History of Intellectual Property and Cultural Environmentalism

         In order to later analyze specific instances that demonstrate a transnational coalition between the Creative Commons and Pirate Party, it is first necessary to chart the historical discourses of ‘piracy’ and outline the technological and legal contexts behind the construction of a movement for ‘cultural environmentalism.’

Today, ‘piracy’ is a negative term used by intellectual property industries to describe popular practices of sharing, distributing and consuming cultural or intellectual goods without authorization. But as the meanings of words constantly change in relation to destructive or constructive forces of technology in society, a reconstruction of the word “pirate” itself is perhaps the most useful point from which to begin this section.

The English word “pirate” comes, via Latin, from the Greek word, πειρατh′ς, which meant both “one who attempts” as well as to describe the traditional “sea pirate.” When the word appeared in the Latin dialect, it was etymologically transformed to mean only the ladder. The Roman Republic concentrated the meaning of the word pirata, Latin for “pirate,” such that it could be legally applied to those “who attack or take without permission,” typically within the context of an “open sea.”  Thus in this instance alone we observe how discourse and its legal application are conditioned in the orbit of political motivation: in the case of Rome, to coincide with ambitions for a universal jurisdiction made possible by assimilation of ‘borderless’ places such as the sea, into the ‘bordered’ Republic. According to Adrian Johns (2009), the “history of piracy is the history of modernity,” and as such, the struggle to undermine it is far from ‘new.’ On the contrary, economic interest in intellectual property has led to surveillance of individual’s private spheres, such as homes, since the medieval and Enlightenment eras by order of crowns, guilds, and corporations. More that this, literary pirates are different from “enemies” as like sea pirates not only because they operate beyond established rules of national competition and combat, but also claim moral high ground as ‘heroes’ that return cultural works to the public by making free or cheap copies available. Johns claims, “Living alongside the law rather than in opposition to it makes the pirate community represent a kind of alternative with its own virtues.” Dahlberg (2011) continues this critique by locating the process of ‘piracy’ as a historically continuous attempt to interrogate the imagined, often nationalistic, mapping of judicial territorialization of inherently ‘liquid’ spaces such as the sea, space, and Internet as inherently ‘borderless and placeless spaces.’ In agreement with Johns, Dahlberg sees pirates, and the broader process of piracy, as a partisan force within not opposed to the dialect of modernity that cross-examines limitations or contradictions of space’s enclosure as ‘territory’ and ‘property.’ Johns and Dahlberg’s arguments differ from the dominant line of historical thought concerning intellectual property, most notably Elizabeth L. Eisenstein’s, which have argued that the printing press (not piracy) directly led to the Renaissance as press standardization led to a prevalence of knowledge circulation not possible in the era of hand-copied “manuscript culture” (1982).

Despite the author’s disagreement over the origins of the Enlightenment, it is generally accepted that the first documented occurrence of copyright policy, in the West, came in 1469 when a Venetian printer was given the “privilege” to sell a specific book for a limited interval of time. By the sixteenth century, early “legal inventions” were being devised to accommodate the assignment of property while towards the end of the seventeenth century, when John Locke wrote “Of Property,” definite immaterial property rights remained ill developed outside royal authority. Locke’s powerful narrative of physical labor ‘mixing’ with the material world, however, became increasingly more accepted and instrumentalized in such a way that suggested authors be entitled to maximal ‘rights’ of protection regardless of whether the property in question existed materially or immaterially. It is important to note that Locke’s conceptions of property was based on an abstraction that left unconsidered the role autonomy played in choosing to perform labor and the ability to decide over the result of one’s work.

The Statute of Anne, considered as the first definitive copyright framework, entered into British common law at the beginning of the eighteenth century, and was recognized by the newly formed United States some eighty years later. The ‘open sea’ of property, in which mercenaries, pirates, and private interest were free to ravage, was transformed into a ‘territory’ under auspices of individual nation-states which guaranteed 14 years protection of a copyrighted work. Though without intergovernmental cooperation, publishers in one country were invited to reap the benefits of writers in another, and thus continued the free or cheap circulation of ideas into the public sphere.

