The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
—Anonymous, 18th century England
Although it passed recently with nary a mention in the American media, 23 April was UNESCO (United Nations Educational, Scientific and Cultural Organization) World Book and Copyright Day. Established in 1996, the annual event is intended, according to its sponsor, “to promote reading, publishing and the protection of intellectual property through copyright.” The day is supposedly inspired by the Catalonian tradition of giving a rose with each book sold on the Festival of Saint George, which falls on the 23rd of April. It was also on that date in 1616 that both William Shakespeare and Miguel de Cervantes died.
Americans may not have taken time away from ripping the latest Hollywood blockbusters and swapping MP3s to appreciate the protection of intellectual property through copyright, but people elsewhere around the world took note of the occasion. In Korea, the day was marked by the opening of a book theme park in the Kyonggi Province featuring a reading café, an outdoor performance hall and a meditation spot. In India, the 21 April edition of The Hindu ran an article in its Young World section on the joys of reading, making reference to the many pirated copies of Harry Potter and the Half Blood Prince to be had on the nation’s streets with a caution against suborning copyright violation.
Following UNESCO’s lead, the World Intellectual Property Organization (WIPO) declared 26 April World Intellectual Property Day, which covers a broader set of innovations and ideas, including those protected by patents and trademarks. Their date, first officially recognized in 2001, commemorates the day in the 1970 when WIPO came into existence with the mission of promoting intellectual property rights around the world, particularly among lesser-developed nations.
In keeping with the occasion, for a week in mid-April this year an exhibition of China’s latest achievements in intellectual property protection was on display at the Military Museum of the Chinese People’s Revolution in Beijing (a double eyebrow raiser in that China is generally recognized as the world’s leading intellectual property pirate and that that status has been made possible in no small measure by corruption in the higher echelons of the Red Army). The Pakistani ad agency Messers Media Mark held an Intellectual Property Day “Mega Event” in Islamabad with generous financial support from Unilever Pakistan, Pakistan Tobacco, ICI Pakistan and Shell Pakistan.
The activities coordinated by UNESCO and WIPO might seem just a little daft were intellectual property not such a hot international issue. Using provisions of the Digital Millennium Copyright Act passed by the US Congress in 1998 as a template, WIPO has negotiated more than two dozen intellectual property rights treaties around the world, counting nearly 200 countries as member states. Plus one of the World Trade Organization’s chief mandates is to ensure compliance with the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) adopted in the 1990s. Every trade agreement signed in recent years contains intellectual property rights enforcement language as do the terms and conditions for foreign aid and loan guarantees from the International Monetary Fund and the World Bank.
The new worldwide intellectual property regime has been dubbed by legal scholar James Boyle as the “Second Enclosure Movement.” Where the first Enclosure Movement of the 17th and 18th centuries in England fenced off common lands to create parcels of private real estate, the Second Enclosure Movement appropriates the world’s collective consciousness primarily for corporate profit. This includes not only scientific discoveries, trade secrets and corporate identities (traditional domains of patent and trademark) but the whole range of cultural expression—the arts, entertainment, fashion, folklore, etc.—now being converted into commodity form to be put on the market.
The main mechanism through which the Second Enclosure Movement operates is a vertically integrated system of global communications, media, advertising and entertainment conglomerates and associated consumer-goods distribution networks. Increasingly, distant parts of the world are being brought into greater and more frequent contact with one another on terms favorable to existing intellectual property rights holders. And it’s no small irony that multinationals like the Walt Disney Company have secured large portions of their revenues by converting folk tales, myths, and other knowledge once in the public domain into products protected by intellectual property rights with brand extensions that boggle the imagination.
Another concern in this more tightly regulated intellectual property rights environment is corporate control over ideas and information. The Microsoft Encarta encyclopedia software that comes packaged with the Windows operating system doesn’t have an entry for “Linux,” the program developed by a worldwide cooperative of computer engineers that’s now the most significant (and many say far superior) competitor to the Microsoft platform. Nor is there any mention of the Digital Millennium Copyright Act, from which Microsoft as the world’s largest proprietary software provider so directly and handsomely benefited. Not surprisingly, there’s no mention of peer-to-peer file sharing either.
Metallica dopesters notwithstanding, the pressure to extend intellectual property rights has come overwhelmingly from multinational corporations not individual authors and inventors, as David M. Berry and Markus McCallion point out in a 2005 article for Eye, the British design journal. Critics further charge that when corporations like Disney and Microsoft put up barriers against the free flow of ideas, everyone else often suffers. This can be seen in situations where patents on genetic materials make it all but impossible to conduct potentially beneficial scientific research and when “trade secrets” prevent important information about drug effectiveness from being made public. A truly peculiar example in the cultural arena is the chilling effect being experienced among James Joyce scholars due to the copyright control exerted by his heirs, even though the Great Dubliner himself used a wide variety of textual sources in creating his work. (One further wonders if there even would have been such a thing as Pop Art if, in the 1960s, Andy Warhol, Roy Lichtenstein and other artists would have had to negotiate trademark and copyright clearance for every Campbell’s Soup can or comic strip painting.)
Yet, there is resistance to the restricted access to ideas and information being undertaken by the Second Enclosure Movement. In the area of software development, concepts like open-source, the Creative Commons and copyleft (none of which are mentioned in Encarta) have promoted working methods and licensing practices that rely upon cooperation and transparency to ensure the best product by building on the efforts of others. In the field of cultural production, communal forms of creation have emerged that question the notion of authorship embedded in copyright. One such collective project is Wikipedia, the online encyclopedia that allows virtually anyone to create and revise content. Besides being incredibly rich in information presented in dozens of languages, the encyclopedia is dynamic with hyperlinks to other content contained within each entry, a list of related topics and external links at the end of each article. (And Wikipedia does have entries for Linux, the Digital Millennium Copyright Act, peer-to-peer file sharing, open-source, Creative Commons, copyleft, and more.)
Arguably most promising is the opening up of what Yochai Benkler of Yale Law School in his new book The Wealth of Networks: How Social Production Transforms Markets and Freedom terms the “networked public sphere,” the growing free space individuals have to create and share ideas, information and opinions not prepackaged by the minions of the Second Enclosure Movement for worldwide mass consumption. While not quite the great panacea proffered in the headier days of 1990s dot-com libertarianism, the networked public sphere of websites, listservs, online chatrooms, alternative media services and the like has made it conceivable that another world may indeed be possible. The convergence of antiwar protests of 15 February 2003, the continued influence in US politics of MoveOn.org and the rise of blogosphere are cases in point.
Finally, it’s worth noting that 23 April is also the founding date (in this case in 2004) of FreeCulture.org, a social activist organization started by two Swarthmore College students after they sued voting-machine manufacturer Diebold. (The case set an important legal precedent protecting free speech from copyright abuse as the students fended off company attempts to intimidate them into not posting information online about alleged coding defects in Diebold touch-screen voting machines that could potentially allow ballot tampering.) The group currently has 30 chapters around the United States and is growing. It’s too late for this year, but maybe next 23 April, and those thereafter, will come to be known as Free Culture Day in America and throughout the rest of the world as well.