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.”