1.1 Where is 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. We shall then attempt to trace the author and understand the implications of this term in the digital world.
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”,1 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.
1.2 Copyright: A History and Definition
Copyright was intended to protect literary, artistic, musical and computer-generated works for a limited period of time. This grant of a monopoly is supposed to give the artist enough of a reward, and encourage creativity. The law, in the British and American traditions, is based on the concept that an “author” can create a distinct “work” by instilling his or her effort and skill to render it “original”. Originality is a fundamental principal of copyright. It was meant to balance the interests of authors, publishers and readers. It was not intended to be a restrictive property but over the years has evolved in to a matrix of commercial legal protections now called “intellectual property”. As Vaidyanathan points out, copyright is not just one right, but a “bundle” of rights that includes the exclusive right to make copies, authorize others to make copies, create derivative works such as translations and displays in other media, sell the work, perform the work publicly, and petition a court for relief in case others infringe upon these rights.
Scope of Copyright
How did the word “right” get embedded in the nature of copyright? The word “right” brings with it an associated prefix of the inalienable. Hence, copyrights can be more accurately described as “copypriveleges”-a limited monopoly for a short period of time, and the public would get access to those protected works and free use of ideas, facts and data within them. According to the American Copyright Act of 1976, a work is protected in all media and for all possible derivative uses as soon as it is fixed in a tangible medium of expression. This means that as soon as a writer types a story on a computer or typewriter, the work carries the protection of copyright law and it is not necessary for Authors to register the work with the Copyright Office of the Library of Congress unless they want to pursue legal action against someone for violating the copyright.
What does the privileged protection of copyright entail?
1. Firstly, the law specifically protects the “expression”, but not the facts or ideas that underlie the expression.
The 1976 statute of copyright states that copyright protects only original works of authorship, not data. There is a strong philosophical and policy argument for leaving facts, data and ideas unprotected. For a democracy to function properly, citizens should have easy access to information and should be able to debate and criticize without fear of lawsuits.
2. Fair Use and Private Use: Parody is an important part of our culture. But if every writer had to ask for permission from the producers of a show, or every student had to ask permission from publishing companies for every quotation they used, education would come to a halt. The limited freedom to quote-”fair use”-is an exemption to the blanket monopoly protection that artists and authors enjoy. The law specifically allows users to make copies of, quote from and refer to copyrighted works for following purposes: in connection with criticism or comment on the work; in the course of news reporting; for classroom use; or as part of research.
It is in the highly suspect legal construction of the idea/expression dichotomy, in the slipperiness of the meaning that the imprecision of language comes forth and complicates the dichotomy. Thus, to this effect Vaidyanathan asks: Is the six-string note of “Happy Birthday To You” an idea or an expression? Would playing the same note at different tempos constitute a new expression of the same idea? Would playing it differently on a different key constitute a new expression of the same idea?
Let us take another instance. While every sentence can have several meanings extracted by different communities of readers, every underlying idea can be expressed in several different ways. “Every human being is considered to be worth the same as every other human being” expresses the same idea as “all men are created equal”, though in a different form. This distinction between specific expressions and underlying ideas is the most widely misunderstood aspect of copyright law. Journalists, consumers, writers and artists often feel constrained in what they may express if another has already tilled that intellectual soil.
What is the difference then between plagiarization and copyright infringement? Plagiarism is in itself not a crime or a legal issue or an actionable civil offense, but an ethical and professional issue. There is usually a blurring of distinction between the two in the populist legal discourses of intellectual property. According to Vaidyanathan, there is also a growing body of law called idea protection, which has evolved because copyright law explicitly denies protection for ideas and reserves it for expressions.
1.2 The Birth of the copyright: from the British romantics to the American Realists, a historical timeline
From the middle of the 19th century, those who have pushed to enlarge and deepen copyright protection have invoked the need to protect authors from theft. As we shall see in the following discussion, some of the laws were formulated to tackle this problem. However, post 1900, the publishers have increasingly moved to delimit the scope of public domain, and all along the author was deployed as the straw man in the debate. The unrewarded authorial genius, was used as a rhetorical distraction that appealed to American romantic individualism. As copyright historian Lyman Ray Patterson has articulated, copyright has in the 20th century been about the rights of the publishers first, authors second and the public a distant third.
The Catholic Queen Mary Tudor initiated a 120-year-old monarchal struggle to censor printing presses in England by issuing a charter to the Stationers’ Company, a guild of printers. 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.)
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
a) it came out from a government decreed statute, not some revealed natural right of authors.
b) It granted a monopoly, which meant that the publisher could charge a price without considering market pressures.
The first colonial copyright statute passed by Massachusetts. No legal standing of authors, only publishers.
Publishers, for the first time appealed to the interests of authors to renew their monopoly protection, arguing that the interests of both authors and public were harmed by price instability in the marketplace.
The Statute of Anne, often erroneously dubbed the first copyright law, established two levels of copyright.
- 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”)
- 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 bookprinting 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. But the point to be noted here is that, the author is for the first time introduced in the legal matrix of the copyright.
Connecticut legislature passed the first American Copyright Statute in 1783; a 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 Copyright Act of 1790, in USA delivered protection to authors and publishers, and it was based on the Connecticut legislation. The clause embodied the incentive principle that copyright law should allow enough exclusivity to “promote” further creations, but only for “limited times”.
Act amended to include the protection of design, engraving and etching of paintings.
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 US 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.
9. Situation in Britain copyright system in 1830s:
As the British author rose in status, British publishers noticed that they benefited as well from the emerging “star system”. Due to expanding readership, writing became a profitable profession, where the authorial genius considered his work to contribute to the Empire and the culture. Authors and publishers stopped fighting as they realized that they both benefited from a strong copyright system. In 1837, William Wordsworth’s friend Thomas Talfourd, an author and member of Parliament opened a campaign for the revision of the Copyright Act on behalf of the authors. The term Talfourd proposed-the author’s lifetime plus sixty years-drew much opposition from the book trade, people who made cheap prints. This opposition aroused many literary figures to action and in 1842, an act was passed which lasted until the 20th century, providing a term of author’s lifetime plus seven years, or forty two years from publication- whichever was longer.
10. Fifty years later in America, authors and publishers fought a similar battle like the British romantics did and it lasted a decade in to the 20th century. First authors struggled against American publishers for a copyright treaty that would protect their works throughout readerships across the world, and second they worked to extend the duration of copyright. There was a problem in America and that was of piracy of American works and European authors could reap no profits from their works being printed for the burgeoning American reading public. Major publishers and authors united to champion international copyrights. In this period it was Samuel Clemens in his dual role as Clemens the business man and Mark Twain the writer who relentlessly pushed to reform the copyright laws.. when he lost substantial money to Canadian pirates who recopied his work without offering him compensation. Twain presented a classic example of a contrast-a champion of authorial rights, but he was also a borrower. Many of the devices that he used were lifted from others and often alluded to other writers and works.
According to Vaidyanathan, who follows his literary career rather closely, it is very easy to see Twain in this dichotomous position. Growth, contradiction and complexity were the norms for Twain and his level of sophistication to approach copyrights was probably not in conflict with his authorial habits. He pushed himself to the forefront of the movement for international copyright during the 1880s, to see American literature being taken seriously by the readers. It is also interesting to see in this light, Twain’s own explanation for concern over originality and influence saying that those who write and claim originality are merely vain. Throughout her life, Twains’ good friend Helen Keller was plagued by accusations of plagiarism and Twain defends her in a letter by saying ” Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that “plagiarism” farce! As if there was much of anything in any human utterance, oral or written except plagiarism.” Was Twain a hypocrite then? As Vaidyanathan says, Twain was just aware of the distinction between piracy and plagiarism. For him, piracy was theft.
Plagiarism was bad manners. Piracy was the violation of an entire body of work, and thus obviously an appropriation of specific expression. It is an offence created by the notion of copyright. Plagiarism is much older and complex and comes in many forms. A writer can use a small portion of another’s work and yet fail to credit the source, and be accused of plagiarism. At its extreme, authors can use data that others compiled, research another did, and fraudulently portray the work as their own. Because plagiarism is more generally understood as “idea theft”- it is not necessarily a violation of copyright law.
In April 1900, Twain made the case for perpetual copyright. But he took it one step further. He declared that there is no difference in the role of ideas in copyright and the role of ideas in real property. “The man who purchases a landed estate had to earn the money by superiority of his intellect; a book is the result of an author’s own brain in the same manner-a combination and exploitation of his ideas.” This is an odd and a specious argument and the House of Lords was not swayed by Twains’ argument. Twain collapsed the idea/ expression dichotomy in a way no one before or since has tried to do: by attaching ideas to all forms of property, instead of claiming that there is a property right inherently attached to ideas themselves. The only explanation for this is that the ideal real property, to Twain, was still a mine. A law passed in 1909, set the copyright duration at 28 years, with a renewal for 28 more years, and this made Twain extremely happy that America was ahead of England in two ways: by length of copyright and fairness to all interests concerned.
Through the 20th century as well, the movement of copyright has been increasing protection for the author. Till 1998, the duration of protection was life of the author plus fifty years. In 1998, Congress extended the duration to seventy years, beyond the life of the author and granted all current copyrights 20 more years.
By emphasizing the property rights of the author as the paramount purpose of copyright, the US has grown closer to Europe in copyright philosophy over the 20th century. But by doing so it has jeopardized the idea/expression dichotomy, public domain, fair use, open access to information, and the ability to freely satirize, parody or comment on an existing work.
But what remains true amongst all the discussion is that the historical origins of originality and authorship are as murky as the concepts themselves. Copyright historian Harry Ransom has noted that authorial pretensions, occupied even ancient Greek and Roman writers. In addition, anthropologist Ruth Finnegan has attacked as simplistic and ethnocentric the assumption that oral cultures fail to recognize authorship, saying that authorship is too often studied in historical European terms. What emerges here is that when all questions of authorship, originality, use and access to ideas gets linked to “property rights”, we face an end of the road there. And for Vaidyanathan, the terms of the debate need to undergo a significant change here. Instead of trying to prevent a theft , we must try to generate a copyright policy, he says, that will encourage creative expression without limiting prospects for future creators. The need of the hour is to seek a balance because historically and philosophically the phrase “intellectual property” has been counterproductive. Instead of bolstering “intellectual property”, one should look to forge “intellectual policy”.
Summing up, we can look at the three problematic assumptions about the author that copyright law makes:
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 maximizing his 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-inneed, but rather facilitates the easier appropriation of works by publishers and other rentiers of the IP system.
 The complete article Conceptualizing Law and Culture: Rajnikant and the Sign of our Times by Lawrence Liang.
2.1 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 manner, where authority is not seen to be an inherent quality but a transitive one2, and one whose history is located in specific technological changes. The technology of print and paper brought about a set of questions around the question 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 a centuries in the case of print to a technology that is barely eight years 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
Hillel Schwartz says :
“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.”3
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 bookowners 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 coexistence 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 the 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 Gunnes5, 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, every classification system is haunted by its exclusions, separations and forced hierarchies, 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 arbitraness 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,
(d) sucking pigs,
(g) stray dogs,
(h) included in the present classification,
(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 exceeds certainty. To assume that encyclopedias can fulfill the task of achieving certainty is to misunderstand the history of encyclopedias.
As Liang suggests, it then might therefore be worthwhile to think of the uncyclopedia-If the encyclopaedia (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.
2.2 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 the 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 art work. 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 the access to affordable medicines and access 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. he 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.6
We shall look at some of the critiques that Liang makes of the Creative Commons and study the figure of the pirate, silent in the discourses of the free culturists, in chapter 4. But 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. The pirates contribute nothing and cannot play a role in the public domain, since they cannot claim the representative status given to the transforming creator within the productive public domain. 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”.7
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. 8 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.9
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 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.10
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.11
While the question of piracy and creativity has been dealt with in greater detail in chapter 4, it is perhaps right to mention here that 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”.12
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 a 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 unauthorised 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.
