Tuesday, February 25, 2014


"Don't you know what duplicates are?" an incredulous Groucho Marx asks brother Chico in one of their better-known skits. "Sure," replies Chico, "that's a five kids up in Canada." This was of course a reference to the Dionne quintuplets born in Ontario in 1934, two of whom are still alive today. But of course we all know what duplicates are -- or do we?

Ever since the invention of writing, the making of copies has been crucial to the effectiveness and reach of the written word. The ancient Romans employed slaves to make copies; a single slave shouted out out the text to be copied, and a hundred slaves followed suit.  In the Middle Ages, monks accustomed to vows of silent contemplation couldn't take advantage of such means; for them, copies were made one at a time.

Today, thanks to the photocopier, of course, a monk can have 500 copies in a few minutes, as depicted in this famous 1970's TV commercial for Xerox. It's a miracle! But of course it was a long road that led to such dazzling achievements, a road littered with media that have since become obsolete, from the Gutenberg Press through the Hektograph, Mimeograph, and Gestetner machines, the original Xerox technology, and the laser scanner. And now, with the possibility of a document which exists, almost simultaneously, on thousands of servers around the world, or on a "cloud" system that enables its instant downloading and printing nearly anywhere on earth, we've reached the point where the difference between an "original" and a "copy" is more a matter of syntax and situation than any material reality. I've been to the London home of the Gestetner family, one wall of which is lined with a series of photographs of Gestetner duplicators being presented as a gift to each new Pope -- but our next Pope won't get one, nor will he need it. He'll probably just tweet, anyway, or distribute his encyclicals via the Vatican's vast website.

The value of a copy is in its portability, the ability one has to own it or transfer ownership in it; the ability to send it over time and distance; and its ability to preserve its contents over time, even if other copies are damaged or destroyed.  Intellectual property in written works has always been conceived of as the right to create and sell copies -- the copyright.

The very first legal recognition of the rights of an author was the "Statute of Anne" in 1709. It presented itself as "an act for the encouragement of learning," with the implicit argument that allowing authors the exclusive right to publish their work for a limited term would enable them to earn some reward for their labors, while at the same time eventually allowing their work to be used freely. As with earlier systems of intellectual property, such as "Letters Patent," the Act's term was limited -- 14 years, which could be extended for 14 more, after which the rights of the author expired; it was understood then, as it is now, that authors, like inventors, quite frequently drew from the works of those who have come before them, and that preserving such rights indefinitely would stifle creativity. One thing that has certainly changed since 1709 is the term of copyright; US copyright eventually settled on a period twice as long as the Statute of Anne (28 years, renewable for 28 more years); revisions to this law in the past three decades have extended these 56 years to 80, 100, and even as many as 120 years; the last of these, the "Sonny Bono Copyright Extension Act," went further and even re-instated copyright in works where it had become extinct, freezing the date at which works could enter the public domain at 1923. Many creative artists feel that this law has exercised a stifling effect upon creativity; many of them joined in support of a legal case, Eldred vs. Ashcroft, that challenged these extensions on the basis of the Constitution's reference to copyright law being for a "limited term." The Supreme Court eventually ruled against Eldred, saying in effect that Congress could establish any length of term they wanted, so long as it was not infinite. Could, is of course, not should.

The result has been, ironically, that in the very age when the ability of writers, artists, and musicians to draw upon, alter, and incorporate what the copyright office calls "previously existing works" is at its greatest, the legal barriers against doing so have been raised to the harshest and longest in the history of copyright protections. This is offset, to a degree, by two factors: 1) "fair use," a doctrine established in the 1977 revision of the law, whereby a certain limited amount -- say, less than 10% of the original "work" -- may be used so long as it is not employed for profit, is used in an educational context, and/or used spontaneously; and 2) simple lack of enforceability. It's quite impossible to police all the billions of web servers, web pages, and personal computers and devices, to ensure that no copyrighted material has been taken or stored; enforcement, as a result, tends to be spotty if dramatic (as in the case of a woman in the midwest who was assessed a fine of 1.5 million dollars because her son had shared 24 music files on his Napster account).

It needs to be noted that copyright also functions very differently depending on the medium in question.  Printed texts are straightforward enough, but in the case of physical media such as a sculpture or a painting, possession of the physical object confers certain property rights, including the right -- if one desires -- to restrict or prohibit "derivative" works such as photographs of these works, although the issue of non-manipulated or "slavish" copies is a murky one. Music is the most complex form: there are at least four layers of copyright in a recorded song: 1) The composition itself, and its embodiment in sheet music; 2) The performance of that composition on the recorded matter, including the act of interpretation and any variations on the composition; 3) The physical embodiment, if any, of this performance, known as "mechanical" rights; and 4) The right to transmit the performance. All of these, of course, were once separate domains: the sheet-music industry/print, the recording studio, the record company or "label," and radio stations -- but all are now merged indistinctly into a single, complex activity that can all be achieved on a single device, even a smartphone.

But the fundamental problem is that copyright consists of a right to make a "copy" -- and there's no longer a fixed, essential value in that -- not in a world in which everything is, in a sense, already copied.

1 comment:

  1. This interested me. Because duplicates exist everywhere but he real question is "who's copy is correct"? Another whole concept is plagiarizing... Who has the right to claim e copy as their own and set forth having others cite their work? Who decides these things. Is it first come first serve?