By Lawrence Liang, Atrayee Mazmdar and Mayur Suresh
01 February, 2005
has acquired all-pervasive status in recent years, entering the realms
of the everyday in various forms. It appears in the public sphere most
commonly as a newspaper story about the losses caused by piracy or the
latest threatno-innovative attempt to fight piracy. Post
September 11, 2001, the war against terrorism and the war against piracy
have become close allies. Sometimes the battle acquires a certain glamorous
appeal when one celebrity sues another for copyright infringement, as
in the recent case of Bappi Lahiri against Dr Dre for using his song,
Kaliyon Ka Chaman, or Rajnikant claming rights over a sign that he uses
in his film, Baba.
Apart from these
stories recording anxieties around copyright piracy, there are also
self-congratulatory nationalist messages about India leveraging its
vast pool of knowledge workers to become a global superpower. Irrespective
of the nature of the story told, a number of elements discernible in
these narratives have a common thread running through them. In fact,
it could be said that it is precisely these threads that make it possible
for us to weave a story of copyright in the contemporary context.
It is our argument
that an understanding of the insertion of the discourse of copyright
into quotidian imagination is critical for an insight into the profound
transformations that are taking place within the realm of the production
and distribution of knowledge and cultural commodities. It is in these
spaces that the myth of copyright is carefully constructed and constantly
reinforced. Our experience of media in any form is pre-mediated by our
understanding of the networks of their circulation within the economy
of intellectual property. As film scholar Nitin Govil says, The
uncanny everywhereness of piracy is, of course, merely the
inverted image of the properly interpolated spaces of intellectual property.
This brief concept
paper seeks to identify and interrogate some of the assumptions that
underlie most media stories about copyright. The greatest success of
the concept of copyright has been its successful elevation to the status
of myth through the constant rendering of certain familiar figures (the
poor struggling author), arguments (people deserve to own the fruit
of their labour) and rhetorical data (billions of dollars lost due to
piracy). By specifically labelling these assumptions myths, we seek
to question their truth premise. This is, however, a task that has just
begun and we shall have to work collectively to strive towards making
arguments that go beyond merely providing counter-facts if we are to
effectively counter the totalising rhetoric of copyright.
2. Some familiar tales of loss and anxiety
to enforce Intellectual Property Rights (IPR) laws has taken a heavy
toll on government revenues and reduced employment opportunities, with
the government forgoing a tax revenue of over Rs 10,000 crore annually
due to the proliferation of counterfeit consumer products alone, the
Chief Justice of the Delhi High Court, S B Sinha, said here today. Inaugurating
a seminar on new IPR laws organised by the Associated Chambers of Commerce
and Industry of India (ASSOCHAM), Justice Sinha emphasised the need
for the training of judicial and police officers in all aspects of the
implementation of IPR laws so that there is adequate protection to the
manufacture of genuine products and the consumer is not exposed to the
dangers of consuming fake products.
Mr Sinha emphasised
the need for creating consumer awareness and class action by manufacturers
so that the counterfeiters could be brought to book. He said that counterfeit
products were flourishing because there was a ready market in the country
for such cheap, look-alike products. The acceptance of counterfeit products
by consumers comes in the way of the implementation of laws. Responding
to the concerns expressed by the alternate president, ASSOCHAM, R K
Somany, Justice Sinha said there was sufficient awareness among law
makers and the enforcement agencies about the need to contain the menace
of counterfeiting by proper implementation of IPR laws. What was, however,
urgently required was all-round societal action against the offenders.
The Minister of State for Coal, Mines, Law and Justice, Ravi Shankar
Prasad, in his keynote address, said it was critical to adjust the legal
system to respond rapidly to the new technological environment in an
effective and appropriate way, because technologies and markets evolve
increasingly rapidly. This will ensure the continued furtherance of
the fundamental guiding principles of copyright and related rights,
which remain constant whatever may be the technology of the day.
It would involve
giving incentives to creators to produce and disseminate new creative
materials; recognising the importance of their contributions providing
appropriate balance for the public interest, particularly education,
research and access to information and thereby ultimately benefiting
society by promoting the development of culture, science and the economy.
The Hindu, September
Mr Hardee told
FE in an exclusive interview that the Indian government needed to take
a much more proactive approach to dealing with copyright issues.
not yet ratified the WIPO Copyright treaty and BSA would like to convince
the Indian government to accept it for effective protection of digital
rights, Mr Hardee said, adding that he would also discuss WTO
services agreement related issues that are crucial for conducting electronic
commerce over the Internet.
property rights protection is the key to the continued growth of the
software industry and a critical factor in attracting direct foreign
investment. We want Indian politicians and government officials to talk
about copyright issues, to create awareness and also adopt strict anti-piracy
policies in government departments to set an example, he said.
