Text, Textuality and Digital Media
Professor Arjun Ghosh
Department of Humanities and Social Sciences
Indian Institute of Technology Delhi
Copyright Part - 2
So we have been discussing development of copyright laws and the coming of copyright laws and how, that is dependent on and feeds back on the changing relationship between the author, the text, the printer and the reader, so these are the important notes within which the interaction the relationship, these are the important components of literary production, artistic production and the legal framework within which these relationships function is that of copyright and as ideas of the relationship change, the laws undergo a certain change and the laws enforce a certain structure within that those relationships.
So as we have been seing that in the early history of copyright even before coming of the first text sheet of Queen Anne which is the first recognizable national or state wise legal framework or kingdom wide legal framework for copyright. We did, do have local jurisdictions within which these kind of protections are given and these are primarily given from two particular angles, one is the interest of the printer to be able to protect their financial, their business interest, their profit oriented interests and the second is the interest of state to ensure that seditious material, unwanted material do not actually get circulated.
So these two come together to produce the first examples of copyright laws both in local jurisdiction and in later on in national or state wise or kingdom wise jurisdiction. However, there is an advancement that happens in the 18 century really but we can trace it to a little earlier we have Milton Areopagitica arguing against the censorship of the press. In Areopagitica, Milton charged against the monopoly of printers describing them to be all patentees and monopolizes in the trade of book selling who do not labor in an honest profession to which learning is indebted.
So he is trying to point out that the printers do not really represent the interest of learning the way the authors do, and he argued that commercial interest of printers had limited the goal of enlightenment to free knowledge from the closed walls of ecclesiastical control. So, what we see is a certain kind of importance that he sees that the presence of the printers are reducing the possibilities of enlightenment and the growth of the enlightenment.
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John Locke in 1690 in his Essay Concerning Human Understanding and the Second Treaties of the Government argued that since art in other creative materials are produced by the labor of the human body, it rightly belongs to the person producing it. So John Locke’s essay of 1690 the essay concerning human understanding and the second treaties of government argued that since art and other creative material are produced by the labor of the human body, it rightly belongs to the person producing it.
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In 1704 barely 5 years before the Statute of Anne ushered in the first legislation of on copyright protection. Daniel Defoe argued in an essay on the regulation of the press for state to encourage writers, to act in the service of knowledge by guaranteeing the right to prevent unauthorized publication of their works.
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And this idea of copyright actually emanated as a system to balance between the incentive provided to the printers and to bring literature to the public domain. As well as to maintain control over the content of such literature.
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Now prior to 1709 the idea of copyright was just that the right to copy yet Statute of Anne in 1709 marked several changes in the attitude of the law towards the production of intellectual codes, which differentiated it from other sorts of goals, it now applied the right to print on a particular work rather than the entire exercise of printing.
So this is a significant shift that be taken place that you can print but the protection is really on what kind of works you can print, you cannot print works, you know texts which are harmful considered harmful by the state and you cannot produce a work which is being pirated from another printer.
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So now what was this act, what we are calling the Statute of Queen Anne is actually a statute which is a monopoly which was granted to the printer to print a particular book which was not perpetual but which is limited to 14 years. The law which was titled ‘An act for encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies’. This is the full title of the statute of Queen Anne. ‘An act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies’.
And this copyright which was granted to the printers was reduced to 14 years. By doing so it recognized the role of information within the public domain which could be the accessed by all other users to create further works. That is it recognized the fact that learning comes from previous learning, learning is seldom original, is probably never original.
Whatever we produce in the world of knowledge is produced actually by our understanding of previous works. Complete original works are nonexistent. So it realizes that in order to keep that process of creativity going, it is important to ensure that books and artistic works stay in the public domain, do not get enclosed within a very restrictive location or restricted by price it had to go into a public domain. So it limited the right to only 14 years.
Now, and even within that copyright period of 14 years the law did not seek to restrict the availability of the book in public libraries for noncommercial distribution. That means knowledge, free distribution of knowledge was something that was recognized even in the first recognizable copyright act in the world, a national or state wide copyright law that we can see.
