Siva Vaidhyanathan is ostensibly the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, but that, it turns out, is an interesting question. His book generates several interesting questions for me, although some of them are not explicit in it. The first one is the nature of authorship and in what ways that reacts on copyright law. One thinks of an originator of something. But what counts as the something and what counts as original? If culture is cumulative (and authors have a context) how can anything be original? And what are the consequences of legally binding up the raw material of cultural expression as virtual commodities on the ledgers of corporations around the globe?
Is authorship defined by conferring meaning? That would suggest some kind of stable aspect to ‘meaning’, but it is easier to argue that meaning is formed in the mind of each consumer independently and uniquely according to their context -so consumers are more properly thought of as partners in creating meaning. Here copyright law would seem reasonable: meaning is not protected; expression is (although this distinction is under attack). But I’m not sure if I always fall on the same side of that issue. It seems to me the plot of a story is many times the essence of its value, rather than the prose that advances it. Just as the prose is an arrangement of words specific to the author, the plot is an arrangement of imaginary facts that can be crucial and unique to the work. On the other hand the protection of facts themselves , real or imaginary, should be excluded. Who can be an author? How about corporate entities like the NFL? How is authorship established for a sporting event? Is it just in the specific expression of the broadcasters, or can the facts of the game really be protected as the warnings to viewers at the end of every game suggest?
Vaidhyanathan mentions patents and trademarks briefly, but does not probe very deeply into a question that seems obvious to me: why are patents treated so differently and what can we draw from that? Just as with copyrighted materials, patents are awarded for original efforts, but to create novel technology or technological processes rather than artistic expressions. Just as with a copyright, they have potential value for the holder. And just as with a copyright, large entities like corporations own most patents and would have an interest in lengthening their terms. But whereas utility patents protect the owner for 20 years from filing date, copyrights currently protect expressions for the life of the author plus 70 years. Patents have steep fees running into thousands of dollars while copyrights have none. Why isn’t a simple time limit and fee schedule equally applicable? Does it have anything to do with the special role of technology in our societies?
Leo Marx discussed the changes in the perception of technology in “Technology: The Emergence of a Hazardous Concept”. Originally a treatise concerned with the mechanic arts, ‘technology’ came for us to embody complex sociotechnological systems which as a whole are accorded privileged status, even agency, in driving our progress; the railroads, automobile manufacturing, and computer industry to cite a few. Marx pivoted his discussion around Daniel Webster’s 1847 speech dedicating a new section of the Northern Railroad in Lebanon, New Hampshire. It was 16 years earlier that the length of terms of copyright protection and patent protection began to diverge. Both had been 14 years up to that time. After that time copyright extended up to 42 years and would go on to today’s indefinite limit that begins at a minimum of 70 years. Patents would never extend past 21 years. Perhaps minimally-fettered technological innovation and advance was seen as vital to our cultural future in a way that artistic expression was not. That kind of thinking sounds vaguely familiar.
Vaidhyanathan makes the case that the American founders were leery of copyright protections at all, and accepted them only as a compromise to protect the new and innovative. Today, influenced by the European view, it has become a tool to entrench the old.