<nettime> Copyright/Copyleft: Myths About Copyright

[Anivar Aravind <anivar.aravind@gmail.com>]

Copyright/Copyleft: Myths About Copyright
By Lawrence Liang, Atrayee Mazmdar &Mayur Suresh

http://india.indymedia.org/en/2005/02/210078.shtml

Copyright has acquired all-pervasive status in recent years, entering the 
realms of the everyday in various forms. It appears in the public sphere 
most commonly as a newspaper story about the losses caused by piracy or 
the latest 'threatno-innovative' attempt to fight piracy. Post September 
11, 2001, the war against terrorism and the war against piracy have become 
close allies. Sometimes the battle acquires a certain glamorous appeal 
when one celebrity sues another for copyright infringement, as in the 
recent case of Bappi Lahiri against Dr Dre for using his song, Kaliyon Ka 
Chaman, or Rajnikant claming rights over a sign that he uses in his film, 
Baba.

Apart from these stories recording anxieties around copyright piracy, 
there are also self-congratulatory nationalist messages about India 
leveraging its vast pool of knowledge workers to become a global 
superpower. Irrespective of the nature of the story told, a number of 
elements discernible in these narratives have a common thread running 
through them. In fact, it could be said that it is precisely these threads 
that make it possible for us to weave a story of copyright in the 
contemporary context.

It is our argument that an understanding of the insertion of the discourse 
of copyright into quotidian imagination is critical for an insight into 
the profound transformations that are taking place within the realm of the 
production and distribution of knowledge and cultural commodities. It is 
in these spaces that the myth of copyright is carefully constructed and 
constantly reinforced. Our experience of media in any form is pre-mediated 
by our understanding of the networks of their circulation within the 
economy of intellectual property. As film scholar Nitin Govil says, "The 
uncanny 'everywhereness' of piracy is, of course, merely the inverted 
image of the properly interpolated spaces of intellectual property."

This brief concept paper seeks to identify and interrogate some of the 
assumptions that underlie most media stories about copyright. The greatest 
success of the concept of copyright has been its successful elevation to 
the status of myth through the constant rendering of certain familiar 
figures (the poor struggling author), arguments (people deserve to own the 
fruit of their labour) and rhetorical data (billions of dollars lost due 
to piracy). By specifically labelling these assumptions myths, we seek to 
question their truth premise. This is, however, a task that has just begun 
and we shall have to work collectively to strive towards making arguments 
that go beyond merely providing counter-facts if we are to effectively 
counter the totalising rhetoric of copyright.


2. Some familiar tales of loss and anxiety

Exhibit 1:

"The failure to enforce Intellectual Property Rights (IPR) laws has taken 
a heavy toll on government revenues and reduced employment opportunities, 
with the government forgoing a tax revenue of over Rs 10,000 crore 
annually due to the proliferation of counterfeit consumer products alone, 
the Chief Justice of the Delhi High Court, S B Sinha, said here today. 
Inaugurating a seminar on new IPR laws organised by the Associated 
Chambers of Commerce and Industry of India (ASSOCHAM), Justice Sinha 
emphasised the need for the training of judicial and police officers in 
all aspects of the implementation of IPR laws so that there is adequate 
protection to the manufacture of genuine products and the consumer is not 
exposed to the dangers of consuming fake products.

Mr Sinha emphasised the need for creating consumer awareness and class 
action by manufacturers so that the counterfeiters could be brought to 
book. He said that counterfeit products were flourishing because there was 
a ready market in the country for such cheap, look-alike products. The 
acceptance of counterfeit products by consumers comes in the way of the 
implementation of laws. Responding to the concerns expressed by the 
alternate president, ASSOCHAM, R K Somany, Justice Sinha said there was 
sufficient awareness among law makers and the enforcement agencies about 
the need to contain the menace of counterfeiting by proper implementation 
of IPR laws. What was, however, urgently required was all-round societal 
action against the offenders. The Minister of State for Coal, Mines, Law 
and Justice, Ravi Shankar Prasad, in his keynote address, said it was 
critical to adjust the legal system to respond rapidly to the new 
technological environment in an effective and appropriate way, because 
technologies and markets evolve increasingly rapidly. This will ensure the 
continued furtherance of the fundamental guiding principles of copyright 
and related rights, which remain constant whatever may be the technology 
of the day.

It would involve giving incentives to creators to produce and disseminate 
new creative materials; recognising the importance of their contributions 
providing appropriate balance for the public interest, particularly 
education, research and access to information and thereby ultimately 
benefiting society by promoting the development of culture, science and 
the economy."

The Hindu, September 22, 2002

Exhibit 2:

Mr Hardee told FE in an exclusive interview that the Indian government 
needed to take a much more proactive approach to dealing with copyright 
issues.

"India has not yet ratified the WIPO Copyright treaty and BSA would like 
to convince the Indian government to accept it for effective protection of 
digital rights," Mr Hardee said, adding that he would also discuss WTO 
services agreement related issues that are crucial for conducting 
electronic commerce over the Internet.

