Who Has the Right to Cultivate Culture? 'Common as Air'

by Oliver Ho

23 December 2010

A scholarly trickster makes mischief with intellectual property, and dubs Benjamin Franklin America's "founding pirate".
cover art

Common as Air: Revolution, Art, and Ownership

Lewis Hyde

(Farrar, Straus and Giroux)
US: Aug 2010

“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.

Common as Air: Revolution, Art, and Ownership


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