Express, August 21, 2002
BOOK PIRACY RACKET
By Our Staff
Aug 26. The city police today busted a racket involving unauthorised
duplication and sale of foreign medical books from two photostat business
centres in the Medical College area. As many as 150 unauthorised reproductions
of several costly publications were seized in the raid. Police have
filed a case under the Copyright Violation Act against the owners of
the two shops. The raid followed a nationwide campaign by the Indian
arm of the Publishers Association, UK, to unearth piracy of books
published by international firms. According to the police, the clandestine
operation in the Medical College area was targeted at medical students.
The modus operandi was to make a master copy of the foreign technical
books, which cost up to Rs 4,000 each. Multiple copies made from the
master pages are bound into book form and sold at Rs 500 to 1,000 each.
Counsel for the
publishers, Priya Rao, who had arrived from Delhi, said the raid had
unearthed bound books as well as loose photostat copies. The books were
neatly reproduced and sold with brochures.
carried out in the Museum and Thampanoor police station limits during
the last two days had uncovered a similar racket in popular novels.
Police raids in these areas revealed about 200 reproductions of `Harry
Potter' and Sydney Sheldon novels. While the original novels cost about
Rs 300, the pirated editions were selling for Rs 50.
versions were seized from bookshops as well as footpath vendors dealing
in secondhand books.
Soon the Indian
Music Industry will be out of sight, there will be a cultural blackout
and consumers will no longer be able to listen to music, virtually.
That is what the Indian Music Industry IMI, joining hands with
the police and researchers, tried to convey to consumers and media persons
this past week as it held a conference to highlight the threat of music
piracy. At a briefing at the India Habitat Centre addressed by VJ Lazarus,
IMI President, JF Rebeiro, former Commissioner of Police, Abhik Mitra,
MD, Saregama India Limited, and Prakash Singh, former Director General
of BSF, the issue of piracy was raised and a campaign called `Sounds
of Silence' to fight the illegitimate music was launched.
piracy we have lost over Rs 1,800 crore in the last three years. Despite
being an offence as per the copyright act - Article 52 (1) (i) that
calls for severe penalties - piracy is eating into the music companies,"
Though he reasoned
that the IMI has recorded 3,652 criminal cases and made 4,096 arrests
in the last four years, only 30 cases ended in prison sentences or fines,
although 191 cases ended in conviction.
He felt that
this sorry state was due to a lenient attitude by those who should be
providing the deterrent, while Rebeiro, too, admitted that for the police
it is one of the very low priorities. Moreover, slow processing in the
courts adversely affects the required enforcement. The source of the
trouble also lies in the lack of major hits and the high price of the
original cassettes and CDs. For the latter they have their reasons.
"People come to us asking: why can't you sell a CD for Rs 20 while
the raw material costs you only Rs 8, but they don't realise that the
lyricists and each of the artistes have to be paid a good amount,"
said Abhik Mitra.
government does not look into it fast, the industry will come to a halt
within a year, for two out of five cassettes and CDs get pirated now,"
The currency of copyright
The excerpts from
news reports quoted above provide just a glimpse of the discourse that
has become a regular staple of the medias coverage of copyright-related
issues. Yet there is a stubborn logic that refuses to accede so easily
to the threats, blackmail and pleas of copyright protectionists. The
spectral figure of copyright looms large over, but fails to entirely
haunt, our imagination. As with any other conflict, the battle
for souls is perhaps as important as the transformations taking
place in the material world of practices. And it is within these spaces
of the human imagination that we insert our current intervention. Drawing
on these stories taken from contemporary media representations of the
conflict over copyright, we would like to examine some of the basic
assumptions in the self-narrated life of copyright.
The promoters of
copyright have a rather straightforward justification for it. We shall
begin with what may be considered a rather typical account of the necessity
of copyright law.
Copyright is that
branch of intellectual property law which protects original works of
authorship. These include literary, artistic, musical and dramatic works.
