Preface
In the last twelve years of following copyright developments, I have witnessed an accelerating growth in the agitation over its application and increasing cries for reform. This was triggered by a mounting corporate hysteria for strengthening copyright which seems to mask other anxieties and other issues of bad faith beside the one at hand. This is in contrast with the more reasonable stance of the U.S. government in the 1980s when Congress refused to regulate video rentals and the Courts refused to cite the video recorder for ‘contributory infringement.’ In the 1990s, the Republican-controlled Congress passed several pieces of legislation extending copyright and punishing reverse engineering. Congressional giveaways and corporate shrillness has inspired a progressive movement to defend the intellectual ‘commons.’ The reality is that intellectual property is not owned by intellectuals, and so people are realising that further extensions of copyright no longer benefits the sciences and useful arts.
Developments in copyright are driven by the challenges of new technologies of communication. This is a problem for the law, which does not like surprises and certainly proceeds by analogising new situations to old ones in order to build continuity. Case law (which is law that is developed by judges’ decisions and interpretations) proceeds by precedent. Yet old technologies are not the accurate precedents for new technology and this is particularly the situation today.
The new technologies have a particular impact on the situation since they change not just one variable in the earlier balance of copyright, but all the variables. While the courts and the corporations have concentrated on the one variable of easy reproduction of content, we should also pay attention to how the new technologies have changed the very balance between the so-called ‘real world’ and cultural expression. The material world is now composed to a significant extent by cultural expression. We walk through physical landscapes dominated by billboards and other totems of the marketplace, while our mentalscapes are filled with trademarks and other commodity bits. This was not the case as copyright law developed; it is the case now, and the various underpinnings of copyright law have become embarrassingly ineffective in this new world.
Edelman
Bernard Edelman pushes back to find the moment of embarrassment. He finds it in photography. As Paul Hirst points out, ‘[Edelman’s title] Le Droit saisi par la photographie puns on the law being seized or caught by photography, surprised or caught out by it. Photography, a technical innovation developing independently of law, contradicts the existing formulations of property right in representations of things’ (Hirst 1-2).
Prior to photography, representation inherently had stamps of personality that allowed such representation (painting, drawing, engraving et alia) to be easily and significantly distinguished from that part of the material world it was representing, as well as from other artistic representations (even of the same referent). The earliest French legal pronouncements on photography were reluctant to grant it copyright protection, precisely because it was thought to have no personality and to be a mechanical copy of nature. When the court did extend copyright protection to photography and admitted its personality, it was faced with how to distinguish it from the natural. The camera could no longer be interpreting as transparently reproducing the real. Edelman calls this the subjectivisation of the machine. The camera can no longer be both a transparent reproducer of the real; it has been found always to invest the real with the personality of its subject (the photographer). This has resulted in a number of ad hoc decisions to prevent ‘over-appropriation’ of the real.
Anglo-American versus French Law
Anglo-American writing about copyright has never wasted much time on subjectivisation of the machine. The basis of British copyright was pragmatic and economic to begin with, having originated with the Tudors’ desire to encourage printing by granting monopoly rights to printers, and to control and censor printing. The relocation of copyright ownership from printer to author in the 18th century was also an economically driven consideration reflecting the new spirit of competitive capitalism. Certainly the language of the U.S. Constitution that authorised the federal prerogative in setting copyright law was very pragmatic in its emphasis on promoting the progress of science and the ‘useful’ arts (Article 1 Section 8). The French tradition, which is somewhat paralleled by the German and those of other continental nations, was born out of a more courtly regard for the rights of genius. Although France recognised that works ‘made for hire’ were owned by the employer, it vested certain inalienable moral privileges in the real person of the artist. This legal doctrine is known as droit d’auteur. (see Ginsburg)
Idea/Expression
Yet the American tradition is not totally pragmatic. The balance between copyright and the First Amendment commitment to an absolute freedom of speech calls for a certain degree of abstraction. It was Thomas Jefferson who cautioned about the chilling effect copyright law might have with the spread of ideas. Fortunately in written language it was rather easy to work out that the way to protect ideas from property claims was to distinguish between the expression, which can be copyrighted, and the idea, which cannot.
