Introduction: Copyright Concerns All Academics

Introduction: Copyright Concerns All Academics

Mark A. McCutcheon, Athabasca University: mccutcheon@athabascau.ca


Abstract / Résumé

Intellectual property (IP) is a subject of concern to all academics because it is the legal-economic infrastructure of all academic work. The long-increasing, now accelerating, and multilateral strengthening of IP regulation does not necessarily serve and in many ways opposes the interests of academics, who are well positioned to intervene critically in the copyfight that embroils their work, a copyfight with implications that extend far beyond academia, from the structure of the Internet to freedom of expression.

La propriété intellectuelle (PI) est un sujet de préoccupation pour tous les universitaires car il s’agit de l’infrastructure juridique et économique de tout le travail universitaire. Le renforcement longuement accru, et maintenant accéléré et multilatéral de la réglementation sur la propriété intellectuelle ne vient pas nécessairement en aide, et bien souvent s’oppose, aux intérêts des universitaires, qui sont bien placés pour intervenir de façon critique dans le tournoi d’auteur auquel leur travail est mêlé, un tournoi d’auteur dont les implications vont bien au-delà du monde universitaire, depuis la structure d’Internet jusqu’à la liberté d’expression.

KEYWORDS / MOTS-CLÉS

Intellectual property, IP, copyright, law, technology, culture, policy, critique



Copyright concerns all academics

This release of Digital Studies / Le champ numérique introduces the first of a series of articles that investigate issues of copyright, and intellectual property (IP) regulation more broadly, according to a spectrum of disciplinary perspectives across the Humanities and social sciences: from legal studies to communication studies; from political science to porn studies.

As ever-stricter copyright tightens control over the production and distribution of knowledge—and, in the process, criminalises growing numbers of citizens and consumers for a broadening spectrum of copying activities—critical scholarship across the disciplines is urgently needed to intervene on the question of copyright: once a staple stimulus for the production of knowledge now tends more to stifle it. IP represents a foundational but under-examined condition of the production of knowledge; it is the legal-economic infrastructure of all academic work. And since the advent of consumer electronics and, more recently, since the popularisation of the digital, the regulation of IP has begun to change rapidly. Between the diversification of the Internet and the consolidation of market-fundamentalist hegemony (also known as neoliberalism), this rapid change has accelerated and become more multiform and multilateral: amidst international trade negotiations (e.g. the Anti-Counterfeiting Trade Agreement, or ACTA); copyright legislation (e.g. Canada's Bill C-11); landmark Supreme Court rulings (e.g. CCH v LSUC 2004, Crookes v Newton 2011); and debates over copyright in Canadian education (e.g. Access Copyright, fair dealing, and Open Access). The affordances of digital media have precipitated many of these changes and initiatives in IP regulation, since both IP regulation and digital networks now powerfully influence the production and distribution of knowledge. The fast-changing IP policy environment has polarised interests into a "copyfight" between copyright maximalists (e.g. corporate intermediaries that lobby for copyright term extensions, or litigate against consumers) and a "copyleft" of critical creators, scholars, activists, and organisations (e.g. alternative licensing initiatives like Creative Commons). Governments and their representatives now find themselves pressured by both sides; tending by default of neoliberal tradition to act first in the interests of corporations, and recognising in copyright policy an opportunity to exert more control over public knowledge and communication, governments have nevertheless conceded to the countering demands and protests of civil society that the rights of users of copyright-protected content warrant as much protection as the interests of corporate copyright holders—especially when some of the laws and trade efforts contemplated to address copyright (like the US' SOPA and PIPA bills of 2011) threaten to compromise digital technology or civil liberties themselves.