2.3 Some absurd cases of censorship:
• The Federal Bureau of Investigation handcuffed Russian computer programmer Dmitry Sklyarov after he had given a presentation on the security vulnerabilities in Adobe Corporation’s e-book Reader software. 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 willfully violated the act by allowing readers to make private copies of e-books. In December 2002, a jury found the company not guilty.13
• 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 misappropriaters 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.
 Adrian Johns, The Nature of the Book: Print and Knowledge in the Making, (Chicago: Univ. Of Chicago Press, 1998) quoted in article by Lawrence Liang ” A brief history of the Internet from the 15th to the 18th century”.
 Hillel Schwartz, Culture of the Copy, (Cambridge: MIT Press, 1996), in Lawrence Liang’s ” A brief history of the Internet from the 15th to the 18th century”.
 Mark Rose, Authors and Owners,
 Lawrence Liang’s article A brief history of the Internet from the 15th to the 18th century mentions Cheryl Beth Gunnes, Circles of Learning: Encyclopedias and Novels in 18th century Britain, PhD Dissertation submitted to University of Ohio, 2001.
 Partha Chatterjee, (1997) ‘Beyond the nation? Or within?’, Economic and Political Weekly 32(1/2): in Lawrence Liang’s “Beyond Representation: The Figure of the Pirate” Also see Partha Chatterjee, On civil and political societies in postcolonial democracies, in Sudipta Kaviraj & Sunil Khilnani, Civil Society: History and Possibilities, (UK:Cambridge Univ.Press, 2001), pp.165-178.
 Sarai Reader 05: Bare Acts (New Delhi: Sarai/CSDS 2005)
 Lawrence Liang, Porous legalities and avenues of participation, Sarai reader 05: Bare acts (New delhi: Sarai/CSDS, 2005).
 Lawrence Liang, Porous legalities and avenues of participation, Sarai reader 05: Bare acts (New delhi: Sarai/CSDS, 2005).
 Brian Larkin, ‘Degrading Images, Distorted Sounds: Nigerian Video and the Infrastructure of Piracy,’ Public Culture 16(3) Fall 2004
 Jacques Ranciere, The Nights of Labor: The Workers Dream in Nineteenth Century France, The Philosopher and His Poor (Duke Univ. Press, 2004)
 Siva Vaidyanathan ” Copyrights and copy wrongs, The rise of Intellectual Property and how it threatens creativity”, Afterword, pp 246-247
3.1 Film Authorship: Collective or Collaborative
Marjut Salokannel in an essay titled “Film Authorship in the changing Audio-Visual Environment“, says that cinema has been continually confronted with the problem of determining who the actual author of a cinematographic work is. Salokannel discusses the notion of film authorship as a shifting boundary between film aesthetics and legal discourses relating to the authors’ rights. The boundaries have also differed according to whether response was given by a supporter of the politique des auteur or the American corporate lawyer defending the interests of a major Hollywood studio.
The notion of the modern artist – the 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 Renaissance.
By distinguishing themselves from the “ordinary artisans, painters and sculptors were able to claim a position of the savant, the free individual possessing unique knowledge which would give their work a place among the liberal arts. Prior to this artists were seen as members of a specific group of artisans and it is with the development of the discourse around the 18th century Enlightenment philosophies that deemed the author as a creative genius. In the latter part of the 20th century the notion of the Romantic author, having autonomous an universal subjectivity came under a sharp critique. It was said that the author can not be placed under a universal scheme and therefore, it is not possible to generalize the social practice of the author. As Foucault said, the concept of the author should not be seen as something that operates in a uniform manner throughout history; rather authors must be situated in their relevant social and historical context. The disappearance of the author as the origin of the work in literary criticism doesn’t mean that authors actually vanish, but rather they are no longer accorded a position of privilege as a category of interpretation.
Authorship in the area of filmmaking has always been a contentious issue primarily due to 3 factors:
1. Films see the confluence of technology, art and economic factors.
2. As a physical entity it is a result of a collaborative effort. Moreover, it has no original, or rather the negative is the original and the positive merely a copy of it.
3. Historically, films have always been influenced by technology. However, technology is not a neutral force but requires economic, artistic as well as political decisions. The most interesting impact of technology however can be seen on the division of labor within filmmaking. For instance, the introduction of sound altered the standing of sound engineers within the film crew. Or the use of color film created a new set of demands upon the cinematographers.
Films of the early cinema that were shown to small audiences in fairs etc. were made primarily for entertainment purposes for the ‘common people’. This idea of the film as a form of live entertainment was reflected in French public order legislation, in which for censorship purposes, films were treated as spectacles de curosites. However its artistic quality began to gain prominence much later in the 1920s, when it became the means to challenge the conventions of the ‘legitimate art’. The recognition of cinema as an art form was inextricably bound up to the recognition of the film author and the position has its own history. When directors took on an organizing role in the work process , they were rarely designated “author” of the work. The reason for this was that early cinema was still considered directly connected to theatrical expression, where the role of the director was equivalent to that of the stage director. A director was seen more as a metteur en scene, who provided the underlying literary work with a filmic representation and not an actual realisateur, a creator of new, independent work.
The American film industry largely developed almost like an automobile industry, where the artists were treated as personnel, not only salaried but also denied any privileges based on the specific nature of their creative work.
In US federal copyright law, cinematographic works are treated as ‘works made for hire’, for which all rights lie in the hands of the employer, i.e. the film producer. In contrast, in most European countries creative individuals who worked who worked within film making have been accorded a special status, and this point of rupture between America and Europe can be traced to various socio-economic and cultural differences. However, even in Europe generally and France specifically, it was not until the birth of the French New Wave in the 1950s that the film author was raised to a position of prominence.
The politique des auteurs advocated by the group of directors associated with the Cahier du Cinema argued that the cinematographic film was primarily the creation of the director, who as a consequence should be treated as its author. Even if the director did not participate in the writing of the script, he was said to provide it with its ultimate filmic existence. Buy imposing this notion of a single unifying author, the representatives of the French New Wave desired among other things to give cinema the status of art and this period marked an important rupture in the discourse of French cinema. All films thus came to be considered as film d’auteurs. The influence of the French New Wave did impact the legal recognition of the author, who were granted authors’ rights in 1957. Prior to that the jurisprudence wavered not knowing whether to grant rights to the producer or the author. Some ten years after the French New Wave, the New German Cinema also attempted to shift the author to the central position of a filmic work. As opposed to the Romantic author of France, the German author (Autor) was a more political figure who challenged the institution of cinema, while at the same time attempting to benefit from the system in which it operated. In order to be able to retain their independence vis a vis the commercial film industry, the directors had to have full creative and executive control over film production. which meant that they had to assume the task of the producer as well. Thus many German filmmakers of this generation felt closer to the small entrepreneur, the artisan of early cinema than the Romantic author. The term Autor, largely defined a critical position of the independent filmmaker vis- a-vis the commercial industry and the system of Government funding without which that cinema could not survive. Another structural change that caused a ramification to the author was the introduction of television, where film authors became government functionaries in public broadcast companies.
Tussle between Law and Cinema
Salokannel explores the mediation processes of cinema, a cultural artifact and law, a practice needed to maintain public order. How do the two reconcile with each other especially when the former in its development of practices denies all forms of taxonomical reductions whereas the latter takes it as its pride to do so. As long as cinema was not regarded as an individual art form, the question of copyright did not arise, but its status as an art began to pose problems for law. In France prior to the French New Wave, cinematographic works were considered either as a series of photographic images or as a type of dramatic work and the law protected the author of dramatic work against illicit cinematographic reproductions. It was not until sound was introduced in to film that French courts recognized films as having an autonomous existence.
However, this did not mean that actual authors of the work gained protection. Artistic works made in collaboration with a number of individuals posed problems for the system. Added to this the fact that since the film negative is, as it were, a matrix from which positive works can be reproduced almost limitlessly, the film did not fall within the accepted meaning of art (defined in terms of its uniqueness and scarcity), it is not surprising that the legal configuration of cinematographic works within the system of authors’ rights was a controversial issue.
In contradiction to the civil-law tradition of the authors’ rights film producers continually claimed for the first ownership rights for the film and not the director. Underlying these debates was a more fundamental question: should authors’ rights protect the individual creators of the work or the economic investment involved in its production.
It was not until 1957 in France and 1965 in the Federal republic of Germany that it was affirmed in legislation that the original copyright in cinematographic work belonged to the creative authors of the work. In the common law countries, it was the producers who succeeded in their demand that they be granted the sole ownership of the work.
And in all this, the legal position of the technicians, has always remained uncertain. Salokannel points out that if all those who contribute to the film-production process were able to claim authorship in the work, this might lead to a dilution of the authors’ rights. It is in relation to the issue of securing the moral prerogatives of the author that Salokannel poses the question, whose personality is at stake when a film is mutilated or distorted? Courts in Europe have recognized the vulnerable position of the film author and an Italian Jurisdiction in 1989 upheld that breaking the film into commercials infringed upon the moral rights of the directors. The most notorious case that expresses the dichotomy between civil law traditions of the authors’ rights and the Anglo-American copyright system concerned the colorization of the film Asphalt Jungle, directed by John Huston and co-written by Huston and John Maddows. After the death of Huston, the film was colorized by Turner Entertainment. The heirs of Huston and Maddows wanted to prevent the transmission of the colorized version on French Television. The legal issue was whether the director and the scriptwriter were able to claim authorship rights and whether by virtue of their moral rights they could prevent the distribution of the colorized version in France.
After much turmoil between the legal cultures of the two countries, the French court declared the author of a work has the right to claim authorship and recent directives within Europe continue to do so . The notion of the film author has performed a similar function in various social, economic and legal discourses in different historical situations: it has served as an unifying element between different social practices.
According to Deleuze:
the task of the cinema d’ auteur is to ensure the distribution of existing films-films that cannot stand up competition from commercial cinema because they are less accessible to public; but the task of cinema d’ auteur is also to make possible the creation of films that do not exist as yet.17
This makes the site of cinema production a highly paradoxical condition in talking about the dichotomy between artistic practice and an economic practice. Salokannel says that it is for this reason that we need the notion of the film author, not as The Author, the origin of all things, but as a socially determined person, as l’homme de métier.
3.2 Claiming ownership
Lawrence Liang in his article “Conceptualizing Law and Culture: Rajnikant and the Sign of our Times” 18 an account of how Rajnikant tried to protect a sign that he used in his film Baba The question is not so much about the methods that he used or about the sign itself, but Liang tries to resolve the larger questions about the interaction between law and cultural consumption.
This attempt to formally protect the gesture for Liang, throws a number of debates around what it was that he was attempting to do, questions of authorship claims being made by him around his persona and raises in a significant manner the very question of what it means to be a star, and what it means to protect one’s stardom.
He distinguishes some of the issues with respect to the right to publicity and the manner in which it has been used in popular culture debates.
According to Liang, “The right to publicity is a common law right which accrues to the individual persona of the celebrity. It does not preclude any claim of protection over the work etc. from copyright or allied laws.”
Hollywood has had a long history regarding the claims made by actors/ actresses for their right to publicity. In India, Rajnikant’s claim was perhaps the first public claim towards such a right to publicity. In common law, the right to publicity is a right to certain distinguishing and identifying characteristics, features or behavior of a celebrity. These rights are assignable and tradable.
It is perhaps important to remember that it is not as if the manufacturers of these artifacts don’t want their products to enter into the realm of popular culture. On the contrary it is crucial that it becomes a part of the daily vocabulary of the pope or the audience. Thus it is not as if Rajnikant does not want his sign to be used by his “fans” or audience but by obtaining or claiming rights against the sign, he has the absolute right to determine the ways in which this sign may be used or control the ways in which it may be misused. In the present context, the immediate motivation for Rajni may be varied. From an attempt to control a particular image as a move before his entry into politics or even the emergence of his self-awareness as being a global product, his claim however gets mediated through the use of the language of intellectual property. Inherent then in the right to publicity protection, is this rather quaint notion of the pristine image that is sought to be protected.
Liang quotes Ashish Rajadhyaksha in his article who says that “This style, as you know, involves an entire distinct ensemble, including a particular style of camerawork, editing, sound, and even special effects, that is clearly inscribed in to the very textual fabric of the film, appears in film after film” The style also emerges when a number of people emulate this style, either in reverence or in jest. The style also emerges when it is used by Rajni clones, mimics or incorporated into the very textual fabric of other films.
