.. sign my own operating system from the ground up when I can take the work done by Linus Torvalds and the hundreds of other skilled programmers around the world, and bend it to my whim? This is a much more flexible system than one in which I must depend on Microsoft to provide me with every convenience I desire. How does this apply to the arts, though? Software is almost universally the kind of thing that is constantly being altered, updated, and optimized. Art is generally considered a thing that is made once and finished afterwards. I don’t plan on remixing or modifying my Elvis Costello and the Attractions CDs.
But should our copyright and licensing laws necessarily prohibit those who wish to take an existing piece of art and build upon it from doing so? Remixing is often done with the consent of the original artist. I don’t know whether the sculptor who made the “Thinker” adaptation on BGSU’s campus consented with whoever holds property rights on Rodin’s work these days; chances are he didn’t, probably because the original work is so easily recognizable. But issues of permission aside, how far should we restrict the right to sample, borrow, steal, or outright plagiarize the artistic property of others? And ultimately, should art even be subject to property laws in the same way anything else is? Our past and current notions of ownership entail a sense of giving rights to the creator of a certain product to produce, distribute, and sell that product in whatever way she chooses. Since the artist, programmer, musician, or worker-in-general in question is putting some time and energy (and often money) into the production of whatever work of art, software, or music is in question, it only seems reasonable to compensate them in some way, the most universal of which is with money. Obviously not everyone producing something is asking for money in return (as the previously mentioned GNU/Linux project shows), and the compensation in these cases is represented by the benefits experienced by the community as a whole, rather than the recognition or financial reimbursement that the artisan (in this case the programmer) personally receives.
The artisan is usually free to choose who may profit by their creation, and the terms under which they may profit. Although it should be the right of the programmer, artist, or musician to decide what terms of ownership or licensing shall be applicable to their creation, the media on which they choose to distribute their work might play a previously ignored role in the way that work will be treated by the community. While the law has generally been extended to cover all forms of media equally, and to give the artist copyright protection regardless of the distribution format used, I maintain that the medium of transmission is at least as important as the material being protected. Sometimes, the media through which a creation is propagated has more effect on the likelihood of its being borrowed or stolen than the creation itself or any existing laws protecting it. Just as the invention of the printing press vastly increased distribution and thus altered forever the ways in which ideas travel, the evolution of electronic recording and transmission methods directly affects the way ideas are copied, distributed, and recombined into new ideas. Prior to the printing press, communication had to be verbal, or copied by hand. Prior to electronic media, written communication had to be physically duplicated, at some cost to those desiring copies.
Now anything can be copied, altered, republished, and copied again, with no expense other than time. An example is the difference between a physical medium and its electronic counterpart: Musical recordings on vinyl LP are harder to copy than MP3 files. A photograph or color print is considerably more expensive to replicate than a Jpeg, and a library book is more difficult to copy than a text file on a computer. The artists who choose to use traditional methods – cassettes, film, and paper – to create and distribute their work stand a lesser likelihood of having their work duplicated or altered than those who port their creations to digital. Digital is more practical for some reasons: you can fit twice your weight in books on a CD-Rom; email is faster and cheaper than postal mail; digital video offers possibilities undreamed of in the days of film.
But with all that enhanced convenience, speed, and versatility comes the increased risk of the previously mentioned modes of duplication. Marshall McLuhan conceived that the medium is the message – that the form which our communication takes is of more relevance than its actual content. Now that we’ve grown accustomed to the electronic medium, content is re-emerging with the rapid and inexpensive duplication and alteration that is only possible with that medium. I’ve touched upon some of the comparisons that can be made between an electronic, or otherwise easily replicable product, and a physical, not-so-easily replicable product. Obviously there are differences, but are these enough to warrant the claim that ease of replicability implies a revised mode of ownership? Just because software and digital audio are easy to copy, does that mean we should? And does the digital nature of some products mean that the originator of those products should benefit any less than they would have had that product been in traditional physical form? An argument that may be used in favor of copyright protection for electronic media is that if an artist or programmer is hoping to make a substantial living through sale of their work, then that work should be protected.
