Culture in an age of superabundance

by modulus on January 3, 2014

Ruben’s Abundance

Ruben’s Abundance

One of the biggest triumphs of capitalism lies in having created the impression that it’s a natural system. A non-specialist, when considering other times and societies, will almost certainly interpret them through the prism of capitalist assumptions: transferable property, free trade, labour, wages, and so on. This state of affairs, however, took considerable violence to achieve. Just as feudal regimes which were installed as the Roman empire fell, the rising of the bourgeoisie as Europe’s and the world’s new ruling class required major dislocations not only to an economic system, but to the worldview which comes embedded with it. So when looking at feudal property arrangements, we’re likely to try to substitute modern categories like property and rent for the more historically accurate feudal forms thereof, which entailed a complex bundle of rights and duties we can scarcely imagine today.

This process of expropriation and dissolution of feudal relations and the resulting imposition of bourgeois property took place, in the UK, through many legislative acts, but more specifically through the “enclosures” and “clearances”. The former were decrees by which the landlords grant themselves the people’s land as private property, decrees of expropriation of the people. As Marx points out, enclosures led to the usurpation of ancient communal land holdings, which had been preserved under the guise of feudal relations, by the great landlords who sought to inherit the position of those feudal lords, without any of the constraints they had been subject to. Clearances went further: instead of usurping the communal holdings, clearances swept tenants off their cottages, often by means which can’t be described in other terms than terrorism. Thus the estates were freed from common ownership and feudal encumbrances, and those who dwelt on them from their means of subsistence, giving rise to the free trade in agricultural lands, the pauperization of independent farmers, and the formation of the urban proletariat, deprived of anything but their labour power, ready to serve the voracious needs of incipient industries.

A similar case obtains for intellectual property. The fact that certain goods had not hitherto been subject to the discipline of the market won’t be seen by the bourgeois as anything but an opportunity.

Before intellectual property

Some authors try to seek the first precedents for intellectual property in certain provisions of Roman law, or mediaeval legal decisions. While there may be points of similarity, it would be applying entirely erroneous categories. Before the development of the printing press, it is hard to speak of authors’ rights or copyrights sensu stricto. Manuscripts were routinely copied, by specialists who got paid piecework wages, or monks who were paid through more complicated arrangements or not at all. Copying was expensive, and the diffusion of written works depended entirely on this caste of skilled workers.

Roman law understood the difference between the material support of a work (such as stone or papyrus) and the work itself which was created through specification — literally, the making of new species. It had provisions for cases where the ownership of both may not have coincided, a contentious matter in the different schools of Roman jurisprudence: Justinian’s code solved the problem by giving the ownership of such works to the specifier, that is, the intellectual creator, if the new species was irreducible. Compensation was, of course, due to the owner of the substance. This was a right which could indeed be claimed by an author of a work, but it could just as easily be claimed by a copyist. Roman book trade was largely unregulated, and authors were moved by reasons which aren’t easily reduced to money, although fame and renown could be useful in their own right, so we mustn’t ascribe literary creation to exclusively altruistic reasons.

In the Middle Ages, a case arose regarding the right to copy manuscripts in Ireland, which was judged in favour of the manuscript owners, but not the authors. The judgement stated that to every cow belongs her calf, therefore to every book belongs its copy. Similar cases arose regarding Church property of sheet music, but the protections which existed were clearly not comparable to modern authors’ rights.

The printing press

Without intending to exhaustively recapitulate the whole history of copyright, the development of printed codices in Europe revolutionized the prevailing conditions of production of books. They still took considerable skilled work — though much less per copy — and a greater investment of capital. Such a change, perhaps in conjunction with the religious and political controversies at the time, led to the development of publishing monopolies, devised as mechanisms for censorship. It is at this time that the notion of imprimatur — a licence to print a work — arises. These licences were granted by the Catholic Church or the princes to given printers.

