creator of Bogglific – an online version of another popular word game ‘Boggle’. Bogglific has since changed its name to Prolific and continues operating as before) An irate fan of Scrabulous received the following response to his complaint from Hasbro:

“(…) We encourage fans to continue to lay down online tiles at sites that have legally licensed the interactive rights to host SCRABBLE fun.”

In other words, either due to a mistake or megalomania, Hasbro actually believes that it owns not just the word, but the game Scrabble (and all the attendant fun you ever had.)

• Through the 1980s, the United States Olympic Committee – owners of the absolute right to all uses of the word ‘Olympic’ – waged a fierce legal battle against San Francisco Arts & Athletics, Inc. – the organizers of an event called the Gay Olympics. Eventually the US Supreme Court held by a majority that the Amateur Sports Act gave the USOC a peremptory right to regulate all uses of the word Olympic, and that the fact that the USOC did not prosecute other misappropriations of the word did not amount to discrimination. (An interesting dissenting opinion was delivered Justice Brennan who held that this right was overbroad and restrictive of the constitutional guarantees of free speech). The case dealt a crushing personal and financial blow to Tom Waddell – the key ‘inventor, architect and all-year worker for the Gay Olympics’.14

• In 2003, the Indian Censor Board banned the film ‘Gulabi Aaina (The Pink Mirror)’, a film on Indian transsexuals produced and directed by Sridhar Rangayan. The censor board cited that the film was ‘vulgar and offensive’. The filmmaker appealed twice again unsuccessfully. The critics have applauded it for its ‘sensitive and touching portrayal of marginalized community’ at the BBC, YIDFF, Queer India festivals.

• Yahoo Groups ban, Sept. 2003: Kynhun a Yahoo group linked to the outlawed “Hynniewtrep National Liberation Council”, a minor separatist group from the North-Eastern state of Meghalaya, which espoused the case of the Khasi tribe was banned. The order to implement the ban was forwarded to Indian ISP’s by the Department of Telecommunications. Difficulties in implementing the ban by the ISP’s ultimately led to all Yahoo groups being banned for a period of about two weeks.

INDIA

Developing countries have traditionally understood copyright as an area of both commercial and cultural regulation, and indeed, many of them have emphasized the cultural benefits that may be gained from effective copyright policies. In contrast to this approach, the TRIPS Agreement has brought a new commercial emphasis to intellectual property at the international level. In the area of copyright, the focus of the Agreement is on the development of “copyright industries,” including “cultural industries.” At the same time, aspects of copyright law, which are perceived to be primarily cultural in nature are treated with disfavour, and even suspicion, under the TRIPS scheme.

Copyright Policy in India
Like most developing countries, India faces two fundamental challenges in the area of copyright law. First, Indian copyright law must promote the widest possible access to information and knowledge. The Indian public requires access to copyright works, both foreign and domestic, for scientific, educational, cultural, and intellectual development. The broad availability of information and knowledge is essential, not only for industrial growth, but also, for the promotion of literacy, in the broadest sense of the word.

Secondly, Indian copyright law must provide a favourable regulatory environment for the ongoing development of creative endeavours within India. Copyright law can help to promote artistic and intellectual activities within India. It can also contribute to the protection and publicizing of India’s existing cultural heritage. In order to accomplish this objective, Indian copyright law must successfully accommodate a range of interests associated with the great diversity of Indian cultural expression, whether in
ancient or modern times.

In their pioneering study of different copyright systems around the world, Ploman and Hamilton draw attention to these features of the Indian cultural scene – cultural traits that are characteristic of many developing countries, but especially prominent in the Indian context. They observe: “There is…a great variety of expression from the most traditional to the most modern. This mixture and juxtaposition of the traditional and the modern would by itself pose a number of specific copyright problems. At the same time, the development needs of the country require access to and wide dissemination of intellectual works, particularly scientific and technical. As a result, India’s attitude towards intellectual property rights has to take into account the need to promote and encourage indigenous creation of expression in both the traditional and the modern sector, and also to provide for an active public role in the widespread dissemination of intellectual property. Indian copyright policy might therefore be seen as founded on two basic principles: encouragement of authorship through protective copyright, and provision of safeguards against undue barriers to the exploitation of works.” In a more general sense, the dissemination of knowledge and the provision of adequate “incentives to create” are universally recognized as two fundamental objectives of copyright policy. However, these two policy goals are often considered to be in conflict, while effective copyright laws are in search of an equitable balance between them. Copyright law in developing countries requires a somewhat different conceptual orientation: it becomes necessary to consider the ways in which the two basic objectives of copyright policy, rather than being in competition, can also be understood as two aspects of a
single goal. It is apparent that authors have an interest in the broad dissemination of their ideas, and in securing their own access, for creative purposes, to the intellectual and artistic work of others. At the same time, the public has an important interest in maintaining the best possible quality of information and knowledge in society, by promoting the accuracy and reliability of reproductions and adaptations, and encouraging an attitude of respect towards intellectual endeavour. In practice, how can these policy objectives be made to work together effectively? This is the pragmatic problem, which Indian copyright law attempts to address.