"Intellectual property rights protection is the key to the continued 
growth of the software industry and a critical factor in attracting direct 
foreign investment. We want Indian politicians and government officials to 
talk about copyright issues, to create awareness and also adopt strict 
anti-piracy policies in government departments to set an example," he 
said.

The Financial Express, August 21, 2002

Exhibit 3:

BOOK PIRACY RACKET BUSTED

By Our Staff Reporter

THIRUVANANTHAPURAM, Aug 26. The city police today busted a racket 
involving unauthorised duplication and sale of foreign medical books from 
two photostat business centres in the Medical College area. As many as 150 
unauthorised reproductions of several costly publications were seized in 
the raid. Police have filed a case under the Copyright Violation Act 
against the owners of the two shops. The raid followed a nationwide 
campaign by the Indian arm of the Publishers' Association, UK, to unearth 
piracy of books published by international firms. According to the police, 
the clandestine operation in the Medical College area was targeted at 
medical students. The modus operandi was to make a master copy of the 
foreign technical books, which cost up to Rs 4,000 each. Multiple copies 
made from the master pages are bound into book form and sold at Rs 500 to 
1,000 each.

Counsel for the publishers, Priya Rao, who had arrived from Delhi, said 
the raid had unearthed bound books as well as loose photostat copies. The 
books were neatly reproduced and sold with brochures.

Similar raids carried out in the Museum and Thampanoor police station 
limits during the last two days had uncovered a similar racket in popular 
novels. Police raids in these areas revealed about 200 reproductions of 
`Harry Potter' and Sydney Sheldon novels. While the original novels cost 
about Rs 300, the pirated editions were selling for Rs 50.

The unauthorised versions were seized from bookshops as well as footpath 
vendors dealing in secondhand books.

Exhibit 4:

Soon the Indian Music Industry will be out of sight, there will be a 
cultural blackout and consumers will no longer be able to listen to music, 
virtually. That is what the Indian Music Industry =E2=80=93 IMI, joining 
hands with the police and researchers, tried to convey to consumers and 
media persons this past week as it held a conference to highlight the 
threat of music piracy. At a briefing at the India Habitat Centre 
addressed by VJ Lazarus, IMI President, JF Rebeiro, former Commissioner of 
Police, Abhik Mitra, MD, Saregama India Limited, and Prakash Singh, former 
Director General of BSF, the issue of piracy was raised and a campaign 
called `Sounds of Silence' to fight the 'illegitimate music' was launched.

"Due to piracy we have lost over Rs 1,800 crore in the last three years. 
Despite being an offence as per the copyright act - Article 52 (1) (i) 
that calls for severe penalties - piracy is eating into the music 
companies," lamented Lazarus.

Though he reasoned that the IMI has recorded 3,652 criminal cases and made 
4,096 arrests in the last four years, only 30 cases ended in prison 
sentences or fines, although 191 cases ended in conviction.

He felt that this sorry state was due to a lenient attitude by those who 
should be providing the deterrent, while Rebeiro, too, admitted that for 
the police it is one of the very low priorities. Moreover, slow processing 
in the courts adversely affects the required enforcement. The source of 
the trouble also lies in the lack of major hits and the high price of the 
original cassettes and CDs. For the latter they have their reasons. 
"People come to us asking: why can't you sell a CD for Rs 20 while the raw 
material costs you only Rs 8, but they don't realise that the lyricists 
and each of the artistes have to be paid a good amount," said Abhik Mitra.

"If the government does not look into it fast, the industry will come to a 
halt within a year, for two out of five cassettes and CDs get pirated 
now," says Lazarus.



The currency of copyright

The excerpts from news reports quoted above provide just a glimpse of the 
discourse that has become a regular staple of the media's coverage of 
copyright-related issues. Yet there is a stubborn logic that refuses to 
accede so easily to the threats, blackmail and pleas of copyright 
protectionists. The spectral figure of copyright looms large over, but 
fails to entirely haunt, our imagination. As with any other conflict, the 
'battle for souls' is perhaps as important as the transformations taking 
place in the material world of practices. And it is within these spaces of 
the human imagination that we insert our current intervention. Drawing on 
these stories taken from contemporary media representations of the 
conflict over copyright, we would like to examine some of the basic 
assumptions in the self-narrated life of copyright.

The promoters of copyright have a rather straightforward justification for 
it. We shall begin with what may be considered a rather typical account of 
the necessity of copyright law.

Copyright is that branch of intellectual property law which protects 
original works of authorship. These include literary, artistic, musical 
and dramatic works. In recent years copyright law has been amended to 
include protection for performers' rights. The key assumption that 
sustains copyright law is that authors have a natural right over their 
works of intellectual labour, and copyright protection is required to 
provide an incentive to create intellectual works. Copyright, therefore, 
grants an exclusive right to the author over his or her works; this 
includes a basket of related rights such as the right to authorise 
reproduction, adaptation, performance, distribution etc, of the work. In 
the absence of a system like copyright, it is argued, there would be no 
incentive for authors to produce and hence there would be a general 
decline in the world of creativity and the arts.