What then is the precondition to the stars claiming an exclusive right to their image, a right which is articulated through a language of exceptions.
In order to illustrate that iconic images are always floating around, ready to be copied, Richard Dyer has written in some length about the use and appropriation of the image of Judy Garland by urban gay men as a powerful means of speaking to each other about themselves. Or in the same vein the use of James Dean by contemporary lesbians.
So what happens when these stars or their estates do not agree with particular appropriations or uses? In an interesting case, a small group brought out a card bearing a picture of John Wayne, wearing cowboy hat and bright red lipstick, with a caption, “It’s such a bitch being butch.” Wayne’s children, among others, objected to the card not only on the ground that its sellers were making money from The Duke’s image but that the money should go to them because the card was “tasteless” and demeaned their father’s (hard-earned) conservative macho image.
As Michael Madow notes “Publicity rights are about meaning as well as money. The question “Who owns Madonna?” is not just a question about who gets to capture the immense economic values that attach to her persona. The question is also, even chiefly, is about who gets to decide what “Madonna” will mean in our culture: what meaning(s) her image will be used to generate and circulate, and what meaning(s) she will have for us. By centralizing this meaning-making power in the celebrity herself or her assignees, the right of publicity facilitates top-down management of popular culture and constricts the space available for alternative and oppositional cultural practice. This is perhaps not reason enough to reject the right of publicity tout court. But it does place a heavy burden of justification on the proponents of the right”.
Large-scale commercial exploitation of famous persons goes back at least to the eighteenth century. It continued throughout the nineteenth century as well, without it having to be a problem to be regulated by law. If at all the practice seems to have been supported by a widely shared conception of famous persons as a kind of communal property, freely available for commercial as well as cultural exploitation.
For instance after Benjamin Franklin’s arrival as ambassador to France, Franklin’s likeness began to appear “on medallions, snuffboxes, rings, clocks, vases, handkerchiefs, and pocket knives.” During Sarah Bernhardt’s 1880 American tour, manufacturers and merchants “cashed in with Sarah Bernhardt perfume, candy, cigars, and eyeglasses.” Two years later, when Oscar Wilde visited the United States on a much-publicized and controversial lecture tour, advertisers put his image on trade cards for such products as Marie Fontaine’s Moth and Freckle Cure.
However, the change first started occurring between the end of the Civil War and 1900, when total expenditures on advertising soared, multiplying tenfold and transforming the American landscape in the process. In urban centers, “every available building and public conveyance was plastered with some sort of commercial message,” while “enterprising advertisers easily convinced rural inhabitants to have the same thing done to their roadside farm buildings.” 2. Secondly a shift in advertising content. Previously, advertising had mostly been word-based, usually presenting consumers with a “reason why” they should select the particular product. In the late nineteenth century, however, the perfection of chromolithography made possible a new kind of visual (i.e., image-based) advertising. 3. The increase in daily newspaper circulation from 2.6 million in 1870 to 8.4 million in 1890. 4. And the emergence of the film industry and the star system (well documented) which begins to cast the right as a natural right for a celebrity, know defined as a person known for his well known ness.
The question of what a star is has been answered in some length in film theory but what happens when the star as also emerges as an encoded figure produced by the operation of certain legal mechanisms? How does film theory account for this new domain that allows for certain characteristics of stardom or celebrity hood emerge? How for instance do you deal with a star who uses the legal value that his celebrity status has to prohibit certain forms of appropriation? For instance in Woody Allen v. National Video Inc., Allen claimed that a video store had used his likeness without his permission. In deciding for Allen, the court essentially deemed that another individual had violated a celebrity’s rights simply because he physically resembled the celebrity and appeared in an advertisement.
Madow states that “A celebrity, does not make her public image, her meaning for others, in anything like the way a carpenter makes a chair from a block of wood. She is not the sole and sovereign “author” of what she means for others. Contingency cannot be entirely erased. The creative (and autonomous) role of the media and the audience in the meaning-making process cannot be excised. To be sure, the precise distribution of semiotic power will vary from case to case, as will the part played by luck and politics. Sometimes, the celebrity herself or persons in her pay seem to perform the lion’s share of the meaning-making work; at other times, the work is left to experts in the celebrity industry, for whom the celebrity is little more than “raw material” to be “mined and worked up into” a saleable commodity. Sometimes, the meaning the celebrity (or her sponsors) initially selects and circulates largely resists displacement; at other times, this “preferred meaning” is inflected, subverted, or inverted, either in the culture at large or in a particular subculture, as the celebrity’s fans weave their own narratives and create their own fantasies about her. But despite these variations, a celebrity’s public image is always the product of a complex social, if not fully democratic, process in which the “labor” (time, money, effort) of the celebrity herself (and of the celebrity industry, too) is but one ingredient, and not always the main one”
If all celebrities have a natural right to their persona, then what happens to Madonna. John Fiske states that Madonna, whose entire persona, is an ironic reworking of the Hollywood myth of “the blonde.” How much does she owe to Marlene Dietrich, Marilyn Monroe? To the directors (Hawks, Huston, Mankiewicz, Wilder, etc.) who made the films in which Monroe appeared? To Andy Warhol and the Kennedy brothers, who helped elevate her to icon status? Or for that matter as Liang points out, every one of Subhash Ghai’s leading actors have in some ways been clones of Dev Anand.
Thus, as a domain of cultural politics, intellectual property serves as a fertile ground to explore the prospects for an interdisciplinary practice that draws from ethnography, cultural studies, as well as law and society scholarship. The obvious failure of the traditional positivist, formalist and even the classical critical legal studies mode opens up opportunities to explore law as a more diffused force shaping social consciousness and behavior.
 From Marjut Salokannel’s essay “Film Authorship and the Audio-Visual Environment” in “Of Authors and Origins”,( Clarendon Press, Oxford, 1994),pp 62. Salokannel quotes G. Lyon-Caen and P. Lavign, Traite theorique et pratique de droit du cinema francais et compare
 Council Directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable transmission deem the principle director of the cinematographic work as the author
 Gilles Deleuze in Salokannel’s essay “Film Authorship and the Audio-Visual Environment”. (Italicization mine). From ” Le Cerveau, c’est l’ecran”, (1986) Cahier du Cinem
Chapter 4 19
4.1 Myths of Copyright
Soon the Indian Music Industry will be out of sight, there will be a cultural blackout and consumers will no longer be able to listen to music, virtually. That is what the Indian Music Industry – IMI, joining hands with the police and researchers, tried to convey to consumers and media persons this past week as it held a conference to highlight the threat of music piracy. At a briefing at the India Habitat Centre addressed by VJ Lazarus, IMI President, JF Rebeiro, former Commissioner of Police, Abhik Mitra, MD, Saregama India Limited, and Prakash Singh, former Director General of BSF, the issue of piracy was raised and a campaign called `Sounds of Silence’ to fight the ‘illegitimate music’ was launched.
“Due to piracy we have lost over Rs 1,800 crore in the last three years. Despite being an offence as per the copyright act -Article 52 (1) (i) that calls for severe penalties -piracy is eating into the music companies,” lamented Lazarus.
Though he reasoned that the IMI has recorded 3,652 criminal cases and made 4,096 arrests in the last four years, only 30 cases ended in prison sentences or fines, although 191 cases ended in conviction.
He felt that this sorry state was due to a lenient attitude by those who should be providing the deterrent, while Rebeiro, too, admitted that for the police it is one of the very low priorities. Moreover, slow processing in the courts adversely affects the required enforcement. The source of the trouble also lies in the lack of major hits and the high price of the original cassettes and CDs. For the latter they have their reasons. “People come to us asking: why can’t you sell a CD for Rs 20 while the raw material costs you only Rs 8, but they don’t realise that the lyricists and each of the artistes have to be paid a good amount,” said Abhik Mitra.
“If the government does not look into it fast, the industry will come to a halt within a year, for two out of five cassettes and CDs get pirated now,” says Lazarus. 20
21 Piracy in India costs foreign businesses millions of dollars in losses every year.
Indian industry leaders say that rampant piracy threatens intellectual property rights and scares foreign investors from coming to the country.
But as the Confederation of Indian Industry holds a conference to discuss the issue, cracking down on the problem is far from easy.
From the latest blockbuster to the newest bestseller, you can buy anything your heart desires on the streets of Mumbai. The problem you may face, however, is that more often than not, the products are pirated. Its estimated that foreign businesses lose $500m (£250m) every year in India because of piracy. Indian police are making some efforts to crack down on the crime. We accompanied members of Mumbai’s police force on an undercover raid. But there are some very strict guidelines police here have to follow before they can go ahead with a raid. Indian law stipulates that inspectors need to get a tip-off or a request from someone who owns the copyright in question before they can conduct a raid operation. This makes it challenging for law enforcers to arrest those allegedly selling pirated goods. Still, on average, hundreds of undercover raids are conducted every year. On the raid we witnessed, 2,000 fake DVDs and software CDs were recovered. Authorities say the war on piracy is far from over.
“It’s becoming difficult for us to tackle this issue,” Sanjay Mohite, the Deputy Commissioner of Mumbai’s Enforcement Division, says. “The large-scale participation of pirates involved in the trade, and large purchases from the consumers, makes it very challenging. We are getting better at it, but more needs to be done to raise awareness on the issue as well.” Music and movies are some of the worst affected industries by piracy in India . Experts say half of the music sold on the streets is illegal, while 60% of movies sold in India are allegedly fakes. Software companies, though, are bearing the brunt of the piracy trade. Figures indicate that 74% of software sold in India is counterfeit.
The excerpts from news reports quoted above provide just a glimpse of the discourse that has become a regular staple of the media’s coverage of copyright-related issues. Yet there is a stubborn logic that refuses to accede so easily to the threats, blackmail and pleas of copyright protectionists. The spectral figure of copyright looms large over, but fails to entirely haunt, our imagination. Drawing on these stories taken from contemporary media representations of the conflict over copyright, Lawrence Liang examines some of the basic assumptions in the self-narrated life of copyright.
As with any other totalising story, the tale of copyright appears to have some intrinsic appeal, relying as it does on a progress account (copyright promotes creativity) and the dystopic world that it prevents (there will be no creativity without copyright). The reason why Liang deliberately chooses to use the phrase, ‘the myth of copyright’, is to recognize the wonderful success of the apologists of copyright in presenting it as a universal truth. According to him, the history of copyright has always been narrated in an ahistorical manner, following a universal teleological route as though it were the natural culmination of events. Following the works of Roland Barthes, he interrogates the mythologies as forms of language, which are ideologically embedded in various practices of power and ideology. All the arguments that build up to deconstruct the myth of copyright emerge from the following points of view:
- Challenging the ahistorical account of copyright: Contextualizing authorship and originality
- Copyright, information and the language of property -Copyright and incentive for creativity
- Copyright and protecting the rights of authors
- Use of the language of theft and piracy in the discourse of copyright
Though I have treated these topics under separate chapters, it is perhaps worthwhile to see them in the context of the breaking down of mythical structure of copyrights.
The significant contribution to literary theory through the works of Roland Barthes, Michel Foucault and Jacques Derrida has been to problematise our notions of the romantic individual author. What then do the work of Foucault, Barthes and Derrida mean for the legal interpretation of authorship? If legal scholarship and practice were to take note of the inroads into the very notion of authorship and originality by these thinkers, we would need to reconceptualise the terrain that we understand to be intellectual property legislation. This reconceptualisation will necessarily have to shed the burden of the author’s originality and recognize the millions of traces which shadow the arrival of any work, and provide a means of structuring the relationship between such texts, its readers and society at large. It will mean a more nuanced understanding of the public sphere or what IP laws call the public domain, with the presumption being that the author is not a figure who has to be protected from this public sphere but one who resides and works within the public sphere.
In tracing the idea of property in classical Western as well as Eastern philosophy, Lawrence Liang located the origins of the law’s emphasis on author’s rights with property rights. For it is equating the idea of property with information goods that much of the debates around copyright enforcement have ensued and progressed.