Copyright law in India, as in many developing countries, faces the additional problem of enforcement. The costs associated with litigation, and the time involved in obtaining an authoritative judicial decision, are major obstacles to the effectiveness of the courts in resulting copyright disputes. At the same time, the governments of developing countries represent a great concentration of power and resources, and they often become the ultimate authority, de facto, on cultural issues. While the government may have special powers and abilities in relation to cultural matters, official corruption and the capacity for violence may also have a damaging impact on the cultural sphere.

Indian copyright law attempts to take into consideration the special powers and abilities of the government in relation to cultural matters, as well as its special duty of care. A consideration of Indian jurisprudence in this area reveals a strong and growing awareness among Indian judges of the special role of government in relation to intellectual property. As Ploman and Hamilton observe: “Distinguishing Indian law from European and Anglo-American legislation are several provisions that, under certain circumstances, allow the government to play an active role in encouraging the exploitation of needed intellectual property.” Finally, it is worth noting that the relative power of cultural industries may stand in stark contrast to the relatively weak position of the individual author in developing societies. For example, the Indian film industry is a wealthy and powerful force for any author to confront – a deciding factor in the seminal Indian moral rights case of Mannu Bhandari v Kala Vikas Pictures.

Traditional Approaches

The problem of “literary theft” has long been recognized in Indian culture. Its widespread occurrence is documented in writing as early as the seventh century. It has been the subject of both complaint and investigation by Indian poets and aesthetic philosophers. For example, Anandavardhana, a ninth-century poet, undertakes a detailed analysis of the phenomenon: he identifies three distinct categories of theft, with only the last of the three, the “similarity between two individuals” being “permissible” conduct for authors. Moreover, in Indian tradition, the author was believed to have rights and interests in his ideas which were equivalent to his interests in the final work, the position that is drastically different from Western copyright tradition. As Krishnamurti points out, plagiarism in tenth-century India was defined as “an appropriation by a writer of words and ideas – I emphasize, and ideas – from the work of another and passing them off as his own.”

Legal Approach to “Literary Theft”
In spite of the relatively common occurrence of literary theft, the problem was never dealt with by legal authors as a matter of law. Rather, in ancient India, literary appropriation was a theme explored by philosophers and poets. Nevertheless, the Indian cultural tradition includes a particularly rich and highly developed legal tradition, based on Sanskrit texts and treatises on law. Why, then, were the problems of appropriation and exploitation faced by literary and artistic authors not considered by ancient legal scholars?

This puzzling situation could have been due to a number of factors. The absence of authors’ rights, interests, and obligations from the ambit of the law in traditional Indian society suggests that it was somehow not considered to be appropriate to deal with these issues as matters of law, at all. Indeed, it is commonly believed by Western scholars that the traditions of the developing world do not recognize the issues, which flow from the appropriation of literary and artistic works to be legal problems. This analysis often leads to the conclusion that the misappropriation of literary and artistic work has historically been tolerated in developing societies. However, this perspective is basically flawed. On the contrary, developing societies are keenly aware of the value of knowledge in all its forms, often, like India, in highly sophisticated terms. However, the way in which these interests are recognized and protected depends on the cultural environment. As Gana observes:“[T]he mistaken premise of [United States] negotiations with China and…with most other developing countries is that these countries lack intellectual property laws. A cursory study of indigenous approaches to the protection of intellectual goods reveals that most cultures recognized the material value engendered by the results of intellectual labour. The way that value is protected, however, differs significantly from what modern categories of intellectual property laws provide.”

With respect to India, Krishnamurti points out that the absence of discussion among legal authors of issues arising from the misappropriation of knowledge is clearly a matter of culture. In keeping with Indian tradition, Krishnamurti identifies the value of “dharma,” which may be very loosely translated into English as “duty,” as the basic ethos of Indian civilization. Society at large, and the creators of artistic and intellectual works in particular, have mutual obligations towards each other. The structure of Indian society reflects this basic understanding of the role of art and artists, in such a way that it has not been necessary for Indian thinkers to attempt to concretize this relationship according to the conventions of written law. As Krishnamurti points out: “It was the duty of the State and the people to look after the authors. That one side might stray from its duty or its obligations was not considered sufficient justification for the other to give up its duty.”

