Cambridge Forum; WGBH Forum Network; Common As Air: Revolution, Art, and Ownership

The forum tonight it's moderated by George Shalonda is an essay asked and a writer with a wide range of interests. Welcome to Cambridge forum tonight discussing common as heir art revolution and ownership with Louis Hyde author MacArthur Fellow and faculty associate at the Berkman Center for Internet and Society at Harvard University. I'm George Alaba. And I'll be moderating this forum we live in an ownership society. The notion of ownership of cultural and scientific products processes and ideas is pervasive and is considered essential to fostering innovation and research. But what if ownership at least in its extreme and unregulated form is actually detrimental to creativity is incompatible with a freely accessible cultural heritage. The store of ideas and art we have inherited from the past and that is essential to fostering a healthy creative society. These are the questions that Lewis Hyde

poses as he examines the notion of the cultural Commons. Louis Hyde is a poet essayist translator and cultural critic with a special interest in the public life of the imagination. Hi is Richard L. Thomas professor of creative writing at Kenyon College where he spends half the year. The other half he spent here in Cambridge where I'm sure his heart is his 1983 book The Gift illuminated and defended the non-commercial aspects of artistic practice. He followed this in 1998 with trickster makes this world where he used a group of ancient myths to argue for the kind of disruptive intelligence all cultures need if they are to remain lively flexible and open to change. His latest book common air is the basis of our discussion tonight. Welcome to Cambridge forum Lewis Hyde.

Thank you George. The winter series of Cambridge forum has around the theme of renewing American democracy. Questions of challenges to our democracy that have come from the courts of legislatures and elsewhere. And since the rise of the Internet and also of digital copying one such challenge to democracy has emerged around the problem of the ownership of art and ideas since became so easy to copy and distribute things. People who own them have been upset and trying to control the more people who are fans of the Internet and digital copying have been trying to spread the knowledge around and have resulted in significant fights and knowing about these fights and how to think about them I think is one of the prerequisites of modern democratic citizenship. In any event this book that I have published begins with the assumption that we all have

inherited a cultural Commons and live in it and continue to create it. By this I mean that that we have access to all the intangible creations of human wit and imagination throughout history. So the Pythagorean theorem or the know how about how to make aspirin or how to fashion bifocals or the plays of Shakespeare or the novels of Mark Twain all of this belongs to all of us all of us can use it without having to ask anybody's permission. It's a it is a commons. Nobody can exclude us from it. For them what these things are common by nature that is to say these intangible creations of human imagination are for one thing. Once they've been put into the world they're hard to exclude other people from you know once you have Euclid's geometry at large in the world it would be difficult

to imagine a government system to remove it from the public domain. All of this stuff spreads in the world and is non-excludable. Secondly these intangible creations are by nature always abundant no matter how many people use them. They are not used up. So you know Shakespeare's plays are Twains novels are not diminished by having more and more readers. In fact you could say almost the opposite that the more a cultural artifact becomes used the livelier it gets the there's a kind of more the merrier piece of the cultural Commons. So these things are in their nature common and up until about 300 years ago this was I think the intuition the understanding throughout the world that cultural creations belong to the common stock of human kind. Here's a line from a medieval allegory called Piers the Plowman. William Langland He says human intelligence is like water air and fire. It cannot be

bought and sold. These four things the Father in heaven made to be shared on earth in common. Human intelligence is like water air and fire shared on earth in common. So this I have other quotes like this in the book but it's very typical of early understanding of the way that ideas and intangible creations work. When you get to the 18th century however you begin we begin to devise ways to enclose these common fields. So governments begin to give short term state sanctioned monopoly privileges to writers and inventors. After 17:10 Daniel Defoe is able to own his novels and exclude other people from them and therefore create the kind of scarcity that you have to have. If you're going to have a market I actually think this is useful. My book is not an anti-copyright book. I think it's a wonderful invention to have the short term monopoly privileges.

One thing it solves what's known as the public goods problem. If you make something that you cannot possibly make a living from you may not have much incentive to make it so. If you get the state to intervene and help you figure out how to make a living from it and incentivize creativity and so you may make things which eventually become public goods but in the short term you get to own them and make a living from them. This is useful also. The invention of these copyright and patent regimes allows them to begin to be an independent public sphere of publishers and writers and so forth who can pay their own way and don't have to rely on the aristocracy or the Church or the crown to be their patrons. To see this you have to understand first of all when printing money arose in Europe almost all governments wanted to control it seems impossible to the government to not want to control expression. So almost all early printing was controlled by the state and and printers were then sanctioned by the state so that in London for example there was the stationers club

and printers had patents that has permission to print from the crown in perpetuity. You'll be the guy who is allowed to print Thomsons the seasons or something. And so that's fine but it was a perpetual state granted monopoly and what the statute of anded which came along in 1710 and gave a short term right of ownership was that it cut off this state sanctioning perpetual monopoly business and it gave you a short term right to own your work. So Daniel Defoe got 14 years to own his novels and if he was happy enough to live beyond 14 years he got to renew it once so you had up to 28 years. But that meant that there was a cutoff date and at the end of these 28 years everything would enter the public domain. And the second way that this early copyright law created the public domain or the cultural Commons was that you had to actually ask for this privilege had to raise your hand and say I want to copyright my book pay a small fee write your name in the cover Ledger and the fact of the matter is many people don't care to own their work and so many things immediately fell into the public domain.

