Copyright -- or Wrong? Intellectual Property in the Electronic Age
by A. D. Coleman

My ruminations last month on the ownership and control of information now lead me inexorably to the matter of copyright. And I can think of no better jumping-off point for such a discussion than an essay by the late photographer and critic Derek Bennett, titled "A Speculation," that appeared in the elegant Belgian magazine Clichés awhile back.(1)

In the guise of a prophecy, this text was a frontal attack on what Bennett proposed was the "antiquated" concept of copyright, which he felt had ceased to serve any productive purpose (if it ever did) and now only stood in the way of progress. Ideas can't be owned, he argued, and treating them as property interferes with their free circulation. In short order, computerization and the digitization of imagery were going to undermine any practical exercise of copyright, and even the very concept of it, anyway; so we might as well have the grace to abandon it as a matter of choice before progress and/or technology stripped it from us.

My dispute with Bennett over this issue went deep. I found myself in profound disagreement not only with his conclusions but with some of his premises as well, so much so that I still feel impelled to formulate a reply. Therefore, with all due respect, let me see if I can defang and declaw Bennett's bête noire.

Everywhere in the world, people with an appetite or need for data and information -- not only such researchers as journalists or scholars but also average citizens with their professional, personal and private concerns -- struggle against forces that oppose the free flow of information. One, almost invariably, is the government; as discussed in my previous column, the other -- at least in capitalist or social-democratic countries -- is the corporate state.

Bennett saw copyright law as part of this problem, suggesting that copyright is now an archaic procedure serving only to stifle information exchange. But copyright does not prevent anyone from obtaining information; it should not be confused with a trade secret, which -- like the recipe for Coca-Cola -- can indeed be kept entirely private, forever if one so wishes.(2)

To register my copyright of something, I must deposit a copy of it in a public archive -- here in the States, it's the Library of Congress -- to which others have free access. So, if I had information that I wanted to keep secret, I'd put it under the mattress, or in a safe deposit box; the last thing I'd do is copyright it. To put it another way, short of searching through the Library of Congress's files for copyrighted but unpublished material, the only way to discover the existence of something that's been copyrighted is to come across a published version of it bearing the copyright notice -- which means, by definition, that its contents have been made available to you for scrutiny.

Copyright thus bears direct comparison to the patenting process, which -- in the U.S. -- gives inventors (or their assigns) a fourteen-year monopoly on their device, formula or other discovery. Both patents and copyrights are granted to the originators of ideas embedded in specific forms, to compensate them for their investment of time, energy and labor in generating material that did not previously exist; that compensation merely guarantees them the exclusive right to sell or license their product for a fixed period of time. Thereafter, those products fall into the public domain, and may be freely used by all. Curiously, those who (like Bennett) proclaim the death of the author rarely acknowledge this parallel; you won't find them denying the existence of inventors, or proposing the dismantling of patent law and the elimination of its protection of those who devise physical things rather than concrete forms for thoughts and emotions.

Be that as it may, copyrighting clearly doesn't prohibit people from buying books, newspapers, magazines, records and videotapes, nor from borrowing those at libraries and archives or from friends and colleagues. It does not interfere with their hearing and seeing public presentations of a wider variety of what we might broadly call ideas and information -- as embedded in music, films, plays, and talk shows offered on radio and TV, in movie houses and theaters -- than the species has ever had available to it before. Copyright law doesn't stop teachers from assigning readings to their students. It doesn't prevent anyone from handwriting or typing out a copy of any text for personal use, nor from quoting it (within certain size limits for a published quotation).

What copyright law prohibits (and not indefinitely, but for a limited time only) is the unauthorized duplication of those forms in which the information is embodied, and certain kinds of unauthorized public presentations thereof, especially when done for profit. While not very effective at stopping individuals from making single copies of things on photocopy machines, VCRs and home tape recorders, it's useful in forestalling and halting the increasingly common mass production and distribution of pirated versions.