The Relationship between Artists and Society

Krishnamurti limits his discussion of the impact of culture on concepts of “copyright” to dharma. However, the Indian social ethos surrounding art played a key role in defining the status of authors’ rights in ancient Indian society. Hindu thought, in particular, attributes a value to art beyond the purely “aesthetic,” in the sense of the enjoyment of beauty. Rather, artistic expression is an expression of metaphysical values. The Hindu view of art implies a certain understanding of the relationship between artists and the society in which they live. The functions of the artist are recognized as serving a concrete social purpose, and stand in some contrast to the potential elitism and emptiness of purpose in the modern affirmation that art’s ultimate value lies in its “uselessness.” As Pandit observes:“[T] he true nature and purpose of art… is [as] a means of relating human life to the creative cosmic life, to the essential vitality and movement which underlies the universal system. The artist discovers this universal creative process by an actual participation and essential identity of experience.” This view of art implies a focus on the work rather than the artist. In a subtler way, rather than the physical object per se that is produced by the artist, the experience inspired by the work represents the essence of artistic achievement. Seen from this aesthetic perspective, it is clear why the Indian concept of appropriation may have extended to ideas. At the same time, it is worth noting that the protection of expressions and ideas occurred through artistic and social conventions, arguably a distinctive form of “law” in themselves.

As Coomaraswamy observes: “Themes are repeated from generation to generation and pass from one country to another; neither is originality a virtue nor “plagiarism” a crime, where all that counts is the necessity inherent in the theme. The artist as maker, is a personality much greater than that of any conceivable individual; the names of even the greatest artists are unknown.” Indeed, a closer examination of the Indian view of law reveals that authors’ rights and obligations did, in fact, amount to a matter of “law” within the meaning of this term in traditional Indian society.

The traditional concept of law, like the Indian conception of “intellectual property,” was more wide-ranging and comprehensive than the modern, Western understanding of the bounds of the legal arena. Modern and traditional societies diverge widely in their understanding of the place of culture in society, both in relation to cultural heritage, and the intellectuals, artists, and craftsmen who create it. Law, in the form of legislation, adjudication, and social custom, is an embodiment of these relationships. The relationship between artists and society has traditionally been one of mutual dependence and, potentially, mutual suspicion. Artists play a fundamental role in developing social values, since their works are essentially reflections of the societies in which they were produced. Both the laudatory and the critical aspects of artists’ work are of value to society. At the same time, artists are dependent on society to value their work and to participate in it as audience, spectator, and critic. In one form or another, law inevitably has an important role to play in mediating the relationship between artists and society. It accomplishes this function in a number of ways, from allowing censorship to protect society from the excesses of the arts, to recognizing the right of artists to express their ideas beyond the normal reach of social mores and public acceptability.

In Western society, legislation and case law in an adversarial context reflect the traditional tensions in the relationship between artists and society. In contrast, the role of artists in traditional cultures is somewhat different, due to a degree of common awareness of the social needs fulfilled by the arts, and recognition of the social value of the artistic function. As Pandit points out: “The traditional Indian theory of art assumes an integral relation between art and society…. The point of difference between this approach… and other art theories lies basically in its refusal to isolate art from human purposes and to make a distinction between the utilitarian and the beautiful…. To seek for art a function away from society and to try and create beauty without meaning and utility is to reduce art to a mere superficiality. By introducing art to serious living, the quality of disciplined spontaneity and organized pleasure is brought to everyday life and work is transformed from drudgery into a creative fulfilment. The primary function of art in society is to effect this transformation and thereby to help integrate the social order.”

Perhaps as a result of this difference in the perception of the relationship between artists and society, traditional cultures, including those with a long tradition of written law such as India, often maintain a degree of flexibility and informality in their systems of law, particularly in relation to the arts. Notably, social custom and traditional rules are an important source of “law” relating to the arts in these societies. Pandit observes:“As a tangible phenomen[on], art is subject to the laws and rules of society, and its making is not merely an occasion for aesthetic contemplation, but does something for human needs…. [T]he outward restrictions imposed upon the artist are not designed to stultify and choke him, but rather to provide the guidelines within the framework of which he can achieve a more profound expression. The goal of art is not a vagrant spontaneity but a disciplined expression. Freedom in art as in any other human activity is achieved, when the universal principles are understood by the subject so completely that their manifestation in a specific form becomes effortless and spontaneous.”

Indigenous Theories of Copyright

A brief consideration of pre-colonial theories of the arts, creative endeavour, and the nature of creators’ rights in their creation reveals a number of divergences from modern copyright concepts. Copyright law reflects the historic rise of individualistic theories of creativity, characteristic of romantic ideals of authorship and original genius. The close link between the romantic concept of authorship and the ever-increasing possibilities for public access to knowledge during the eighteenth century lies at the heart of the historical development of the arts as professional fields. Copyright law reflects the individual author’s attempt to secure both economic returns and social status from his work, by controlling the conditions of its dissemination.

In a culture, which did not conceive of the author in primarily economic and professional terms, however, the problem of misappropriation of knowledge was dealt with as a matter of ethics, custom, and convention. The focus of thinking on “intellectual property” was the work, rather than the identity of the author, allowing flexibility and diversity in the development of artistic and literary forms. This conceptual orientation may well have provided an environment favourable to the development of diverse forms of authorship, such as group and community authorship.

