[Commons-Law] Pirates of the Commons

[prabhu ram]

>The Hindu


 Pirates of the Commons 

SUDHAKAR THATHS CHANDRASEKHARAN 

The Commons is a shared spring from which we all draw sustenance. But
recent trends seek to diminish its relevance, writes SUDHAKAR THATHS
CHANDRASEKHARAN.

CONTROLLING access to literary works to prevent copies from being made
is a practice that goes back millennia. The Royal Library of
Alexandria was so notoriously difficult to get into that Ptolemy III
had to bribe his way in with 15 talents of silver.

Innovations do not bloom in an intellectual vacuum where access to
knowledge is controlled. Jared Diamond, in Collapse: How Societies
Choose to Fail or Succeed says that societies that restricted mobile
exchange of ideas sowed the seeds of their own demise.

Mobility of ideas 


Creativity relies on the rich common heritage of prior works. In
science and art, revisiting, revising, reusing and transforming ideas
from prior works is an age-old phenomenon. Ancient Greek texts from
the library in Alexandria survived the Middle Ages only through the
copious copies made by Arabic translators.

During Europe's Dark Ages many treasures of classical antiquity almost
disappeared in book burnings by religious zealots. They were only
saved from oblivion by a few pious Irish monks committed to copy and
share works of learning.

The modern concept of Copyright evolved with the development of the
movable type printing press, which made it relatively easy to produce
multiple copies of works at a small additional cost. Publishers, not
authors, were the first to seek restrictions on copies of printed
works. The predecessors of Copyright law were arbitrary grants of
monopoly rights sold to printers by cash-strapped monarchs. Such
monopolies rarely benefited the author or the consumer.

Copyright goes legal 


The first modern Copyright law was the English Statute of Anne enacted
in 1710. It granted 14 years of exclusive rights to the author and
could be optionally extended for a further 14 years. The Statute was a
revolutionary piece of legislation that even protected the rights of
consumers by ensuring that printers could not control how a work was
used by its purchaser. Similar legislation that brought the right
economic balance between maximising the distribution of works and
encouraging their production followed soon in other countries.

A feature of early Intellectual Property laws was the classification
of Copyright as a limited and not natural right. Works under Copyright
were not entitled to the same protection accorded to tangible physical
property. Constitutions and courts have repeatedly interpreted
Copyright as a means of encouraging the production of creative works
for public benefit. It is with this in mind that Copyrights give
exclusive rights to creators for limited terms and not perpetuity. The
creator of a work exclusively enjoys the benefits, including possible
monetary ones, during the limited term of the Copyright. At the end of
this limited term, the work passes into the Commons of the Public
Domain.

New works draw ideas and inspiration from tens, even hundreds, of
previous works. Much of the author Neil Gaiman's works, for example,
draw from Shakespeare, and Greek and Hindu mythology. The original
elements in the new work are still entitled to protection under
Copyright law. Copyright laws try to balance giving incentives in the
form of limited exclusive rights to individuals to innovate and the
benefits to society and future creators from an enriched Commons. Sir
Issac Newton, expressing his gratitude to his predecessors, said, "If
I have seen further, it is by standing on the shoulders of giants." In
an Escheresque pun, Newton borrowed the phrase "on the shoulders of
giants" from earlier sources.

The Commons are a shared spring from which we all draw sustenance and
inspiration without diminishing or polluting it.

But these days the Commons are becoming stagnant and brackish. There
is a real danger that the Commons will dry up and hamper the ability
of future generations to be inspired by contemporary works of our
time. The digital revolution has made reproducing music, books and
movies trivially easy at negligible cost. We need a Statute of Anne
for our times. Instead, nations are propping up antiquated ideas of
intellectual property ownership and extending the lives of Copyright
in ways that greatly impoverish the Commons.

Lobbies at work 


Works are increasingly owned by Corporations rather than individuals.
Individual authors have little to gain from copyrights that extend
beyond their graves. Walt Disney Corporation and Time Warner, on the
other hand, live longer than individuals. In their avarice to not lose
their cash cows to the Commons, they have successfully lobbied for
copyright term limit extensions. Such extensions do not encourage the
Corporations to produce new works. This is ironic considering that
many of Disney's famous animated films like "The Jungle Book", "Snow
White" and "The Little Mermaid" are themselves works derived from
copyright expired works in the Commons.

The Sonny Bono Copyright Term Extension Act of 1998, derogatorily
called "The Mickey Mouse Protection Act" by its detractors, extended
copyright terms in the U.S. by an additional 20 years. The Act
effectively prevents works from enriching the Commons until 2019. Mary
Bono, Sonny Bono's widow and political successor, has gone on record
as saying that since perpetual Copyrights would violate the U.S.
Constitution, she would consider a proposal for a copyright term of
"forever less one day".

The European Constitution that was recently voted down by the French
and the Dutch contains neither a "limited time" nor a "to promote the
progress of science and useful arts" clause. Critics of the EU
constitution claim that this is a deliberate omission aimed at
bringing forth perpetual Copyrights and Patents.

Copyright terms are being repeatedly extended to last far beyond the
lifetime of the audience which experienced the original work. Delaying
the entrance into the commons of contemporary works like "Star Wars"
denies contemporary creators the legitimate right to make derivate
works that relate to the original. If and when "Star Wars" eventually
enters the Commons, it might be met by a generation that finds it
irrelevant to a future in a galaxy far, far away...

(Sudhakar Thaths Chandrasekharan is a slacker without borders who
considers Project Gutenberg to be the epitome of what the Internet
should be. Send him your comments at thaths at openscroll.org.)