In recent years copyright law has been amended to include protection
for performers rights. The key assumption that sustains copyright
law is that authors have a natural right over their works of intellectual
labour, and copyright protection is required to provide an incentive
to create intellectual works. Copyright, therefore, grants an exclusive
right to the author over his or her works; this includes a basket of
related rights such as the right to authorise reproduction, adaptation,
performance, distribution etc, of the work. In the absence of a system
like copyright, it is argued, there would be no incentive for authors
to produce and hence there would be a general decline in the world of
creativity and the arts.
inherently includes a balance between the protection of authors, on
the one hand, and the interests of the public, on the other. Since it
is recognised that excessive protection may result in curbing the ability
of the public to use works, copyright protects only unique expressions
and not ideas per se. Some balance is also sought to be achieved by
providing a limited term of protection (ie, the lifetime of the author
plus 60 years). Within these limits, any person who uses the works of
another persons intellectual labour without permission is, according
to copyright law, guilty of indulging in an act of stealing the other
persons ideas. The rationale is that such theft will result in
unacceptable losses for the author of the work.
As with any other
totalising story, the tale of copyright appears to have some intrinsic
appeal, relying as it does on a progress account (copyright promotes
creativity) and the dystopic world that it prevents (there will be no
creativity without copyright). The reason why we deliberately choose
to use the phrase, the myth of copyright, is that we recognise
the wonderful success of the apologists of copyright in presenting it
as a universal truth. The history of copyright is always narrated in
an ahistorical manner, following a universal teleological route as though
it were the natural culmination of events. Following the works of Roland
Barthes, an important scholar of semiotics, we would like to interrogate
the mythologies as forms of language which are ideologically embedded
in various practices of power and ideology.
We would, in this
section of the paper, like to interrogate some of the arguments that
seem to form the mythological structure of copyright:
the ahistorical account of copyright: Contextualising authorship and
and the language of property
incentive for creativity
protecting the rights of authors
>Use of the language
of theft and piracy in the discourse of copyright
authorship and originality
as the subject of its enquiry the rights of the author. Simple as it
sounds, this assertion is of great import for our understanding of the
conflict over copyright. At the heart of the statement lies the presumption
that we can clearly and without any problem make sense of the idea of
authorship. To juxtapose this statement with another, ask any person
to rattle off the names of the greatest authors, and you will find a
varied crowd ranging from Shakespeare, Chaucer, Kalidas, Valmiki to
Salman Rushdie and perhaps Jeffrey Archer. This is, quite obviously,
a list of authors; it is not difficult to come to that conclusion. However,
this commonplace understanding of the author as a category needs to
Two sets of self-fulfilling
prophesies are achieved by the assertion that copyright protects the
rights of authors. First, it assumes a category which makes universal
sense across cultures and across time namely, that of the
author. Second, by erecting this universal figure of the author
and asserting that copyright is meant for the protection of the author,
it universalises the relationship between copyright and creativity.
Our first task is, then, to historicise the emergence of the author
figure or the author function as a relatively modern phenomenon that
has arisen in the context of the crisis caused by the print revolution.
Before the invention
of the printing press, the act of writing was a very localised activity.
It was impossible to disseminate knowledge in any significant manner
since the inaccuracies of copying prevented widespread use of the written
word. The printing press enabled a number of innovations. Duplication
became easier and more accurate. Mass distribution became viable. The
printing press also revolutionised information storage, retrieval and
usage. Printing, unlike writing, allowed a society to build on the past
with the confidence that each step was being made on a firm foundation.
Printing affirmed the belief that new information was an improvement
over the old. The revolution in the capacity to accurately reproduce
works fostered an understanding that progress can occur through a process
of revision and improvement. The increased accuracy and rapidity of
new editions made possible by the printing press made the most recent
editions more valued than the older ones. Additionally, by providing
access to the written word to the literate public, printing made possible
a larger reading public which then formed the emerging public sphere.
This new reading
public demanded books -- originals and reprints -- and set the stage
for the crucial conflict over the ownership of such information. As
copyright historian Mark Rose observes, A sufficient market for
books to sustain a commercial system of cultural production had
to exist before the coming into being of a formal regime of intellectual
property. What was earlier the monopoly of the Stationers Company,
a guild recognised and regulated by the Crown, became a mass industrial
activity with a number of publishers in the provinces publishing cheap
reprints for the emerging reading public.
The reaction from
the literary and artistic world was to move away from the ills
of the industrial revolution. They began to deploy the notion
of the author as a unique and transcendent being, possessing originality
of spirit. This romantic model was used as a means of rescuing artists
works from the hostile market and the public, for whom mass production
made works available as never before, but at the risk of their turning
into industrial products.