However, copyright inherently includes a balance between the protection of 
authors, on the one hand, and the interests of the public, on the other. 
Since it is recognised that excessive protection may result in curbing the 
ability of the public to use works, copyright protects only unique 
expressions and not ideas per se. Some balance is also sought to be 
achieved by providing a limited term of protection (ie, the lifetime of 
the author plus 60 years). Within these limits, any person who uses the 
works of another person's intellectual labour without permission is, 
according to copyright law, guilty of indulging in an act of stealing the 
other person's ideas. The rationale is that such theft will result in 
unacceptable losses for the author of the work.

As with any other totalising story, the tale of copyright appears to have 
some intrinsic appeal, relying as it does on a progress account (copyright 
promotes creativity) and the dystopic world that it prevents (there will 
be no creativity without copyright). The reason why we deliberately choose 
to use the phrase, 'the myth of copyright', is that we recognise the 
wonderful success of the apologists of copyright in presenting it as a 
universal truth. The history of copyright is always narrated in an 
ahistorical manner, following a universal teleological route as though it 
were the natural culmination of events. Following the works of Roland 
Barthes, an important scholar of semiotics, we would like to interrogate 
the mythologies as forms of language which are ideologically embedded in 
various practices of power and ideology.

We would, in this section of the paper, like to interrogate some of the 
arguments that seem to form the mythological structure of copyright:

>Challenging the ahistorical account of copyright: Contextualising
authorship and originality

>Copyright, information and the language of property

>Copyright and incentive for creativity

>Copyright and protecting the rights of authors

>Use of the language of theft and piracy in the discourse of copyright

>Contextualising authorship and originality

Copyright assumes as the subject of its enquiry the rights of the author. 
Simple as it sounds, this assertion is of great import for our 
understanding of the conflict over copyright. At the heart of the 
statement lies the presumption that we can clearly and without any problem 
make sense of the idea of authorship. To juxtapose this statement with 
another, ask any person to rattle off the names of the greatest authors, 
and you will find a varied crowd ranging from Shakespeare, Chaucer, 
Kalidas, Valmiki to Salman Rushdie and perhaps Jeffrey Archer. This is, 
quite obviously, a list of authors; it is not difficult to come to that 
conclusion. However, this commonplace understanding of the author as a 
category needs to be challenged.

Two sets of self-fulfilling prophesies are achieved by the assertion that 
copyright protects the rights of authors. First, it assumes a category 
which makes universal sense across cultures and across time, namely, that 
of 'the author'. Second, by erecting this universal figure of the author 
and asserting that copyright is meant for the protection of the author, it 
universalises the relationship between copyright and creativity. Our first 
task is, then, to historicise the emergence of the author figure or the 
author function as a relatively modern phenomenon that has arisen in the 
context of the crisis caused by the print revolution.

Before the invention of the printing press, the act of writing was a very 
localised activity. It was impossible to disseminate knowledge in any 
significant manner since the inaccuracies of copying prevented widespread 
use of the written word. The printing press enabled a number of 
innovations. Duplication became easier and more accurate. Mass 
distribution became viable. The printing press also revolutionised 
information storage, retrieval and usage. Printing, unlike writing, 
allowed a society to build on the past with the confidence that each step 
was being made on a firm foundation. Printing affirmed the belief that new 
information was an improvement over the old. The revolution in the 
capacity to accurately reproduce works fostered an understanding that 
progress can occur through a process of revision and improvement. The 
increased accuracy and rapidity of new editions made possible by the 
printing press made the most recent editions more valued than the older 
ones. Additionally, by providing access to the written word to the 
literate public, printing made possible a larger reading public which then 
formed the emerging public sphere.

This new reading public demanded books -- originals and reprints -- and 
set the stage for the crucial conflict over the ownership of such 
information. As copyright historian Mark Rose observes, "A sufficient 
market for books to sustain a commercial system of cultural production" 
had to exist before the coming into being of a formal regime of 
intellectual property. What was earlier the monopoly of the Stationers' 
Company, a guild recognised and regulated by the Crown, became a mass 
industrial activity with a number of publishers in the provinces 
publishing cheap reprints for the emerging reading public."

The reaction from the literary and artistic world was to move away from 
the 'ills of the industrial revolution'. They began to deploy the notion 
of the author as a unique and transcendent being, possessing originality 
of spirit. This romantic model was used as a means of rescuing artists' 
works from the hostile market and the public, for whom mass production 
made works available as never before, but at the risk of their turning 
into industrial products.