The language of Property
In Cree Cosmology, to refer to something, as mine does not necessarily imply ownership, but refers instead to a relational proximity to objects (animate and inanimate) and beings and the accompanying responsibilities and obligations
Is ownership only about possession and exclusion or are there other ethical registers through which we can understand the ethic of owning?
Data and the Obligations of Generosity
•1646, from Latin. datum “(thing) given,” of dare “to give”
Similarly, the word ‘Data’ (dãtã) in Hindi/Sanskrit is taken to mean “giver”, which suggests that one must always be generous with information, and make gifts of our code, images and ideas. To be stingy with data is to violate an instance of the secret and sacred compacts of homophonic words.
The Gifting of Knowledge has become more widespread with Digital Culture; but the logic of property attempts to impose artificial boundaries on the limitless possibilities of immaterial production.
The enforcement of these boundaries in turn dependent on extreme violence and social conflict.
The opposite of Caring is Brutality
“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; if not, ’tis as much his own, as his Wife and Children are his own.”- Daniel Defoe
- We do not ‘own’ our wives, husbands or children; but yet we can still claim them as our own
- The Root Word of Own is Owe, reminding us of the historical and cultural debt we have when thinking of ourselves as owners of knowledge
- Not surprisingly the word owe also gives rise to the word ‘Ought’
“If you have an apple and I have an apple and we exchange apples, then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas.”
– George Bernard Shaw
The theories of George Hegel and John Locke regarding the manner in which property is created raises a fundamental question: can information be considered property in the same sense that a house or a car is considered property? The fundamental character of information is that it is a non-rival good, which means that the assumptions of depletion, scarcity etc, that are used while analyzing classical theories of property do not quite fit.
Many explanations for the propertization of intellectual creations are based on the Lockean theory of the creation of property. Locke’s theory relies on three basic principles:
- firstly, that every person has property in himself/herself;
- secondly, everything that is in a state of nature – i.e, not as yet propertied and still held in the commons — was given by God to be propertied;
- thirdly, that labor converts things in a state of nature into a state of property and adds value to things so labored upon.
Locke was, therefore, of the opinion that if A mixes her labour into a thing that is in a state of nature, that thing becomes the property of A. In terms of copyright, authors can be said to take ideas that are ‘out there’ in the commons, add their labour to it, and thereby create the ‘work’. The question that Locke fails to answer is why, if authors add labour to ideas, the result becomes the property of the author; his theory simply rests on the assumption that property is the reward for labour.
The next question that may be asked in this context is whether and how a person actually has property in himself or herself. This property in oneself cannot be a product of one’s labour and, therefore, it must be premised upon something else. At the core of Locke’s theory lies the notion of personal freedom, with state power severely constrained and limited to the protection of liberty. It is in this context that he, again, presumes the ownership of oneself. Unlike Locke, however, Hegel does not see humans as naturally free and as having natural ownership rights in themselves. According to him, it is solely through the historical process of objectification and hence self-confrontation that one comes to be free. Only in the development of one’s own body and mind, and through self-consciousness, one takes possession of the self and becomes his own property. In both theories, ownership of ourselves enables the ownership of natural objects as they become assimilated to our bodies.
Central to Hegel’s concept of property is the notion that property is not only a necessary component in the development of personality, but an actual manifestation of this personality. One can see Hegel’s influence on the Romantic movement that flourished in literature in the 18 th century, which finally concluded that a person must translate his or her freedom into an external sphere in order to exist as Idea, and that the resultant property is the manifestation of this translation.
According to Hegelian arguments, occupancy, not labour, is the act by which external things become property. This occupancy, or taking possession, can be done in three ways: firstly, by directly grasping it physically; next, by forming it; and thirdly, by merely marking it as one’s own. It is the second of these ways of possession that is most interesting for our purposes. Liang in referring to Hegel remarks that, in the imposition of a form on something, the thing’s determinate character as one’s own acquires an independent externality and ceases to be restricted to the creator’s presence, awareness and will. This idea reverberates in the recognition by copyright law of the rights of the author of works when those works are changed or ‘mutilated.’ The law looks upon this ‘mutilation’ as a violation of the personality of the author as manifested through that work. However, the fundamental question that law does not answer is how this constitutes a violation of the author’s ‘personality.’
Moreover, as is seen with the Romantic conception of the author, Hegel fails to account for external influences on creations. Hegel’s conception of property being the expression of the will of the individual fails to see that this ‘work’ is influenced by various other factors; painters, musicians, writers, all learn their skills and are classified into genres and styles; artists may take inspiration from everyday scenes, and authors from gossip. In such situations can their ‘works’ be said to be expressions of their soul?
Locke locates the desire for propertisation of the commons in the need for the preservation of resources. According to him, if resources are left in the commons their utility will gradually diminish because of over-use or neglect. Land, for example, may be overgrazed or may by neglect become unusable, and in both cases the utility that this land provides is diminished. Locke assumes that once a resource is taken from the commons and transformed into private property the owner of that property will use it in a manner that preserves its value in use. Even if we accept these assumptions, can this theory of the need for propertisation be extended to incorporeal ideas? Does the ‘over-use’ or neglect of ideas lead to the reduction of their value in use?
Bernard Shaw’s quotation concerning the sharing of ideas is a simple, yet effective, demonstration of the nature of ideas and information goods. Information just does not possess the same characteristics as classical ‘real property’. The dissemination of ideas, for instance, does not reduce their use value. Information is considered a ‘non-rival’ good, in the sense that usage of a particular piece of information cannot impair the utility of that information to another user. It has also been characterised as ‘non-excludable’ in the sense that use of a certain piece of information does not exclude other users from utilising the same information.
The best example of this is software. The only way a person can prevent the copying of software is by preventing third persons from accessing it. Once access is granted, it can be copied for almost no cost. This copying, moreover, does not affect the utility of the software itself, nor does it prevent the usage of that software by the original owner.
The sharing of information goods, especially in the digital context, does not diminish in any manner the quality of the good that is shared. There is clearly a movement away from the idea of property, as we have always understood it. However, the concept of copyright represents a stubborn drive towards taming this new monster of accessibility created by developments in information technology.
There are a number of contradictions in the attempt to equate information goods with classical property, which are becoming ever more glaring. Some of these are internal contradictions within the larger machinery of production and consumption. Thus, on the one hand, you have hardware manufacturers creating better CD writers at a cheaper price and advertising their products with the magical words, BURN, RIP, COPY, DUPLICATE, STORE, etc. On the other hand, you have the content industry screaming itself hoarse at these new technologies that are making it easier for people to steal information unethically.
Is copyright an incentive for creativity?
The defenders of the copyright regime argue that without the legal system of copyright in place, authors and artists would have no incentive to produce works of art, being denied of an economic incentive, thereby depriving the society the right of access to many significant works.
Intellectual property law, therefore, is often justified on the basis that it stimulates the investment of time and money in the creation of new works and that many authors of copyrighted works depend for their livelihood on the income that they derive from the publication of their works.
Is it prevention against stealing?
Additionally, it is claimed that in the absence of copyright protection covering an author’s creation, the low cost of copying such works would induce competitors to ‘steal’ another’s product without penalty and, as a result, rivals could profit from another’s intellectual efforts without expending any energy or costs other than the relatively minor costs required to duplicate the socially valuable creation. Consequently, the motivation of authors to generate beneficial informational works would be greatly diminished, if not entirely eliminated. With competitors thus copying their works and undercutting their prices they would not be able to reap pecuniary rewards for their efforts or even, in many cases, recover their costs. Given that authors would have little hope of recovering their investment, the production of works would be seriously curtailed, and the associated benefits upon society would be lost.
While there may be a case for the proposition that without incentives authors would fail to create new works, the statement that copyright law is a prerequisite for such incentives requires closer examination. What is essentially argued here is that copyright is not synonymous with incentives, and that authors have created in the absence of copyright. It is also argued that, in many instances, the incentive that copyright appears to give authors is illusory.
- Firstly, many authors who have little hope of ever finding a market for their publications, and whose copyright is, as a result, virtually worthless, have in the past, and even in the present, continued to write. While it may not be a general phenomenon, it is possible that people produce works purely for personal satisfaction, or even for respect and recognition from peers.
- Secondly, historically, there is much to suggest that copyright law and incentive were rarely linked. The 19 th century saw the prolific authorship of literary works in the absence of any meaningful protection afforded to authors by virtue of their copyright. While copyright protection existed, these rarely benefited the author beyond an initial payment for the copyright for their works.This payment, often referred to as an honorarium, bore no relationship to the exchange value of that work, but was rather an acknowledgment of the writer’s achievements. In the vast majority of cases, most of the profits went to the publisher and, on occasion, authors were even asked to underwrite a portion of the publishing costs. Moreover, without the publisher the copyright had no effective value, as the work would never get published. It is clear that in reality copyright protection usually benefited the publisher, and rarely the author.
Furthermore, with the enactment of every subsequent Copyright Act, the protection given to authors was reduced. In England, prior to 1814, copyright for the work reverted to the author after a term. The author could renew proprietary rights over his or her work, and could conceivably gain from again transferring the copyright. However, after 1814 such renewal terms were eliminated and the author lost his/her position in the mechanisms of copyright. The typical transaction consisted of the transfer of the copyright to the publisher by the author on the basis of a one-time payment. Subsequently the author had little role to play in the publication of his/her work and the author reaped little reward from future sales.
What about translation in to new media?
This can be seen in a number of recent cases regarding the translation of works into new media. What is at issue in these cases is whether or not the author, who has transferred copyright in, say, a film, to another party, has a proprietary interest in translations of this work into new media – eg, its release over the Internet –the development of which was unforeseen at the time of the transfer of copyright. In the United States, there are a number of cases where it has been held that the author no longer has a proprietary interest in these works that have been translated into new media. Where does copyright provide an incentive to authors in such cases?
In addition, the existence of alternative and different types of incentives further erodes the incentive claim of copyright protection. Two non-pecuniary incentives have been identified above: personal satisfaction and recognition. Many people have created works without any thought of pecuniary benefit. It is doubtful that Anne Frank wrote her diary or Nehru his letters with the intention of reaping the monetary benefits arising from copyright protection.
As the honorarium discussed above shows, considerable prestige and value are attached to the work of composing a book, an article or a piece of art recognised as an example of excellence in its particular field. These incentives will always be present, regardless of whether the author is awarded monopoly rights in his or her work.
Original authors may have the additional benefit of being the first mover in the market. By entering the market first, the authors of works may be able to capture a certain degree of the economic rewards that intellectual property rights aim to bestow even without the actual conferral of such legal rights.
Currently there are several mechanisms, primarily Internet-based, for creating incentives that are independent of copyright. The Street Performer, or the Fairshare Protocols, are examples of such devices. Under the latter system, several people make a payment directly to the author to finance future works with the understanding that they are given access to a portion of the consequent profits. Under the first method, the authors contemplate a menu of options available to artists. What each has in common is that a release price will be set for a work, and that it will be made available in digital form, without copyright restrictions, once members of the public voluntarily donate sufficient funds to meet the asking price. For instance, an author might set up his/her own website and announce a book project directly to the public. Usually, though not necessarily, the author might begin by posting a chapter or two to give readers a flavour of what is to come.
Is it a protection and an incentive for the struggling artist?
We are constantly regaled with stories of how copyright as a system acts as the basic protection for poor, struggling authors who would otherwise have no means of protecting themselves against pirates who reproduce their goods or others who steal their ideas. According to Liang, it is an obvious statement that we need to be and want to be recognized for our work. But the question that needs addressing is does copyright really serve this end, and also how and why is the notion of the struggling artist/ author fashioned?