Over time, printers formed guilds and acquired a considerable amount of influence, though they often lived in an uneasy relation to the church and the state. With the relaxation of censorship and the appearance of many new works which presented few religious or political implications, the printers sought and gained guild privileges, and individual privileges to monopolize the printing of given works in perpetuity, without any sort of compensation to authors. This rather rapacious arrangement didn’t last forever, though, and eventually legislators recognized the creative role of authors, granting them the exclusive right to print their works, which they promptly sold to publishers, often for very little. However, a legal construction which begun as a means to constrain the public’s access to dangerous ideas, had transformed, first, into a guild’s privileged monopoly, and, later on, into a new form of property derived from the creation of a new work.

The modern forms of intellectual property

It is remarkable that, after abolishing all mediaeval monopolies and privileges, one of the first tasks of the French Revolution was reestablishing authorial rights. From this time on, we could say the development of intellectual property was grounded on at least three very different philosophical foundations: in the Anglosphere, the Lockean notion that mixing one’s labour with materials should result in property rights; on the Continent, the notion that authors have an intimate connection with their intellectual labour as part of their personality; and, later on and especially in the USA, the consequentialist view that exclusive rights for authors will lead to useful intellectual works to advance the sciences and arts.

A fairly similar, but much faster, development took place when techniques were discovered to record music, pictures, and moving images. Today the logic of these rights extends to technical processes and products through patents, including things which already existed in nature, semiconductor designs, brands, shapes of products (industrial designs), broadcast rights, and an ever expanding plethora of ever finer-grained monopolies.

These positions have made of copyright a moral issue for many, and have made it somehow inconceivable to some that intellectual creation would occur without such a system. This view, which is oblivious to historical experience, is well described by Eben Moglen on his essay Anarchism Triumphant:

When we reach this point in the argument, we find ourselves contending with the other primary protagonist of educated idiocy: the econodwarf. Like the IPdroid, the econodwarf is a species of hedgehog, but where the droid is committed to logic over experience, the econodwarf specializes in an energetic and well-focused but entirely erroneous view of human nature. According to the econodwarf’s vision, each human being is an individual possessing “incentives,” which can be retrospectively unearthed by imagining the state of the bank account at various times. So in this instance the econodwarf feels compelled to object that without the rules I am lampooning, there would be no incentive to create the things the rules treat as property: without the ability to exclude others from music there would be no music, because no one could be sure of getting paid for creating it.

But even more relevant is his paraphrase of Faraday’s law:

So Moglen’s Metaphorical Corollary to Faraday’s Law says that if you wrap the Internet around every person on the planet and spin the planet, software flows in the network. It’s an emergent property of connected human minds that they create things for one another’s pleasure and to conquer their uneasy sense of being too alone. The only question to ask is, what’s the resistance of the network? Moglen’s Metaphorical Corollary to Ohm’s Law states that the resistance of the network is directly proportional to the field strength of the “intellectual property” system.

Perhaps even more puzzling is the defence of intellectual property from the left, at least speaking broadly. Most social democratic parties seem to be subscribing to this poisonous maximalism, on the grounds that intellectual property can be created de novo by poor people and hence is some sort of grand equalizer. An elegant abstract construction, no doubt, though how the aforesaid poor people are to have the means (time and equipment, but also education and skills) to create such property, and then the means (networking, contacts, business savvy) to exploit it is left, so to speak, as an exercise for the reader, while millions suffer preventable and very concrete deaths due to the pharmaceutical patent situation.

The Soviet Union itself had an intellectual property system. On the one hand, copyright was recognised for authors, though unlike in the bourgeois democracies, it was limited by a large set of exceptions and compulsory licences, as well as significantly shorter than we’re accustomed. For instance, copies for private use were allowed for free, since copyright was understood as an industrial regulation. Such a system avoided the actual danger, which is paradoxically taking place under an otherwise draconian copyright regime, that the labour of individuals could be effectively exploited without due compensation. This is Facebook’s business model, of course. There are potential issues with unpaid labour and deskilling when corporations or even public-spirited projects such as Wikipedia effectively function on people’s free labour, an issue which also affects much of the software industry.

On the other hand, instead of patents, which grant their inventors exclusive rights, the Soviet Union bestowed certificates of invention, which allowed their holder to receive due recognition, as well as economic compensation, without hampering society in using the new development as broadly as possible. It is notable that the patent system is becoming sufficiently dysfunctional that some bourgeois economists are suggesting the state should bid for patents as a matter of course.