The romantic artist was, therefore, deemed to have property in an 
uncommodifiable imaginary self; originality was thereby elevated and 
located in the self of the author. And because the artist owns his/her 
original person or spirit, works created by such authors were also deemed 
to be original; in this way they could distinguish their personality from 
the expanding realm of mass produced goods. This is the moment when the 
romantic theory merges with the doctrine of property prevalent at the 
time, through the theory of conversion propounded by John Locke, wherein 
an individual, through his/her labour, creates something of value out of 
nothing. It is important to note that this is also the theory that 
justifies the appropriation of the commons, including lands understood as 
not belonging to any 'civilised' nation.

A dual move is thus set in place, with the concept of the 'modern 
proprietary author' used as a weapon in the struggle between London-based 
booksellers and the booksellers of the provinces, culminating in the 
landmark case of Donaldson v Becket. The entire claim in the case is made 
in the name of protecting the rights of the author (even though no author 
was actually involved in the case) and the individuality of their ideas. 
This is despite the fact that the primary beneficiaries of this new system 
of knowledge ownership were publishers, since all authors assigned their 
copyright to the publishers before publication. The concept of the modern 
proprietary author simply created a useful euphemism for protecting the 
rights of publishing companies to copy.

This invocation of the author significantly ties copyright to the concept 
of an author. The proprietary author emerges as the London publisher's 
mode of maintaining strict control over copyright. However, once 
unleashed, the idea of the author starts taking on a new meaning with 
unexpected consequences. It emerges as a new social relationship, which 
will transform the way society perceives the ownership of knowledge. This 
establishment of the ideological figure of the author naturalises a 
particular process of knowledge production where the emphasis on 
individual contribution denigrates the concept of community knowledge and 
helps promulgate the notion of the individual as owner.

The significant contribution to literary theory through the works of 
Roland Barthes, Michel Foucault and Jacques Derrida has been to 
problematise our notions of the romantic individual author. What then do 
the work of Foucault, Barthes and Derrida mean for the legal 
interpretation of authorship? If legal scholarship and practice were to 
take note of the inroads into the very notion of authorship and 
originality by these thinkers, we would need to reconceptualise the 
terrain that we understand to be intellectual property legislation. This 
reconceptualisation will necessarily have to shed the burden of the 
author's originality and recognise the millions of traces which shadow the 
arrival of any work, and provide a means of structuring the relationship 
between such texts, its readers and society at large. It will mean a more 
nuanced understanding of the public sphere or what IP laws call the public 
domain, with the presumption being that the author is not a figure who has 
to be protected from this public sphere but one who resides and works 
within the public sphere.[1] This restructuring of the relationship 
between authors, texts and interpretative communities will also demand a 
major increase in the ways in which these works may be modified, adapted 
and appropriated to enable what Derrida would call the field of infinite 
substitutions.

Copyright, information and the language of property

"If you have an apple and I have an apple and we exchange apples, then you 
and I will still each have one apple. But if you have an idea and I have 
one idea and we exchange these ideas, then each of us will have two 
ideas."

-- George Bernard Shaw

In this section we examine how intellectual property is justified at the 
conceptual level. The theories of George Hegel and John Locke regarding 
the manner in which property is created raise a fundamental question: can 
information be considered property in the same sense that a house or a car 
is considered property? The fundamental character of information is that 
it is a non-rival good, which means that the assumptions of depletion, 
scarcity etc, that are used while analysing classical theories of property 
do not quite fit.

Many explanations for the propertisation of intellectual creations are 
based on the Lockean theory of the creation of property. Locke's theory 
relies on three basic principles: firstly, that every person has property 
in himself/herself; secondly, everything that is in a state of nature -- 
ie, not as yet propertised and still held in the commons -- was given by 
God to be propertised; and thirdly, that labour converts things in a state 
of nature into a state of property and adds value to things so laboured 
upon. Locke was, therefore, of the opinion that if A mixes her labour into 
a thing that is in a state of nature, that thing becomes the property of 
A.[2] In terms of copyright, authors can be said to take ideas that are 
'out there' in the commons, add their labour to it, and thereby create the 
'work'. The question that Locke fails to answer is why, if authors add 
labour to ideas, the result becomes the property of the author; his theory 
simply rests on the assumption that property is the reward for labour.[3]

The next question that may be asked in this context is whether and how a 
person actually has property in himself or herself. This property in 
oneself cannot be a product of one's labour and, therefore, it must be 
premised upon something else. At the core of Locke's theory lies the 
notion of personal freedom, with state power severely constrained and 
limited to the protection of liberty. It is in this context that he, 
again, presumes the ownership of oneself. Unlike Locke, however, Hegel 
does not see humans as naturally free and as having natural ownership 
rights in themselves. According to him, it is solely through the 
historical process of objectification and hence self-confrontation that 
one comes to be free: "It is only through the development of his own body 
and mind, essentially through his self-consciousness and apprehension of 
itself as free, that he takes possession of himself and becomes his own 
property and no one else's."[4] In both theories, ownership of ourselves 
enables the ownership of natural objects as they become assimilated to our 
bodies.

