The following article was originally published in the April-May 2013 edition of Red Pepper (Issue 189).
Who can share what on the internet? There is an increasing awareness of debates around illegal sharing through high profile court cases and controversies in the news – through things like the Pirate Bay, Wikileaks, or the recent tragic case of Aaron Swartz. But what about legal sharing? What kinds of information should we be able to use and share with others as a matter of principle?
Is digital material that can be legally shared with others nothing but the residue from all the valuable stuff that is worthy of protection? Once all of the good stuff is packaged up and sold from behind clickwrap agreements, digital rights management technologies, iTunes stores and subscription paywalls, is there nothing left but a strange wasteland of free giveaways, taster content, third-rate amateurism, pamphlets, ads and piracy? Or can we think of a more positive characterisation of that body of culture, research and public information which should be free for everyone to use, enjoy and benefit from as a matter of principle?
The laws, policies and discourses concerning the way that we share the fruits of our intellectual labour (whether patterns of pixels, waves, words, chemicals, DNA, or software instructions) tend to focus on individual innovation, originality, protection and compensation, rather than on collaboration, shared tradition, iteration and equitable access. We tend to talk about these fruits first and foremost as commodities for which their creators or owners are entitled to receive return on their investment.
Why? In many ways we live in the shadow of certain romantic conceptions of cultural and intellectual innovation from the eighteenth and nineteenth centuries. Reacting against models of literary and artistic creation which privileged imitation of the classics and striving towards perfection within an established tradition, this period saw a general turn towards the individual genius who broke previous rules and invented new ones. Through this new aesthetic frame, the world was divided into visionary and rebellious pioneers and slavish imitators.
Stories like this remain very influential – from the restless obsession with conceptual novelty exhibited by much of the contemporary art world, to the elevation of the ‘disruptive’ entrepreneur or the renegade maverick in Silicon Valley or Wall Street. Rules are to be broken, temples smashed, traditions overcome by a caste of outstanding individuals leading us over the bleeding edge. New voices need to define themselves against others – and are haunted by the fear of being derivative, by the ‘anxiety of influence’.
While this picture arose as a cultural response to the predominance of aesthetic classicism, it was happily embraced by publishers, lawyers and theorists who were looking for new ways of conceptualising the legal and philosophical foundations of ‘the copyright’ and what would later become known as ‘intellectual property’. It still continues to exert significant influence on the way that we think about creativity and intellectual labour, as well as on the formation of laws and policies that dictate the way that information moves around in society.
Large rightsholders and lobbyists who work on their behalf are certainly not afraid to use this to their advantage. Rather than directly addressing the economic interests of big rightsholders, industry associations and lobbyists talk in terms of protecting the interests of innovative individuals: authors, musicians, and scholars. To give just one example, the Motion Picture Association of America, supported by some of the biggest players in the film industry – Disney, Paramount, Sony, 20th Century Fox, Universal and Warner Brothers – claims to pursue “commonsense solutions” that “[protect] the rights of all who make something of value with their minds, their passion and their unique creative vision”.
This notion of the individual innovator, the lone pioneer breaking rules and creating new paradigms is only one side of the romantic story about literary creativity. The other side of this story (perhaps less useful for those who were keen to expand property rights to products of the mind) is that great new works inevitably depend on and build on shared cultural tradition. The poet Edward Young – whose tract on literary composition sold out twice in Germany in the mid eighteenth century – said that literary genius grew like a new plant out of a shared body of culture. The philosopher and literary critic Johann Gottfried Herder, greatly influenced by Edward Young, said that literary geniuses like Shakespeare depended on a fertile body of stories, songs, characters and metaphors, the soil out of which groundbreaking new works could grow – a thought which catalysed collections of folk tales like those of the Brothers Grimm.
When we think, speak, and express ourselves we cannot help but use words, ideas, structures, tropes, conventions, operations that come to us from others. We are always already standing on the shoulders of giants, and we can but supplement (not escape from or reinvent) the shared traditions through which we articulate ourselves. Individual innovation and invention is predicated upon what we inherit and borrow from others – from the languages we speak to the the archives of texts that make up a body of disciplinary knowledge. Having access to these traditions and bodies of knowledge is an essential precondition for the creation of new works of the mind.
We need a more balanced way of thinking and talking about how information is shared – one that moves beyond a near exclusive focus on compensation and control. Laws and policies which govern the way information is shared in society need to more explicitly recognise and promote the intrinsic and extrinsic benefits of increasing access, and enabling reuse. We are beginning to see the emegence of a broader public conversation around benefits of sharing information, but this is often focused on edge cases and transgression rather than framed in terms of a positive conception of a shared body of information which everyone can to acess and use via the internet.
The battle for a shared commons of digital information is being fought on many fronts. Digital copies of works which have fallen out of copyright hundreds of years ago continue to be locked up and sold by companies like Gale Cengage, whose subsciption fees were so exorbitant that a national agency had to intervene to cut a special deal to enable university researchers in the UK to have access to them (if you’re not affiliated with a university that has access – you won’t be able to read any of these texts on the web). Many governments around the world still have exclusive contracts to sell critical information to private companies, who then sell on access to other companies and to the public. This means that in many countries around the world, you have to pay a third party company for a subscription if you want to know the text of the laws that govern you. Big academic publishers continue to use free labour from university students and employees to produce and review academic journal articles, selling subscriptions back to their libraries for extortionate prices.
We need a more widely accepted positive conception of a body of digital material that everyone is free to access and use in perpetuity – including essential information about the world that can be used to enable better journalism and better policy-making (from more granular and timely carbon emissions data to information on who is lobbying), access to research (such as mandates to give the public access to research they have paid for or supporting the release of information about clinical trials related to drugs that our medical services prescribe), and historical and cultural works which have entered the public domain.
There are still substantive debates to be had about the balance between open access and enabling creators to make a living from their work – as well as which policies and models support this balance. And there is plenty of work to be done to ensure that the exploitation of old industries built on the control and sale of wax, tape and dead tree aren’t replaced by new forms of monopoly and control from fast growing technology corporations. But it is imperative that recognition of open access to certain information as a matter of principle (not just through accident or transgression) becomes an essential part of 21st century knowledge policy and the more public discourse around it. We need new and better stories about the importance of collaboration and access – about common traditions and building on shared bodies of evidence, reasoning, reflection and creativity – to complement the much more dominant stories about isolated geniuses and just deserts.