In this polarised and long drawn-out conflict between copyright maximalists and user advocates, where do academics stand? Although "copyright goes to the absolute heart and soul of what we do as academics," as Blayne Haggart (author of Copyfight, published in 2014) said, when opening the 2014 Congress speakers' series on Copyright and the Modern Academic, the strengthening of IP regulation does not necessarily entail the strengthening of academics' interests. Copyright maximalism in many ways opposes and compromises the interests of academics, by imposing and reinforcing barriers to the dissemination of and public mobilisation of their research findings. Several actions and cases in recent years—the "Cost of Knowledge" boycott of the publisher Elsevier, the burgeoning Open Access movement, Access Copyright's hearing at the Copyright Board and its lawsuit against York University—illustrate the ways in which the copyfight has drawn battle lines across its home ground in higher education, pitting professors against publishers (as in the Elsevier boycott), pitting students against administrations (over copying tariffs that would raise tuition fees), and pitting libraries and granting agencies against collecting societies and creators (over questions of licensing, fair dealing, and Open Access). But these actions and cases also illustrate that awareness of copyright and its implications is growing among academics, who are as a class well positioned to intervene critically in the copyfight that now embroils their work, a copyfight with implications that extend far beyond academia, from the structure of the Internet to freedom of expression.

Academic interest in copyright beyond legal studies per se has grown and diversified—not coincidentally—alongside the emergence and popularisation of digital media since the 1990s (see—for just a very few multidisciplinary examples—Bettig 1992; Rose 1993; Schumacher 1995; St Clair 2004; McCutcheon 2007; Murray and Trosow 2007). In 1998, Rosemary Coombe proposed a particularly powerful approach to interdisciplinarity in copyright studies in her book The Cultural Life of Intellectual Properties (1998), which models an approach she dubs critical cultural legal studies. As Coombe theorises it, critical cultural legal studies is not about pairing legal and cultural disciplines, but about problematising their relationship: "an exploration of the nexus of law and culture will not be fruitful unless it can transcend and transform its initial categories. A continuous mutual disruption—the undoing of one term by the other—may be a more productive figuration than the image of relationship or joinder" (1998, 9). That is, a "transformative" remix of cultural and legal studies means more than theorising how they interdisciplinarily relate, it also means thinking about how this relationship reproduces the larger social dynamic between culture that challenges law and law that regulates culture. Applying a critical theory of cultural legal studies means attending to the reinscription of its subject matter in its form.

Paul K. Saint-Amour, taking up Coombe's methodology in his 2003 study The Copywrights, remarks the closed loop of legal discourse that bears on the conceptualisation of critical cultural legal studies—and on practices of copying, appropriation, and sampling when these are enlisted in the service of critical copyright critique: "you can seldom criticize the law by breaking it and yet expect the law to forgive your infraction as criticism." And property law tightens this loop: "criticizing standards of ownership can lapse into a near-absurdity when some of the most effective critical pathways—Should this also be an em-dash? counterappropriation or parody ... are by definition already owned by someone else" (2003, 19-20). It is precisely these "most effective critical pathways"—which are as common to scholarship as they are to creative cultural production—that an array of campaigns to strengthen and maximise copyright place in considerable jeopardy—and, with them, academic freedom and broader freedoms of expression too.

This Digital Studies / Le champ numérique series, New Fronts in the Copyfight, presents a sampling of critical approaches to copyright from the areas of legal, cultural, media, communication, and literary studies, as well as political science. The series emerges from and extends the proceedings of a special panel on "the copyfight," held at the 2012 Congress in Waterloo, which I convened as a joint session for the Canadian Society for Digital Humanities (CSDH-SCHN) and the Association of Canadian College and University Teachers of English (ACCUTE). For that 2012 panel, Lisa Macklem, a graduate student in law at Western, gave a talk about the tense legal situation between Access Copyright and Canadian postsecondary education, a talk that drew the most discussion during the Q&A, given the academic audience's immediate concern about the collecting society's lobbying and litigation activities; Carolyn Guertin, author of Digital Prohibition (Guertin 2012), theorised changing discourses of creativity and authorship in digital remix culture; and Sarah Mann, now a SSHRC grant-holding MA student of geography at Brock University, discussed the complexities and ironies of copyright and authorship in digital pornography. Mann's discussion, in revised and expanded form, appears in this first installment of DSCN's Copyfight series. Dr Guertin continues to research digital storytelling and remix culture, and Lisa Macklem's doctoral research has since turned to legal issues of copyright, technology, and content delivery in the globalized digital environment. [1] These and the other articles that have arisen from those Congress proceedings provide helpful introductions to complicated issues, like the ongoing and secretive global trade negotiations of ACTA and its successor, the Trans-Pacific Partnership (TPP), that include and sometimes focus on IP regulation; they illuminate under-analysed issues, like the hot potato that pornography continues to be for academia; and they document and critique events, texts, and artefacts that deserve consideration by critical copyright studies, like the virtuoso video remix Pixel Pirate 2, a fifty-two minute film comprised of over three hundred samples from major Hollywood films.

