Copyright Wars

Artists can be awfully protective of their work. In his forthcoming Copyright Wars, Peter Baldwin observes that Samuel Beckett “objected . . . when directors performed his plays with women, non-white casts, or incidental music. He sued the American Repertory Theater in Cambridge for playing Endgame in an abandoned Boston subway station and the Comedie Française for doing so on a set bathed in pink light. . . . Beckett also quibbled about stagings of Godot in Dublin, London, Salzburg, Berlin, and Miami.”

Artists are also famously nervous about protecting their rights, and never satisfied that they have done enough. Baldwin notes the inherent tension in intellectual property rights: Artists and authors want fame and money, the audience wants access to cultural treasures. Artists wants ownership of their products, but their products are part of a common cultural heritage. 

The product of these tensions, he argues, has been a steady expansion of intellectual property rights over the past several centuries: “from the eighteenth century to the present, rights holders – whether authors or disseminators – have won an ever-stronger stake in their works. In certain nations some claims remain with the author and his estate perpetually. But in all countries rights have been continually extended on their owners’ behalf.”

In fact, in spite of regular complaints from artists, intellectual property rights are now stronger than rights to real property: “Intellectual property has in fact come to be treated more favorably than its conventional cousins, especially real property. . . . American and especially European authors have received ever-greater powers over the past two centuries. They may decide how their works appear, whether others may make use of them for derivative creations, and if so, under what circumstances.” 

Since 1908, “all member states of the first international copyright union, the Berne Convention, were obliged to grant copyright without any formalities whatsoever. Every scribble, doodle, and bathtub aria was thus a protected work as of its creation. The shopping list on the fridge is as copyrighted as Dan Brown’s latest blockbuster.”

Meanwhile, “Everywhere property has been ever more subjected to restrictions imposed by the state as the ultimate regulator. From nuisance laws to rent regulation, from zoning codes to health-and-safety rules, from taxation to outright takings, conventional property – the state has made clear – is possessed on society’s premises and only insofar as private ownership is compatible with broader social objectives. The social determinants of private property became ever more prominent.”

Baldwin sees this as part of a larger cultural trajectory that has moved from “tangibles to intangibles,” as symbolic, intellectual, and non-material products have assumed more and more of our economic life. Already in the nineteenth century, in one Pennsylvania county, the proportion of intangible assets had grown to more than two-thirds of the total wealth. We have become a more “spiritual” economy over the past several centuries, and property law has followed.

Baldwin admits that the shift has not been uniform. Intellectual property is more thoroughly protected in Britain and America than continental Europe, not to mention the wild west of Asia and Africa. (Years ago, NPR reported that a Chinese translation of the last Harry Potter book appeared before the English original. Readers were bewildered about the strange plot twists.)

The other recent challenge, of course, has been the protection of intellectual property in a web-connected work. “During the 1990s film and music corporations fought consumers over open access, peer-to-peer downloading, and digital rights management, sounding themes familiar from earlier debates.”

Baldwin thinks that it’s important to see that “The copyright wars of our own era are only the latest iteration of a long-fought struggle. . . . Chronologically blinkered as we all are, the digital generation thinks it is fighting for the first time a battle that, in fact, stretches back three centuries.”

If you’re inclined to wager, the historical trends indicate that you should put your money on the artists to wins this latest engagement in the copyright wars.

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