Siva Vaidhyanathan (109-15) goes over Judge Learned Hand’s development of the test to distinguish the idea from the expression in the 1920s and 1930s as particularly instructive for striking the balance. In Nichols v. Universal (1929), Hand develops the theme of ‘patterns of increasing generality’ as more incident is left out. At some point the abstraction is too great to be protected, since it now is more in the realm of idea then of particular expression. (45 F.2d 120)
But Edelman’s work poses the question whether this works, as we move from machines of writing to machines of visual reproduction.
Doesn’t Apply to Mechanical Mimetic Reproduction
Photographs can be taken of the imaginary world and indeed the subjectivisation model holds that every photograph is determined by the imagination of the author. But it is commonsensical that photographs begin as traces of the material world. This is not analogous to the written word. The structural nature of language removes the written word from a direct relationship with its physical referent. Indeed, the entire linguistic turn in post-war philosophy is premised on the lack of any transparent or even determined relationship between language and things. Even in pre-war jurisprudence it was this lack of coincidence that allowed the easy split of the idea from its expression. As the expression floats above the idea, the word floats above the physical.
Vincent Porter argues that in contrast to language, visual and audio recordings do not have this split, they do not float above the physical. He noted sound/image recordings have presented a problem in that they are speech acts without a language system, or in a distinction borrowed from Saussure ‘a series of paroles without a langue.’ (Porter 12) After all does a photograph fit into a grammar of images? Are there photographs that are ‘patterns of increasing generality?’ Where is the photograph that is the same idea as another photograph without being the same photograph? Is there a photograph that can do the same work as the word ‘mother?’ No. Every photograph will be of a particular mother of a particular age and particular ethnic group and the same difficulty applies even if we photograph a group of mothers or edit a montage of mothers. This has the effect of making the idea the same as the expression. If you protect one you have protected the other.
At this point I was not certain how decisive an intervention these concepts could make in the current copyright ferment. Certainly the most exciting argument was the one mounted at the Berkman Institute at Harvard by several lawyers and argued before the Supreme Court by Lawrence Lessig in Eldred v. Ashcroft (2003). This presented the argument that the government had strayed from the original Constitutional mandate to allow exclusive rights only for a limited time.
But as I read Lessig’s Free Culture and as I re-read Edelman, it strikes me that the idea/expression test does not adequately help the First Amendment rights of technologies of mimetic reproduction (film, audio recordings). It is that these technologies allow reproductions to easily re-enter the material world. When these reproductions do re-enter they will naturally become part of the domain of creative expression. Our artists must be allowed to freely comment on the world in which we live and the world in which we live is now visually and aurally full of copyrighted material. This image came to mind forcefully when Lessig explained the difficulties of documentarians when they film their subjects watching TV and then have to edit out the TV image rather than deal with the risk of being sued for infringement (Aufderheide and Jaszi 95-8).
This image also comes to mind when reading of farmers who are not allowed to harvest their seed because they come from patented plants. But I will defer to patent philosophers on that apparent travesty of natural rights. I wish to stay focused on the argument that is the corollary of Edelman’s subjectivisation of the camera. The camera records the physical world and in turn that recording enters that world. This is to say that the genius of copyright is in the literary domain because written language never re-enters the material world. When copyright was extended beyond the literary, policy makers should have noticed that earlier tests were no longer capable of maintaining balance between our divine right to express our lives and the practical right to own our own expressions (for a limited time).
The new test is almost already present in the law: it is the protection of parody from copyright infringement violation. The courts recognise that parody positions the original expression as an artifact of the world in order to comment on it. If only the policy makers could extend that view to documentarians and others who film the world and include in their film the physical fact of other videos being displayed in the world. Just as in parody they ought to consider the intent of the video makers is to comment on the original, not to plagiarise it.