Such a proposition meets several objections. Philosopher Robert Nozick 
poses an interesting question: if I were to pour a bowl of radioactive 
soup (so that it could be traced), of which I was the owner, into the 
ocean, and this radioactive soup mixed throughout all the oceans and seas, 
could it be said that I am now the owner of all this?[5]

Hegel would answer this in the negative on the ground that Nozick's soup 
is not an expression of his personality. Central to Hegel's concept of 
property is the notion that property is not only a necessary component in 
the development of personality, but an actual manifestation of this 
personality.[6] One can see Hegel's influence on the Romantic movement 
that flourished in literature in the 18 th century, which finally 
concluded that a person must translate his or her freedom into an external 
sphere in order to exist as Idea, and that the resultant property is the 
manifestation of this translation.[7]

According to Hegelian arguments, occupancy, not labour, is the act by 
which external things become property. This occupancy, or taking 
possession, can be done in three ways: firstly, by directly grasping it 
physically; next, by forming it; and thirdly, by merely marking it as 
one's own. It is the second of these ways of possession that is most 
interesting for our purposes. As Hegel remarks, "When I impose a form on 
something, the thing's determinate character as mine acquires an 
independent externality and ceases to be restricted to my presence here 
and now and to the direct presence of my awareness and will."[8] This 
statement reverberates in the recognition by copyright law of the rights 
of the author of works when those works are changed or 'mutilated.' The 
law looks upon this 'mutilation' as a violation of the personality of the 
author as manifested through that work. However, the fundamental question 
that law does not answer is how this constitutes a violation of the 
author's 'personality.'

Moreover, as is seen with the Romantic conception of the author, Hegel 
fails to account for external influences on creations. Hegel's conception 
of property being the expression of the will of the individual fails to 
see that this 'work' is influenced by various other factors; painters, 
musicians, writers, all learn their skills and are classified into genres 
and styles; artists may take inspiration from everyday scenes, and authors 
from gossip. In such situations can their 'works' be said to be 
expressions of their soul?

Locke locates the desire for propertisation of the commons in the need for 
the preservation of resources. According to him, if resources are left in 
the commons their utility will gradually diminish because of over-use or 
neglect. Land, for example, may be overgrazed or may by neglect become 
unarable, and in both cases the utility that this land provides is 
diminished. Locke assumes that once a resource is taken from the commons 
and transformed into private property the owner of that property will use 
it in a manner that preserves its value in use. Even if we accept these 
assumptions, can this theory of the need for propertisation be extended to 
incorporeal ideas? Does the 'over-use' or neglect of ideas lead to the 
reduction of their value in use?

Bernard Shaw's quotation concerning the sharing of ideas is a simple, yet 
effective, demonstration of the nature of ideas and information goods. 
Information just does not possess the same characteristics as classical 
'real property'. The dissemination of ideas, for instance, does not reduce 
their use value. Information is considered a 'non-rival' good, in the 
sense that usage of a particular piece of information cannot impair the 
utility of that information to another user. It has also been 
characterised as 'non-excludable' in the sense that use of a certain piece 
of information does not exclude other users from utilising the same 
information.

The best example of this is software. The only way a person can prevent 
the copying of software is by preventing third persons from accessing it. 
Once access is granted, it can be copied for almost no cost. This copying, 
moreover, does not affect the utility of the software itself, nor does it 
prevent the usage of that software by the original owner.

The sharing of information goods, especially in the digital context, does 
not diminish in any manner the quality of the good that is shared. There 
is clearly a movement away from the idea of property as we have always 
understood it. However, the concept of copyright represents a stubborn 
drive towards taming this new monster of accessibility created by 
developments in information technology.

There are a number of contradictions in the attempt to equate information 
goods with classical property which are becoming ever more glaring. Some 
of these are internal contradictions within the larger machinery of 
production and consumption. Thus, on the one hand, you have hardware 
manufacturers creating better CD writers at a cheaper price and 
advertising their products with the magical words, BURN, RIP, COPY, 
DUPLICATE, STORE, etc. On the other hand, you have the content industry 
screaming itself hoarse at these new technologies that are making it 
easier for people to steal information unethically.

Copyright and the incentive for creativity

It is often argued that in the absence of copyright protection authors 
would lack the incentive to create more works, thereby depriving society 
of useful works that may have been produced. This section questions the 
subsumption of incentive in copyright theory.

One of the main justifications for copyright legislation is that in the 
absence of an intellectual property rights regime, authors of works would 
have no incentive to further create, and that artists cannot produce new 
works without an economic incentive. Intellectual property law, therefore, 
is often justified on the basis that it stimulates the investment of time 
and money in the creation of new works and that many authors of 
copyrighted works depend for their livelihood on the income that they 
derive from the publication of their works.

