Wu Ming – Previously unpublished notes on copyright and copyleft

The two horns of the false dilemma.

Censorship and the birth of copyright: against the liberal “myth of origins.”

Google Print and the like: the web, freebies and rearguard action.

The two horns of the false dilemma

We’ll start at the end: copyleft is founded on a need to link two primary needs; we might say two irrefutable conditions of civil co-habitation. If we stop struggling to satisfy these needs, we stop hoping the world will get better.
There’s no doubt that culture and knowledge must circulate as freely as possible and access to ideas must be straightforward, equitable and free from discrimination on the grounds of class, censorship or nationality etc. Intellectual works are not just products of the intellect, they must in turn produce intellect, disseminate ideas and concepts, fertilize minds, in order that new thoughts and fantasies may sprout forth. This is the first cornerstone.
The second is that work must be remunerated; this includes the efforts of artists and narrators. Whoever can make art or narration their profession has the right to make a living out of it in a way that doesn’t infringe on their own dignity. Obviously, we’re talking about the best case scenario here.
It’s a conservative attitude to think that these two needs are like two horns of an irreconcilable dilemma. “There’s barely enough to go around” say the defenders of copyright as we’ve known it. Freedom to copy for them means only ‘piracy‘, ‘theft‘, ‘plagiarism‘ – and you can forget about the author’s remuneration. The more the work circulates for free, the fewer copies you sell, the more money the author loses. A bizarre syllogism if you examine it closely.
The most logical progression should be: the work circulates for free, its appreciation translates into word of mouth, the author’s reputation and profile benefit as a result, and therefore their influence in the cultural industry (and not just there) grows. It’s a beneficial cycle.
A well respected author is increasingly called on to make presentations (expenses reimbursed) and to attend conferences (paid); they are interviewed by the media (unpaid but it furthers the cause); academic postings are offered (paid); consultancies (paid), creative writing courses (paid); the author has the possibility to dictate more advantageous conditions to their publisher. How can all this harm book sales?
Let’s talk about the musician/composer. The music circulates for free, people like it, it grabs their attention; whoever wrote or performed it has their profile raised, and if they know how to exploit it they’re called upon to perform more frequently and in more places (paid), they have the opportunity to meet more people and therefore more supporters, if they ‘develop a name‘ they are offered film soundtracks (paid), gigs as DJs (paid), sound design jobs for events, parties, art shows, fashion shows – they can even find themselves directing (paid) a festival, or an annual exhibition and so on. If we look at pop artists, we can add the income from merchandising like t-shirts sold on-line or at concerts etc.
And so the ‘dilemma’ is resolved: the needs of the consumers have been respected (they’ve had access to a work), as have those of the authors/composers (with financial and career benefits) and the cultural industry (editors, promoters, institutions etc.).
What happened? Why is the syllogism so easily blown apart by such examples? Because such a syllogism doesn’t take into consideration the complexity and the richness of networks, exchanges, the incessant word of mouth from one medium to another, the opportunities for diversification of the offering, the fact that the ‘economic return‘ for the author can take different paths, including some (seemingly) convoluted ones.
It’s because of an inability to comprehend this complexity that the cultural sector (especially the music industry) has missed the first fifty innovation bandwagons. They’ve approached new opportunities as threats rather than challenges, reacting hysterically to Napster and everything that followed it. They’re starting to change now, to ride the bucking horse after Steve Jobs showed it was possible, but in the meantime they’ve gone to battle with armies of potential clients, whose confidence has been lost forever.
What’s the last thing that someone who makes and sells music should do? Surely it’s criminalizing the listeners, dragging into the courts the people who love them etc. Was it worth it? In our opinion, no.
Authors’ rights‘ (careful not to take this semi fraudulent phrase seriously) as we have known them are by now a brake on the market.
On the other hand, copyleft (which isn’t a movement or ideology; it’s simply an umbrella term for a series of practices, scenarios and commercial licenses) is the incarnation of all that’s needed for the reform and adaptation of copyright law towards ‘sustainable development.’ ‘Piracy‘ is endemic, it’s unstoppable, it’s an incoming tide pushed on by a wind of technological innovation.
Certainly, the powerful of the entertainment industry can continue pretending nothing’s happening, like the White House pretended there was no Greenhouse Effect, global warming and climatic upheavals. In both cases, those that deny reality will be swept aside. If you’re determined not to ratify the Kyoto Protocol, determined not to invest in renewable energy sources, determined not to resolve environmental problems, sooner or later you get Hurricane Katrina knocking down your front door (and ce n’est qu’un debut!).