The romantic artist
was, therefore, deemed to have property in an uncommodifiable imaginary
self; originality was thereby elevated and located in the self of the
author. And because the artist owns his/her original person or spirit,
works created by such authors were also deemed to be original; in this
way they could distinguish their personality from the expanding realm
of mass produced goods. This is the moment when the romantic theory
merges with the doctrine of property prevalent at the time, through
the theory of conversion propounded by John Locke, wherein an individual,
through his/her labour, creates something of value out of nothing. It
is important to note that this is also the theory that justifies the
appropriation of the commons, including lands understood as not belonging
to any civilised nation.
A dual move is thus
set in place, with the concept of the modern proprietary author
used as a weapon in the struggle between London-based booksellers and
the booksellers of the provinces, culminating in the landmark case of
Donaldson v Becket. The entire claim in the case is made in the name
of protecting the rights of the author (even though no author was actually
involved in the case) and the individuality of their ideas. This is
despite the fact that the primary beneficiaries of this new system of
knowledge ownership were publishers, since all authors assigned their
copyright to the publishers before publication. The concept of the modern
proprietary author simply created a useful euphemism for protecting
the rights of publishing companies to copy.
of the author significantly ties copyright to the concept of an author.
The proprietary author emerges as the London publishers mode of
maintaining strict control over copyright. However, once unleashed,
the idea of the author starts taking on a new meaning with unexpected
consequences. It emerges as a new social relationship, which will transform
the way society perceives the ownership of knowledge. This establishment
of the ideological figure of the author naturalises a particular process
of knowledge production where the emphasis on individual contribution
denigrates the concept of community knowledge and helps promulgate the
notion of the individual as owner.
contribution to literary theory through the works of Roland Barthes,
Michel Foucault and Jacques Derrida has been to problematise our notions
of the romantic individual author. What then do the work of Foucault,
Barthes and Derrida mean for the legal interpretation of authorship?
If legal scholarship and practice were to take note of the inroads into
the very notion of authorship and originality by these thinkers, we
would need to reconceptualise the terrain that we understand to be intellectual
property legislation. This reconceptualisation will necessarily have
to shed the burden of the authors originality and recognise the
millions of traces which shadow the arrival of any work, and provide
a means of structuring the relationship between such texts, its readers
and society at large. It will mean a more nuanced understanding of the
public sphere or what IP laws call the public domain, with the presumption
being that the author is not a figure who has to be protected from this
public sphere but one who resides and works within the public sphere.
This restructuring of the relationship between authors, texts and interpretative
communities will also demand a major increase in the ways in which these
works may be modified, adapted and appropriated to enable what Derrida
would call the field of infinite substitutions.
and the language of property
"If you have
an apple and I have an apple and we exchange apples, then you and I
will still each have one apple. But if you have an idea and I have one
idea and we exchange these ideas, then each of us will have two ideas."
-- George Bernard
In this section
we examine how intellectual property is justified at the conceptual
level. The theories of George Hegel and John Locke regarding the manner
in which property is created raise a fundamental question: can information
be considered property in the same sense that a house or a car is considered
property? The fundamental character of information is that it is a non-rival
good, which means that the assumptions of depletion, scarcity etc, that
are used while analysing classical theories of property do not quite
for the propertisation of intellectual creations are based on the Lockean
theory of the creation of property. Lockes theory relies on three
basic principles: firstly, that every person has property in himself/herself;
secondly, everything that is in a state of nature -- ie, not as yet
propertised and still held in the commons -- was given by God to be
propertised; and thirdly, that labour converts things in a state of
nature into a state of property and adds value to things so laboured
upon. Locke was, therefore, of the opinion that if A mixes her labour
into a thing that is in a state of nature, that thing becomes the property
of A. In terms of copyright, authors can be said to take ideas that
are out there in the commons, add their labour to it, and
thereby create the work. The question that Locke fails to
answer is why, if authors add labour to ideas, the result becomes the
property of the author; his theory simply rests on the assumption that
property is the reward for labour.
The next question
that may be asked in this context is whether and how a person actually
has property in himself or herself. This property in oneself cannot
be a product of ones labour and, therefore, it must be premised
upon something else. At the core of Lockes theory lies the notion
of personal freedom, with state power severely constrained and limited
to the protection of liberty. It is in this context that he, again,
presumes the ownership of oneself. Unlike Locke, however, Hegel does
not see humans as naturally free and as having natural ownership rights
in themselves. According to him, it is solely through the historical
process of objectification and hence self-confrontation that one comes
to be free: It is only through the development of his own body
and mind, essentially through his self-consciousness and apprehension
of itself as free, that he takes possession of himself and becomes his
own property and no one elses. In both theories, ownership
of ourselves enables the ownership of natural objects as they become
assimilated to our bodies.