Additionally, it is claimed that in the absence of copyright protection 
covering an author's creation, the low cost of copying such works would 
induce competitors to 'steal' another's product without penalty and, as a 
result, rivals could profit from another's intellectual efforts without 
expending any energy or costs other than the relatively minor costs 
required to duplicate the socially valuable creation. Consequently, the 
motivation of authors to generate beneficial informational works would be 
greatly diminished, if not entirely eliminated. With competitors thus 
copying their works and undercutting their prices they would not be able 
to reap pecuniary rewards for their efforts or even, in many cases, 
recover their costs. Given that authors would have little hope of 
recovering their investment, the production of works would be seriously 
curtailed, and the associated benefits upon society would be lost.[9]

While there may be a case for the proposition that without incentives 
authors would fail to create new works, the statement that copyright law 
is a prerequisite for such incentives requires closer examination. What is 
essentially argued here is that copyright is not synonymous with 
incentives, and that authors have created in the absence of copyright. It 
is also argued that, in many instances, the incentive that copyright 
appears to give authors is illusory.

Firstly, many authors who have little hope of ever finding a market for 
their publications, and whose copyright is, as a result, virtually 
worthless, have in the past, and even in the present, continued to write. 
While it may not be a general phenomenon, it is possible that people 
produce works purely for personal satisfaction, or even for respect and 
recognition from peers.[10]

Secondly, historically, there is much to suggest that copyright law and 
incentive were rarely linked. The 19 th century saw the prolific 
authorship of literary works in the absence of any meaningful protection 
afforded to authors by virtue of their copyright.[11] While copyright 
protection existed, these rarely benefited the author beyond an initial 
payment for the copyright for their works.[12] This payment, often 
referred to as an honorarium, bore no relationship to the exchange value 
of that work, but was rather an acknowledgment of the writer's 
achievements.[13] In the vast majority of cases, most of the profits went 
to the publisher[14] and, on occasion, authors were even asked to 
underwrite a portion of the publishing costs. Moreover, without the 
publisher the copyright had no effective value, as the work would never 
get published. It is clear that in reality copyright protection usually 
benefited the publisher, and rarely the author.[15]

Furthermore, with the enactment of every subsequent Copyright Act, the 
protection given to authors was reduced.[16] In England, prior to 1814, 
copyright for the work reverted to the author after a term. The author 
could renew proprietary rights over his or her work, and could conceivably 
gain from again transferring the copyright. However, after 1814 such 
renewal terms were eliminated and the author lost his/her position in the 
mechanisms of copyright. The typical transaction consisted of the transfer 
of the copyright to the publisher by the author on the basis of a one-time 
payment. Subsequently the author had little role to play in the 
publication of his/her work and the author reaped little reward from 
future sales.[17]

This can be seen in a number of recent cases regarding the translation of 
works into new media. What is at issue in these cases is whether or not 
the author, who has transferred copyright in, say, a film, to another 
party, has a proprietary interest in translations of this work into new 
media =E2=80=93 eg, its release over the Internet -- the developme= nt of 
which was unforeseen at the time of the transfer of copyright. In the 
United States, there are a number of cases where it has been held that the 
author no longer has a proprietary interest in these works that have been 
translated into new media.[18] Where does copyright provide an incentive 
to authors in such cases?

In addition, the existence of alternative and different types of 
incentives further erodes the incentive claim of copyright protection. Two 
non-pecuniary incentives have been identified above: personal satisfaction 
and recognition. Many people have created works without any thought of 
pecuniary benefit. It is doubtful that Anne Frank wrote her diary or Nehru 
his letters with the intention of reaping the monetary benefits arising 
from copyright protection.

As the honorarium discussed above shows, considerable prestige and value 
are attached to the work of composing a book, an article or a piece of art 
recognised as an example of excellence in its particular field. These 
incentives will always be present, regardless of whether the author is 
awarded monopoly rights in his or her work.[19]

Original authors may have the additional benefit of being the first mover 
in the market. By entering the market first, the authors of works may be 
able to capture a certain degree of the economic rewards that intellectual 
property rights aim to bestow even without the actual conferral of such 
legal rights.[20]

Currently there are several mechanisms, primarily Internet-based, for 
creating incentives that are independent of copyright. The Street 
Performer, or the Fairshare Protocols, are examples of such devices. Under 
the latter system, several people make a payment directly to the author to 
finance future works with the understanding that they are given access to 
a portion of the consequent profits. Under the first method, the authors 
contemplate a menu of options available to artists. What each has in 
common is that a release price will be set for a work, and that it will be 
made available in digital form, without copyright restrictions, once 
members of the public voluntarily donate sufficient funds to meet the 
asking price. For instance, an author might set up his/her own website and 
announce a book project directly to the public. Usually, though not 
necessarily, the author might begin by posting a chapter or two to give 
readers a flavour of what is to come.