According to him, “what the metaphor of the poor, struggling author does is render invisible the critical difference between the authorship of a work of intellectual labour and the ownership of the same”. Copyright scholar Peter Jaszi states that while there is a tendency in copyright law “to invoke liberal individualism to justify economic structures that frustrate the aspirations of real-life individuals, it is somewhat surprising to encounter the individualistic Romantic conception of ‘authorship’ deployed to support a regime that disassociates creative workers from a legal interest in their creations: the ‘work-for-hire’ doctrine of American copyright law. Where this doctrine applies, the firm or individual who paid to have a work created, rather than the person who created it, is regarded as the ‘author’ for purposes of copyright ownership.” It is abundantly clear that in the current era of industrial production of cultural commodities, copyrighted works are more often than not created by unromantic authors sitting in their cubicles creating for a large corporation like Microsoft.
When a work is deemed to have been made ‘for hire’, the alienation of labour is formally and legally complete: the ‘author’ of the ‘work’ is the person on whose behalf the ‘work’ was made, not the individual who created it. In this legal configuration, the employer’s rights do not derive from the employee by an implied grant or assignment. Rather, those rights are the direct result of the employer’s status. Ironically, the employers’ claims are rationalised in terms of the Romantic conception of ‘authorship’ with its concomitant values of ‘originality’ and ‘inspiration’.
Secondly, if one were to closely analyse the agreements between various publishing houses and the authors of works published by them, one notices immediately that unless you are an author of some fame, the contracts are absolutely one-sided, with the individual author having little bargaining power, as he or she assigns all rights in favour of the publishing house.
Piracy has always been portrayed as being an assault on the rights of authors. It is interesting to note, for instance, that during the initial days of T-Series, the company was often approached by various small-time ghazal singers with requests that they release their works through the pirated circuit because HMV, the owners of the copyright in their work, were unable or disinterested in issuing the works and, as a result, the authors of the works were not able to ensure that the works were available to the consuming public.
Consider this newspaper article:
Internet book piracy will drive authors to stop writing22
Ben Hoyle, Arts Reporter
Book piracy on the internet will ultimately drive authors to stop writing unless radical methods are devised to compensate them for lost sales. This is the bleak forecast of the Society of Authors, which represents more than 8,500 professional writers in the UK and believes that the havoc caused to the music business by illegal downloading is beginning to envelop the book trade. Tracy Chevalier, the author of Girl with a Pearl Earring who also chairs the London-based organisation, said that her members were deeply concerned that the publishing industry was failing to adapt to the digital age. The internet is awash with unlicensed free digital copies of individual chapters or in some cases entire books.
Prominent victims of book piracy include Jamie Oliver and J. K. Rowling but the most vulnerable writers are less well-known poets, authors of short stories and writers of cookery books. Some of the biggest names on the internet are effectively becoming digital publishers, not necessarily with the support of the book industry. Google is locked in legal disputes with authors and publishers over its plans to make available free electronic copies of every book over the next ten years. Amazon has found that its “Search Inside” function, which allows readers to see selected pages of books, has increased sales. Ms Chevalier told The Times that the century-old model by which authors are paid – a mixture of cash advances and royalties – was finished. “It is a dam that’s cracking,” she said. “We are trying to plug the holes with legislation and litigation but we need to think radically. We have to evolve and create a very different pay system, possibly by making the content available free to all and finding a way to get paid separately.” “For a while it will be great for readers because they will pay less and less but in the long run it’s going to ruin the information. People will stop writing. There’s a lot of ‘wait and see what the technology brings’ but the trouble is if you wait and see too long then it’s gone. That’s what happened to the music industry.” In the 19th century and before, other models of paying writers existed, including lump-sum agreements and profit-sharing. She sees no reason why the book industry should not be equally innovative. She suggested four possible sources of income at an industry discussion on copyright law last week: the Government, business, rich patrons and the public. Government funding could take the form of an “academy” of salaried writers. Simon Juden, chief executive of the Publishers’ Association, drew reassurance from the similar level of alarm ten years ago “when everybody thought that we were all going to read CD-Roms”. Scott Pack, a former chief buyer for Waterstone’s who is now commercial director of The Friday Project, which publishes books developed from material started online, said: “At the moment if you asked ten publishers what the future of publishing is you would get ten different answers.” Everybody agreed that the internet was a double-edged sword: good for growing an author’s audience but disastrous at turning that readership into revenue, he added. “Tracy Chevalier is right, it is worrying. At the moment, though, even the most pessimistic commentators still think that printed books will be popular for ages.”
To look at the contentious world of readership and authorship, consider these stories:
– In 1701 The True-Born Englishman, a satirical poem by Daniel Defoe became a bestseller after an estimated 80,000 unauthorised copies were distributed. It did not make him rich but it did make him famous. In the preface to a later edition he wrote of his gratitude to the “pirates” who had sold it, the first known reference to intellectual property theft as piracy
– Stephen King made his story Riding the Bullet free to anyone with the right device in 2000
– In 2003 an e-mail purporting to offer a complete free copy of the latest Jamie Oliver cookbook flashed round the world. Oliver’s publishers said it was a hoax, compiled from previous Oliver cookbooks
– In July 2007 scanned pages from Harry Potter and the Deathly Hallows appeared on the net four days before its release. A Chinese translation appeared free online weeks before the official Chinese language version reached bookshops
J K Rowling, author of the Harry Potter series, was in the news for enforcing her copyright against cheap pirated copies. In more ways than one she stands as a role model for copyright enforcers, and her status as a struggling single mother is often used as the analogy for the way copyright protects the rights of poor authors. However, what is not convincing is how the example applies even after the publication of the fifth or sixth Harry Potter book, by which time the writer had become one of the highest paid authors in the world, with many millions of pounds in excess.
Clearly pirates respond only to a market demand, and not every book is pirated. As Defoe’s example stated above demonstrates, the problem that authors face is not about being pirated. It is in fact not being read, and in all the vacillating discussions on piracy and authors, we seem to ignore this fact. There is a particular popularity or price limit that has to be achieved before it enters into the piracy circuit. Presumably, if a book has achieved a certain status that leads to it being pirated, its author is no longer poor and struggling. Thus, the sight of Madonna appearing in TV ads condemning piracy because it deprives her of her livelihood is not terribly convincing as images of her many villas and islands flash in one’s mind. If the terms of the debate were around property and monopolies alone, then there are many ways in which the issue can be addressed –for instance, under anti trust laws etc –but the fact that it is always this image of the sole struggling author that is used hides questions regarding the political economy of publishing, and so on.
Economic losses caused by piracy
The most common use of statistics in the copyright tale concerns the losses caused by piracy. Thus, for instance, in the case of computer software one would encounter the following narrative:
The extent of software piracy and losses due to such piracy cannot be given in exact quantitative terms though it is believed that piracy in this sector is widespread. In Europe alone the software industries lose an estimated $ 6 billion a year. In fact, Europe holds the dubious distinction of accounting for about 50 per cent of worldwide losses from software piracy, more than any other region including the number two, Asia. According to a study of the Software Publishers Association, a US-based body, losses due to piracy of personal computer business application software nearly equalled revenues earned by the global software industry. In 1996, piracy cost the software industry US $ 11.2 billion, a 16 per cent decrease over the estimated losses of US $ 13.3 billion in 1995. The country-specific data show that in 1996 Vietnam and Indonesia had the highest piracy rate of 99 per cent and 97 per cent respectively, followed by China (96%), Russia (91%), Thailand (80%), etc. In India software piracy is costing the IT industry quite dear. According to a survey conducted jointly by Business Software Alliance (BSA) and NASSCOM in May 1996, total losses due to software piracy in India stood at a staggering figure of about Rs 500 crores (US $ 151.3 million) showing about 60 per cent piracy rate in India.
- MHRD Report on Copyright Piracy
These statistics often rely on certain dubious economic assumptions. The main one, of course, is the assumption that a person buying an illegal copy would necessarily buy a legal copy of the same if piracy did not exist. Thus, while we know that most computers in India have an illegal copy of Microsoft XP and Microsoft Office, can we assume that every user would be willing to pay an additional Rs 23,000 for these two software alone, especially in the light of a free alternative in the form of Linux? Is it not likely that most users would not go in for the Microsoft software were it not for the fact that pirated software is available for free?
In a very insightful study, Harvard economist Carlos Osorio seeks to empirically understand the phenomenon of piracy. He starts with the assumption that computer software has the characteristic of being a non-rival and quasi non-excludable good.Thus, he says, “One may prohibit a third person from using it only by not letting him (or her) access a version of the software. Once access is granted, however, the software can be copied at almost zero cost. By doing so, new users cannot exclude the earlier one from using the software –as with a bicycle or a jacket –and, by direct and indirect network effects, the new user adds value to the whole network of users (legal and illegal).” The question for him, then, is: What are the effects of illegal copying of software, commonly known as ‘piracy’, on the overall software market? Why do some software companies enforce their intellectual property rights differently across countries?
He states that, classically, illegal copying is commonly assumed to be a function of the price of the software, the average income per capita of the potential market, and the marginal cost of copying versus producing the software. However, he states that, in addition to these common assumptions, it is important to examine the role of direct and indirect network effects in explaining the importance of illegal users in the diffusion process. His argument is that software companies might have a direct and indirect role in helping the generation of illegal copying in underdeveloped markets, and incentives for doing so. In terms of business strategies, for instance, some ways of doing this are by undersupplying system compatibility, generating lock-in for users of their product.
Furthermore, piracy often acts in underdeveloped markets as the most efficient manner of creating a market or user base and also to create a lock-in period for the product.
Thus Microsoft has consistently refused to enforce its intellectual property rights in markets in developing countries until a market base is created for its products. Piracy works to produce ‘network effects,’ which means that with every added user, whether legal or not, the popularity of a product increases. Network effects are important because, in terms of the total user base, the illegal users of software add value to all the users, legal and illegal, and act as agents in fostering the diffusion of the software by word-of-mouth. In this way, they indirectly generate additional positive effects for the software company. And it is the world of illegal media networks and practices like piracy that the copyright movement seeks to demonize.
4.2 The alternative movements
The Creative Commons23
Creative Commons’ first project, in December 2002, was the release of a set of copyright licenses free for public use. Taking inspiration in part from the Free Software Foundation’s GNU General Public License (GNU GPL), Creative Commons has developed a Web application that helps people dedicate their creative works to the public domain — or retain their copyright while licensing them as free for certain uses, on certain conditions. Unlike the GNU GPL, Creative Commons licenses are not designed for software, but rather for other kinds of creative works: websites, scholarship, music, film, photography, literature, courseware, etc.. It is a method to build upon and complement the work of others who have created public licenses for a variety of creative works. The aim is to make the resources of the public domain richer and easier to access, reducing barriers to creativity.
Creative Commons was founded in 2001 with the support of the Center for the Public Domain. It is led by a Board of Directors that includes cyberlaw and intellectual property experts James Boyle, Michael Carroll, Molly Shaffer Van Houweling, and Lawrence Lessig, MIT computer science professor Hal Abelson, lawyer-turned-documentary filmmaker-turned-cyberlaw expert Eric Saltzman, renowned documentary filmmaker Davis Guggenheim, noted Japanese entrepreneur Joi Ito, and public domain web publisher Eric Eldred.
Too often the debate over creative control tends to the extremes. At one pole is a vision of total control — a world in which every last use of a work is regulated and in which “all rights reserved” (and then some) is the norm. At the other end is a vision of anarchy — a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation. Balance, compromise, and moderation — once the driving forces of a copyright system that valued innovation and protection equally — have become endangered species. Creative Commons is working to revive them. It uses private rights to create public goods: creative works set free for certain uses. They declare their motto to be “some rights reserved” instead of “All rights reserved”.
Thus, there is a spectrum of rights involved here:
all rights reserved some rights reserved no rights reserved
There are a variety of licenses according to which creators can share their works:
Attribution. Where you let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request.
Noncommercial. You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only.
No Derivative Works. You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.
Share Alike. You allow others to distribute derivative works only under a license identical to the license that governs your work.
The license to attribute is combined with the three others to create a hierarchical arrangement of rights starting from the most accommodating to the most restrictive of them all:
This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.
Attribution Share Alike (by-sa)
This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.
Attribution No Derivatives (by-nd)
This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.
Attribution Non-commercial (by-nc)
This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
Attribution Non-commercial Share Alike (by-nc-sa)
This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be noncommercial in nature.
Attribution Non-commercial No Derivatives (by-nc-nd)
This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.