Interestingly, these considerations also demonstrate some interesting similarities between modern ideas of copyright and Indian cultural traditions. Notably, moral rights, which emphasize the integrity of artistic and literary works and the preservation of an accurate historical context for these works share, perhaps paradoxically, the fundamental cultural concerns of Indian tradition. This may also be the case in other developing countries which share the Indian cultural mix of individualistic and community values. This juxtaposition of values may also be at the heart of the extensive acceptance of moral rights in the Indian context, especially by the judiciary.

Indian judges are well aware of the difficulties of situating a modern framework for copyright protection in Indian tradition, and at the same time, of the necessity of doing so for the establishment of viable legal and social practice. India’s ambivalence towards copyright concepts is pointed out by Ramaiah, who offers contrasting quotations from two Indian courts on the judicial approach to copyright. While the High Court of Madras stated, in 1959 that “India was and continues to be a member of the Copyright Union and in that sense the conception of copyright is not repugnant to her ideas,” a Bombay court later determined that, “if historically some roots of this legislation are to be found in English statutes, they may be cited [only] as an aid to thinking.”

LEGISLATIVE HISTORY

Modern copyright law developed in India gradually, in what we may identify roughly as three distinct phases spanning more than 150 years. This section attempts to briefly navigate through the major changes brought in by each successive wave of copyright amendment which have cumulatively resulted in the way Indian Copyright law stands today.

Phase I: East India Company Statute

Copyright law entered India in 1847 through an enactment during the East India Company’s regime. According to the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years post-mortem. But in no case could the total term of copyright exceed a period of forty-two years. The government could grant a compulsory licence to publish a book if the owner of copyright, upon the death of the author, refused to allow its publication. The act of infringement comprised in a person’s unauthorized printing of a copyright work for (or as a part of attempt of) “sale hire, or exportation”, or “for selling, publishing or exposing to sale or hire”. Suit or action for infringement was to be instituted in the “highest local court exercising original civil jurisdiction.” The Act provided specifically that under a contract of service copyright in “any encyclopaedia, review, magazine, periodical work or work published in a series of books or parts” shall vest in the “proprietor, projector, publisher or conductor.” Infringing copies were deemed to be copies of the proprietor of copyrighted work. Importantly, unlike today, copyright in a work was not automatic. Registration of copyright with the Home Office was mandatory for the enforcement of rights under the Act. However, the Act also specifically reserved the subsistence of copyright in the author, and his right to sue for its infringement to the extent available in law other than the 1847 Act. As we shall see, this reservation of other “copyright-type” laws was done away with in later legislations.

At the time of its introduction in India, copyright law had already been under development in Britain for over a century and the provisions of the 1847 enactment reflected the learnings from deliberations during this period. Thus, in it’s very first avatar, copyright had arrived in India as a modern law that was both abstract (encompassing “all works” of literature and art) and forward looking (in the way that it sought to accommodate both existing and new forms of subject matter). As a result, many of the philosophical debates over the nature of ‘literary property’ that had animated the initial years of copyright development in Britain were conspicuous by their absence in the sub-continent.

On the precise manner that the 1847 enactment operated, very little is known. However this enactment created the conceptual milieu that eased the passage of succeeding legislations.

Phase II – Copyright Act 1914

In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of the United Kingdom Copyright Act of 1911 to India. It did, however, make a few minor modifications. Baxi identifies two of the major changes; “First, it introduced criminal sanctions for copyright infringement (sections 7 to 12). Second, it modified the scope of the term of copyright; under section 4 the “sole right” of the author to “produce, reproduce, perform or publish a translation of the work shall subsist only for a period of ten years from the date of the first publication of the work.” The author, however, retained her “sole rights” if within the period of ten years she published or authorised publication of her work a translation in any language in respect of that language.”

Vesting violations or property rights with criminal sanctions can probably be understood as a part of general colonial legal and political policies which sought to protect the right to property over rights to personal freedom. The modification of term of copyright for translation rights however cannot be explained by any reference to dominant characteristics of colonial policy. The language of the Act might suggest a laudable policy objective of promoting wider diffusion of Indian works in one language into other Indian languages, a consideration which might have appeared distinctive to India as compared with the United Kingdom. There might also have been the desire to promote the growth of the publication industry in numerous Indian languages. But whatever the intention, the impact was disadvantageous to the authors and a boon to publishers.

The 1914 Act was continued with minor adaptations and modifications till the 1957 Act was brought into force on 24 January 1958 – very shortly after the attainment of independence.