Copyright protects the poor struggling author

We are constantly regaled with stories of how copyright as a system acts 
as the basic protection for poor, struggling authors who would otherwise 
have no means of protecting themselves against pirates who reproduce their 
goods or others who steal their ideas. Let us, at the very outset, clarify 
that we are certainly not enemies of creative workers, and that we would, 
of course, like to see all creative labour recognised and rewarded. But 
the question that begs an answer is: does copyright really achieve that 
and, if not, why does this image of the poor, struggling author keep 
coming to mind? What the metaphor of the poor, struggling author does is 
render invisible the critical difference between the authorship of a work 
of intellectual labour and the ownership of the same. Copyright scholar 
Peter Jaszi states that while there is a tendency in copyright law "to 
invoke liberal individualism to justify economic structures that frustrate 
the aspirations of real-life individuals, it is somewhat surprising to 
encounter the individualistic Romantic conception of 'authorship' deployed 
to support a regime that disassociates creative workers from a legal 
interest in their creations: the 'work-for-hire' doctrine of American 
copyright law. Where this doctrine applies, the firm or individual who 
paid to have a work created, rather than the person who created it, is 
regarded as the 'author' for purposes of copyright ownership." It is 
abundantly clear that in the current era of industrial production of 
cultural commodities, copyrighted works are more often than not created by 
unromantic authors sitting in their cubicles creating for a large 
corporation like Microsoft.

When a work is deemed to have been made 'for hire', the alienation of 
labour is formally and legally complete: the 'author' of the 'work' is the 
person on whose behalf the 'work' was made, not the individual who created 
it. In this legal configuration, the employer's rights do not derive from 
the employee by an implied grant or assignment. Rather, those rights are 
the direct result of the employer's status. Ironically, the employers' 
claims are rationalised in terms of the Romantic conception of 
'authorship' with its concomitant values of 'originality' and 
'inspiration'.

Secondly, if one were to closely analyse the agreements between various 
publishing houses and the authors of works published by them, one notices 
immediately that unless you are an author of some fame, the contracts are 
absolutely one-sided, with the individual author having little bargaining 
power, as he or she assigns all rights in favour of the publishing house.

Piracy has always been portrayed as being an assault on the rights of 
authors. It is interesting to note, for instance, that during the initial 
days of T-Series, the company was often approached by various small-time 
ghazal singers with requests that they release their works through the 
pirated circuit because HMV, the owners of the copyright in their work, 
were unable or disinterested in issuing the works and, as a result, the 
authors of the works were not able to ensure that the works were available 
to the consuming public.

Recently J K Rowling, author of the Harry Potter series, has been in the 
news for enforcing her copyright against cheap pirated copies. In more 
ways than one she stands as a role model for copyright enforcers, and her 
status as a struggling single mother is often used as the analogy for the 
way copyright protects the rights of poor authors. While we are all happy 
for Ms Rowling, what is not convincing is how the example applies even 
after the publication of the fifth or sixth Harry Potter book, by which 
time the writer had become one of the highest paid authors in the world, 
with many millions of pounds in excess.

Clearly pirates respond only to a market demand, and not every book is 
pirated. There is a particular popularity or price limit that has to be 
achieved before it enters into the piracy circuit. Presumably, if a book 
has achieved a certain status that leads to it being pirated, its author 
is no longer poor and struggling. Thus, the sight of Madonna appearing in 
TV ads condemning piracy because it deprives her of her livelihood is not 
terribly convincing as images of her many villas and islands flash in 
one's mind. If the terms of the debate were around property and monopolies 
alone, then there are many ways in which the issue can be addressed -- for 
instance, under anti trust laws etc -- but the fact that it is always this 
image of the sole struggling author that is used hides questions regarding 
the political economy of publishing, and so on.

Economic losses caused by piracy

The most common use of statistics in the copyright tale concerns the 
losses caused by piracy. Thus, for instance, in the case of computer 
software one would encounter the following narrative: The extent of 
software piracy and losses due to such piracy cannot be given in exact 
quantitative terms though it is believed that piracy in this sector is 
widespread. In Europe alone the software industries lose an estimated $ 6 
billion a year. In fact, Europe holds the dubious distinction of 
accounting for about 50 per cent of worldwide losses from software piracy, 
more than any other region including the number two, Asia. According to a 
study of the Software Publishers Association, a US-based body, losses due 
to piracy of personal computer business application software nearly 
equalled revenues earned by the global software industry. In 1996, piracy 
cost the software industry US $ 11.2 billion, a 16 per cent decrease over 
the estimated losses of US $ 13.3 billion in 1995. The country-specific 
data show that in 1996 Vietnam and Indonesia had the highest piracy rate 
of 99 per cent and 97 per cent respectively, followed by China (96%), 
Russia (91%), Thailand (80%), etc. In India software piracy is costing the 
IT industry quite dear. According to a survey conducted jointly by 
Business Software Alliance (BSA) and NASSCOM in May 1996, total losses due 
to software piracy in India stood at a staggering figure of about Rs 500 
crores (US $ 151.3 million) showing about 60 per cent piracy rate in 
India.