In all its practical applications the Creative Commons today has come to occupy a fundamental place in the way the alternative movements to strict copyright enforcements are taking place. Ventures such as the blip.tv has long been a CC-friendly staple for video sharing online, providing users a means to upload their content under a CC licence while simultaneously facilitating commercial avenues that would go otherwise unforeseen.
Another one, the Indaba Music which is an international community of musicians, from amateurs to Grammy-award winners, all mingle and make music together online. cofounders Matthew Siegel and Daniel Zaccagnino say that ” The idea came up for Indaba after starting a non-profit label in college as a means to provide new opportunities for student artists and give them greater exposure. That experience led us to bigger ideas the two most exciting of which were 1) the way the connectivity of the internet has given artists increased access to fans (and vice versa) and to each other, and 2) the spread of cheap digital production technology (in the form of inexpensive but high quality software and hardware). To us, this meant that there were more people creating music than at any other point in history, and there was an exciting opportunity to connect these music-makers with each other and offer them new possibilities for collaboration and discovery. That’s ultimately what Indaba is – a place where artists meet and create new music.”
Thus we can see the CC has far-reaching implications on the movement towards a freer culture. However, according to Liang, this symbolic force at it is very roots has some basic ideological discrepancies that he critiques on the following grounds:
I. The CC v. The Asian Pirate
The CC focuses excessively on content and pushes many other concomitant variables in to the background. This focus on content is of course predicated on a much larger assumption of the value neutrality of ‘creativity’ and ‘progress’. In most of Lessig’s accounts (especially in his book Free Culture), the pervasive role of copyright as something that blocks creativity and free speech comes across very clearly. This enables him to articulate an alternative model, focusing on free and open content. The argument runs as follows:
- The domains that were not earlier within the purview of copyright protection ,are now being transferred by being brought under the rubric of IPR. Thus, there is an increased privatization of the public domain itself, causing a shrinkage of the public domain.
- Copyright is always caught in an anxious position with the legal boundaries of freedom of free speech and the also the existing doctrine within the copyright law of fair use. The case that Liang uses to highlight a point of major critique of CC is the 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. As Liang points out, the culture of the copy can have various dimensions and repercussions.
- Again for Lessig, this idea of copying is the only register through which copying has found a practical social experience. Lessig’s view of the public domain, carries the notion of only recoding and borrowing within the public domain. However, as Liang says, what happens if there allegedly any transformative authorship, what happens when the copying is literally the churning out of hundreds and hundreds of copies of the latest DVD’s? Do we then turn our faces away from this rampant culture of illegality, since it violates law?
- Perhaps then, matters of copyrights and their enforcements as well as copy cultures are so location-specific that it becomes very easy for US to decry commercial piracy that does not involve any transformative authorship. Commercial piracy is thus seen is an embodiment of evil, a player in the populist imaginations equalling that of the bandits in Hindi cinema. Critical discourses and cultural practices, according to Liang have ignored that commercial piracy may havedeep rooted histories, histories that do not have any neat public domains to speak of but instead involve messy histories of exclusions, of elite public domains and pirate aesthetics.
- Transformative authorship looks purely at a content problem according to Liang and in many ways stories of artists being sued by a big corporation giant is of a lesser possibility, but more to do with endless raids on street booksellers, dvd and vcd sellers. A world where the lines between livelihood and legality are and have always been very thin. In fact when one translates the terms of the CC into countries like India, and see who gets to participate in initiative such as the CC, the struggle looks elite. Untransformative piracy, for Liang has a larger number of things in common with the aspirations of creating a more plural, more diverse public sphere of cultural production and participation. According to Liang, “The pirate therefore appears in many ways as the subterranean other of the hacker, lacking the sexiness of the hacker and the moral higher ground of the FLOSS junkie.”
II. Why does CC end up pitting the transformative author against the Pirate?
Extract from Lessig Free Culture in italics
All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take others people’s copyrighted content, copy it, and sell it—all without the permission of a copyright owner. The recording industry estimates that it loses about $4.6 billion every year to physical piracy1 (that works out to one in three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually worldwide to piracy.
This is piracy plain and simple. Nothing in the argument of this book, nor in the argument that most people make when talking about the subject of this book, should draw into doubt this simple point:
This piracy is wrong.
Which is not to say that excuses and justifications couldn’t be made for it. We could, for example, remind ourselves that for the first one hundred years of the American Republic, America did not honor foreign copyrights. We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right.
That excuse isn’t terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule. The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well.
- While the US has always narrated itself through the tropes of innovation and creativity, the crisis arrives in the form of the internet, when all of a sudden, the very language of criminality and illegality that could account for much of the world arrives home and arrives in the everyday, in the form of the criminalization of students downloading music. According to Liang, this discursive practice in the construction of the “other” and in this case the ” Asian” other, then pits two kinds of piracy against each other, and the terms of reference of this public domain is creativity and innovation. This is the way colonial imagination understands Asia and Asian cities: through criminality and illegality.
- Liang says “Underlying much of copyright’s mythology is the modernist idea of creativity, innovation and progress. It is narrated in a certain universal sense and is also shared by advocates of the public domain and advocates of strong copyright. There is then a clear objective that is established, and the question of whether we arrive at the ultimate public good through the route of more copyright or more freedoms then remains the choice that exists. By setting itself up as an alternative account of the idea of progress and creativity, public domain arguments nonetheless share the assumption of copyright theory, and what they seek to do is to provide a counter factual: thus you have a scenario where advocates of the public domain would argue that while copyright aspires to promote creativity it actually fails to do this, and excessive protection has actually resulted in a decrease of creativity or a threat to creativity.”
- Liang finally raises the question , as to what are the values residing in creativity? Understanding the contextual relations with ‘equity’, ‘the ability or inability to participate in the process of creativity’; technological inequalities etc is necessary, to overcome the blind spot of studying creativity in an apolitical manner.
III. Content v. Infrastructure
- Liang in his critique, addresses the notions of access, and says that he finds it strange and messianic that people who preach access also preach the kind of access that should be given. He says that we need to move away from judgmental perspectives , and look at other aspects such as the impact of the expansion of the market for these grey market goods has on the general pricing of these goods, the spread of computer/ IT culture, the fall in price of consumables such as blank CD’s, DVD’s, the growing popularity of CD writers etc.
- In most cases the reason for the fall in price of electronic goods, computers, great access to material, increase in photocopiers (the infrastructure of information flows) is not caused in any manner through any radical revolution such as free software or open content, but really through the easier availability of standard mainstream commodities like Microsoft and Hollywood.
IV. Nature of Open Content Material
A lot of the focus of the CC initiative has been on the right of the creator or the right of the artists to use, to remix and to recreate. Admittedly this is important, but an equally important aspect is the right to receive information and right to access to information e.g. in the form of access to learning materials and basic educational materials. In many parts of Asia and Africa for instance, people are still using hand me down text books from the seventies. The excessive focus on the question of culture shifts the focus away from some of these concerns.
V. The question of larger reforms and initiatives like the CC
The idea that Liang tries to rally towards is to make the CC more inclusive and less intolerant of other modes through which people arrive at the same normative aims set up by the CC. What the CC considers an anathema, like modes of circulation of information through photocopy shops etc, actually may contribute to the circulation of knowledge. Another area that needs to be examined is the question of not what CC says it does, but what it actually does. Unlike software which is a natural candidate for the exercise of the freedoms granted, particularly the right to make derivative works, the fact of the matter is that in most academic/ cultural/ knowledge production, people rarely use the right to make derivative works, and access is sometimes more important than the right to make derivative works. In conclusion, the CC does not have to be averse to subversive strategies.
This chapter has been taken from this website, written by Lawrence Liang. I have just modified and edited it briefly. The chapter also includes literature from Lawrence’s power point presentations
Art and Law: An exclusionary discourse
Copyright has become a deeply contested issue in the art world: an issue that artists, gallery owners, curators and museum staff are forced to confront everyday. During the 1990s, there has been a tremendous abundance of copyright disputes involving leading contemporary artists and artists’ estates. We shall explore this chapter primarily through the visual analyses of some cases of so-called “infringements”.
In 1946 Groucho Marx, received a letter from the legal department of Warner Brothers studios. The letter warned Marx that his next film project, A Night in Casablanca, might encroach upon the Warners’ rights to their 1942 film, Casablanca. The letter prompted a reply from Marx that ridiculed many of the operational principles of rights protection in the film industry. First, Marx expressed surprise that the Warner Brothers could own something called “Casablanca” when the name had for centuries been firmly attached to the Moroccan city. Marx declared that he had recently discovered that in 1471, Ferdinand Balboa Warner, the great grandfather of Warners, had stumbled upon the North African city while searching for a shortcut to Burbank. Then Marx turned the issue of name ownership on the Warners. He conceded that they could claim control of “Warner”, but certainly not “brothers”. Marx claimed, “Professionally, we were brothers long before you were”. Marx also asked Jack Warner if he was the first “Jack”, citing Jack the Ripper as a possible precursor. Marx told Harry Warner that he had known several Harrys in his life, so Harry Warner might have to relinquish his title as well.24
But history repeats itself….
A similar case occurred in our Indian film industry, when the original creators of the blockbuster film Sholay, the Sippys, filed a case against filmmaker Ram Gopal Verma, for naming his remake, ” Ram Gopal Verma ki Sholay”. The Sippys claimed that since they were the original creators of Sholay, they held the copyrights to the work, and a Delhi High Court ruling asked Verma to change not only the name of the film but also the names of the characters. Verma had long since appealed that the film was loosely based on the original but the court termed the case as “infringement”. Verma thus named his film ” Ram Gopal Verma ki Aag”, the “Aag”, bearing a reference to ” Sholay”.
The famous 1992 case of Art Rogers v. Jeff Koons was closely watched by the international art world and has since informed artists of how copyright restrictions must from now on be weighed in the production and dissemination of their work. Koons found a picture on a postcard of a couple holding a bunch of puppies, titled “Puppies” and wanted to make a sculpture based on the picture for an art show on the theme of banality of everyday items. After removing the copyright label from the post card, he gave the picture to his assistants with instructions on how to model the sculpture. He asked that as much detail be copied as possible, though the puppies were to be made blue, their noses exaggerated, and flowers to be added to the hair of the man and woman. The sculpture, entitled “String of Puppies,” became a success, and Koons sold three of them for $367,000. Upon discovering that his picture had been copied, Rogers sued Koons and the Sonnabend Gallery for copyright infringement. Koons admitted to having intentionally copied the image but attempted to claim fair use by parody. The claim bought against Koons was that his fabricated sculpture of a smiling suburban couple was illegitimately “copied” from a photograph taken by Rogers. Koons lost the case and was forced to pay Rogers damages.
This opened up similar copyright infringements against Koons for similarly ‘appropriated’ sculpture made in the 1980s, that he was forced to abandon this line of cultural enquiry.
Absolute originality is an untenable, it is clear that all these ideas are based upon exiting ones. Critics of copyright law argue that it is in the nature of art to copy, quote, and gather from all visual 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 materials 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 use and recontextualise the readymade imagery and materials of our culture, thereby calling in to question the values of authorship and originality upon which both modernist aesthetics and copyright law are seemingly built.
What is appropriation based on and why is this art movement caught up in arms with the law? Strictly speaking, this strategy involves the direct duplication, copying or incorporation of an image (painting, photograph, etc.) from an identified source by an artist who represents it in a different context, thus completely altering its meaning and questioning notions of originality and authenticity. In the 80s, however, appropriation came to include the reinterpretation of images from fine art or mass media sources, and often the combining of various images derived from various sources. The purpose of appropriation could be a political statement, an ironic gesture, a straight-up homage, or the desire to strengthen the power and impact of a particular image through reinterpretation of it. Many artists in the 80s practiced appropriation of some type, including Gretchen Bender, Barbara Kruger, Sherrie Levine, Robert Longo, Arnold Mesches, David Salle, and others.
