Copyright as Property in the Post-Industrial Economy: A Research Agenda

The incentives-for-authors formulation of copyright’s purpose is so deeply ingrained in our discourse and our thought processes that it is astonishingly hard to avoid invoking, even when one is consciously trying not to do so. Yet avoiding that formulation is exactly what we ought to be doing. Everything we know about creativity and creative processes suggests that copyright plays very little role in motivating creative work. In the contemporary information society, the purpose of copyright is to enable the provision of capital and organization so that creative work may be exploited. And the choice of copyright as a principal means of promoting cultural production has consequences for the content of culture as well.This reframing has four important consequences for debates about copyright law and policy. First, abandoning the incentives-for-authors story requires us to talk about cultural progress differently. The incentives-for-authors story has functioned as a smokescreen, enabling scholars, judges, and legislators to conflate economic and creative motivation. Severing the motivational link between creativity and economics requires us to come up with a better understanding of how cultural progress emerges, and a more accurate account of how the economic incentives that copyright provides affect progress more generally. Second, an account of copyright as incentives-for-capital suggests a different approach to conceptualizing the kind of “property” that copyright represents. Copyright scholars habitually compare copyright to property in land, a conceptual move that passes over an important stage in the evolution of economic activity and associated economic rights. There are important benefits to be gained from comparing post-industrial, information property to industrial, corporate property, and copyright law more explicitly to corporate law. Specifically, copyright law in the post-industrial era works to separate authorship from control of creative works so that a set of coordination and governance problems closely associated with information resources can be solved. Third, comparing copyright more explicitly to industrial, corporate property and legal regimes governing its use suggests some different ways of thinking and talking about problems of social welfare that so often bedevil regimes of property law. Fourth, comparing copyright more explicitly to industrial, corporate property foregrounds copyright law’s (largely unrealized) potential to function as a tool for ensuring accountability to the authors without whom the copyright system could not function

Our Space: Being a Responsible Citizen of the Digital World

Our Space is a set of curricular materials designed to encourage high school students to reflect on the ethical dimensions of their participation in new media environments. Through role-playing activities and reflective exercises, students are asked to consider the ethical responsibilities of other people, and whether and how they behave ethically themselves online. These issues are raised in relation to five core themes that are highly relevant online: identity, privacy, authorship and ownership, credibility, and participation.Our Space was co-developed by The Good Play Project and Project New Media Literacies (established at MIT and now housed at University of Southern California's Annenberg School for Communications and Journalism). The Our Space collaboration grew out of a shared interest in fostering ethical thinking and conduct among young people when exercising new media skills

Rediscovering Cumulative Creativity From the Oral Formulaic Tradition to Digital Remix: Can I Get a Witness?, 13 J. Marshall Rev. Intell. Prop. L. 341 (2014)

For most of human history, the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies that regulate creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and re-use. From the Platonic mimesis to Shakespeare’s “borrowed feathers,” the largest part of our culture has been produced under a paradigm in which imitation—even plagiarism—and social authorship formed constitutive elements of the creative moment. Pre-modern creativity spread from a continuous line of re-use and juxtaposition of pre-existing expressive content, transitioning from orality to textuality and then melding the two traditions. The cumulative and collaborative character of the oral-formulaic tradition dominated the development of epic literature. The literary pillars of Western culture, the Iliad and the Odyssey, were fully forged in the furnace of that tradition. Later, under the aegis of Macrobius’ art of rewriting and the Latin principles of imitatio, medieval epics grew out of similar dynamics of sharing and recombination of formulas and traditional patterns. Continuations, free re-use, and the re-modeling of iconic figures and characters, such as King Arthur and Roland, made chansons de geste and romance literature powerful vehicles in propelling cross-country circulation of culture. The parallelism between past and present highlights the incapacity of the present copyright system to recreate the cumulative and collaborative creative process that proved so fruitful in the past. In particular, the constant development and recursive use of iconic characters, which served as an engine for creativity in epic literature, is but a fading memory. This is because our policies for creativity are engineered in a fashion that stymies the re-use of information and knowledge, rather than facilitating it. Under the current regime, intellectual works are supposedly created as perfect, self-sustaining artifacts from the moment of their creation. Any modifications, derivations, and cumulative additions must secure preventive approval and must be paid off, as if they were nuisances to society. Rereading the history of aesthetics is particularly inspiring at the dawn of the networked age. The dynamics of sharing of pre-modern creativity parallel the features of digital networked creativity. As in the oral-formulaic tradition, digital creativity reconnects its exponential generative capacity to the ubiquity of participatory contributions. Additionally, the formula—the single unit to be used and re-used, worked and re-worked—is the building block of the remix culture as well as the oral formulaic tradition. Today, in an era of networked mass collaboration, ubiquitous online fan communities, user-based creativity, digital memes, and remix culture, the enclosure of knowledge brought about by an ever-expanding copyright paradigm is felt with renewed intensity. Therefore, I suggest that the communal, cumulative, social and collaborative nature of creativity and authorship should be rediscovered and should drive our policies. In order to plead my case, I have asked for the support of the most unexpected witnesses