Censorship and the birth of copyright: against the liberal “myth of origins.”

Let’s go back to the beginning. Let’s line up the well known and often cited facts. The history of copyright begins in 16th century England. The diffusion of the press, the possibility to distribute many copies of a text, galvanizes whoever has something to say, especially something political. There’s a boom in pamphlets and newspapers. The Crown fears the diffusion of subversive ideas and decides to afford someone control over what is printed.
In 1556 the Stationers’ Company is born, a professional cast to whom the ‘right to copy‘ is afforded exclusively. It therefore has the monopoly over printing technologies. Whoever wants to print something has to pass through their door. Up until that moment it has been different, anyone could print themselves copies of a literary or theatrical work, the author didn’t care because they didn’t hold the rights (the rights didn’t exist). The important thing was that the works circulated and the fame of the author grew, because in that way they grabbed the attention of more supporters (private patrons, various types of cultural bodies like theatres etc). But from this point on, works are printed only if they obtain a visa (in practice, the seal of the state censor) and are listed in the official registry – note this detail! – in the name of a Stationer. The Stationer becomes the owner of the work in the interest of the state.
All the ‘liberal‘ mythology of copyright as a natural right, born spontaneously out of the growth and dynamism of the market is… a complete fairytale! The distant origins of copyright are founded on preventative censorship and the need to restrict access to the means of cultural production (i.e. the restriction of the circulation of ideas).
A century and a half passes and in this period the Crown endures unprecedented attacks: the Scottish rebellion of 1638, the parliamentary ‘Grand Remonstrance‘ of 1641, the outbreak of Civil War a year later, the revolution of Cromwell and the beheading of the king.
At the end of the 1650s the country returns to the monarchy, but the situation remains unstable and finally the parliament is able to impose on the Crown a declaration of rights. From this moment on the English monarchy is a constitutional one.
It’s necessary to list these events to shed light on how much attitudes towards the monarchy change over one hundred and fifty years and as a consequence towards preventative censorship and towards the Stationers, too. A growing resentment builds up towards this last group, so much so that it is decided that the monopoly on the right to print should be abolished.
The Stationers are hit where it hurts the most – the hip pocket – so they react with anger. They begin to lobby to ensure the new law recognizes their legitimate interests and works to their advantage. Their new argument runs like this: copyright belongs to the author; the author, however, doesn’t possess printing presses; the machines are owned by the Stationers; therefore the author must go through the Stationers all the same. How to regulate such a ‘passage‘? Simple: the author, in the interest that the work is published, will hand over the copyright to the Stationer for a period to be set.
At the root of it, the situation remains more or less the same. What changes is the motive, the legal basis. The ideological justification is no longer founded on censorship, but on the needs of the market. All the ensuing myths of authors’ rights are derived from the arguments of the Stationers’ lobby: authors are certainly forced to cede rights, but they do so…for their own good. The psychological aftershocks are devastating, resulting in a variation of the ‘Stockholm Syndrome‘ (when the hostage falls in love with his or her own captor). From now on, authors will mobilize in defense of a status quo which is based on them waiting at the foot of the table for leftovers and the odd pat on the head. Pat, pat! Woof!
The law is the famous Statute of Anne (http://www.copyrighthistory.com/anne.html) and comes into effect in 1710. It is the predecessor of all the international laws and accords on copyright up to the Berne Convention (https://www.wipo.int/treaties/en/text.jsp?file_id=283698) in 1971, through to the Digital Millennium Copyright Act and the Urbani Decree etc. It’s the first legal definition of copyright as it has continued to be understood up until today, or better, until this morning. Because since midday a few people have started having doubts. The doubts coming from the fact that making a ‘copy‘ of something is within reach of many more people now, maybe almost everyone.
A fair few of us have in our homes the offshoot of the technology that the Stationers once had a monopoly over. To make a copy of a work it’s no longer necessary to go through a professional association. The heirs of the Stationers have been undermined by the micro-electronic revolution begun in the 70s, with the advent of digital technology, the ‘democratization‘ of access to computing. First the photocopier and the audiocassette, then the video recorder and the sampler, then the cd burner and peer to peer, and finally the portable memory device like iPods… How can anyone think that the ideological justification of copyright – the one that inspired the Statute of Anne – is still valid?
It’s obvious everything has to be revised; this process has changed the complete make up of the cultural industry! New definitions for the rights of those who create, produce and distribute are needed. If a ‘work of intellect‘ can reach the public without the mediation of a publisher, a record company boss, a television or film producer, then those people need to ask themselves which way forward, to think up something, to redefine their business role and social place. Seeking to maintain a monopoly that no longer has any foundation with the threat of jail amounts to heading down a blind alley. It’s the behavior of Ancien Regime, it’s Tsarist Autocracy. Luckily there are a few people beginning to realize this.

