Shifting Paradigms in Copyright: How Far Will Consent Matter?

Each year, 26th April is celebrated as World Intellectual Property Day. The website of the World Intellectual Property Organization (WIPO) elaborates that ‘World IP Day is an opportunity to highlight the role that IP rights, such as, patents, trademarks, industrial designs, copyright, play in encouraging innovation and creativity’. It goes on to say that a ‘balanced IP system’ rewards innovation by inventors and creators while also benefitting society.

The first two decades of the twenty-first century have been an interesting exercise in the balancing of these two objectives – rewarding individuals for innovation and ensuring benefit to society – of a desirable IP system. The globalising economy and the inexorable rise of digital technology at the end of the twentieth century called for new ways of thinking about Intellectual Property Rights (IPR). Writing in 1997, in Harvard Business Review, Lester C. Thurow identified an important new development of the global economic landscape; he wrote that ‘for more than a century … the world’s wealthiest human being has been associated with oil. Now he’s a knowledge worker’.

In light of this change, Thurow went on to call for a re-balancing of the world’s IP systems in order to improve the socio-economic environment for innovative individuals. One of the solutions he offered was to say that ‘tighter or longer-term patents or copyrights would seem to be warranted’.

Evidently, Thurow was not the only thinker to back this solution. Over the next decade the world saw a remarkable expansion of Intellectual Property laws and the institution of a World Intellectual Property Day in 2000 was part of that worldwide movement.

More than a decade later, in 2012, Keith E. Maskus noted that since the conclusion of the TRIPS agreement at the end of the 20th century, ‘…IPRs have become the major coin of the realm in trading goods and technologies across borders’ (p.xii). However, at the same time, Maskus also recorded the growth of ‘copyright piracy and trademark counterfeiting’ (p. xii) that had become endemic in digital trade.

Thinkers on IPRs were, once again, becoming cognisant of the complex interfaces between IPRs, new technologies and a variety of cultural and developmental nodes in society. Several have turned to the meditations of the Enlightenment philosopher Immanuel Kant for a richer insight into the subject, particularly as it affects the administration of copyright.

Copyright and Social Change

The term ‘intellectual property’ is wider than ‘copyright’, which encompasses the rights of the creators of literary, dramatic, artistic and musical works to economically exploit their creations exclusively for a delineated period of time. In addition to copyright, Intellectual property laws and regulations also deal with patents, trademarks and registered and unregistered design rights.

Although all elements of intellectual property have been affected by the growth of digital technologies, their impact on the administration of copyright is particularly significant. Copyright governance holds the potential to affect far-reaching social change due to the nature of its subject matter.

The quote below, often attributed on the internet to Joseph Conrad, captures succinctly the three modalities by which an astute author can revolutionise the impressions of reality that exist in their readers’ minds:

‘My task, which I am trying to achieve is, by the power of the written word, to make you hear, to make you feel – it is, before all, to make you see.’

Thought and words dictate action. When a writer is able to move a ‘whole world of readers’ (to quote Kant), by making them hear, feel or see the world in a different way, the possibility of change begins to grow.

To take an example, Helena Rosenblatt has charted the growth of the modern meaning of the term ‘liberalism’ in its political sense as it shifted, by the time of the French Revolution, from a class-based social use, applying mostly to the nobility, to a more political ‘sentiment’ that could be felt by individuals belonging to any class in society. She argues that tracing the ‘word history’ of the term alone will help us untangle how the concept has been implicated in actions to support both the bloody French Revolution as well as the prolonged opposition to communism that constituted the Cold War.

Similarly, words written by Karl Marx, when read by Vladimir Lenin and Mao Tse Tung, created revolutions in countries that Marx himself had not considered ready for revolution; both these revolutions had profound consequences for the entire world.

The administration of copyright, by impacting the dissemination of the written word, becomes deeply implicated in shaping the world around us – although the consequences may not always be as dramatic as the examples above. Immanuel Kant was a thinker who made explicit this intrinsic connection between an author’s ‘copyright’ to their writings and the circulation of ideas in society, in the context of the impact of another technology, viz. print publication.

Author’s Consent to ‘Speak’ and the Administration of Copyright

Scholars working on Kant’s essay ‘On the Wrongfulness of Unauthorized Publication of Books’, with reference to copyright, have resurrected the Kantian notion of a book as a ‘communicative act’. For Kant, a book is not merely a ‘thing’ in the sense that a painting might be a ‘thing’, but is rather the author ‘speaking’ to the public. Originating in their person, the author’s words are unique to them, hence, they are the author’s property. Rachel Maguire points out that ‘personality-based justifications’ for strong IP regimes are still more common in European countries compared to the utilitarian norms more often cited in Anglo-American policy debates. 

Anne Barron quotes from Kant’s essay to suggest that, for Kant, the unauthorised publication of an author’s work was equivalent to ‘compelling’ him/her to speak to the public ‘against his will‘; it was a violation of the author’s right to speak with their consent only. Such a violation of the author’s consent was injurious not only to the individual but to the wider society too because the author’s ‘freedom to publish‘ allows them to invite ‘the public to engage in a dialogue through new communicative acts‘. This business that the author ‘transacts’ with the reading public is the engine of the creative process in society, which brings forth new ideas and authors over and over again. Authorial ‘copyright’, therefore, has a larger ‘cultural and political aspect’.