This phase of copyright law generated some important “classical” decisions on the law of copyright. Simultaneously, however, it also sowed the seeds of a trend that Baxi terms as “a juristic dependencia” – the tendency of Indian judicial decisions as well as forensic styles relying excessively on United Kingdom precedents. On the impact of this trend, he notes:

“The heavy hand of UK law still lies on Indian creative works despite the reformulation of the law in 1957. Judicial interpretation is perhaps most heavily influenced by UK precedents in the area of copyright law than in any other. The slavish imitation of foreign precedents has occasionally led intrepid Indian justices to remind the Bar and the Bench that the 1957 Act is made by “a sovereign legislature of this land” and its interpretation “must be based upon the object of the legislation and the language used” and that the “historical roots” of the Indian law in the UK law of copyright should have no higher function than that of providing an “aid to thinking.”

Phase III – Post Independence

Independent India accorded high priority to formulation of her own law on copyright. The Indian Copyright Act 1957 (“the 1957 Act”) repealed the Indian Copyright Act 1914 (“the 1914 Act”) which had virtually incorporated the whole of the Imperial Copyright Act 1911. The revision of the 1914 Act occurred within a mere seven years of Independence.

A number of factors, according to Baxi, impelled this early revision. First, it was clear that continued existence of the 1911 Act through the 1914 Act was unbecoming to “the changed constitutional status of India.” Second, the 1914 Act did not accord with the 1948 Brussels Act of the Berne Convention and the 1952 Universal Copyright Convention – chiefly in the much longer terms that the Berne Convention mandated. Third, new “and advanced method of communications” rendered modernisation of the law necessary. Fourth, the need for an “independent self-contained law” was also felt in the light of the experience of the “working” of the 1911 Act, and more important, of “the growing public consciousness of the rights and obligations of the authors.”

It is a long forgotten fact of history that the Copyright Bill, 1956, as introduced into Parliament would have curtailed the rights of copyright owners to the point of obviating continued membership of the Berne Convention. The intervention of the film and music industries, more than anything else, ensured the retention of Berne standards in the statute as eventually enacted.

To aid them in this task of indigenisation, the Indian legislators appointed a “Select Committee” to propose a model Copyright Act. The Committee appears to have consulted “the report of the English Copyright Committee, the models provided by the relevant international conventions; they received evidence from twelve organisations, including the International Confederation of Societies of Authors and Composers (Paris), the Performing Right Society (London), British Copyright Council and the Columbia Gramophone Company Ltd. The Report of the Select Committee, says Baxi “appears to be among the briefest in the annals of the Indian Parliament but, in many senses, it made major innovations which were ultimately enacted.”

One of the key legacies of the Committee’s Report, for instance, was the abolition of registration as a pre-condition for infringement proceedings. Another significant area where the new Indian Copyright Act parted ways from the UK Act was in its omission of sections contained in the latter providing for “gratuitous” supply of books to designated libraries.

Three sets of ancillary amendments succeeded the 1957 Act. In 1983, several new sections were introduced into the act. Sections 32A and 32B provided for ‘compulsory licences’ for publication of copyrighted foreign works in any Indian language for the purposes of systematic instructional activities at a “low price” with the permission of the Copyright Board on
certain conditions.

The other crucial change was the insertion of section 19A, relating to the conferral of power in the Copyright Board, upon a due complaint to it, to order revocation of the assigned copyright where either the terms are ‘harsh’ or where the publication of the work is unduly delayed. In addition the 1983 Amendment provides for power in the Copyright Board to publish unpublished Indian works, and for the protection of ‘oral works.’ The amendment made it mandatory for the copyright office to publish details of all copyright registrations in the Gazettte of India. Lastly, the amendment disallowed the importation of an ‘infringing copy’ of a copyright work for ‘private and domestic use’ which had been permissible prior to the amendment.

Subsequently, after a gap of a decade, sweeping changes were introduced through an amendment in 1994. These included:

The increase of the term of copyright from fifty years post mortem to sixty years;
The extension of copyright to new types of works including computer programmes and performances;
The redefinition of “communication to the public” so that a work is communicated “regardless of whether any member of the public actually sees, hears or otherwise enjoys the work”;
An overhaul of the vocabulary employed in the Act, for instance – substituting ‘broadcast’ for ‘radio diffusion’, ‘work of architecture’ in the place of ‘architectural work’, ‘sound recording’ in the place of ‘record’;
Clarification of the ownership of copyrights over public speeches and works by public undertakings.

In 1999, certain sections relating to international broadcasting rights were inserted into the Act, along with stipulations enhancing the fair dealing rights of users of computer programmes – these permitted the “doing of any act necessary” to obtain information essential for the interoperability of computer programmes, and also permitting the making of personal copies and adaptations of computer programmes if they were legally obtained. Thus the history of the Indian Copyright act is characterised by a tendency to expand commodification of culture while at the same time constricting access to it.