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Now, this leads to a certain kind of understanding of an ambivalence that is there between free access and protection. Even at it’s original moment the legal view on the protection of intellectual property displayed an ambivalence between the need for free access to the information and that of incentivizing the act of bringing information and knowledge to the public domain. Now, where is this ambivalence actually stemming from? And this ambivalence continues with intellectual property regimes even today you know with the copyright and the way the law is put forward.
On the one hand the justification to copyright speaks of the need for making available materials of learning and on the other hand it also talks about protecting the interest of the so to say creators of that piece of learning. Now, where does this ambivalence actually stem from?
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To understand that, we need to look at this very important distinction, between public goods and private goods. Economists term intellectual property or information as a public good, as opposed to private goods.
Now, what are the characteristics of public goods? These are non rival and non-exclusive, that is that when I produce something it cannot be replicated in any other form, every other form is a change from it is an alteration from it and two they are nonexclusive that is that when I am enjoying a particular song, there is nothing in the world that prevents you or anybody else from also enjoying that song.
When I am looking at the painting or when I am watching a movie there is nothing that prevents anybody else from also watching that movie that is by characteristic by material that prevents that enjoyment of that particular article.
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Just to explain this point this is opposed to private goods, now private goods just imagine things which are restricted in supply and arrival. When you have one particular can of milk or a glass of milk, at the same point of time you cannot have another glass of milk, you cannot switch between the two. Though they all are the same producer, same price everything is the same and stacked together it is not possible to treat the two of them at the same par alongside each other.
And the second important point is that, once a customer picks up one milk, one can of milk, one jar of milk, and another customer picks up another jar of milk, it prevents there is no way another person can actually access that same jar of milk, and actually it leads to a scarcity, it leads to a reduction in supply. Whereas, for songs there is no reduction in supply. At some point of time the shelf of milk, will be empty and nobody else will be able to, so there is a restriction in supply.
But in the case of intellectual property goods there is absolutely nothing prevents an infinite number of people in listening to a particular song, and they can do so simultaneously that is the non-rival bit, it’s non-restrictive and non-rival. So, any number of people can listen to the same song. The challenge before intellectual property regimes is to actually put a physical restriction on this, something that by nature intellectual property has no restrictions. (Refer Slide Time: 12:37)
Similarly, if we look at a design, that design can be used in multiple ways by multiple numbers of people and there is no particular restriction on it.
Now this ambivalence is addressed by restricting the copyright period to 14 years and allowing circulating public libraries, this 1709 law registered this ambivalence in the basic tenets of intellectual property legislation. So, this ambivalence was addressed to limiting it to 14 years and allowing libraries to function, libraries to stock books even within those period of 14 years.
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Now, further moving on, this understanding of the commercial relationship that is brought about by copyright. Now, there is a different justification that develops by the 18 century towards copyright. Edward Young raised the issue of property and argued in the Conjectures on Original Compositions in 1759, that the writer was entitled to his creation due to his original contribution to the world of letters.
Young’s work in translation produced a response from German philosophers (()) (13:56) Goethe, Kant and (()) (13:56) who in their arguments sought to locate each book as carrying the imprint of the author. The argument is that there is something of the author or the artist that gets transferred to the book that is printed and tries to understand copyright, not from the point of view of the protecting printers interest but also of protecting the interest of the author.
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A similar sentiment can be noted in 18 century Venice where the trading of paintings was under the complete control of merchants and art dealers who acquired originals from painters and sold them at prices which were much higher. So as a reaction the college of art in Venice stopped art dealers from enrolling as members suggesting them that they should join the gild of furniture painters for they scarcely knew how to hold a brush. So here were artists who were telling art dealers the relationship being similar to that between authors and printers, so it is like authors telling the printers what do you know about poetry what do you know about fiction you just print, you are just mercenaries
So the gild of artists they tell the art dealers that you should join the gild of furniture painters for you scarcely know how to hold a brush, why should you enough enjoy all the protection that is provided through these legal safeguards. It is the authors interests which need to be protected but it also turns the other way round.
Interestingly, while copyright legislation restricts the tenure of the right to reproduce work it is distinguished from the moral right of the author of the work. Moral right was the addition of French writers like Victor Hugo, to the Anglo-Saxon concept of copyright which was primarily concerned with economic rights.