The Internet is making much of this moot. Whatever laws are passed, it is becoming increasingly difficult to even pretend to police copying. After all, that’s what computers do. The ill-fated attempts are leading to a widespread delegitimisation of the system as a whole, that can’t but hasten its end. As Cory Doctorow points out in an article I highly recommend reading, the music industry has defrauded the composers it so constantly claims to defend so grossly and blatantly that its moralizing only engenders laughter. Furthermore, music is an ancient thing: something humans do. For a while it became a redoubt of experts with expensive equipment, but there’s little evidence that this situation is sustainable. The same for stories, and their many concrete incarnations: books, films, theatre plays…

Ultimately, liberating ourselves from the shackles of intellectual property is more than an economic consequence of cheap and easy copying, it rises to the level of a civic duty: in a world where everyone can have all works of beauty and utility they may wish, to ration them to those who can afford payment is the act of a tyrant. Such a practice is, in sum, on the wrong side of history.

(Originally posted at Spirit of Contradiction)

{ 2 comments… read them below or add one }

William C Crain January 5, 2014 at 11:36 pm

Posted to FB!!! first thing!!! Brilliant piece of writing. Thank you Modulus:) for sharing this critical issue.
i should be self evident that this work doesn’t contain ART works and the reproduction of them and i’m sure there’s good reason as indicated some forms of intellectual property get more attention than others.
An interesting dichotomy exists… Van Gogh was eager to get his works to a press so that more people might enjoy them ~ one cannot argue with his or the principle sense of sharing but the industry is soooooooo Capitalist oriented that mass production means mass profits from mass copies wither they be Bronze or Paper or repros with that ‘canvas’ (GaaaaG) look
The means of reproduction and distribution are so tied/married to the Internets capabilities.
It is my contention that artists using a computer/hardware/software to enhance their work should credit the software writer. Period. So many artists especially photographers feel they need and can use this “TOOL” without giving credit to the software maker/owner.
Where i use brushes and chisels they are not software items for enhancing my paintings or hand carved stone carvings ~ i pull my own woodcut/linocut prints. But had a printer make an edition of note cards from my original work ~ thankfully.
i object to items projected on a screen / canvas and the artist does the outline and fills in the colors… but is it ok to draw from photograph and sell the drawings? Now if i was to paint from this drawing it’s a non starter ~ i’m the originator IMO. How this rational correlates to scientific process i’m not sure ~ Everything is Relative except the Absolutes Like: Capitalism sucks and Israhell has no right to exist.

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Mike Macnair January 6, 2014 at 10:48 am

Good piece. But a couple of historical picks:

1. The Roman law stated is inaccurate. The lawyers’ discussions are more inconclusive; writing on someone else’s paper belongs to the paper owner, a picture on someone else’s board to the painter. Gaius, Institutes ii. 77 says that “cuius diversitatis vix ideonea ratio redditur”, “hardly any adequate reason is given for this difference”. The Justinianic compilers suggest that the painting might be an ‘old master’ (Justinian, Institutes 2.1.34) but this reasoning is equally unsound (the writing might be a contract for HS 20m of which there was no other evidence …) It is thus almost certainly wrong to infer from Justinian, Institutes 2.1.25 (which gives the labour explanation of the creator’s right referred to in the post) that the Roman jurists thought coherently about the issue, rather than treating it casuaistically on the basis of the form of action for recovery of things, which required the thing to be named.
The medieval law, which is closer to the issues, is discussed by Marta Madero, Tabula Picta (U Penn Press 2009)

2. Patents originate in late medieval Venice, the ‘invention’ requirement in England as part of the constitutional struggles of the capitalist class for power in the 17th century. Copyright is immediately derived from the Statute of Anne (1711) which appears to have been an effort to make libel work more effectively as a form of censorship (after the repeal of the formal censorship) by providing incentives for non-anonymous publication, the Whigs abandoning their anti-censorship line in face of the Saccheverell affair. Ronan Deazley, On the Origins of the Right to Copy (Hart 2004) is useful on this.

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