Thus, while originally focused solely on the written work, copyright has been extended over the years to include maps, artwork, music, phonographic records (and later audio tapes and now CDs), photographs, and, most recently, computer software and databases. From being a right acquired only through registration, copyright was made an automatic right that inhered in any “work” the instant such work was created. Further, performers and broadcast organisations have been accorded special rights in excess of copyright over other kinds of works. The term of copyright has been extended repeatedly, most recently in 1991 when it was extended by a period of ten years, bringing the total term of protection for a work to sixty years post mortem.

SCOPE OF PROTECTION IN INDIA

Consistent with most regimes internationally, the nucleus of copyright protection in India is the copyrightable ‘work’ which is classified into three categories:
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording;

Apart from these “traditional” works of copyright, the Indian Copyright Act also grants exclusive rights in Broadcasts and Performances. The Act grants different bundles of exclusive rights to different categories of works and for different durations. These rights are available automatically and works do not need to be registered in order to acquire copyright protection.

However under the Indian Copyright Act, there is no clarity on exactly how a “reproduction” right is different from a “right to copy” or how the exclusive right to “issue copies to the public” differs from the right to “communicate to the public”. While there is a need for greater clarity and possibly uniformity in the vocabulary employed, this must not be rushed into since the variance in terminologies may also potentially serve as a source of freedoms. For instance, one could hypothetically argue that one can “make copies” of a literary work as long as one is not “reproducing it in material form”. This is assuming that the two phrases in fact indicate protection of different qualities.

Another feature of the Indian Copyright Act is the fact that Cinematographs and Sound Recordings have not been granted exclusive rights of adaptation. Thus, under the Indian scheme, producers enjoy the freedom to adapt – “any use of such work involving its re-arrangement or alteration” – other cinematographs or sound recordings. This freedom is not granted by virtue of a fair-dealing exception but through a threshold exception in the rights conferred on copyright.

Copyrights normally vest in the “authors” of “original” works, although where the work is made “in course of employment”, the employer is, in the absence of an agreement to the contrary, deemed to be the first owner of the copyright. Similarly “Government works” or works made or published under the direction of a public sector undertaking are deemed to be the property of the Government or the public sector undertaking as the case may be. Consistent with practice worldwide, originality does not mean the expression of original or inventive thought, but with the expression of thought in print and writing. It must be original in the sense that it embodies the original labours of the author. Ideas are not susceptible to copyright, much less “common source ideas”. As one case points out, “In modern complex society, provisions have to be made for protecting every man’s copyright whether big or small, whether involving a high degree of originality, as in a new poem or a picture, or only originality at the vanishing point as in a law report.”1

Different terms are assigned for different classes of works although they are either for periods of 60 years after the death of the author or for a fixed duration of 60 years from the year following creation. Once the natural term of a copyright expires, the work passes into the public domain and is free for anyone to appropriate.

Copyrights may be assigned by licence or outright sale and in the latter case must be done in writing. Relinquishment of copyright is not easy and requires a written intimation to the Registrar of Copyrights of one’s intention to abandon one’s copyrights.

In addition to the various exclusive rights outlined above, authors are granted “special rights” under the Indian Copyright Act:to claim authorship of the work; and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.

These special rights are “independent of the author’s copyright” and even survive the assignment of the copyright in whole or partially. Currently “Performers” do not enjoy these special rights, although the amendment to the Indian Copyright Act has been proposed to redress this lacuna.

In July 2006, the Ministry of Human Resource Development invited comments on a draft of proposed amendments to the Copyright Act. Some of the proposals exempting non-profit institutions and libraries from the ambit of infringing activities are extremely salutary. On the other hand proposals to enhance the duration of protection over photographs appear fairly regressive. The ambit of the exclusive right to reproduce literary, dramatic and musical works has been extended to include their electronic embodiments. This is expressly directed at clamping down on the easy movement of copyright materials between computers. One of the most controversial proposed amendments is the inclusion of Digital Millenium Copyright Act- type anti-circumvention provisions which make it a criminal offence to interfere with “technological measures” of protection or to remove any “Rights Management Information” that has been applied to a work by the owner.

The purpose for such introduction in the Indian copyright laws has been to “keep pace with national and international developments and advance in technologies,” a purpose which is over simplified and undermines the complex debate which surrounds the introduction of these measures in the most developed countries. A technological measure which is not only still in the evolutionary stages but the policy itself is being reviewed by various countries, particularly USA, which spearheaded the introduction of such rights in the realm of international law. The proposed introduction of such provisions in the Indian copyright system in spite of the fact that India not being a signatory to the World Copyright treaties, is not under any obligation to introduce such changes, particularly, at this stage of Indian socio-economic development when digital technology can play a vital role in the developmental process. The rationale behind the introduction of these provisions in Indian law is rather obscure but if it intends to tackle the escalating problem of piracy, then such introduction requires a better analysis in the light of the manner in which these provisions came into existence in the realm of international as well as other national legislations and what has been the consequent development following adoption of such provisions. The legislative provisions already adopted in US and are intended to be adopted in India without providing any value judgment as to their utility or effects in India.