Such a proposition
meets several objections. Philosopher Robert Nozick poses an interesting
question: if I were to pour a bowl of radioactive soup (so that it could
be traced), of which I was the owner, into the ocean, and this radioactive
soup mixed throughout all the oceans and seas, could it be said that
I am now the owner of all this?
Hegel would answer
this in the negative on the ground that Nozicks soup is not an
expression of his personality. Central to Hegels concept of property
is the notion that property is not only a necessary component in the
development of personality, but an actual manifestation of this personality.
One can see Hegels influence on the Romantic movement that flourished
in literature in the 18 th century, which finally concluded that a person
must translate his or her freedom into an external sphere in order to
exist as Idea, and that the resultant property is the manifestation
of this translation.
According to Hegelian
arguments, occupancy, not labour, is the act by which external things
become property. This occupancy, or taking possession, can be done in
three ways: firstly, by directly grasping it physically; next, by forming
it; and thirdly, by merely marking it as ones own. It is the second
of these ways of possession that is most interesting for our purposes.
As Hegel remarks, When I impose a form on something, the things
determinate character as mine acquires an independent externality and
ceases to be restricted to my presence here and now and to the direct
presence of my awareness and will. This statement reverberates
in the recognition by copyright law of the rights of the author of works
when those works are changed or mutilated. The law looks
upon this mutilation as a violation of the personality of
the author as manifested through that work. However, the fundamental
question that law does not answer is how this constitutes a violation
of the authors personality.
Moreover, as is
seen with the Romantic conception of the author, Hegel fails to account
for external influences on creations. Hegels conception of property
being the expression of the will of the individual fails to see that
this work is influenced by various other factors; painters,
musicians, writers, all learn their skills and are classified into genres
and styles; artists may take inspiration from everyday scenes, and authors
from gossip. In such situations can their works be said
to be expressions of their soul?
Locke locates the
desire for propertisation of the commons in the need for the preservation
of resources. According to him, if resources are left in the commons
their utility will gradually diminish because of over-use or neglect.
Land, for example, may be overgrazed or may by neglect become unarable,
and in both cases the utility that this land provides is diminished.
Locke assumes that once a resource is taken from the commons and transformed
into private property the owner of that property will use it in a manner
that preserves its value in use. Even if we accept these assumptions,
can this theory of the need for propertisation be extended to incorporeal
ideas? Does the over-use or neglect of ideas lead to the
reduction of their value in use?
quotation concerning the sharing of ideas is a simple, yet effective,
demonstration of the nature of ideas and information goods. Information
just does not possess the same characteristics as classical real
property. The dissemination of ideas, for instance, does not reduce
their use value. Information is considered a non-rival good,
in the sense that usage of a particular piece of information cannot
impair the utility of that information to another user. It has also
been characterised as non-excludable in the sense that use
of a certain piece of information does not exclude other users from
utilising the same information.
The best example
of this is software. The only way a person can prevent the copying of
software is by preventing third persons from accessing it. Once access
is granted, it can be copied for almost no cost. This copying, moreover,
does not affect the utility of the software itself, nor does it prevent
the usage of that software by the original owner.
The sharing of information
goods, especially in the digital context, does not diminish in any manner
the quality of the good that is shared. There is clearly a movement
away from the idea of property as we have always understood it. However,
the concept of copyright represents a stubborn drive towards taming
this new monster of accessibility created by developments in information
There are a number
of contradictions in the attempt to equate information goods with classical
property which are becoming ever more glaring. Some of these are internal
contradictions within the larger machinery of production and consumption.
Thus, on the one hand, you have hardware manufacturers creating better
CD writers at a cheaper price and advertising their products with the
magical words, BURN, RIP, COPY, DUPLICATE, STORE, etc. On the other
hand, you have the content industry screaming itself hoarse at these
new technologies that are making it easier for people to steal information
the incentive for creativity
It is often argued
that in the absence of copyright protection authors would lack the incentive
to create more works, thereby depriving society of useful works that
may have been produced. This section questions the subsumption of incentive
in copyright theory.