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In his auto biographical work, Dichtung und Warheit, please excuse the pronunciation, Goethe described that the beautiful equilibrium that existed between the respected but poor poet and the rich book dealer became unstable in the rapidly expanding market. The poets began to compare their own very modest if not downright meager condition with the wealth of affluent book dealers. So there is this tension that is creeping between the affluent book dealers, printers, and the poor poet, that there is this sense that this copyright regime is working towards the interest of the printers it is working towards the interest of the state but, left behind is the author.
Now, remember we go back to that very important quotation that pointed out that the author is just one single actor in the act of creating a book, where even the parchment producer, the book binder, the brass worker, all of them are put at the same pedestal. Here we see an argument that is creeping in which is trying to suggest that the author plays a larger role in the act of book making and is being left out.
So there are many other people who are engaged in the act of producing a book but, so far it is only the printers interest which has been protected, that is the person who has invested money capital into it, it is the interest of the capital and in doing so it is treated it par with all other forms of trade, you know, in every other form of trade, gilds get together and expect from their national governments, their heads of state, to provide them protection from competition, ensure that their interest are protected, this could be any kind of gild, any particular kind of in any particular branch of manufacture and so printers are being also protected.
But, now a differentiation is being sought, to look at intellectual labor differently from manual labor because what is argued here, is that poets and authors, the labor, their contribution to the trade is different from let us say that of a cotton farmer’s contribution to the textile industry. Till now the authors position was similar to that of the cotton farmer, the cotton farmer produced cotton and provided raw inputs to the textile industry and the law would protect the interests of the capitalists who invest in their textile industry.
However, now that differentiation is sought to be done between intellectual labor and manual labor, that the author contributes a bit more that something of the author is sought to have been passed on into the book, into the printed book and stays there that is the aura of the author even if to a slight bit, is gets passed on to each book that is why the name of the author is put there in the frontispiece of the book, the title page of the book.
So, now by agreeing to grant the publisher permission to print a work print by her, the author gives up the copyright over the work but, that does not transfer moral right to be called the author of the work to be protected from the damaged cause to her reputation through inappropriate usage of the work. That is, the cotton farmer has no right, to say as to what kind of use the cotton that he produces is put to, what kind of textile is produced, where it is manufactured, where it is exported to.
However, this concept of the moral right is seen as inviolable that is even after the author actually sells off has bartered out the commercial rights over the manuscript to be printed.
The author continuous to retain the moral right.
(Refer Slide Time: 21:24)
So there is a distinction that is sought to be made between two forms of copyright, that is between commercial rights and between moral rights. Now this brings in a new kind of a relationship in the textual production, what we have.
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And this is something that comes in the period of Romanticism, this romanticizing over of the author as someone who is a gifted being, as a genius, the artist as a someone who is on the pedestal who has an insight which is super human so to say. So these relationships in printing which we have seen earlier. One more is now added, and that is between the author and the text, where the printer is absent.
All the other relationships at the center of those relationships is the printer and the interest of the printer. But, now we have a relationship between the author and the text emerging. However, in modern copyright law this relationship between the author and the text, and this authors right, claim over the moral right to be called the author of the book is not inviolable. 22:54)
Specifically, in cases of works on hire which is produced on hire. So if a company hires somebody to produce something. Then it is possible that that moral right is waived off. (Refer Slide Time: 23:15)
So, in the agreement there could be a waiver clause for waiving of the moral rights, in modern day moral rights of authors are restricted through extra legal basis. The law does not recognize the moral rights of artist involved in the creation of works for hire. For example, programmers working in a software firm or copyrighters preparing a jingle in an advertising agency need not be acknowledged, so it depends from what kind of agreement is it. But sometimes that agreement between the contractor and the creator can actually include a clause for waiver of moral rights.
So what we find that this leads to a certain authorial control through money, that is the larger copyright house gets to control the authorship of that piece of work through capital inputs. (Refer Slide Time: 24:19)
And we often find that if you look at music channels then sometimes credit is only provided to the media companies and not to individual artists, to the the lyricist or the singer or the music composer but, as to which company that particular piece of music has been produced by.