THE STAKEHOLDERS

In India, one may presume like copyright industries in U.S., of which Hollywood is an important segment, Bollywood is a significant copyright industry, a presumption which is relevant only since 1998 when it was given an industry status in terms of production. In terms of the numbers of productions, the Bollywood is the biggest industry producing over 1000 films a year. There are no concrete figures as to what is the total contribution of the copyright industries in the Indian economy except that the Executive Summary of FICCI, 2006 reports that Indian Entertainment and Media industry is worth 353 billion INR which is expected to grow 19% over next five years; the motion picture industry is about 19% of the total E&M market and 42% is TV. The market is big and attractive enough for foreign capital and the government has allowed up to 100% Foreign Direct Investment equity in film production, exhibition and distribution. Motion Pictures Association of America has earned about $44 million in 2006. This has also attracted some of the Hollywood industries such as Sony, Universal and Fox Corporations in Indian market.

The market for film exports and overseas rights for Bollywood films has grown to INR 10 billion by 2006. Notably, it is not only the Indian Diaspora which constitute the customers in the overseas markets but it is also people of other Asian descent, Arabian descent and even African descent who are big consumers of these movies. Notably, the industry has gained popularity in certain European countries other than UK such as Germany, Denmark, Holland, and even China. Most often, the dubbed version of these movies are screened in TV as well as theatres. UK, of all the overseas market, is the biggest market, largely due to greatest number of British Asian population and also the number of screens showing the movies. This apart, USA, Canada, Middle East countries such as UAE, Bahrain, Qatar, also constitute for a significant consumer base of the Bollywood movies added with African countries and other former British colonies with people of Indian and Asian origin also account for this consumption.

The above figures would prompt one to believe that Bollywood, like Hollywood, forms a strong lobby in shaping the copyright laws in India and is therefore a stakeholder in initiating the proposed amendments. However, unlike Hollywood, the studio system, baring few prominent production houses, is almost non-existent in Bollywood since post-1950s which explains the absence of any Hollywood style oligopolistic corporation with vertical integrations in production distribution- exhibition in the Indian motion picture business. This aspect of Bollywood also explains the lack of initiative for lobbying for copyright reforms in India by the members of this unintegrated sector. The trend has changed in recent years particularly after government has announced industry status for film production and a few of the production houses such Yashraj Film Corporation, Rajshri Productions Ltd., Adlbas films, UTV and Times Group have engaged themselves in the debate surrounding copyright reforms. However, a very large number of production houses still remain indifferent to these measures.

A study was conducted by National Productivity Council (NPC) sponsored by Department of Education, Ministry of Human Resource Development, Government of India to study the issue of piracy in India. The study shows that the piracy in India is worth £ 41 million(USD 82 million) consisting of 23% of total sales of recorded copyright products which is about 4% of world trade 40 Value of Indian Rupees: 1£=Rs.85; 1$=Rs.45. The Gross box office collection for 2006 was around Rs.95 billion. Compared to this the 2001 figures were Rs. 72 billion of which overseas rights constituted more than Rs. 5 billion and music rights 1.5 billion. One of the major markets are overseas markets which account for about 25-30% of the proceeds and was estimated to about 10 Billion in 2006.

India has been under a constant diplomatic pressure, particularly from U.S. to improve its IP regime and continues to be so as U.S. copyright industries suffered loss of $496 million in India due to piracy. India is strongly recommended ‘to adopt amendments to the copyright law that correct deficiencies and properly implement all the obligations of the WIPO Internet Treaties (WCT and WPPT), including protection for temporary copies; adequate and effective protection against the circumvention of technological protection measures.’

Therefore, the actual stakeholders who are lobbying to change the copyright legislation in India is not Bollywood but the same monopolistic Hollywood entertainment studios who lobbied to shape the WIPO internet treaties and succeeded in tilting the balance in favour of copyright owners.

The entry of the Hollywood studios may have repercussions beyond the copyright laws and may eventually spell the doom for Bollywood.

In Indian context, the other important stakeholders in the proposed amendments are IT/ ITeS companies, both Indian and foreign who constitute a major block to which the proposed DRM changes would matter. The DRM technologies themselves are owned by a few non-Indian and mostly U.S. or European companies, of which Sony, Philips, Microsoft and Panasonic are a few which have considerable market presence in India. However, the DRMs are themselves inhibitory against the IT companies engaged in software research. These technologies once acquired by the studios and music companies, may be enforced against the IT companies to prevent any circumvention for the research purposes. The proposed provisions prevent anti-circumvention activities, however, they make an exception for research in encryption technologies and this is perhaps would be beneficial for the Indian IT/ITeS companies particularly when unlike DMCA provisions, they do not prevent access to content.

