Who Has the Right to Cultivate Culture? ‘Common as Air’

“Only one thing is impossible for God: To find any sense in any copyright law on the planet.” – Mark Twain

Not usually referred to as an expert on the nuances of copyright law, Gene Simmons nonetheless captures a significant side of the argument (and a generous portion of public attention) when he advocates for aggressive protection of intellectual property. “Make sure there are no incursions. Be litigious. Sue everybody. Take their homes, their cars. Don’t let anybody cross that line,” the KISS bassist said recently (reported in The Guardian and elsewhere).

Conversely, in a court decision that might be representative of a backlash against such a stern stance, a trial is set to take place next year against the Recording Industry Association of America. It faces changes of “abuse of the judicial process” for allegedly being overly aggressive in pursuing legal action against single mom Tanya Andersen in 2005 (arstechnica.com).

To anyone taking even a passing interest in stories like these, the issues go beyond rich rock stars and entertainment corporations. For example, in his 2004 book, Free Culture: The Nature and Future of Creativity, famed academic and political activist Lawrence Lessig describes how the US stopped the flow of HIV drugs into Africa over laws related to intellectual property. “[T]he flow that the United States intervened to stop was, in effect, a flow of knowledge: information about how to take chemicals that exist within Africa, and turn those chemicals into drugs that would save 15 to 30 million lives,” he writes.

“A simple idea blinds us, and under the cover of darkness, much happens that most of us would reject if any of us looked. So uncritically do we accept the idea of property in ideas that we don’t even notice how monstrous it is to deny ideas to a people who are dying without them. So uncritically do we accept the idea of property in culture that we don’t even question when the control of that property removes our ability, as a people, to develop our culture democratically. Blindness becomes our common sense. And the challenge for anyone who would reclaim that right to cultivate our culture is to find a way to make this common sense open its eyes.”

To put it mildly, this is a complicated issue, simultaneously one of the most important and least-commonly-understood of our time. One complicating factor is the ever-changing nature of the legal playing field. As Cory Doctorow wrote recently in The Guardian: “Copyright is in tremendous flux at the moment; governments all over the world are considering what their copyright systems should look like in the 21st century, and it’s probably a good idea to nail down what we want copyright to do. Otherwise the question ‘Is copyright working?’ becomes as meaningless as ‘How long is a piece of string?'”

Enter Lewis Hyde’s brief and engaging new book, Common as Air, which aims to bring readers up to speed in terms not only of the current issues related to copyright and intellectual property, but also of the historical precedents and philosophical developments that led to the present morass.

“[P]art of the task of this book is to show the degree to which a phrase like ‘intellectual property’ serves simply to obscure a long history of philosophical, legal, and ethical argument about what sort of property lies under that heading,” he writes in the early pages of Common as Air. “Knowing the history of that debate not just well enough to follow the argument but well enough to engage with it, to take an informed position in the debate, is to my mind one of the prerequisites of cultural citizenship in the twenty-first century.”

Over nine chapters, roughly 250 pages, Hyde lays bare the different ways that ideas came to be considered property. By defining “the commons” in terms of its historical meaning (both as a physical place and an ideological notion) and how that definition developed over time, he examines how the commons came to be “enclosed” by laws, as well as the ways that Western communities have tried to maintain a sense of the “common good” and the “commonwealth”. This leads to an exploration of how communities have outlined what constitutes citizenship, what rights and (importantly) what duties that entails, especially with regard to property.

“I mean this book to be a defense of the cultural commons, that vast store of unowned ideas, inventions, and works of art that we have inherited from the past and continue to enrich,” he writes. “[‘Intellectual property’] is an idea not just new but historically strange. It belongs to our times, to be sure, but if we are to examine it with any care it helps to know how new it really is; it’s newer than automobiles, newer than lightbulbs, newer than jazz.”

To back his case, Hyde invokes Benjamin Franklin, whom he dubs America’s “founding pirate”, and cites the words of other founding fathers to show how Franklin and his colleagues seemed to favour notions of the commons over perpetual private ownership of what would today be called intellectual property. It’s an interesting and clever tactic, as if Hyde were anticipating possible feedback/backlash that his argument smacks of anti-capitalism or (gasp!) communism, and sought the most patriotic examples possible to prove his points.

Entertainment and Political Power

In the context of the arts, Hyde seems to favour limited ownership rights, whereby creators own and profit financially from their works for a specific amount of time, after which those works move into the public domain. This approach seems contrary to the recent Sonny Bono Copyright Term Extension Act, “known colloquially as the Mickey Mouse Protection Act,” as Hyde describes it, which kept the famous mouse out of the public domain even though its legal time had come.

However, the dangers inherent in such legal decisions have implications that extend beyond the boundaries of the magic kingdom, for “entertainment has sufficient command of political power that laws appropriate to its world become the laws of the land and, heralded always by the FBI warnings, they penetrate every other sphere,” Hyde explains.

“Perhaps it makes sense within the entertainment industry to have certain creations be owned in perpetuity and then to negotiate permissions and fees around each use. But that is not a norm appropriate to science, nor to the creative arts, nor to the circulation of knowledge among self-governing citizens, and to extend it into those spheres is an insult to their integrity, and act of simple tyranny…”

Hyde’s subjects aren’t limited to entertainment. The human genome project, HIV/AIDS medicines, farming research, net neutrality and more fall under his polymathic gaze. Some subjects he describes as “sacred” (such as the human genome), and he argues for their immediate inclusion in the commons, with the allowance for privatization and profit to occur from any discoveries made using that knowledge. It’s a tricky and subtle piece of legal and ethical territory to navigate. All too often, issues like these fall prey to extreme political attitudes.

In Free Culture, Lessig lamented that, “We have lost the critical eye that helps us see the difference between truth and extremism. A certain property fundamentalism, having no connection to our tradition, now reigns in this culture — bizarrely, and with consequences more grave to the spread of ideas and culture than almost any other single policy decision that we as a democracy will make.”Hyde echoes this rallying cry against “property fundamentalism,” and argues against the oversimplification that comes with considering ideas as being equal to physical property.

“Once we accept that houses and ideas may be lumped together as the same kind of property, and that their owners have natural property rights — the kind that supposedly exist prior to all human law — then there is little left to argue about,” he writes. “We are in the realm of first principles and belief, not of public deliberation over contending values.”

Hyde’s book reads like the lecture notes of a fascinating university course, which makes sense for a MacArthur Fellow and former director of undergraduate creative writing at Harvard. While not as wildly imaginative and provocative as his two best-known books (The Gift, published in 1983, and Trickster Makes This World, from 1998), Common as Air seems like a natural extension of their theses.

The Gift aimed to “defend and illuminate the noncommercial side of artistic practice,” while Trickster “used a group of ancient myths to argue for the kind of disruptive intelligence all cultures need if they are to remain lively, flexible, and open to change.”

Flowing from those books, Hyde’s latest seems to apply their philosophies to the question of how creations (artistic, scientific, or any other kind) can exist in a market-driven world that seeks to treat them as property. It’s an impassioned, balanced and fascinating book that illustrates how a subject as puzzling (and often maddening) as copyright law actually reveals what a community thinks about itself; the meanings that we associate with ownership, as well as what we believe can and can’t be owned, reveal our beliefs about what it means to be a person and a citizen.

“[O]ur practices around cultural property allow us to be certain kinds of selves; with them we enable or disable ways of being human,” Hyde writes. “[T]he durability of the commons depends on community members having a clear enough sense of their values and purposes that, when these are threatened… they will draw the line.”