One of the main
justifications for copyright legislation is that in the absence of an
intellectual property rights regime, authors of works would have no
incentive to further create, and that artists cannot produce new works
without an economic incentive. Intellectual property law, therefore,
is often justified on the basis that it stimulates the investment of
time and money in the creation of new works and that many authors of
copyrighted works depend for their livelihood on the income that they
derive from the publication of their works.
is claimed that in the absence of copyright protection covering an authors
creation, the low cost of copying such works would induce competitors
to steal anothers product without penalty and, as
a result, rivals could profit from anothers intellectual efforts
without expending any energy or costs other than the relatively minor
costs required to duplicate the socially valuable creation. Consequently,
the motivation of authors to generate beneficial informational works
would be greatly diminished, if not entirely eliminated. With competitors
thus copying their works and undercutting their prices they would not
be able to reap pecuniary rewards for their efforts or even, in many
cases, recover their costs. Given that authors would have little hope
of recovering their investment, the production of works would be seriously
curtailed, and the associated benefits upon society would be lost.
While there may
be a case for the proposition that without incentives authors would
fail to create new works, the statement that copyright law is a prerequisite
for such incentives requires closer examination. What is essentially
argued here is that copyright is not synonymous with incentives, and
that authors have created in the absence of copyright. It is also argued
that, in many instances, the incentive that copyright appears to give
authors is illusory.
Firstly, many authors
who have little hope of ever finding a market for their publications,
and whose copyright is, as a result, virtually worthless, have in the
past, and even in the present, continued to write. While it may not
be a general phenomenon, it is possible that people produce works purely
for personal satisfaction, or even for respect and recognition from
there is much to suggest that copyright law and incentive were rarely
linked. The 19 th century saw the prolific authorship of literary works
in the absence of any meaningful protection afforded to authors by virtue
of their copyright. While copyright protection existed, these rarely
benefited the author beyond an initial payment for the copyright for
their works. This payment, often referred to as an honorarium, bore
no relationship to the exchange value of that work, but was rather an
acknowledgment of the writers achievements. In the vast majority
of cases, most of the profits went to the publisher and, on occasion,
authors were even asked to underwrite a portion of the publishing costs.
Moreover, without the publisher the copyright had no effective value,
as the work would never get published. It is clear that in reality copyright
protection usually benefited the publisher, and rarely the author.
the enactment of every subsequent Copyright Act, the protection given
to authors was reduced. In England, prior to 1814, copyright for
the work reverted to the author after a term. The author could renew
proprietary rights over his or her work, and could conceivably gain
from again transferring the copyright. However, after 1814 such renewal
terms were eliminated and the author lost his/her position in the mechanisms
of copyright. The typical transaction consisted of the transfer of the
copyright to the publisher by the author on the basis of a one-time
payment. Subsequently the author had little role to play in the publication
of his/her work and the author reaped little reward from future sales.
This can be seen
in a number of recent cases regarding the translation of works into
new media. What is at issue in these cases is whether or not the author,
who has transferred copyright in, say, a film, to another party, has
a proprietary interest in translations of this work into new media
eg, its release over the Internet -- the development of which was unforeseen
at the time of the transfer of copyright. In the United States, there
are a number of cases where it has been held that the author no longer
has a proprietary interest in these works that have been translated
into new media. Where does copyright provide an incentive to authors
in such cases?
In addition, the
existence of alternative and different types of incentives further erodes
the incentive claim of copyright protection. Two non-pecuniary incentives
have been identified above: personal satisfaction and recognition. Many
people have created works without any thought of pecuniary benefit.
It is doubtful that Anne Frank wrote her diary or Nehru his letters
with the intention of reaping the monetary benefits arising from copyright
As the honorarium
discussed above shows, considerable prestige and value are attached
to the work of composing a book, an article or a piece of art recognised
as an example of excellence in its particular field. These incentives
will always be present, regardless of whether the author is awarded
monopoly rights in his or her work.
may have the additional benefit of being the first mover in the market.
By entering the market first, the authors of works may be able to capture
a certain degree of the economic rewards that intellectual property
rights aim to bestow even without the actual conferral of such legal
are several mechanisms, primarily Internet-based, for creating incentives
that are independent of copyright. The Street Performer, or the Fairshare
Protocols, are examples of such devices. Under the latter system, several
people make a payment directly to the author to finance future works
with the understanding that they are given access to a portion of the
consequent profits. Under the first method, the authors contemplate
a menu of options available to artists. What each has in common is that
a release price will be set for a work, and that it will be made available
in digital form, without copyright restrictions, once members of the
public voluntarily donate sufficient funds to meet the asking price.
For instance, an author might set up his/her own website and announce
a book project directly to the public. Usually, though not necessarily,
the author might begin by posting a chapter or two to give readers a
flavour of what is to come.
the poor struggling author
We are constantly
regaled with stories of how copyright as a system acts as the basic
protection for poor, struggling authors who would otherwise have no
means of protecting themselves against pirates who reproduce their goods
or others who steal their ideas. Let us, at the very outset, clarify
that we are certainly not enemies of creative workers, and that we would,
of course, like to see all creative labour recognised and rewarded.