However, it would be important to take into account the caution by the U.K.-based Commission on Intellectual Property Rights:

“For developing countries, where Internet connectivity is limited and subscriptions to online resources unaffordable, [anti-circumvention legislation] may exclude access to these materials altogether and impose a heavy burden that will delay the participation of those countries in the global knowledge-based society…. [W]e consider that, if anything, the costs of getting the IP system “wrong” in a developing country are likely to be far higher than in developed countries. Most developed countries have sophisticated systems of competition regulation to ensure that abuses of any monopoly rights cannot unduly affect the public interest. In the US and the EU, for example, these regimes are particularly strong and well-established. In most developing countries this is far from being case. This makes such countries particularly vulnerable to inappropriate intellectual property systems.”

CONCLUSION

Copyright laws as they stand in India today, ominously lean towards the developed world partiality for protecting private interest over the promotion of societal welfare. Keeping in mind the nature of the Indian Republic which is a welfare state and the mandate of the Constituion which requires that there must be socio economic justice and equality of opportunity, India cannot adopt the copyright regime in its current form as inherited from the colonial regime. Rather, it is necessary for India to develop a sui generis system of for governing copyrights that strikes a balance between the constitutional mandate of socio economic justice and need for promotion of arts and sciences.

Legal scholar and Professor of Law in Development at the University of Warwick, United Kingdom, Upendra Baxi argues that the constitutional imagination of India is premised on a history of violence and sharp inequalities. In India, the birth of the constitution was preceded by the experience of colonialism and the violence of partition. In other words, in India, the constitution emerged as a text of hope against a traumatic past, and the constitution was not merely a liberal document of governance, but a promissory note for a more just and equitable future. Baxi terms these as “transformative constitutions” whose responsibility to history is documented in the kind of promises made in chapters of the rights of individuals, as well as in the recognition of collective rights.

The framers of our Constitution intended for India to be, not a capitalist but a socialist economy, where the welfare of the people would be paramount. The Preamble to the Constitution introduces India as a “socialist” Republic. The Supreme Court of India, while interpreting the word “socialist” has held that the term “socialist” read with Article 14 of the Constitution of India, empowers the Court to strike down a statute, which fails to achieve the socialist goals to the fullest extent. The idea of “socialism” as contained in the Preamble is also accompanied by the concept of “social justice”. The expression “social and economic justice” involves the concept of “distributive justice which connotes the removal of economic inequalities and rectification of injustice caused by transactions between unequal’s in society.

Article 38 of the Constitution of India enjoins the State to strive to promote the welfare of the people by securing and protecting a social order in which justice- social, economic and political shall inform all the institutions of national life striving to minimise the inequalities in income and endeavour to minimise inequalities in status, facilities and opportunities. “Copyright creates proprietary rights over information. These proprietary rights restrict the free flow of information. This would in effect create inequality of a new kind and split the population into two groups i.e. information poor versus the information rich.” The copyright regime in its current form would thus create disparities which are “in essence old forms of inequalities patterned around the ownership of productive forces.”

Sub clause (b) of Article 39 of the Constitution of India provides that “ The State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.” The Supreme Court of India had held that the expression “material good” used in the sub clause (b) of Article 39 is wide enough to include not only natural or physical resources but also movable and immovable property.

Given the socio economic conditions in India, the adoption of the copyright regime in its current form, would establish a new class of socially and economically disparate people who are also unequal in their possession of information, which is essential for economic growth and prosperity.

The establishment of the Berne convention and the TRIPS agreement has meant the establishment of a common global standard of copyright. And yet, we see that India has had a different history of copyright development, both in the doctrinal level as well as in the real-world experience of how copyright has played out in these countries. At the doctrinal level, there exists differences in the treatment of rights; the ways in which India has made use of exceptions and limitations within its copyright statutes and the judicial interpretations that have taken place. At the level of the real-world experience of copyright, India has a distinct history of enforcement or non-enforcement, distinct institutional experiences of copyright reform as well as unique experiences of activism around access to knowledge and culture.

India having inherited a colonial copyright system, is facing similar challenges with regards to restrictions that copyright places on them in trying to service the education, health and innovation needs of her population. India being a key country in Asia and as such, has a potential to set the groundwork for more visionary policy-making in the future.

As suggested by Lawrence Liang, rather than accepting a “one size fits all” approach advocated by WIPO, we can leverage on the experience of India to argue for an approach towards copyright that is sensitive to the differential need of the country and the transformative countries as a whole. It is further important to reiterate that larger normative commitments should animate our discussion of copyright and public interest. India, marked by a sharp distinction between the constitutional elite who enjoy all the privileges of a global knowledge economy, and a constitutional underclass who are left out of the imagination of the information economy is a complicated matrix of realities, which defy any neat and easy definitions such as developed, and developing, global north and south.