Increasing national copyright protection throughout the 19th century developed within conflicting legal doctrines and divergent societal interests with respect to the concept of an author’s ‘moral rights.’ Continental European claims for free and equal access to cultural goods (human rights) clashed with the Anglo-Saxon Commonwealth countries’ economic focus on incentivizing innovation and creativity. Where Anglo-Saxon moral rights advanced according to private contractual limitations, Continental copyright law developed according to a countervailing tradition bestowing authors automatic and lifetime protection without the ability to easily sell, trade, or renounce their rights (Dreier and Nolte 2006).

Organized in national and international interest groups and trade associations, publishers and authors held congresses and campaigned from the 1850s onwards for cross-border acknowledgement of copyrights. Bilateral copyright agreements became a common stopgap solution to the global governance conundrum of copyright, where under principles of ‘national treatment,’ states engaged in agreements pledging to formally bestow creative works of the other state the same treatment accorded to its own. During this time, copyright visionaries met in Brussels in 1858 and Paris in 1878 to discuss a universal codification of copyright in the hopes of advancing a formal harmonization project. In 1886, French author Victor Hugo pared down a grand vision for universal copyright protection into an intergovernmental treaty known as the Berene Convention for the Protection of Literary and Artistic Works, recognized between sovereign states to protect creative works for the author’s lifetime and at least 50 years after his or her death (Tettenborn 1988). In 1887, the Agreement entered into force in ten countries including Germany, the United Kingdom, Belgium, Spain, France, Haiti, Italy, Japan, Liberia, Switzerland and Tunisia while the U.S. abstained from adopting the treaty citing its gravely different approach to copyright protection in duration, formality, and moral right. But in the framework of Berne, states actively drafted global governance frameworks for international author’s rights that were negotiated between publishing industries and adopted by different nations, cultures, and industries involved in the production and consumption of cultural goods. Thus, states worked together to boost the scope of national rights by harmonizing policies associated with the protection and consumption of cultural works’ being disseminated across borders. This was largely achieved by reinvesting national sovereignty into a specialized international institution tasked to expand legal territories and extend multilateral copyright norms. Yet with unanimous agreement as a main principle of the union, responses to technical innovations or admission of new member states admission were largely realized in erratic revision conferences that limited the agreements relevancy in time and space. After World War I, widespread support favored addressing the fragmentation in member state implementation and new medias such as radio, records, and film evoked fundamental loopholes both in Agreement’s international and national law.

Due to Berne’s executive mandate excluding legislative competence or permission for independent non-state action, The League of Nations appointed an International Committee on Intellectual Cooperation in 1922 to grow multilevel ties beyond state diplomatic channels that included authors, publisher, and intellectual associations.  Involvement in the Committee was honorary and unpaid. In 1926, France decided to finance and create an International Institute of Intellectual Cooperation that operated with a group of permanent civil servants and a budget for research, congress organization, and travel. The foundation and prevalence of France’s national Committee stimulated the League to promote the establishment of National Committees on Intellectual Cooperation to encourage peaceful integration of political, economic, and cultural stakeholders in matters of intellectual property by linking them to pre-existing initiatives in issue-fields. The Paris Institute established a transnational political network mostly consisting of international organizations, committees and interest groups and navigated an early course of legal norms, national interests, societal groups and international politics negotiation. This way, the League’s Intellectual Cooperation Organization introduced a structure for multi-level governance in international politics in capable of handling regulating cultural goods on a global scale. National Committees allowed states to assemble transnational actors from economics, science and culture and apply their specialist knowledge in establishing close social and economic ties across state boundaries in everyday life. These professionals and experts took part in diplomatic conferences on behalf of national administrations, thus substantially contributing to the shaping of international treaties despite the state retention of ultimate authority. The Committee and Paris Institute were leading organizations in the establishing of institutional infrastructure to engage private interest groups of author’s and publishers and mediate the demands of legal or economic need. By 1938, the global copyright framework was drafted, but World War II overshadowed the diplomatic conference that was to formally propose the unification. Löhr (2007) argues that the International and National Committee that incorporated private actors from culture and economy to introduce ideas and mediate international protection of national author’s rights is significant because despite the era being generally considered one of protectionism and nationalism, the Committee established innovative infrastructures for international cooperation. UNESCO restarted the project immediately after the war in 1946 based on the League’s prior work. The projects of the League of Nations and the United Nations, in the field of intellectual property cooperation, in the “issue field” remained open despite successive World Wars.