Google Print and the like: the web, freebies and rearguard action.

In a library you access a book for free, in a bookshop you buy it, but there’s no conflict between the two options: the countries with the highest book sales are also the countries with the most visited libraries. It’s natural: the more a book circulates the more it’s read, the better impact it has for literature.
The key word is ‘library‘. It represents a long history of freedom of access, only recently put up for discussion (and the battle’s still being fought). Whether you’re talking about libraries made of bricks or electrons, they are all libraries. If, instead, the download is paid for, then you’re talking about bookshops, it’s that simple.
Having said this: Seth Godin, one of the greatest marketing philosophers, says that if an e-book is bought by x number of people, the same e-book made available for free will be downloaded by x multiplied by forty. The useful piece of information in this equation is revealed if you invert it: out of forty people that download an e-book for free, there’s one who is prepared to buy it. The sum of those ‘one in forty’ readers corresponds to a hard core. They’re the ones who are the first to buy, who start the word of mouth. They’re the connectors, the ‘evangelists‘, the ‘buzzers‘. Every move must be made with these people in mind. In fact Godin’s tactic is this: new works (electronic or paper based) are put up for sale. And just before the release of a new publication, he puts up a free download of the previous one. It’s a formidable launching strategy.
The free, accessible download of a text and it’s ‘browsability‘ in the Google Print style have a common ends and aspire to the same goal: both seek to render cultural products accessible on line, and this may encourage the sale of books.
The publishers who oppose Google Print are like those film studios that, twenty five years ago, denounced the makers of video recorders and cassettes saying that domestic recording was a violation of copyright. The famous “Universal Vs Betamax” (https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.) case. Universal ended up in the US Supreme Court and lost… Luckily for them. In the following years, the film industry realized the lion share of profits not in the cinemas but thanks to home video. It survived the crisis of the box office thanks to VHS and then DVD. If Universal and co had won they’d be dead and buried now. But they lost, and as a consequence they were saved.
We could also cite the absurd battle (https://en.wikipedia.org/wiki/Home_Taping_Is_Killing_Music) of the record companies against the introduction of music cassettes in the 70s, a prelude to the war against downloads waged despite the fact that (as iTunes showed) what was needed was to provide users with a legal channel to access this resource.
The present battle waged by the publishers is also a suicide mission against a potentially advantageous innovation. For their own good, the publishers must lose. By winning, they’d suffer a formidable hammering in the proverbials.

Excerpts of private correspondence and unpublished interviews in Italian.

Translated by Jason Di Ross.

Wu Ming Foundation, November 6th, 2005


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