Copyright Infringement

The War against Piracy is Stifling Culture and Creativity

Table of Contents:

International Intellectual Property

The Rise of the Creative Class

A Threat to Big Business

State and Content Industry Hypocrisy

Governmental Protection of the Public

Free Culture of Creativity

Works Cited

International Intellectual Property

The illegal sale of protected works is a worldwide quandary. Media Piracy in Emerging Economies is a report released by the Social Science Research Council in 2011 which blames high prices for media goods, low incomes, and cheap digital technologies as conditions ubiquitous with media piracy. In China, the issue of digital piracy is not merely legal, but social as well originating from the high demand for cheap and affordable pirated goods as well as the governmental connections of the businesses which produce such goods (Hua). The sameness produced by China’s copying culture is illegitimate - a vestige of its communist command economy. Its discredited, backward, culture of sameness is a marker of its primitivity. Although developed countries have a significant head start developing copyright law and practices, it is reasonable to conclude that the rising BRIC economies (Brazil, Russia, India, and China) will increasingly influence the world's political, economic, and military balance of power over the next fifty years.

The protection and enforcement of intellectual property has long been embedded in world trade conversations and law-making as signified by numerous multilateral copyright agreements. The Berne Convention for the Protection of Literary and Artistic Works requires protection for all creative works in a fixed medium be automatic and, for the most part, last for fifty years. The agreement was originally signed in 1886 by Belgium, France, Germany, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia, and the United Kingdom. It took the passing of an implementation act in 1988 before the United States signed on (Library of Congress). However, once America did agree to the terms, this convention essentially rendered obsolete other similar agreements like the Buenos Aires Convention of 1910 and the Universal Copyright Convention facilitated by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1952. Currently, there are one hundred and sixty eight contracting parties involved with the The Berne Convention including China’s accession in 1992 (World International Property Agency). Furthermore, the Agreement on Trade-Related Aspects of Intellectual Property Rights is an international agreement which establishes minimum standard protection for many forms of intellectual property, mandated to all one hundred and fifty eight members of the World Trade Organization. Ecumenical collaboration concerning international copyright has been evident for more than one hundred years.

The practice of direct ‘copying and pasting’ for profit should be, and for the most part is, a crime under every nation’s law. But the distinction between protecting genuine creativity and defending simple copy piracy is ill defined. Where the law seems to be failing is in prescribing what exactly determines copyright infringement and qualifying what is permitted to be copied. According to the Canadian Copyright Act, ‘copyright’ in relation to a work “means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof (R.S.C., 1985, c. C-42). However, what is considered to be ‘substantial’? It is a question that many millennials have been testing the bounds of worldwide.

The Rise of the Creative Class

The internet has unleashed an extraordinary possibility for citizens around the world to participate in the process of building and cultivating a culture that reaches far beyond local boundaries. This sort of access has opened up industries to a wider and more diverse range of creators. Advancements in technology have also allowed private citizens the ability to explore engineering-oriented pursuits, where formerly the creation of products and prototypes required vast resources available only to industry and big business. The open-source trend which was initially focused on software has been expanding into hardware, assisted by easy access to online plans and licensing agreements. This rekindled interest in tinkering in contemporary culture has been referred to as “The Maker Movement” and is driving innovation at all levels (Sharples).

American economist and social scientist Richard Florida identifies this posited “Creative Class” as a change in people’s choice and attitudes stemming from a fundamental economic change. Florida claims, “just as the feudal aristocracy derived its identity and values from its hereditary control of land and people, and the bourgeoisie derived its identity and values from its role as merchants of goods, the Creative Class derives its identity and values from its role as purveyors of creativity” (Florida, 10-11). Arguably, many from previous generations could also be labelled as great innovators and inventors. However, with the influx of new technologies both cheap and accessible, partnered with increased globalization through collaborative Web 2.0 tools, today’s tinkerers are impacting economic trading and profit margins of large corporations on an international scale.

A Threat to Big Business

With the rise of the Creative Class, we are also seeing an extraordinary rise of regulation of this class as they threaten established content industries. As Stanford-based legal scholar Lawrence Lessig communicates, “Technology means you can now do amazing things easily; but you couldn’t easily do them legally” (Lessig, 105). Corporations have been exposed by the potential of the internet to change the way both commercial and noncommercial products are made and have united to induce lawmakers to use the law to protect them.