The pressures of a computer mediated, flexible, and geographically integrated system of global capitalism that harmonization of intellectual property regulation was achieved were described in what David Harvey identified as late capitalism’s transition to a period of flexible accumulation, characterized by de-industrialization, the OPEC oil crisis, and a return of monetarism. Inflationary policies were reduced while rates fell and governments accumulated high levels of debt. Accordingly, national legal regimes became increasingly conditioned to serve private multinational interests necessary to maintain unfettered flows of capital and investment (Price 2012).

Multinational copyright industries leveraged direct access to post-war international political and economic institutions, specifically the UN’s World Intellectual Property Organization (WIPO), that had assumed administration of The Berne Convention by the 1970s, and the international economic accord known as the General Agreement on Trade and Tariffs (GATT). However, the effects of decolonization and the increased democratic representation of developing countries’ interests in WIPO prompted multinational capital to instead lobby for the embedding of intellectual property issues within GATT, and thus the entire system of international trade itself.

In 1984, the International Intellectual Property Alliance (IIPA) formed to represent the Association of American Publishers, Business Software Alliance, Entertainment Software Association, Independent Film and Television Alliance, Motion Picture Association of America, National Music Publishers’ Association, and the Recording Industry Association of America. Two years later in 1986, The Intellectual Property Committee (IPC) was founded to include thirteen of the most powerful U.S. corporations including IBM, HP, GE, GM, Monsanto, Warner Communications, Pfizer, and Merck. Together, the two special interest organizations, and broader copyright coalition they represented, achieved the implementation of a global intellectual property regime (IPR) in 1994 when GATT passed an Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPS) which extended the content of Berne Agreement to all World Trade Organization member countries, defined a minimum standard of copyright right and patent law, and infamously brought works of software and genetics within the domain of copyright restriction. Failure to comply with such demands was to result in national trade and political sanctions. The global ‘race to the bottom’ for corporate tax rates and introduction of market-regulated integration in international and nation institutions of finance (Dowdle 2006) enabled what Colin Crouch has termed “privatized Keynesianism” as a period in which government and multinational debts is increasingly transferred to the individual. Access to the lending of private capital in global borrowing networks re-configured previously rigid systems of social contract in favor of a flexible model of democratic citizenship that afforded individuals the right to access to private capital on a global borrowing network. Incurring debt to consume commodities became dominant method of commodity consumption that has led to a divergence of per capita economic performances- significantly demonstrated in countries that lacked the capacity to leverage the relative gains of scale and scope of manufacturing and consumerism associated with the Internet, telecommunications, and electronic device production. Divergences in political positions and national terms of trade dictate access to the speed and availability of liquidity that resulting in a system of global capitalism through the systematic overvaluation of commodities, the commercial failure of which results citizen’s absorbing both public debts and those of private failure requiring nationalization and quantitative easing of the currency.

The consumer computing and Internet revolution amplified, not undermined, logics of privatized Keynesianism as the global intellectual property regime desired authority to manage the ‘risks’ of piracy in an international information economy. Reductions in the cost of data as a cheap and scalable medium of storage had to fall continually despite the increasing economic risks associated with leveraging investments in intellectual property caused by the Internet.

 

Matters of developing biology, industry, policy and culture became intertwined as indistinguishable forms of binary code that lacked adequate restriction against evasion. Industry advocates lobbied WIPO members to ratify its proposed Treaty of 1996, which addressed corporate concerns over IP regulation. Through implementing a policy  based on a Clinton administration desire to develop an ‘information superhighway’ regulated through a dual approach requiring both technology and legislation. When the treaty passed, industry won expanded legal protection as well new systems of ‘digital’ authority called digital rights management (DRM). DRM gave IP industries more control over their property through encrypted enclosure and monitoring of information usage (Rosenblatt et al., 2002; Becker et al., 2003). Critics of the 1996 WIPO Treaty claimed that the policy failed to consider the ways the Internet had decreased advertising and distribution costs and did not adequately address the tradeoffs of regulation cost for public goods and Internet providers. Dobusch and Quak (2012) argue that the dual approach taken in the Treaty of 1996 was a response to the intellectual property “regime complex” (Raustalia and Victor 2004) in which a collection of partially overlapping but inconsistent regimes lacked hierarchical governance.” DRM was meant to strategically overcome such complexities by shifting IP enforcement away from political areas (national rule setting and intergovernmental treaties) into areas of private standard setting by non-state actors (including businesses and civil society).