To bolster his argument, Bennett painted a rosy but only partially accurate picture of the Middle Ages, replete with freethinking scholars cheerfully and unabashedly cannibalizing each other's work. There's some truth to that, but those times were much different from ours. Virtually all the writers of that age were subsidized -- by the church, by the state, or by private patrons. And, even then, information was certainly commodified and controlled, not only by those who did the subsidizing but by those privileged institutions and individuals who owned or supervised collections of original manuscripts, or hand-copied versions thereof. (Those of you who read Umberto Eco's The Name of the Rose,(3) or saw the movie, will remember the elaborate labyrinth in the monastery's library expressly designed to restrict access to controversial texts.) Certainly censorship was rife; those were the days in which authors as well as books were burned.

As I pointed out in my earlier column, information has been recognized as a commodity for at least the past five hundred years; printed books and their manuscript predecessors have functioned as products for longer than that. As a result of electronic technology, the physical forms in which information is embodied, and the devices through which it is disseminated, are changing with breathtaking rapidity. Clearly, as Bennett himself observed, we're in a transitional state at the moment. I agree absolutely with that, but not with his conclusion that copyright will therefore become irrelevant in the digital epoch.

From my standpoint, it's wrongheaded to propose that anyone who supports the legal concept of copyright must believe that ideas can be possessed. I certainly don't conflate the two; such an argument ignores the difference between the uninhibited circulation of ideas and the unrecompensed production of specific embodiments of those ideas. The U.S. copyright law recognizes that distinction, and does not in fact allow the copyrighting of ideas; you cannot use it to safeguard the theme of an essay, or the conceptual premise for a suite of photographs. What the copyright law protects is what the philosopher Karl Popper calls "objective knowledge," by which he means objectified knowledge: thought that has been given specific, concrete form.(4)

What this means is that Georges Braque and Pablo Picasso could not have copyrighted the premise of cubism (which, simplistically stated, is that one can apprehend and describe something by building up a collage of glimpses of it from many different vantage points); Albert Einstein could not have copyrighted the formula E=MC2, nor Edward Weston his conviction that the implacable forces of nature were revealed to the attentive eye in close scrutiny of animal, mineral and vegetable forms. But Braque's and Picasso's paintings, graphics and sculptures were protected by law from unauthorized replication, as was Einstein's essay disclosing and explaining his theory of relativity, as was Weston's "Pepper No. 30."

"To [secure] to each laborer the whole product of his labor, or as nearly as possible, is a most worthy object of any good government," said Abraham Lincoln in 1847.(5) Copyright enables me, as an independent contractor in the business of generating idiosyncratic configurations of words, to reap the fruits of my labors, providing me with an adequate if modest recompense for making the effort to transform my ideas into tangible, physical form. To inveigh against this is to suggest that writers -- and photographers, and all other makers of embodied ideas -- either must be willing to work for nothing or must find state, institutional, corporate or private patronage, for without copyright how else can their labor be subsidized?

But the protection afforded by copyright empowers me -- and makes me accountable as well -- in other ways, which I'll have to take up next month.

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Notes

(1) Derek Bennett, "Une spéculation" ("A Speculation)," Clichés 45 (April 1988), p. 3. His text appears in French only, and though I doubt that he wrote it in that language I know of no published English version of this text.

(2) As such, it would be covered by property law, and its disclosure without permission would be actionable. But, should someone else coincidentally duplicate that discovery and begin to market it, those who'd first created it would have no recourse under law.

(3) Umberto Eco, The Name of the Rose (New York: Harcourt Brace Jovanovitch, 1983).

(4) Popper, Karl, Objective Knowledge: An Evolutionary Approach (Oxford: Oxford University Press, 1972).

(5) My source for this quote is the main branch of the Amalgamated Bank of New York, on Union Square West, in whose interior it's engraved in marble. Beyond that, I cannot vouch for its accuracy.

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This essay first appeared in Camera & Darkroom Photography, Vol. 13, no. 9 (September 1991). This somewhat revised and expanded version subsequently appeared in my book The Digital Evolution: Visual Communication in the Electronic Age, Essays, Lectures and Interviews 1967-1998 (Nazraeli Press, 1998; second edition, Villa Florentine Books, 2002).