Mirroring our debates on copyright law’s relationship with digital media, Kant was also asserting authorial rights in the context of a new technology for disseminating literary works. The printing press, introduced in Europe in the mid-fifteenth century, had not only sped up the process of getting a writer’s messages to eager audiences but also made it possible for them to lose control over their works through unauthorised printing at scale. While the author could authorise one publisher ‘exclusively’ to publish their works, and to share in the profits therefrom, the law alone could ensure that their words were not communicated to the public by publishers not authorised by them.

Consent of the Law and Shifting Paradigms of Copyright Administration

Since the very first copyright Act, passed in 1709–1710 in the U.K., the law’s consent has been a crucial determiner of the balance between the individual author’s rights and the society’s right to knowledge as a ‘common good’. The first Act deliberately shifted the balance away from the heavily monopolistic rights of authors, proposed by publishers and their sponsors, to one that allowed ample benefits for the larger society from the intellectual labour of individuals. The bill as finally passed was titled ‘An act for the encouragement of learning’, and granted the author and the publisher of a work a monopoly over reproduction and use for 14 years only.

What the Act recognised, and Kant elucidated, was that the speech act constituted by a book (or digital communications in our times) is received by other potential authors/speakers. To restrict copyright too tightly is to constrict the flow of ideas in society. A copyright system that impedes ‘the social practices and orientations conducive to intellectual/communicative autonomy‘ would have been for Kant ‘an obstacle to cultural progress’ (p. 30).

The expansion of IPR in the first decade of the twenty-first century seemed to many to have reached this state of affairs. Even within WIPO there was pushback because ‘…the system seem[ed] heavily imbalanced in favor of rights holders, who remain[ed] located overwhelmingly in a small number of advanced economies’. (p. 133) There was a general belief that the impact of stringent IPRs was giving rise to a ‘permission culture‘ that privileged rightsholders at the expense of global public goods provisions.

In the second decade of the twenty-first century, however, the law – in the Western world, at least – seems to have shifted the balance again. The 2014 changes to the copyright law in the UK, and similar movements in the EU law, have widened the ‘exceptions’ to copyright, reducing the need for express permissions in a lot of cases.

Perhaps most momentous has been the court verdict in the United States in the case of Authors Guild vs Google, Inc. in 2015. In this landmark case Google had digitised entire scholarly libraries, with the consent of the libraries, but without the consent of the authors or their publishers, for making available ‘snippet-views’ on the internet (but not allow the reading of entire books until they had been purchased). The courts decided that this use fell within the purview of the exception of ‘fair use’ and was, therefore, acceptable.

Though Google then worked with authors and publishers anyway to take its plans forward, the law seems to have consented to a shift towards prioritising a freer circulation of ideas in society above the earlier interpretation of author’s right to expressly consent to each and every re-use of their words and ideas. Whither, then, authorial consent in the days of the digitized word?

Digital Technology, Transnational Public Sphere and the Future of Authorial Consent

Even though Google was only making available ‘snippet-views’ of books in copyright, authors and publishers were concerned about entire libraries being digitized and placed in Google’s database without their permission. Siva Vaidhyanathan of New York University asserted that Google’s project ‘struck at the very heart of the copyright system‘.

Those who celebrated the ‘democratisation’ of books via Google were, however, ecstatic. The futurist K. Kelly gave voice to their visions. He suggested that once millions of books are available to billions of people worldwide (with relatively greater freedom to legally quote, transform, ‘mash up’, link and tag), ‘Books, including fiction, will become a web of names and a community of ideas.’ Once this process crosses a certain threshold, a user-generated world of ‘Books: The liquid version’ will come into existence on the internet. In this version, it was supposed, there will be ‘playlists’ of quotations, snippets, pages and paragraphs from books put together by readers all over the world, creating one giant stream of words or one universal book.

Author John Updike considered such dissolution of boundaries between books as a loss of ‘communication from one person to another – … in short, accountability and intimacy‘ and of ‘an encounter’ between two minds in which one invites the other ‘to imagine, to argue, to concur‘ – words that are reminiscent of Kant’s views of the author ‘speaking’ to the public through their books.

Since the decision in Google Books, Inc case, stronger digital rights management systems have been created and visions such as Kelly’s do not seem plausible in the imminent future. At the same time, the Open Access movement and the shifting paradigms in copyright provisions, allowing greater use of an author’s works without permission but with acknowledgement of source – unless ‘impossible for reasons of practicality‘ – are likely to aid a less predictable democratisation of the ‘marketplace of ideas’.

In this Enlightenment 2.0, in the transnational, ‘multiperspectival public sphere‘ on the digital commons, there will certainly be instances of words quoted, tagged, linked and mashed up (perfectly legally) beyond what their original authors might imagine, as their speaking to their public is mediated not only by publishers, authorised or unauthorised, but also by any of the billions of users of the internet.

Photo by Darius Bashar on Unsplash