So that is an example if you can see. This is not sort of a universal set of observation but this is something that is generally being observed in, you cannot do without actually having attribute and that is what is protected by copyright that you have to attribute the and reason is something similar to what Lawrence Lessig was talking about because it is these companies which have the might.
And therefore, who, and can prosecute for any violation, whereas individual artist does not have usually have that kind of where with all to be able to challenge any violation of their rights. So therefore, in most particular cases it is the media companies who are acknowledged, and the media companies themselves do not sort of go out of their way to ensure that the lyricist and the composers are also acknowledged. (Refer Slide Time: 25:47)
And the laws of copyright and intellectual property define the creator or the artist in a very restricted sense. And what this entire regime sort of depends on is a distinction.
That is, imbalance that is sought to be created between intellectual labor and manual labor, that intellectual labor has far greater rights to be acknowledged, and it is, on the basis of this that copyright is sought to be justified that it is henceforth the justification for the copyright is that it is to ensure the interest of the artist or the writer that copyright should be protected whereas we find that ultimately it is the printer, publisher who actually enjoys most of the profit that is produced, the writer gets only a certain amount of the profits are handed out to the writer.
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And what you find is that as time goes, copyright laws undergo certain amount of strengthening. In the 19th century various nations states entered into bi-lateral agreements to grant copyright protection to works produced in each other’s territories. Till then you had only national copyright acts but they could be violated in another third country and therefore that would lead to purported loss for printers as well as authors and slowly what happens is, there is certain kind of agreements that between various governments and that is the first international realization of copyright law.
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It was only with the establishment of the Berne Convention in 1886, that the first move to develop an international standard of copyright that was undertaken. Moved beyond the bilateral agreement a lot of bi-lateral agreements would then be put together to create a Berne Convention which becomes a standard for international copyright law.
And this was revised thorough the years this Berne Convention with the small changes would be made till the coming of the universal copyright convention which was adopted in Geneva in 1952.
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However, not all countries in the world were party to this copyright convention. Infact two of the most important states during that period the Soviet Union and the United States joined the copyright convention very late. And this would be because they benefitted from not recognizing copyright law, because they could straight way take in works of art and in translation produce text within their territory and that would help the development of the intellectual climate within that country, the process of learning would be much easier but what is sought later on to balance is that okay now we are in a position where we can stand on our own and we want protection for our own intellectual produce further on.
So, mostly till such time, the universal copyright convention was only restricted to primarily within the Anglo-French former colonies and the west Europium regime and other countries joined much later.
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And then in 1995 the international regime on copyright was brought under the most uniform character in history with the TRIPS agreement in 1995 which was followed by the establishment of the world intellectual property organization in 2002. (Refer Slide Time: 30:47)
And what we see through all of these development is that slowly what happens is that IPR laws intellectual property laws becomes stronger and stronger and as I have already earlier said, that intellectual property laws gather greater teeth as technology advances, as it becomes easier and easier to produce copies of a particular book or a piece of work, stronger laws are sought to be provided.
Earlier at the beginning of printing you could actually control a lot more by controlling the number of places where printing occurs. Because printing presses required far more capital inputs, require far more infrastructure, whereas as printers become cheaper, more portable you know it was more difficult to keep a check and certainly with the coming of digital technology keeping a check becomes much more sophisticated.
And therefore, stronger IPR laws are provided to ensure that violation is kept to a minimum and so, there is a certain inverse relationship between advancement of technology and the kind of IPR laws that are there. And so copyright laws have grown scope and severity down the century and today have encompassed almost all forms of creative expression for mechanically reproducible art like books and films to the visual arts like paintings, culture to even intangible firms like theater and choreography. From the 14 years in 1709, copyright protection today is extended to 50 years and after the death of the author under the TRIPS regime.
(Refer Slide Time: 32:56)
So, we see now that the transfer of copyright laws, the stated motive really is dissemination of knowledge and eventually to return the work to the public domain as in the 1709 law we saw that there is a certain restricted term, it is not a perpetual law. So, if I go to a market and buy a piece of furniture or textile I kept to own it forever. Whereas, any intellectual property law defines a certain period after which the work will return to the public domain, that is anybody can copy and reproduce it.