These articles produce critical new knowledge on a subject that is simultaneously foundational to academic work and yet widely underappreciated by it. Representing a multidisciplinary range of perspectives and approaches, the New Fronts in the Copyfight series demonstrates how these diverse approaches can advance and transform the study of a subject long grounded in legal studies—where, to be fair, and to give credit where it's due, much of the most important work in terms of impacting public policy has long been and continues to be done (e.g. Geist 2010). But what this sample of multidisciplinary approaches also demonstrates is a growing concern—shared by an increasing range of scholars, professionals, artists, activists, and journalists—with intellectual property regulation and its implications for culture, technology, democracy, civil society, and social justice. As the comedian John Oliver recently said of net neutrality, for academics copyright may be "the single most important issue that is too boring to give a shit about" (2014). Taken together, these articles co-ordinate critical investigations of urgent public interest issues in digital culture, technology, and knowledge.

The series commences with articles by Sarah Mann, as mentioned above, and by Peter J. Smith, professor of political science at Athabasca University.

Smith's article, "The Rise, Fall, and Rise of ACTA," provides a global perspective and a long historical view on the relentless strengthening of intellectual property regulation at the urging of the world's predominant intellectual property-exporting state, the USA. This trend of increasing copyright "maximalism" has actually continued, more or less uninterrupted, since Britain first started extending the previously short term of copyright protection (for fourteen years after publication), via legislative bills passed in 1818 and 1842, and since the overdeveloped world started globalising the regulation and enforcement of intellectual property rights, via the Berne Convention of 1896. In Europe and the USA today, the term of copyright protection—that is, the length of time during which a given work remains protected by copyright—now stands at seventy years following the death of the author. In Canada, the term is only slightly shorter: copyright lasts until fifty years after the author's death. Seventy years after the death of the author is a term of protection long enough to amount, in effect, to perpetual copyright, and it's a term long enough to keep most of the cultural archive of the twentieth and early twenty-first centuries under a legal lockdown. Canada's term of protection may not seem that much shorter, but it can make a big difference in the composition of the public domain. For instance, all the works of Ernest Hemingway, James Joyce, and Albert Camus are now in the Canadian public domain, but they are not yet in the US public domain. This difference in the dates at which major authors come into the public domains of these proximate jurisdictions is but one of many such differences in copyright law that mean Canada constantly faces political pressures from the USA and Europe to align its IP law with theirs. Smith discusses these pressures in his detailed account of the Anti-Counterfeiting Trade Agreement, a dramatic example of how the dominant cultural industries' trade representatives have "forum-shifted" their efforts from global trade organisations to more bilateral (dare I say "peer to peer"?) negotiations with weaker or disadvantaged players. Efforts, Smith shows, that have not ended but have been renewed in the wake of ACTA's demise, in more recent "free trade" negotiations like the TTP (which, at the time of this writing, is being pressured to last-minute venue changes for its meetings, as public concern mounts over this latest attempt by corporate interests and their client states to make an end run around democracy, law, and citizens' rights and freedoms, under the increasingly implausible auspices of "free trade").

As James Boyle notes in The Public Domain, what these unflagging campaigns to maximise copyright regulation represent are bids for what he calls "a kind of perpetual corporate welfare" (2008, 8-9). The lengthening of copyright terms, strengthening of copyright enforcement, and globalisation of these heightened restrictions over culture, knowledge, and history serve ultimately to entrench and consolidate an established market advantage for a handful of globalised Big Content corporations, allowing them to collect rent on cultural properties whether or not they produce new work. Copyright maximisation gets touted as a necessary condition for innovation, for the creation of new works, but it serves anything but innovation. Ironically, one notable economic policy study suggests—against the grain of copyright maximisation—that maybe the legislators who introduced the original copyright law, the Statute of Anne in 1709—may have had a shrewder, more robust grasp on what kind of intellectual property regulation best serves the "curious economics" of cultural production (see Grant and Wood 2004). In 2007, Cambridge economics professor Rufus Pollock analysed a range of metrics to determine what length of copyright term best serves both the return on investment of published works and the creation of new works. His finding? No longer a term than fourteen years—the full extent of copyright protection afforded by the Statute of Anne.

