I went to an interesting talk last night with author Lewis Hyde and the former head of the NEA, Bill Ivey, who's something of a crusader against what he sees as an increasing corporate stranglehold on creative expression in the United States. The primary concern is the excessively draconian copyright and intellectual property laws which have placed, in his estimation, about 75% of our "cultural heritage" -- films, music, art -- in private hands. It seems strange, for instance, that Louis Armstrong's "West End Blues" is property of the Sony Corporation, rather than public property. The problem with too much private ownership has become obvious in the era of the internet -- one of the major ways artists have always created new art is by reinterpreting old art (the mashup comes instantly to mind), an act which even in its most innocent form (a jazz soloist riffing on the melody of another song, perhaps), is illegal, punishable by fines. And we've all heard about the Digital Millennium Copyright Act takedowns on YouTube and the RIAA's lawsuits against orphans in wheelchairs for downloading a copy of the "Happy Birthday" song (because there's no one else to sing it to them, naturally). I deal with this a bit in another blog, What's Fair Use?
Author and professor Lewis Hyde raises a similar question in regard to Bob Dylan's early work. "Bob Dylan drew upon a rich lode of old folk tunes for most of his early songs," Hyde writes. "That's not theft; that's the folk tradition at its best." It seems that nearly two-thirds of Dylan's work between 1961-63 -- some 50 songs -- were reinterpretations of American folk classics. In today's corporate-creative environment, in which Disney was allowed to change the basic nature of copyright law back in the 90s so that their signature mouse wouldn't fall into the public domain, Dylan's early work would've landed him in court.
Hyde, who's working on a book about the "cultural commons" and the ways we make (and protect) art, provides another useful framing device for this discussion: the U.S. Constitution.
[The Constitution] allows Congress to grant "exclusive right" to authors and inventors "for limited times": "exclusive" so that creators may benefit short term, but "limited" so that the public may benefit in the long run. The Constitution, that is, asks Congress to find an apt balance between private wealth and commonwealth, between proprietary interests and the public domain. It allows a market in cultural property but also puts an outer boundary on that market.
Why shouldn't a piece of intellectual property be owned by an entity, passed down through generations of a family, forever traded between private hands, just as a piece of physical property is? There are many reasons, but one is that physical property -- land, for instance -- is a finite resource. Hyde argues that "there are good reasons to manage scarce resources through market forces, but cultural commons are never by nature scarce, so why enclose them far into the future with the fences of copyright and patent? Thomas Jefferson, our first Commissioner of patents, once described the inherent abundance of intellectual property:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea.... He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me.