Noted appropriation artist Sherrie Levine’s line of enquiry has been something like this. In 1936 Walker Evans photographed the Burroughs, a family of sharecroppers in Depression era Alabama. In 1979 in Sherrie Levine rephotographed Walker Evans’ photographs from the exhibition catalog “First and Last.” In 2001 Michael Mandiberg scanned these same photographs, and created AfterWalkerEvans.com and AfterSherrieLevine.com to facilitate their dissemination as a comment on how we come to know information in this burgeoning digital age.
And she puts the idea of possession and originality in contemporary times rather aptly:
“The world is filled to suffocating. Man has placed his token on every stone. Every word, every image, is leased and mortgaged. We know that a picture is but a space in which a variety of images, none of them original, blend and clash. A picture is a tissue of quotations drawn from the innumerable centers of culture. Similar to those eternal copyists Bouvard and Pechuchet, we indicate the profound ridiculousness that is precisely the truth of painting. We can only imitate a gesture that is always anterior, never original. Succeeding the painter, the plagiarist no longer bears within him passions, humors, feelings, impressions, but rather this immense encyclopedia from which he draws. The viewer is the tablet on which all the quotations that make a painting are inscribed without any of them being lost. A painting’s meaning lies not in its origin, but in its destination. The birth of the viewer must be at the cost of the painter.”25
The copy is the “original”.
Many times, copyright actions are also held up to protect the moral rights of the artists to control the context in which their work is reproduced and presented, with the intent of protecting the original from being ‘degraded’ by undesirable commercial associations. This is particularly true of numerous copyright suits brought by painter, Bridget Riley, against fashion and interior designers for imitating her instantly recognizable “Op” abstractions.
Popular Iconography: The many images of Che
Another well-known case is the 2000 case in UK won by the Cuban photographer Alberto Diaz Guiterrez against an advertising agency. The court upheld the photographer’s legal right to prevent his iconic photograph of the Cuban revolutionary leader, Che Guevara from being further exploited in an advertisement for a brand of vodka and he settled for out of court damages. But this probably the most widely reproduced image in the history of photography, and Jonathan Green director of the UCR Museum of Photography has postulated that “Korda’s image has worked its way into languages around the world. It has become an alpha-numeric symbol, a hieroglyph, an instant symbol. It mysteriously reappears whenever there’s a conflict. There isn’t anything else in history that serves in this way.”
Above Left: The photograph taken by Alberto Diaz Guiterrez a.k. a Alberto Korda.
Above Right: The stylized version appropriated by Irish artist Jim Fitzpatrick, cropped from Korda’s image.
Above Left: Gerard Malanga’s infamous 1968 Warhol forgery of Che Guevara. Above Right: A compilation of Guerrillero Heroico posters.
To illustrate an important discourse regarding iconography, Brian Wallis, International Center of Photography says aptly:
“Despite the spectacularization of the image of Che, what remain compelling are the many instances worldwide which the photograph persists as a rallying point for political struggles. To articulate resistance, to define local rebellions, to announce solidarity with others, activist artists will undoubtedly continue to remake, reclaim and recontextualize Korda’s photograph, and in this way create what the English critic John Berger calls an ‘alternative photography’”.
What dangers does copyright then pose for artists? Cases like that of Jeff Koons illustrates that copyright has important ramifications on both sides of the art world fence, with artists being both protected as creators and charged as plagiarists of copyrighted material. Yet the relationship of art to copyright connects to 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. In light of the above cases it can be said that the shape and territory of copyright law are fluid, changing in response to developments in technology. On close inspection copyright emerges as a complex constellation of legal, cultural, technological, and economic forces raising a multitude of demanding questions. How are we 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?
In the words of Man Ray, ‘to create is to divine, to reproduce is human’.
The bone of contention in the confluence of art and copyright then really lies with the idea of the “copy”. To quote the German painter, Gerhard Richter, who painted extensively from ‘found’ photographs during the 1960s (both from public as well private): ‘ Perhaps because I am sorry for the photograph, because it has such a miserable existence even though it is a perfect picture, I would like to make it valid, make it visible-just make it’.
In one sense, Richter’s sentiment echoes the entire history of western art, or atleast that part of it that is based around ‘copying’: through classicism, romanticism, modernism and postmodernism, artists have interpreted and transformed the works of their predecessors, contemporaries and frequently even themselves (such as Duchamp and Chirico), by imitating, borrowing and repeating motifs and compositions.
In classical painting, the copy has a complex typology, as Richard Shone says, “At one pole lies the faithful replica, at the other the errant forgery”. Within this typology, the imitation of the ‘masters’ is a creative tradition amounting to the construction of forms analogous to those of the ‘original’; indeed such acts reinforce the very prestige of the ‘original’. Karsten Schubert traces the creative transformation embedded in one of the most famous and seminal sequences of copying in Western Arts, from Raimondi’s etching of Raphaels’ lost drawing, The Judgement in Paris, to Manet’s Le Dejeuner sur l’herbe and beyond.
From top to bottom:
1. Ravenna’s slavish copy of Raphael’s print.
2. Manet’s Le Dejeuner sur l’herbe
3. Picasso’s interpretation of Manet.
This tradition is not necessarily at odds with copyright law, but when the copied sources are under protection then problems may arise. Paul Edward Geller identifies the courts’ analysis of infringement as being one of the main defects of copyright law. He argues that courts apply tests that are far too rigid, failing to distinguish between “creative” copies that build on the original and ‘literal’ or close copies that which do not. He suggests that there is a spectrum of copying: staring with mechanical or rote copying, graduating to knowledgeable reworking and culminating in innovative recasting.
Johnson Okpaluba identifies three types of appropriations. First, the copying of whole images with or without attribution to the copyright owner. Here, the original maybe altered (as in Marcel Duchamp’s Mona Lisa or unaltered as in Sherrie Levine’s work). Second, the practice of montage that involves incorporating images from several sources to create a new work, as seen in the screen prints of Robert Rauschenberg. (shown below)
Third, the practice of simulationism: the appropriation of whole genres and styles. Appropriation art (as reflected in the pejorative name) has an iconoclastic and polemical dimension. This is most visible in the works of Sherrie Levine, who has in the words of Rosalind Krauss, deconstructed the modernist notions of authorship and originality to ‘open the print from behind to the series of models from which it, in turn, has stolen, of which it is itself the reproduction’.
Appropriation seems to pose a particular type of challenge to copyright law. In the words of some critics, it rebels against the traditional norms of ownership, originality and expression that define copyright protection. In terms of ownership, images that belong to copyright owners are taken without their consent; in terms of originality, images are copied without visual embellishment therefore failing to creatively transform the original. Finally, in terms of expression, the meaning of work resides in the ideas that underlie it rather than in its form. This challenge for many critics stems from the failure of the law to recognize the ‘intertextuality’ of cultural production: that artists in playing with images, originality and identity are caught within a game of representation in which to repeat is to produce something new.
In a wider sense, for critics such as John Carlin in culture Vultures, copyright law constrains the impulse of modern artists to quote freely, challenge and praise the environment that surrounds then, thus placing unacceptable limits upon artistic activity and free expression.
Anne Baron in her essay, “Copyright, Art and Objecthood”,26 aims to contest the notion that Romanticism has been responsible for the narrow (from the contemporary artists’ perspective) range of subject matter protected by copyright law, and at the same time tries to offer an alternative framework for understanding the relationship between copyright and the practice and theory of art. Excessive focus on the Romantic author, according to Barron, misreads the history of copyright, overestimating the importance of aesthetic theory to the emergence and development of the institution, and downplays the other influences on the trajectory of legal change in this area-that of commercial pressure, technological change, and the internal conceptual logic of property law.
She says that it is the work rather than the author that has constituted the key site of intersection between copyright, art and art theory, because it is the manner in which copyright defines the work rather than the author, that exposes copyright’s excessive prejudices.
In UK copyright law an ‘artistic work’ means:
a) graphic work, photograph, sculpture or collage…
b) a work of architectural being…
c) a work of artistic craftsmanship etc..
Within the category of artistic works, paintings and sculpture, works of architecture, photographs and so forth are separately defined and listed, and as the statutory formulation above shows, ‘artistic work’ has no meaning in law beyond this: it is simply the name applied to each element in this cluster of separately enumerated objects. It is because of its taxonomic approach and because of its commitment to the genus, as opposed to the genius, that copyright law is now confounded by the contemporary practices in the visual arts that exceed the categories of painting and sculpture.
What is often a forgotten thought when law deals with aesthetic theory is that there is an area between all arts, an area which is occupied by theatre. Anne Barron quotes Michael Fried who says in his classic essay, ‘Art and Objecthood’, argues that modernist sensibility finds theatricality ‘intolerable’, mainly because of this incapacity or refusal to be bounded by the divisions between the arts; but partly also because a theatrical work also exists for, and is incomplete without, an audience, and because the sense that it addresses is above all the sense of time. Modernist art, on the other hand, defeats time: it is wholly manifest.
The question thus remains can or should ‘art’ and ‘law’ be reconciled. As Anthony Julius reflects in his essay, Art and Crime, ‘Artists will always force the boundaries of what is lawful’. Just as aesthetics lags behind art, so law lags behind aesthetics. This does not mean however, that there is no aesthetics implicit in law. Quite to the contrary. It is the existence of such an implicit aesthetics that produces and then validates laws’ proscriptions. Art has a contingent relationship to law, morality and social sentiment and it often ‘offends’ these regimes just as it transgresses aesthetic boundaries.
 Siva Vaidyanathan “Copyrights and Copywrongs, the Rise of Intellectual Property and How it Threatens Creativity”.
 From “Dear Images, Art, copyright and Culture”, Edited by Daniel McClean and Karsten Schubert. Art Council of England, London, 2002.
6.1 A story of Power: Digital Technologies
It is almost a truism to state that digital technologies have created a revolution of sorts. They have allowed entrepreneurs to build empires out of fibre and thin air and to establish these empires in a realm without rules. They have challenged Governments and their traditional authority-not by design or intent but purely as a result of technological accident. 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 way27. 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 a highly guarded commodity. The Catholic Church sat the apex of all information flows. Only priests and a handful of scholars could read; only monks were permitted to write and copy the manuscripts that formed the backbone of knowledge in the Middle Ages. All information was thus written, controlled by the Church and the Church acted as a kind of labor-intensive, multi-national publishing operation. The technology of the period was the pen and parchment and it survived for hundreds of years.
Then in 1453, Gutenberg designed a rudimentary printing press. Initially the Church welcomed Gutenberg’s machine, describing it as a supernatural invention that would enable priests to read more easily to their congregations. However, as the medium spread, the Church grew wary seeing in this machine the makings of a revolution. The more Bibles were printed, the more people wanted to read them and interpret the Church’s doctrine for themselves, and break the monopoly on priestly information. Thus the technology became increasingly political challenging the might of the Church. But it certainly didn’t kill it. On the contrary, once Vatican officials realized the power of printing, they scrambled to use it for their own purposes. They established Catholic publishing houses to foster a Counter-Reformation, circulated the Bible and other texts, and learned how to reach out to a growing mass of literate followers. 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 politics is marked by the interests of commerce. 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. And what accounts for this flimsiness is the ability of the new technology to slip through the existing lines of law. 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
But 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:
- 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.
- 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.
- 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.
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 clamor 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 give 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.
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. 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. Prince and the rock band Metallica joined the labels in pursuit of these new pirates and while prophets predicted the death of the recording industry.
However, then the usual questions cropped up, the most basic one asking how could any one make money, if the property rights in music disappeared. 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. But neither did any player want an anarchical system of affairs. They wanted rules and property rights, reinforcing the nature of business along the technological frontier.
The Birth of MP3
In 1983 members of the electronic music company, devised an interface known as the MIDI that stored musical information and allowed synthesizers, samplers and specialized computers to communicate with one another.
IBM and Microsoft then later built upon this standard to create the Wave Audio File Format (WAV) which actually recorded sound through a microphone and then encoded them in to digital signals. However, apart from the sound quality not being too good, it was too clunky to be practical.