Powerful forces using the law to protect themselves is not a new concept. French philosopher Michel Foucault had many influential ideas on literary theory which often touched on the predominance of discriminatory acts in the literary world. An excerpt from Foucault’s famous lecture ‘What is an author?’ claims:

Since the eighteenth century, the author has played the role of the regulator of the fictive; a role quite characteristic of our era of industrial and bourgeois society, of individualism and private property, still, given the historical modifications that are taking place, it does not seem necessary that the author function remain constant in form, complexity, and even in existence. I think that, as our society changes, at the very moment when it is in the process of changing, the author function will disappear (Foucault, 1969).

Access to authorship have long been shaped by transnational legacies of race, class, gender, and colonialism. The bourgeois legalities which protect literary works have acted as a repressive function against the peripheries of society. Foucault predicted that the author function would eventually become obsolete as society evolved. Kavita Philip, associate professor at the University of California builds on Foucault’s teachings in an article about the modern day ‘technological author’. Her paper suggests that today’s authors are in fact pirates lashing out against the prejudiced power of big business. Philip notes, “The pirate figure has commonly functioned as a raced, gendered, and marginalized rogue who effects the inversion of hegemonic power relations” (Philip, 199). Modern technologies inherently affect democratization and act as a liberator against a repressive power of the state and corporation. Philip continues, “The space-time compression of the world economy, creates the conditions for the very increase of difference, the fragmentation of the author into its component ‘author functions,’ that bourgeois legalities seek to preclude” (Philip, 205). Just as Foucault had predicted, the role of the author has evolved to play a very different role in today’s culture.

Free speech activist and professor Kembrew McLeod saw this corporate takeover of language back in 1998 when he facetiously trademarked the phrase “freedom of expression” (McLeod). McLeod’s aim was to comment on how intellectual property law was increasingly being used to fence off the culture and restrict the way we’re allowed to express ideas. He claims, “Our irreplaceable cultural commons are being sectioned up and sold off to the highest bidders and the most aggressive litigators” (McLeod, 25). The trend towards the privatization of nodes of our culture means an inevitable clash of economic values and cultural freedoms such as free speech, creativity and shared knowledge. Technological pirates threaten to invert power relations through appropriating, modifying and sharing intellectual property of which companies are cognizant.

State and Content Industry Hypocrisy

[W]hat are kingdoms but great robberies? ...Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, “What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor.


- St Augustine, The City of God, Book IV, Chapter 4 (AD 413–426)

This selection, highlighted in Philip’s article, illuminates the contradictions of state rule by accurately identifying the coercive nature of the imperial power. The role of the which has traditionally been a raced, gendered subaltern effects the inversion of hegemonic power relations. Although, if “piracy” means using the creative property of others without permission - as it is increasingly described today in most nations’ copyright laws - then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy.

In his book Free Culture, Lessig proves this to be especially true in the development of American broadcasting enterprises. The law was slow to catch up to inventions like Edison’s phonograph or Fourneaux’s player piano. In the late nineteenth and early twentieth centuries, music companies could legally use these new technologies to pirate a song without having to pay the composer. The Congress’s amendment of the Copyright Act in 1909 established a “compulsory license” royalty system which required a set compensation fee to music composers and performers (United States Statutory Copyright Law). In effect, the law subsidizes the record industry by forcing them to pay a low royalty rate to composers instead of to allowing such creators to charge what the market demands of their intellectual property. This royalty being set by the statute essentially has led to recording artists having weaker rights than their literary counterparts. One of the main beneficiaries of this capped royalty fee was, and still is, the expansive recording industry.

In the film industry, movie makers migrated from the east coast to California in the early twentieth century to escape the penalties of pirating Edison’s other famous patented invention: the motion picture camera. The Napsters of those days were companies such as Fox which expanded its production facility in Hollywood to produce films for the silver screen. Federal law enforcement was not yet effective in the west and by the time it was, the seventeen year patent on the motion picture camera had expired. A new industry was born in part from the pirated use of Edison’s creative property. Additionally, cable television entrepreneurs in the 1950s refused to pay broadcasters for the content they were airing to their customers. In fact, cable antenna television was established by selling a product which had not been paid for. Some of the most profitable industries of today were established through acts of piracy.