- MHRD Report on Copyright Piracy

These statistics often rely on certain dubious economic assumptions. The 
main one, of course, is the assumption that a person buying an illegal 
copy would necessarily buy a legal copy of the same if piracy did not 
exist. Thus, while we know that most computers in India have an illegal 
copy of Microsoft XP and Microsoft Office, can we assume that every user 
would be willing to pay an additional Rs 23,000 for these two software 
alone, especially in the light of a free alternative in the form of Linux? 
Is it not likely that most users would not go in for the Microsoft 
software were it not for the fact that pirated software is available for 
free?

In a very insightful study, Harvard economist Carlos Osorio seeks to 
empirically understand the phenomenon of piracy. He starts with the 
assumption that computer software has the characteristic of being a 
non-rival and quasi non-excludable good.[21] Thus, he says, "One may 
prohibit a third person from using it only by not letting him (or her) 
access a version of the software. Once access is granted, however, the 
software can be copied at almost zero cost. By doing so, new users cannot 
exclude the earlier one from using the software -- as with a bicycle or a 
jacket -- and, by direct and indirect network effects, the new user adds 
value to the whole network of users (legal and illegal)." The question for 
him, then, is: What are the effects of illegal copying of software, 
commonly known as 'piracy', on the overall software market? Why do some 
software companies enforce their intellectual property rights differently 
across countries?

He states that, classically, illegal copying is commonly assumed to be a 
function of the price of the software, the average income per capita of 
the potential market, and the marginal cost of copying versus producing 
the software. However, he states that, in addition to these common 
assumptions, it is important to examine the role of direct and indirect 
network effects in explaining the importance of illegal users in the 
diffusion process. His argument is that software companies might have a 
direct and indirect role in helping the generation of illegal copying in 
underdeveloped markets, and incentives for doing so. In terms of business 
strategies, for instance, some ways of doing this are by undersupplying 
system compatibility, generating lock-in for users of their product.

Furthermore, piracy often acts in underdeveloped markets as the most 
efficient manner of creating a market or user base and also to create a 
lock-in period for the product. Thus Microsoft has consistently refused to 
enforce its intellectual property rights in markets in developing 
countries until a market base is created for its products. Piracy works to 
produce 'network effects,' which means that with every added user, whether 
legal or not, the popularity of a product increases. Network effects are 
important because, in terms of the total user base, the illegal users of 
software add value to all the users, legal and illegal, and act as agents 
in fostering the diffusion of the software by word-of-mouth. In this way, 
they indirectly generate additional positive effects for the software 
company.

Conclusion

"Justice is the first virtue of social institutions, as truth is of 
systems of thought. A theory, however elegant and economical, must be 
rejected or revised if it is untrue; likewise laws and institutions, no 
matter how efficient and well-arranged, must be reformed or abolished if 
they are unjust. The only thing that permits us to acquiesce in an 
erroneous theory is the lack of a better one."

- John Rawls in A Theory of Justice


"The admiring fascination of the rebel can be understood not merely as the 
fascination for someone who commits a particular crime but that someone, 
in defying the law, bares the violence of the legal system or the 
juridical order."

- Jacques Derrida, The Mystical Foundation of Authority


The task of this paper has been to examine the various myths that sustain 
copyright. This is just the beginning of the process of questioning the 
assumptions on which copyright is based. If we are to seriously engage 
with the totalising logic of copyright, two tasks lie ahead. Firstly, we 
will need to continue to chip away at the foundational logic of copyright, 
exposing the shaky grounds on which it makes its universal claims. 
Secondly, we need to actively examine alternative models through which we 
can understand the production and dissemination of knowledge and culture.

The existence of alternatives to copyright -- such as copyleft, the open 
source movement, the Fairshare and Street Performer protocols -- belie the 
reality of copyright. Conceptually, these alternatives challenge the 
fundamentals upon which copyright rests. The emphasis is on the ability of 
users to modify and distribute works -- yet there is still 'incentive' to 
create, as is evident in the success and spread of Linux. Essentially 
there is no contradiction of purpose as it creates public rights for a 
public purpose.

If the world of copyright constructs itself as the only model of 
incentive, reward, etc for creative labour, the symbolic power of the open 
source movement rests in the creation of alternative social imaginaries 
which turn every assumption of copyright upon itself.

There is, however, a world of quotidian media practices which do not fall 
squarely within the alternative progress narratives of copyleft, open 
source etc, and this is the world of illegal media networks and practices 
like piracy . This is also the world that copyright seeks to demonise. In 
our search for alternative models, it is also critical for us to engage 
with the 'subterranean' other of the open source movement, as the pirates 
go about redistributing wealth in the information era.

(Lawrence Liang, Atrayee Mazmdar and Mayur Suresh are with the Alternative 
Law Forum, Bangalore http://www.altlawforum.org )

---- Anivar Aravind Global Alternate Information Applications (GAIA) 
http://www.livejournal.com/~anivar





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