Leonardo Chiarriglione, an Italian engineer launched the MPEG, which would devise standards for the digital coding of motion pictures. For him, the vision was not just to create standards alone, and technology and media weren’t just any technology, but instead the core of human communication. In 1994, MPEG launched its MPEG-2 audio standard and after that MP3 was launched. Using it, or technology based upon it, programmers can take ordinary music and recordings and convert them in to a standardized digital format-a stream of zeroes and ones, recognized by another device based on the MPEG-2 format. Essentially MP3 is a code: a mathematised, digitized version of Morse’s dots and dashes. it enables users to take information from one form and translate it-seamlessly and universally-in to another. In 1994, Public Enemy, released a CD titled ‘Muse Sick-N-Hour Mess Age’. While the album was released through the label, Def Jam, its message paid direct homage to the emerging world of MP3, warning artists about the inevitable shift in the way music is distributed.
That same year, the band Aerosmith released its single through a website, followed suit by British rocker David Bowie.
One of the earliest large-scale free music sites was the Underground Music Archive, a self-styled “coffeehouse for 20 million people” that flaunted its alternative leanings and actively supported a network of new and independent bands. As interest in online music grew, the music sites however quickly rose out of the underground in to the mainstream. Students copied their favorite songs on to their hard drives and pirate sites in far flung areas such as Bulgaria and China started to post CD quality versions of Madonna and Bruce Springsteen. There were 3462 sites for Nirvana alone. As word of the music site seeped out, the record companies began to fight back, working through the RIAA (Recording Industry Association of America). It seized unauthorized CD-Rs and brought suits against three of the most egregious online music sites, charging them with violation of copyright law. These three offenders were however, no commercial entities, they either offered a free download or followed a ratio system-asking that visitors upload a certain number of songs for what they download. Legally their position was ambiguous since none of the sites was actually realizing a commercial benefit. For the recording company, the position was clear-this was theft. Eventually the recording industry triumphed in court. In each of the cases the RIAA won damages from the site operators and it was a straightforward victory. Yet it was also an ephemeral one, denounced across the online community. What made the law unenforceable was also the fact that the digital compression was growing as rapidly as the online music industry. And so a new wave of artists continued to deal directly with their fans, ignoring the legal issues.
Fanning in his design of the Napster, had stumbled upon what is today known as peer-topeer technology-a way for Net users to copy and exchange files without necessarily being aware of each other’s existence. the user just had to log on to a central site and any MP3 file available on her computer would be available to anyone logged in to the same site. Which meant that the potential number of downloads was now a lot more, proving hell for the industry. Under the earlier provisions of law, users had the right to share their music with friends, under the ‘fair use’ law enshrined in practices such as the lending libraries. What Napster did was only to expand the fair use net, over a non-commercial community. Can this really be considered a copyright violation? Or just a legal practice that undermined copyright’s intent? It was quire clear though that the old rules did not apply anymore.
By 1999, the record companies realized that they were fighting a losing battle against the MP3 and the flow of unlicensed music. They collaborated to form the Secure Digital Music Initiative(SDMI), to formulate three new pieces of legislation: a US Digital Millenium Copyright Act, which would actually expand copyright holders’ rights in cyberspace; an EU Copyright Directive that would extend similar rights across the European Union and a treaty under the auspices of the WIPO, that would stretch the same kind of cyber rights across the global music industry. With the RIAA, the individual artists also joined force and saw their own property rights reflected in the industry’s push. The issue these artists claimed was not about music or money-it was about property and about legal rights that adhered to this property even when it was flung into cyber space. In the most high profile case, the RIAA won a powerful victory against Napster in July 2000, in the case of A&M Records, et.al. v. Napster and issued a preliminary injunction that ordered Napster to halt its operation, holding it liable for copyright infringement. In October 2000, Napster announced that it had signed a deal with BMG, a subsidiary of media giant Bertelsmann. Under the new arrangement, the two new partners would use Napster’s technology and Bertelsmann’s money to develop a fee-based music service and a tracking system that would allow labels and artists to be compensated for copied music files.
In the end therefore, the online music industry has been regulated by a combination of private and public forces. Markets need rules to survive and power perhaps often and maybe even unfairly, flows to those who make the rules.
6.2 The Indian scenario
Music more than any other vehicle of culture collapses the gap that separates idea from expression. If copyright is charged with the protecting a particular arrangement of notes, should it protect the melody, the harmony, the rhythm, or all of the above? Should music copyright law be most concerned with the “total concept and feel of a protected work, or particular elements such as solos, riffs, or choruses?
The concept of copyright and music becomes extremely sloppy in the Indian context, which not only has a film industry with a legacy of tune-borrowing that shapes its aesthetic implications, but also has a circulation through the widely prevalent cassette industry. How is popular music shaped under these conditions? Peter Manuel in his seminal work “Cassette Culture, Popular Music and Technology in North India”, defines popular music as that which is produced and marketed as a mass commodity, and whose style can be seen to have changed due to close association with mass media. Thus, it is the connection with media, rather than any subjective qualitative criteria that distinguishes popular music from other genres and conditions it production, meaning and style.
What is it in India, that makes it interesting to study the music culture and copyright laws? In a sense, it is the most blatant and physical form of distribution that has engendered a dramatic restructuring and reorientation of the music industry itself and of the quality, quantity, and variety of popular music disseminated, and of consumption and dissemination patterns and that is the cassette revolution. Thus, this is not just a case of musical development, but also information revolution, a mass-media phenomenon and a socio-economic development representing the demonopolitization of the music industry.
Cassettes and new media technology
The most important examples of new media today are video, photocopy machines, personal computer networks, and also cassettes. They all involve similar features of miniaturization, transmission and display of storage and retrieval. More importantly, they constitute a challenge to the old media of cinema, television and radio being decentralized in ownership, control and consumption patterns, offering greater potential for consumer input.
As McQuail observes, “in their weakening of ‘old media’, which formerly operated at national levels, their emergence accompanies what appears to be the contemporary decline of the nation state itself. In effect, the new media render the Orwellian vision of monolithic consciousness control a possibility of the past rather than the future; 1984 indeed has come and gone. ” Like some of the other new media, cassettes and tape players constitute a two-way, potentially interactive micro-medium whose low expense makes it conducive to localized grassroot control and corresponding diversity of content. Cassettes unlike films can be used at the owner’s convenience and discretion.
Cassettes and “Democratic-Participant” Media
With the advent of new forms of media, more open to reciprocity and subaltern control, it has the potential to empower masses to mobilize themselves. This presents a dichotomous approach to understanding old and new media, from the Marxist perspective of ownership, but it is useful to understand this in order to show the impact of new media on the broader fundamental questions of autonomy and intellectual freedom.
Mass media dissemination of music and especially popular music, introduces fundamental changes in traditional patterns of musical production, consumption and meaning. Before the advent of recording , a singer could no longer be separated from his song than could a dancer from his dance. Recording technology effected such an alienation, presenting a fixed rendition of performance as a tangible, salable entity. Acquiring commodity status, the recording takes on a social life of its own, subject to new dimensions of economics relating to commercial mass-market pressures and incentives. As mass media spread, they can be seen as inherently alienating insofar as they can promote passive consumption of culture rather than an active creation of an artistic and social life. In the classical neo-Marxist analysis of commercial popular culture, music-making ability is taken from people and returned to people in the form of commodity. Individuals and communities are thus deprived of their own talent and instead become dependent on the media for their musical needs which are manipulated and exploited by entertainment industries.
According to Manuel, though this stance is criticized for being over generalized, it is to a certain extent applicable to urban India. Manual extends upon this thought and refers to Stuart Hall, Simon Frith and Richard Middleton who derive inspiration from Gramsci and approach public culture including popular music neither as pure corporate manipulation nor as a grassroots expression. But it is a contested territory where hegemonic and oppositional values symbolically or explicitly engage with each other.
The concept of tune-borrowing in Popular Music
The use of borrowed melodies is one of the most conspicuous and controversial characteristics of folk and popular music in India today. In Indian English as well as in Western musicological discourse, the practice of tune borrowing is known as parody, a term which has no pejorative or satirical connotations, but merely means setting of a new text to a borrowed tune. What does borrowing imply for the Hindi film industry? Innumerable tunes have in fact been borrowed from various kinds of folk music, and in general many features of the of the mainstream film-song style derive from traditional music and to some extent, from light music (e.g. dadra). Moreover, film-music composers have also found usable melodies in Western music and also base new songs on prior hits. The amount of plagiarization in Hindi films increased greatly since the 1980s and in fact, it has been Bappi Lahiri who is largely regarded for starting this trend. The popularity of commercial versions and parodies is quite popular in India and the boom can be attributed to specific conditions obtaining in the Indian musical environment. The wide use of stock and borrowed tunes in Indian folk, light-classical and even classical music constitutes an initial precedent. In the realm of popular music, a more immediate precondition has been the relatively lax Indian Copyright Act (of 195657), which allows any party to make a new recording of an existing work by filing a notice of intent, and paying a nominal royalty, i.e. the permission of the original copyright holder is not required. Added to this legal tolerance is the unwillingness of the government to prosecute the innumerable small cassette producers who release recordings, typically of folk or devotional music which employ melodies borrowed from films or other pop music.
Beyond these factors, the primary impetus for the vogue of cover versions has been the inability of HMV to meet the demand for releases of its vast catalogue of past film songs. HMV by virtue of its longstanding monopoly held the rights to nearly all film songs recorded until the early 1970s. Due to huge demand for these songs, and the inability of HMV to meet them, the advent of cassettes and competing producers provided a new lease of life to the monopolized recording industry. T-series founder Gulshan Kumar was the first to capitalize on this situation: since the originals were copyrighted by HMV, he set out to produce “versions” of all the music hits. As the original vocalists were either prohibitively expensive (Lata), or bound by contract obligations to other labels, Gulshan Kumar set out to scout local talents, coming up with a stable of inexpensive, undiscovered vocalists (especially Vandana Bajpai, Vipin Sachdeva, Babla Mehta etc.. He then released an ongoing series of “version” tapes titled Yaaden, whose labels acknowledge in small print that the singers are not those of the original recordings. A few version cassettes , however seemed to be aimed at purchasers who were unaware of what they were getting : an example being a release by Venus, consisting of Kishor Kumar hits, sung by Sudesh Bhonsle , whose name does not appear on the cover. Critics often complain that the versions are inferior, but the wide sales of these recordings suggest that when the public culture is given a space for alternatives, decentralization can occur in culture. The legal matters regarding the versions and parodies, as mentioned above remain extremely slippery. From one standpoint, music copyright has also been seen as a natural extension of the literary copyright. Yet, from another perspective, music copyright can be seen as a characteristic Western invention, conditioned by the social background of musical life in the 19th century Europe, and in particular by the capitalist disassociation of composers from the guilds and feudal patronage; the early commodification of music in the form of printed scores and the celebration of the composer as the individual ‘genius’. According to Manuel, however, the concept of ownership per se is a relatively insignificant development in India. In Hindustani music, the emphasis on improvisation rather than composition negates the stigma of parody and plagiarism, where the melodic repertoire of stock tunes is regarded as a shared patrimony.
The advent of commodified music in the form of commercial recordings, occasioned the application of music copyright law, British law was introduced as the legal guide to the question of legal ownership. The cassette era managed to bypass much of the porous legalities and loopholes during the age of rampant tape piracy in the late 1970s and 1980s. In 1983,a law was devised to prevent piracy and the amendment required that each cassette inlay card, display the name and address of the producer, the date of production. Indian law merely requires that original copyright owner be notified of the production of a cover version and that a royalty of 5% be paid if more than one and half minutes of the tune are employed. If the melody alone is used in parody, then the rate is 2.5%. An effective “open season” prevails with regard to foreign songs; the 1989 hit “Hawa Hawa” by Pakistani singer Hassan Jahangir, was parodied and “covered” by several labels with T- Series, Venus and Western all claiming to be the copyright owners. Thus we can see that the new technology and culture coincided at a point , wherein information of one kind or other is perhaps the most valuable resource and the potential may lie less in the specific content of the media than the means of distribution of that content.
 Spar, Deborah. “Pirates, Prophets and Pioneers”. London: Random House, 2001.
i For a holistic list of parodies in Film music read Peter Manuel “Cassette Culture, Popular Music and Technology in North India”, pp 297