But the question that begs an answer is: does copyright really achieve
that and, if not, why does this image of the poor, struggling author
keep coming to mind?
What the metaphor of the poor, struggling author does is render invisible
the critical difference between the authorship of a work of intellectual
labour and the ownership of the same. Copyright scholar Peter Jaszi
states that while there is a tendency in copyright law to invoke
liberal individualism to justify economic structures that frustrate
the aspirations of real-life individuals, it is somewhat surprising
to encounter the individualistic Romantic conception of authorship
deployed to support a regime that disassociates creative workers from
a legal interest in their creations: the work-for-hire doctrine
of American copyright law. Where this doctrine applies, the firm or
individual who paid to have a work created, rather than the person who
created it, is regarded as the author for purposes of copyright
ownership. It is abundantly clear that in the current era of industrial
production of cultural commodities, copyrighted works are more often
than not created by unromantic authors sitting in their cubicles creating
for a large corporation like Microsoft.
When a work is deemed
to have been made for hire, the alienation of labour is
formally and legally complete: the author of the work
is the person on whose behalf the work was made, not the
individual who created it. In this legal configuration, the employer's
rights do not derive from the employee by an implied grant or assignment.
Rather, those rights are the direct result of the employer's status.
Ironically, the employers' claims are rationalised in terms of the Romantic
conception of authorship with its concomitant values of
originality and inspiration.
Secondly, if one
were to closely analyse the agreements between various publishing houses
and the authors of works published by them, one notices immediately
that unless you are an author of some fame, the contracts are absolutely
one-sided, with the individual author having little bargaining power,
as he or she assigns all rights in favour of the publishing house.
Piracy has always
been portrayed as being an assault on the rights of authors. It is interesting
to note, for instance, that during the initial days of T-Series, the
company was often approached by various small-time ghazal singers with
requests that they release their works through the pirated circuit because
HMV, the owners of the copyright in their work, were unable or disinterested
in issuing the works and, as a result, the authors of the works were
not able to ensure that the works were available to the consuming public.
Recently J K Rowling,
author of the Harry Potter series, has been in the news for enforcing
her copyright against cheap pirated copies. In more ways than one she
stands as a role model for copyright enforcers, and her status as a
struggling single mother is often used as the analogy for the way copyright
protects the rights of poor authors. While we are all happy for Ms Rowling,
what is not convincing is how the example applies even after the publication
of the fifth or sixth Harry Potter book, by which time the writer had
become one of the highest paid authors in the world, with many millions
of pounds in excess.
respond only to a market demand, and not every book is pirated. There
is a particular popularity or price limit that has to be achieved before
it enters into the piracy circuit. Presumably, if a book has achieved
a certain status that leads to it being pirated, its author is no longer
poor and struggling. Thus, the sight of Madonna appearing in TV ads
condemning piracy because it deprives her of her livelihood is not terribly
convincing as images of her many villas and islands flash in ones
mind. If the terms of the debate were around property and monopolies
alone, then there are many ways in which the issue can be addressed
-- for instance, under anti trust laws etc -- but the fact that it is
always this image of the sole struggling author that is used hides questions
regarding the political economy of publishing, and so on.
caused by piracy
The most common
use of statistics in the copyright tale concerns the losses caused by
piracy. Thus, for instance, in the case of computer software one would
encounter the following narrative:
The extent of software piracy and losses due to such piracy cannot be
given in exact quantitative terms though it is believed that piracy
in this sector is widespread. In Europe alone the software industries
lose an estimated $ 6 billion a year. In fact, Europe holds the dubious
distinction of accounting for about 50 per cent of worldwide losses
from software piracy, more than any other region including the number
two, Asia. According to a study of the Software Publishers Association,
a US-based body, losses due to piracy of personal computer business
application software nearly equalled revenues earned by the global software
industry. In 1996, piracy cost the software industry US $ 11.2 billion,
a 16 per cent decrease over the estimated losses of US $ 13.3 billion
in 1995. The country-specific data show that in 1996 Vietnam and Indonesia
had the highest piracy rate of 99 per cent and 97 per cent respectively,
followed by China (96%), Russia (91%), Thailand (80%), etc. In India
software piracy is costing the IT industry quite dear. According to
a survey conducted jointly by Business Software Alliance (BSA) and NASSCOM
in May 1996, total losses due to software piracy in India stood at a
staggering figure of about Rs 500 crores (US $ 151.3 million) showing
about 60 per cent piracy rate in India.