In the same year that the Treaty was passed, James Boyle (1997) published a seminal essay in which he argued for a type of intellectual property politics he coined “cultural environmentalism.” Whereas international legal regimes had poorly considered how recent technologic innovations has transformed modern economics, culture, and society, Boyle advanced the notion that IP policy would benefit from a movement which seriously considered the mental models, economic ideas, and social-property relations of the public domain. Boyle’s critique, like the environmentalist movement, sought to develop and popularize conceptual and analytic tools that made ‘visible’ the contributions of the public domain to free culture and science as a vital reservoir or “eco-system of services.”

Boyle’s argument, while novel, was not unprecedented or previously unformulated. The substantial economic and societal potentials paralleling the supposed ‘threats’ of the digital era were demonstrated early in the development of the software industry, where a shared concern to preserve the act of coding as a dignified version of technocultural free speech had already invoked the emergence of multiple alternative ‘copyleft’ licenses and non governmental authorities, the first of which was Richard Stallman’s GPL (General Public License) used to license the free operating system project he started in 1983 called GNU (GNU’s Not Unix). Two years later Stallman founded The Free Software Foundation (FSF), to oversee the GPL licensing framework that allowed software programmers to license their code and distribute it freely provided that all those who used the code did the same. This legal innovation not only allowed the GNU programming community to express code in a free social-property relationship that valued sharing and remixing, but also worked to invert or modulate traditional notions of copyright law not to coerce a monopoly of author’s rights, but instead ensure that a monopoly itself ceased to exist in the GNU community. Linus Torvalds’s development and licensing of the Linux kernel under the GPL in 1991 had already catapulted open source software (F/OSS) projects into successful competition with proprietary versions owned by corporations and protected under supranational agreements (Wayner 2002).

Corporate sanctioned IP regulation on the Internet set forth by the WIPO Treaty of 1996 was quickly adopted in the United States with three pieces of legislation. In 1997, the NET Act passed Congress to heighten criminal punishments for ‘reproducing’ copyrighted works regardless of commercial motive (5 years in prison and $250,000 in fines). One year later the Digital Millennium Copyright Act (DMCA) of 1998, was passed by an unrecorded voice vote in Congress, to make the act of DRM circumvention a criminal offence. In the same week that the DMCA was passed, Congress also approved the Sonny Bono Copyright Extension Act that harmonized duration of U.S. copyrights with the Berne Convention to cover the life of the author plus 50 years or 75 years if the work was of corporate authorship. The U.S. music industry also launched its first DRM system, the Secure Digital Music Initiative (SDMI) that year, which used device hardware and playback software to ensure valid usage credentials of a piece of copyrighted media had been legally attained. However, the industry failed to achieve their desired level of regulation because the industry failed to establish industry-wide support for their standardization project in face of the widespread adoption of protection-free devices and file formats that were championed by both consumers and device manufactures alike.

Globalization, political economy, and policy scholars (May 2009; Sell, 2003; David, 2010) highlight the bias of such regulations in favor of IP owners, mainly multinational corporations, at the expense of creators and consumers (Heineke 2006). Where others stress the power of particular lobbies of cultural industries that fought for strict IPR rules worldwide (Hesmondhalgh, 2007). The most important criticism in the context of this paper is that the IPR naturalized a myopic vision of immaterial goods usage that did not account for the drastic changes in media and technology usage resulting from the spread of digital technologies and the Internet since the 1970s.

At the beginning of 1999, a landmark legal complaint concerning copyright duration extension was filed in the District Court for the District of Columbia by Eric Eldred, an Internet publisher and lead petitioner of the complaint. Eldred’s case was supported by a coalition of organizations with commercial and non-commercial interests such as Dover Publications, the Free Software Foundation, and the American Association of Law Libraries. The case’s lead counsel, legal scholar Lawrence Lessig, advanced a threefold argument: retroactive extension of copyright violated the Constitutions’ Copyright Clause, was not scrutinized under the First Amendment, and violated the doctrine of public trust by not demonstrating the societal benefit resulting from the transfer of public property into private hands.

As the case made its way to the Supreme Court, the lack of a comprehensive DRM system coupled with rising consumer consciousness of peer-to-peer file-sharing networks such as Napster, which launched in the summer of 1999, hurled the once obscure field of intellectual property regulation into the twenty-first century zeitgeist.

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This entry was published on July 1, 2012 at 10:56 pm and is filed under Uncategorized. Bookmark the permalink. Follow any comments here with the RSS feed for this post.

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