Furthermore, the American Republic did not honor foreign copyrights for the first hundred years of its existence. American publishers who published foreign works without the permission of foreign authors were not violating any rule. The United States’ content industries were established through pirate rebellion against the hegemonic powers which existed. The true hypocrisy is that developed countries like America now expect developing countries to adhere to strict copyright laws they themselves did not uphold in the primitive stages of their own nations.

To be a part of the world economy today, all countries must protect copyright internationally. Asian law does in fact protect foreign copyrights and the intellectual property conventions applied to the Hong Kong Special Administrative Region are plentiful. But this does not mean the markets globally renowned for selling copyrighted goods have been shut down. Instead, China is in a cyclical cycle of cracking down on counterfeited goods when pressure from the west is present, and turning a blind eye when it is not to allow the copy culture to build their economy. American and Canadian politicians are also loath to take genuine action to restrict the stream of inexpensive goods being imported from China which Westerners have come to rely on. This is not to say that government should not play a role in the regulation of intellectual property. For a society without property rights is anarchy, not freedom.

In The City of God Augustine later concludes that monopolistic civil governments are necessary for peace. Despite his detailed take-down of a myriad of states, including of course the Roman Empire, Augustine exclaims that nothing better can be hoped for. He views the state as something poisonous to human society and its culture. Augustine maintains that it is better to die of a particular poison than one issued by decree. In our modern bureaucratic state, we are allowing corporation-backed governments to pick our poison with economic gain at the forefront.

Governmental Protection of the Public

The Creative Class is made up of subaltern pirates overturning the successes of the kingdom rulers who themselves were established through acts of piracy. The internet has set the stage for the line between free and controlled to be blurred and the outdated methods of copyright control will not work in a digital world equipped with its copy technologies and collaborative capabilities. The role of government is to promote public interest and preserve our culture. However, this reactive creation of strict copyright laws in pursuit of halting all forms of digital piracy may have devastating effects on Anglo-Saxon culture. Lessig defines this problem as ‘the physics of piracy of the intangible’. He writes:

I believe that “piracy” is wrong, and that the law, properly tuned, should punish “piracy,” whether on or off the Internet. But those simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet “pirates” will also rid our culture of values that have been integral to our tradition from the start. (Lessig, 10)

The established laws only protect the incentives of creators by granting them exclusive rights to their creative work, so that they can sell those exclusive rights in a commercial marketplace.

But what about transformative creation? Are the creative thinkers of today left to start from scratch, unable to build upon the ideas of those who came before? Where would our culture be today if this had always been the case?

Take for instance Walt Disney’s iconic “Steamboat Willie” which was the first widely distributed cartoon synchronized with sound. Disney’s work was built upon an earlier film which also mixed sound with picture. The story itself was based on Buster Keaton’s silent film “Steamboat Bill, Jr.” and along with sharing the same storyline, both also utilized the same song in the background (Lessig, 21). Our culture has always left a great deal open for others to build upon existing works like this. However, it is becoming much less so with a crackdown on copyright, pushed by big business. Direct copying of either of these films for profit is, and should be, illegal (until they enter the public domain). Though the ability to build on others’ ideas is not only important for pushing the boundaries of human knowledge and understanding, but it is vital for continuing our culture’s tradition of transformative creation.

Free Culture of Creativity

Twenty-first century advocates successfully defend the electronic commons against corporate privatization by distinguishing between good and bad copying; direct ‘copy and paste’ versus ‘build-upon’ creation. We need to provide today’s tinkerers with constructivist learning opportunities to invent something remarkable. Learning scientist John Seely Brown is interested in creating knowledge ecologies to foster innovation and thinks that law is getting in the way of the next generation of tinkerers. He states in an interview with Lessig, “We are building a legal system that completely suppresses the natural tendencies of today’s digital kids. . .We’re building an architecture that unleashes sixty percent of the brain [and] a legal system that closes down that part of the brain” (Lessig, 47). The property right that is copyright has become unbalanced, tilted toward an extreme. The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must first check with a team of lawyers.