Why should an article or novel be protected any less merely because it is published on the World Wide Web, rather than in a print magazine? In both cases, the original author should have the right to claim ownership of what they’ve written – especially if someone else stands to profit by taking that work and unjustly claiming it as their own. Contrastingly, the author should also have the right to publish their work as public domain, or anonymously – and thus claiming no ownership rights on it – but we may also agree that it would be equally unjust if someone were again to take that work as their own and profit by it (this latter case is different only in that the original author is not losing out, since they had never planned to profit by their creation in the first place). In both cases we usually consider it wrong for the work to be stolen, regardless of what conditions the original author published it under. Is it feasible to utilize another kind of copyright protection – one which protects a public domain creation from being unjustly stolen? This is something like what is happening with GNU/Linux and its source code; part of its license provides for protection from patents. Or, to quote from the GNU General Public License itself, “..any patent must be licensed for everyone’s free use or not licensed at all.” This is quite a powerful idea.
The authors of a work of public domain software have ensured that it remains public domain. The driving concept here is the idea that allowing the community to directly influence the evolution of the software (by giving them the source code and all the rights that the original authors have), everyone benefits. Rather than one company benefitting at the cost of the community (as is the case with most commercial software) the free software ethic provides a way for everyone to benefit, and moreover provides protection from those who would leverage that freedom for personal gain at the expense of the community. Might this be applied to realms of creation other than software? Just as there are functional advantages in allowing a community to modify a piece of software, might there be literary advantages in publishing poems, articles, essays, or even novels as public-domain works? Or musical advantages to publishing free sample, drum loop, or song databases? Musicians and writers are known to be a picky bunch when it comes to letting others tamper with their work – and of course, those that don’t want their work tampered with can always copyright it and claim ownership for themselves, just as most software authors copyright their work and don’t release the source code. But for those who wish to contribute artistic works to a community-based effort, under the assumption that others will revise and improve those works, protection should also be offered. Granted not everyone is capable of improving on someone else’s creation, but as long as everyone has equal access and privelege to alter those creations, the best end product will eventually emerge.
If you stir up the pot enough, the cream eventually rises to the top, and it will be there for everyone to share and benefit from. One of the provisions of United States copyright law is for the copyright owner to authorize others to have any of the rights that they, the copyright owners, have. Section 106 of the U.S. Copyright Law grants the owner of a copyright “..exclusive rights to do and to authorize..” any of a number of things that we commonly assume to be the rights of a copyright holder: to reproduce the work, to prepare derivatives of it, to distribute or sell copies of it, and to present the work publicly. And Section 201d provides for the owner of a copyright to transfer ownership of that copyright to someone else, thus giving them all of the same rights – that is, the right to reproduce, modify, and sell the creation, as well as transfer ownership to someone else. Sound similar to what I’ve been talking about? A mistake that I often witness goes something like this: “MP3s are illegal because they’re stolen from the musician who actually made the song.” This misnomer is familiar to anyone who’s spent any time browsing the MP3 culture on the internet; it’s often difficult to convince the mistaken party otherwise, since it is indeed common for MP3 to be used illegally, thanks to its high quality and portability.
In the days when a copyright can be owned on a brand name, a trademark on a simple phrase, or a legal claim of intellectual ownership of a bunch of zeroes and ones that exist on someone else’s hard drive, it is easy to assume that simply because a certain file format is commonly associated with illegal activity, that format itself is illegal. For a while I’ve argued that we’re already progressing beyond the conventional idea of owning physical objects, to the modernized concept of owning ideas and information. Already most of the cost of a compact disc or software package goes towards its development, advertising and marketing – all of which are services, rather than substantial realities like a ham and swiss sandwich. It would only be a small step to remove the physical aspect of those products entirely; consumers would pay for the privelege of owning the MP3s of an album, or of running certain software on their computer, of owning the Acrobat files of their favorite novels, of having a painting by their favorite artist in their Windows background. But such a reality will push even further the insecurity of intellectual ownership; currency is already so largely electronic that perhaps one day the distinction between electronic currency and electronic property will become so blurred that the two merge.
One piece of art, music, or software would be paid for with another – instant electronic barter. And then, who will be able to claim ownership of anything?.