- MHRD Report on
often rely on certain dubious economic assumptions. The main one, of
course, is the assumption that a person buying an illegal copy would
necessarily buy a legal copy of the same if piracy did not exist. Thus,
while we know that most computers in India have an illegal copy of Microsoft
XP and Microsoft Office, can we assume that every user would be willing
to pay an additional Rs 23,000 for these two software alone, especially
in the light of a free alternative in the form of Linux? Is it not likely
that most users would not go in for the Microsoft software were it not
for the fact that pirated software is available for free?
In a very insightful
study, Harvard economist Carlos Osorio seeks to empirically understand
the phenomenon of piracy. He starts with the assumption that computer
software has the characteristic of being a non-rival and quasi non-excludable
good. Thus, he says, One may prohibit a third person from
using it only by not letting him (or her) access a version of the software.
Once access is granted, however, the software can be copied at almost
zero cost. By doing so, new users cannot exclude the earlier one from
using the software -- as with a bicycle or a jacket -- and, by direct
and indirect network effects, the new user adds value to the whole network
of users (legal and illegal). The question for him, then, is:
What are the effects of illegal copying of software, commonly known
as piracy, on the overall software market? Why do some software
companies enforce their intellectual property rights differently across
He states that,
classically, illegal copying is commonly assumed to be a function of
the price of the software, the average income per capita of the potential
market, and the marginal cost of copying versus producing the software.
However, he states that, in addition to these common assumptions, it
is important to examine the role of direct and indirect network effects
in explaining the importance of illegal users in the diffusion process.
His argument is that software companies might have a direct and indirect
role in helping the generation of illegal copying in underdeveloped
markets, and incentives for doing so. In terms of business strategies,
for instance, some ways of doing this are by undersupplying system compatibility,
generating lock-in for users of their product.
often acts in underdeveloped markets as the most efficient manner of
creating a market or user base and also to create a lock-in period for
the product. Thus Microsoft has consistently refused to enforce its
intellectual property rights in markets in developing countries until
a market base is created for its products. Piracy works to produce network
effects, which means that with every added user, whether legal
or not, the popularity of a product increases. Network effects are important
because, in terms of the total user base, the illegal users of software
add value to all the users, legal and illegal, and act as agents in
fostering the diffusion of the software by word-of-mouth. In this way,
they indirectly generate additional positive effects for the software
the first virtue of social institutions, as truth is of systems of thought.
A theory, however elegant and economical, must be rejected or revised
if it is untrue; likewise laws and institutions, no matter how efficient
and well-arranged, must be reformed or abolished if they are unjust.
The only thing that permits us to acquiesce in an erroneous theory is
the lack of a better one.
- John Rawls in
A Theory of Justice
The admiring fascination of the rebel can be understood not merely
as the fascination for someone who commits a particular crime but that
someone, in defying the law, bares the violence of the legal system
or the juridical order.
- Jacques Derrida,
The Mystical Foundation of Authority
The task of this paper has been to examine the various myths that sustain
copyright. This is just the beginning of the process of questioning
the assumptions on which copyright is based. If we are to seriously
engage with the totalising logic of copyright, two tasks lie ahead.
Firstly, we will need to continue to chip away at the foundational logic
of copyright, exposing the shaky grounds on which it makes its universal
claims. Secondly, we need to actively examine alternative models through
which we can understand the production and dissemination of knowledge
The existence of
alternatives to copyright -- such as copyleft, the open source movement,
the Fairshare and Street Performer protocols -- belie the reality of
copyright. Conceptually, these alternatives challenge the fundamentals
upon which copyright rests. The emphasis is on the ability of users
to modify and distribute works -- yet there is still incentive
to create, as is evident in the success and spread of Linux. Essentially
there is no contradiction of purpose as it creates public rights for
a public purpose.
If the world of
copyright constructs itself as the only model of incentive, reward,
etc for creative labour, the symbolic power of the open source movement
rests in the creation of alternative social imaginaries which turn every
assumption of copyright upon itself.
There is, however,
a world of quotidian media practices which do not fall squarely within
the alternative progress narratives of copyleft, open source etc, and
this is the world of illegal media networks and practices like piracy
. This is also the world that copyright seeks to demonise. In our search
for alternative models, it is also critical for us to engage with the
subterranean other of the open source movement, as the pirates
go about redistributing wealth in the information era.
Atrayee Mazmdar and Mayur Suresh are with the Alternative Law Forum,