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

References

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 Chinas 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 Chinas

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 nations 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 peoples 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, todays 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 couldnt 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 Foucaults 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 Foucaults teachings

in an article about the modern day technological author. Her paper suggests that todays 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 todays 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). McLeods aim was to

comment on how intellectual property law was increasingly being used to fence off the culture and restrict the

way were 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 413426)

This selection, highlighted in Philips 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 Edisons phonograph or Fourneauxs

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 Congresss 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 Edisons 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 Edisons 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 Disneys iconic Steamboat Willie which was the first widely distributed cartoon

synchronized with sound. Disneys work was built upon an earlier film which also mixed sound with picture.

The story itself was based on Buster Keatons 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 cultures 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 todays 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

todays digital kids. . .Were 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 todays 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 its too late?

References

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. Josu V. Harari. Societ 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.