This crackdown on intellectual property has devastating effects for education. The world is changing faster than ever in history and today’s schools are preparing students for jobs and industries not yet in existence. Our best hope for the future is to develop a new paradigm of copyright to meet a new era of human existence. This includes endeavors such as the Creative Commons, a non-profit organization which works alongside copyright to enable sharing for the public and provide knowledge about copyright through free legal tools and educational resources (“About”). This free service gives individuals a method to brand their work with public permissions of their choice - from complete protection reserving all rights to more lenient terms like giving credit to the original author. Such an approach to copyright frees content for others to build upon and is what Lessig calls a ‘free culture’. A free culture “supports and protects creators and innovators. . .by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past” (Lessig, xiv). A free culture is not a culture without property, just as a free market is not a market in which everything is free. Instead, it is a culture free to explore creativity without the hegemonic hold of law which has been corrupted by commercial persuasion.

Sir Ken Robinson, international advisor on education suggests “we need to create environments - in our schools, in our workplaces, and in our public offices - where every person is inspired to grow creatively. We need to make sure that all people have the chance to do what they should be doing, to discover the element in themselves and in their own way” (Robinson, 1). Creativity is often thought of as being synonymous with original ideas. Yet our increasingly permission-based culture, in which creators get to create only with the permission of the powerful or of creators from the past, is robbing us of the potential to foster future innovators. A form of piracy under the law of today seems necessary to continue the growth of our culture. The question is: will we fight for this free culture before it’s too late?

                Works Cited

 “About.” Creative Commons, n.d. Web. 25 Nov. 2014.

"Anti Piracy Facts." Recording Industry Association of America, n.d. Web. 20 Nov. 2014.

Augustine, Marcus Dods, and Thomas Merton. The City of God. Book IV. New York: Modern Library, 1950. Print.

Canadian Copyright Act. Revised Statutes of Canada, 1985, c. 42. Canada. Department of Justice. Part I: 3 (1). 2005. Web.

Envisional Ltd. Technical Report: An Estimate of Infringing Use of Internet. Version 1.8. 2011. Web.

Florida, Richard L. The Rise of the Creative Class: And How It's Transforming Work, Leisure, Community and Everyday Life. New York, NY: Basic, 2002. Print.

Foucault, Michel. "What Is an Author?" Trans. Josué V. Harari. Societé Francais De Philosophie. Paris, France. 22 Feb. 1969. Lecture.

Froman, Michael B. G. 2014 Special 301 Report. Office of the United States Trade Representative, 2014. Print.

Hua, Yu. "Stealing Books for the Poor." The New York Times. 28 April 2013.

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock down Culture and Control Creativity. New York: Penguin, 2004. Print.

Library of Congress. Copyright Office. International Copyright Union, Berne Convention, 1886, Paris Convention, 1896, Berlin Convention, 1908, Report of the Delegate of the United States to the International Conference for the Revision of the Berne Copyright Convention, Held at Berlin, Germany, October 14-November 14, 1908. N.p.: n.p., 1908. Print.

McLeod, Kembrew. Freedom of Expression®: Overzealous Copyright Bozos and Other Enemies of Creativity. New York: Doubleday, 2005. Print.

Philip, Kavita. "What Is a Technological Author? The Pirate Function and Intellectual Property." Postcolonial Studies 8.2. p. 199-218. 2005. Web.

Robinson, Ken, and Lou Aronica. The Element: How Finding Your Passion Changes Everything. New York: Viking, 2009. Print.

Sharples, M., et al. Maker Culture. Innovating Pedagogy 2013: Open University Innovation Report 2. Institute of Educational Technology, The Open University, 2013. Print.

Social Science Research Council. Media Piracy in Emerging Economies. Ed. Joe Karaganis. 2011. Print.

United States Statutory Copyright Law. An Act to Amend and Consolidate the Acts Representing Copyright. United States Congress, 1909. Print.

World International Property Agency. WIPO Administered Treaties. Contracting Parties > Berne Convention. n.d. Web. 21 Nov 2014.