Mann's article, "Pornographers and pirates," looks back to those early modern origins of copyright in order to analyse how they have transformed not only conventions of authorship, in the digital age, but also those of obscenity. Taking up the matter of digital copyright with reference to Internet porn, a cultural industry not widely studied in the context of copyright, Mann discusses how changes in copyright and obscenity laws have given rise to contemporary pornographers' claims to authorship and intellectual property rights in forms of cultural production that, until relatively recently, did not qualify for copyright protection because of their obscene content.

Pornography as a subject remains conspicuously under-examined in scholarly research generally, a problematic elephant in the room of academia since the "porn wars" between feminist factions in the 1980s. Some recent sociological work has studied porn consumption; Suzanne Kappeler, Andrew Ross, and Bradford Mudge, among others, have undertaken cultural theorisations and literary historicisations of pornography; and some work has even considered pornographic adaptations of cultural properties, as in Richard Burt's Unspeakable Shaxxxspeares. The subject has perhaps generated its most substantial critical attention in feminist and queer theory; Mann's argument here builds on materialist feminist and queer premises to examine digital pornography in the context of copyright history that points up some of the contradictions in the regulation of both copyright and obscenity. She also contextualises her reading of digital pornography according to the perennial, gender-coded anxieties with which established media interests have always met new media innovations, criticising and even demonising the latter as lowbrow, promiscuous, hazardous to public morality—especially that of women. Mann focuses on the emergence and business model of free "tube" porn websites to illustrate the increasing legitimacy with which porn producers now claim entitlement to a creative authorship role (i.e. the Foucauldian author function) that the historical exclusion of porn from copyright protection has previously denied. For Mann, this authorship is complicit not only with the copyright maximalism that now drives copyright change, but also with wider social structures of heteronormativity that alternate porn business models innovated by queer producers have emerged to challenge and subvert. Her study thus critically engages with intellectual property regulation to pose a bigger, more provocative question: to what extent might pornography not only be complicit with but resistant to late capitalism?

Mann's article thus provides an illustrative introductory counterpoint to Smith's: whereas Smith takes a global view of how copyright policy has changed and been strengthened, Mann focuses on a case in which the particular impacts and implications of those higher-order policy decisions are lived and experienced, not only by cultural producers but by the precarious labour on which much cultural production depends.

Using very different theories and methodologies (aside from a common point of reference in Foucault's work), both Smith's and Mann's investigations point up just how significant the stakes are in the globalised political economy of copyright regulation under neoliberal capitalism. In the relatively short two years between the Congress panel that provided the impetus for this series and this inaugural installment, the global copyright regime has seen dramatic change: the Canadian government passed its long-expected copyright "modernisation" act, Bill C-11; Canadian copyright collecting societies like Access Copyright launched unprecedentedly aggressive legal actions and lobbying efforts; the Trans-Pacific Partnership and other trade deals have arisen from ACTA's ashes (as Smith notes); Internet Service Providers have struck private deals to monitor and regulate user traffic and file-sharing; and the Canadian Supreme Court issued a "quintet" of rulings on collecting society cases in 2012—rulings that have done a great deal to restore balance in Canadian copyright by deciding in favour of users and technological neutrality, over and against copyright holders and medium-specific fees and tariffs. Canadian academics should take particular concern in the legal proceedings pursued by Access Copyright: its hearing at the Copyright Board, which is now irredeemably lopsided because all the parties representing postsecondary education have withdrawn in protest; and its lawsuit against York University, a challenge to university educational fair dealing policies with implications for such policies—and postsecondary budgets (and thus taxpayer costs)—at universities across the country. The complex, hostile, and deeply problematic situation between Access Copyright and Canadian higher education will be detailed in an upcoming installment of the New Fronts in the Copyfight series. Whether or not we Canadian academics are following the developments in these proceedings with Access Copyright, we nevertheless have a responsibility to acquaint ourselves with the recent legislative and judicially ruled changes in copyright law, and we have a corresponding obligation to exercise the expanded and robust provision of fair dealing as a statutory "user's right" that these legislative gains now afford. This right, in Section 29 of the now-amended Copyright Act, codifies the Supreme Court's ruling in the 2004 CCH v. LSUC case that fair dealing must be given large and liberal interpretation, and provides further grounds for the Supreme Court's 2012 rulings. Section 29 now reads as follows: "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright." As I wrote about fair dealing in a recent article for English Studies in Canada:

Without fair dealing, the "breathing room" it affords innovation brings us one step closer to the return of perpetual copyright and the fossilization of the public domain, which would represent a dire impoverishment of public culture and intellectual life. As critics and scholars of creative works, we have no less a responsibility than that of the courts to assert fair dealing, to quote critically and confidently, and to legitimize licensing alternatives like Open Access, in the service of a "large and liberal" research imagination and a better balance in copyright between users' and rights holders' interests. (2012, 95)

And yet, as I also note in that article (2012, 93)—and as the Access Copyright lawsuit against York University may well have the effect of exacerbating—a more uncertain, hesitant, and all-around conservative approach to fair dealing still prevails in Canadian postsecondary education. Against the grain of this hesitancy and conservatism, Coombe and a group of other Canadian copyright scholars have just published a very timely collection of essays, Dynamic Fair Dealing: Creating Canadian Culture Online (2014). The collection calls for a Canadian creative and scholarly culture of robust fair dealing practice (and will be reviewed as part of this series, in a forthcoming release of this journal). Both the obligation to exercise robust fair dealing and the uncertainty about how to do so with confidence and courage in the face of rapidly changing law and trade pressures have particular bearing on the Digital Humanities in Canada. The collaborative Editing Modernism in Canada SSHRC research project is well positioned to produce digital editions of authors who will enter the Canadian public domain twenty years before they enter the US or European public domains; however, the estates which hold copyright in major modernist authors' works have sometimes proven infamously protective and litigious, as in the estates of T.S. Eliot and James Joyce. So jurisdictional distinctions would need to be clarified and enforced in such productions—and in the digital milieu, such distinctions can prove hard indeed to both clarify and enforce.

As editor of New Fronts in the Copyfight, I am thankful to this journal for publishing this series of articles, and especially thankful for the guidance and support of editor Daniel O'Donnell and managing editor Heather Hobma, as well as the peer reviewers who generously made time to critique this series' articles. I have long argued that critical copyright studies deserve if not require a forum that is not only peer-reviewed, and digital, but available in Open Access, and Digital Studies / Le champ numérique more than satisfies all three criteria. Open digital availability is particularly fitting for criticism of copyright policy, given the need for greater public knowledge of and engagement with copyright issues, and given the particular targeting of digital media by all the current transformations of copyright regulation.

The rapid growth and popularisation of digital media since the advent of the World Wide Web in the mid-1990s have precipitated much of the contemporary copyright policy thickening, from the Sony rootkit fiasco and Napster, to trade talks like ACTA or the TPP. These persistent and varied campaigns are being waged by "Big Content" and its lobbyists to secure legislation, trade deals, and service terms that not only maximise the profits to be gleaned from copying and its uses, but also tighten the control and surveillance of content and users alike. If copyright regime change serves the financial interests of Big Content, it also serves the political interests of state governments now mostly accountable just to corporate capital. Stricter copyright regulation in the digital environment entails stricter control over information and communication technologies, control that is highly desirable to state governments in light of the political havoc wreaked by ICT-enabled subversions like Wikileaks and Anonymous. The copyfight, then, represents one dynamic and constantly shifting front in a wider information war, a war on the Internet. It's long past time to stay bored about copyright—it's high time, instead, for all academics to take a keen interest.


Notes

[1] Correction/Erratum: The first version of this introduction indicated that Macklem's discussion was in progress towards future release in this series. However, Macklem and the DSCN editorial team determined that the situation between Access Copyright and Canadian universities has changed too dramatically, even in the two short years since Congress 2012, to warrant revising a paper so much "of the moment" as hers was. The editor regrets the error.


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