But, and that is as I said, that ambivalence between the public good nature of knowledge, for free distribution of knowledge that knowledge has always been free, has sorry, the knowledge is always not being restricted by commercial restrictions normally it has not always been free, as I have already earlier pointed out. Knowledge would be restricted to specific groups of power but, that is a very different kind of restriction and here the restriction is provided through commercial terms.
Though one would argue that both kinds of restrictions whether restriction of some people coming into the discourse within a certain religious domain or intellectual domain, in a space for oral discourse is restricted by, either by caste or by class or it is restricted by price. You would have as I have pointed out earlier that in knowledge centers, educational centers not everybody could have access, people of certain sections of society were kept out of the knowledge processes, through institutions of knowledge in the way power would be embedded in knowledge.
But today that restriction is sought through controlling admission to educational institutions, it could be through various kinds of admission policies or through the pricing, the cost of education, when it rises it automatically filters out a large number of people who are unable to pay for that education. So, price mechanism is also another way of restricting knowledge, but, what one recognizes is that knowledge by its very nature is a public good there is no real clear something in the nature of knowledge itself.
Like the nature of air. We cannot prevent someone else from actually breathing the same air. Similarly, if there is a story, if there is a piece of knowledge, piece of an important know how, there is no way to prevent somebody else other than physically restricting that person or restricting that person through pricing so and that has always been the nature of knowledge.
In the modern era in the industrial era knowledge is sought to be restricted through putting a certain restriction through copyright that you can buy a certain book, you can read a certain text only through pricing and today with the sharpening of intellectual property laws, that restriction has increased even further. So this promise remains that the work will return to the public domain by recognizing the public character of knowledge, public good character of knowledge.
But what we find is that as further copyright laws become stronger and stronger, that 14 years got extended further and further to become virtually perpetual. So this public domain recedes from the promise of the public domain keeps on receding and there are of course legal methods through which this can be even extended beyond the 60 years of the life of the author by creating a kind of mechanism called the estate of the author.
So, this is not a space where we are going to have a detailed discussion of copyright laws, but you can explore the point as to how certain works of certain authors are sought to be restricted by their estates beyond this stated term of 60 years after the life of the author as well.
(Refer Slide Time: 38:39)
And what is important for us to note is that what Lawrence Lessig pointed out in all of this is that the might of the corporate publisher is very important in being able to keep certain works within that private restriction, the kind of lawyers that they can afford plays a very important role in maintaining that restriction of works of art and preventing them from entering into the public domain fully.
So though the progressive broadening and the scope of effectiveness of the copyright regime appears to have a consistency in granting greater incentive for production and dissemination of knowledge and ideas through protecting those involved in creation and dissemination. The basic contradiction has remained that between enlightenment ideas or unbridled spread of knowledge and ideas, and the desire of profit which followed.
Because of the capital investment involved, the relation between author and the reader remain mediated by the publisher, producer, art dealer. The contradictions which are apparently ironed out in the legislations are visible through the numerous case studies where copyright laws are interpreted.
So, as Lawrence Lessig pointed out that it is not the wording of the law alone but the interpretation of the law, from case to case there could be contradictory interpretations depending on the kind of arguments put forward by the lawyers hired by the owners of the copyright, and what also happens is that we find that with the coming of the book, with the coming of printing, this restriction of knowledge within certain ecclesiastical or high places of learning is sought to be broken because now, it is not restricted to specific manuscripts, but if a book is printed it can spread far and wide, and as printing becomes cheaper, the spread of knowledge can spread even further but that idea is put under a certain heavy restriction and a heavy wall which is of copyright law.
You have access to all the texts, intellectual texts which are produced provided you pay for it, so this pay wall is something that comes into being. And what we can see is that this kind of restriction ultimately results in a restriction, a kind of division of knowledge between the north and the south.
Since the north or the western powers really become, hold the most important centers of knowledge creation, the trickling of knowledge or the movement of knowledge from the west to the rest or the north or to the south is prevented through this kind of copyright regime.
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