Mashup Archeology: A Case Study in the Role of Digital Technology in Cultural Production

Through examining the phenomena of the musical mashup against the backdrop of the contemporary American legal and economic situations, this work explores the complicated role of digital technology in contemporary cultural production and how it helps to constitute an agency of the contemporary digital subject, oriented towards participation and access. This research comes together in four parts, first weaving together against an understanding of the cultural and technical background as well as the legal and social backdrop that helped to birth the mashup, setting the stage for understanding the different powers at play. Secondly, through considering the construction and determination of culture and cultural production through media in the first instance this work puts those backgrounds into a framework of understanding how these different power structures influence culture. Third, through an understanding of how the mashup functions culturally via these power structures it begins to reveal some of the influences and how they have begun to take hold. Finally, I question what it is that these experiences and technical media are doing within this larger framework that is already controlled through aging and outdated legal and economic frameworks, outlining a framework that helps to understand the architectural determination of the mashup within contemporary society and why this phenomena persists despite legal and economic pushback. Through this exploration I argue that these technologies are turning the subject against these legal systems and towards sharing cultures as the experience with digital technology undermines legal stipulations. This work makes new contributions to understanding not only the role of digital technologies in cultural production, but also the role of digital technologies in the formation of the modern digital subject. Blending cybernetic theory, contemporary media studies, cultural studies, and continental philosophy, this work makes headway toward understanding the complexities of the modern cybernetic subject and how technology plays a role in determining the horizon of opportunities

Living Books: Experiments in the Posthumanities

Reimagining the scholarly book as living and collaborative—not as commodified and essentialized, but in all its dynamic materiality. In this book, Janneke Adema proposes that we reimagine the scholarly book as a living and collaborative project—not as linear, bound, and fixed, but as fluid, remixed, and liquid, a space for experimentation. She presents a series of cutting-edge experiments in arts and humanities book publishing, showcasing the radical new forms that book-based scholarly work might take in the digital age. Adema's proposed alternative futures for the scholarly book go beyond such print-based assumptions as fixity, stability, the single author, originality, and copyright, reaching instead for a dynamic and emergent materiality. Adema suggests ways to unbind the book, describing experiments in scholarly book publishing with new forms of anonymous collaborative authorship, radical open access publishing, and processual, living, and remixed publications, among other practices. She doesn't cast digital as the solution and print as the problem; the problem in scholarly publishing, she argues, is not print itself, but the way print has been commodified and essentialized. Adema explores alternative, more ethical models of authorship; constructs an alternative genealogy of openness; and examines opportunities for intervention in current cultures of knowledge production. Finally, asking why it is that we cut and bind our research together at all, she examines two book publishing projects that experiment with remix and reuse and try to rethink and reperform the book-apparatus by taking responsibility for the cuts they make

What we do with words, and what they do with us

This is an invited paper based on the keynote presentation that Professor Ralf St Clair made at the 2019 Australian Council for Adult Literacy Conference in Sydney, Australia on 4 October