So you see in this what the early copyright law did was to have a kind of trade off to give you short term ownership long term public benefit. And there were many advantages to the short term ownership. Same thing with patents. The patent privilege allowing yourself to own an invention for 14 or now twenty years is a similar tradeoff. It gives you a short term incentive and private ownership right in in exchange for releasing your invention to the world and actually replaces guild secrecy that before this you have people who figure out tricks of the trade but keep them secret for centuries because they were the only way to make a living by introducing a short term patent right you begin to get people releasing their inventions to the to the to the world and therefore increasing the world stock of knowledge. So. These are ways in which this early early ways of fencing or inclosing the otherwise default cultural Commons are not

necessarily bad things. However what's happened since 17:10 is the slow expansion of a lot of this stuff and many of us feel that at this moment we're seeing a kind of an egregious enclosure of the commons that goes beyond any sensible set of boundaries in the project. This book is to interrogate this second enclosure. The first enclosure being the way people talk about the enclosure of agricultural Commons in England in the 18th and 19th centuries. A second enclosure being the current fights over the ownership of art and ideas so to interrogate that what I've done is to is to go back to the founding generation in the United States and try to think about what they were musing on when they thought about what we now call intellectual property inventions printed works and so forth. The way the book is set up the early chapters explain my sense of what a commons is at some length.

And then also explain my sense of how enclosure works around the cultural Commons at the present moment. And I can say more about that in the question period if people are curious and then what I do is to turn to the founders and particularly Franklin Adams Jefferson Madison who all had a lot of things to say about the circulation of knowledge. The main thing that you see when you read them is that they thought of these ownership privileges as first and foremost monopoly privileges. It's now common to talk about these things as property rights. I've created my novel I've written this book and I have a copy right. It's my property and I own it. And if you take it without my permission that's theft. So this is one narrative that makes a lot of sense but it's not the narrative that would have been familiar to the founders. Their narrative begins with the problem of monopoly and it begins that way because their experience had been in England in this earlier that the Crown monopolies were the way the crown dispensed favors to

the population. And therefore you know had people beholden to them and particularly in the realm of expression dispensed favors so as to control expression. So when you begin to have been Offaly powers dealt out in the realm of expression you also can begin to have different forms of tyranny of state control of the printed word. And so the founders were very cautious about these monopolies and that's one reason there is in fact in the Constitution language that allows the Congress to make patent and copyright laws. But it says that they should make them for limited times and the word limited was an important piece of this for the founders because the limit is how you sort of square the circle between the problem of the first amendment free speech business and giving people monopoly powers and the right to exclude If you do it for a short term maybe you can have both things. So that's how the founders approached it.

And as I read through a lot of different things from this the founding period in this country it seemed to me that there were three different issues that mattered to these people such that they cared to limit the realm of ownership in this area. And the first of these is they were concerned not so much with property as with Democratic self-governance. So they were trying to create for the first time in history a self-governing Republic in which people would have to think about and debate and adjudicate their own laws and elect their own representatives over and to do this. They need an educated population. And so very low barriers to the circulation of knowledge were important to them when they thought about democracy. I'm going to come back to that to unpack one idea for us tonight. The second thing so self-governance was one of the things that matters. Secondly they were interested in creative communities. The best example of this is Benjamin Franklin Franklin

when he retired from the printing business began to experiment with electricity. He was the skillful scientist and contributed large things to what is still the current theory of electricity and Franklin's sense was that if you want to have a lively scientific community where ideas circulate and people can talk to each other again you need very low barriers to the circulation of knowledge. So Franklin never took a patent on his inventions. He never took a copyright on his printed work. He embodies what was then known as a kind of civic republican ideal in which once you have a certain level of property such that you can maintain yourself and not slip into poverty then that's a base from which you can become a public actor. And that's the way Franklin thought of himself and thought of himself as a scientist as somebody who operate in the public sphere. And finally the founders were interested in sort of public or common personhood. How do you set up a social system such that people can

become public actors and can acquire what used to be called civic virtue by acting on behalf of their community. How do you become a scientist or how do you become politician. And again their sense was you need a comyns of knowledge and spaces in which ideas can circulate freely in order to engender this kind of collective being that allows people to act out publicly. So what I've what I've just said is you know the dominant narrative about intellectual property these days is that it's property. And the problem around it is that we should be careful to not let people steal it. The founders had three other narratives. One about democracy one about creative communities and one about public being. Let me unpack the first of these a tiny bit more and just say one thing about democratic practice. So some people who write about in political science now think of

we might speak of democracy as an experiment in agonistic pluralism. So to unpack this a bit there's a distinction to be made between Agno nism and antagonism antagonists fight each other and one tries to put the other down and maybe kill them agonists. This word comes out of Greek drama actually a Greek sports agonises are people who contend with each other but not to suppress not to. For one to destroy the other but to actually have an a public argument in which the problem is to let the truth emerge. And so you know in this country we famously have freedom of speech. One way to think about freedom of speech is to flip it over and say that actually what we've tried to engender is freedom of listening that what we want is situations in which we can listen to each other debate conflicting ideas and if we had such spaces where we could listen to each other debating

we would be in a realm of agonistic pluralism hearing multiple ideas clashing with each other but not in order to suppress but in order to to hear the conflict. I think the idea is also that there's a certain kind of intelligence that can emerge if you allow for agonistic pluralism it's intelligent and for freedom of Listening is an intelligence that we have in our commonality not in our privacy. It's an intelligence that you can only have by being in the situation of hearing contending voices. I think for Franklin for example in the scientific community what you want is people arguing about scientific claims and only if you have that can you become an intelligent scientist. So there's a certain Again this maybe go back to public being a public being would be somebody who is able to be the

host of contending ideas such that one could begin to sort them out. So how do you how how should we govern spaces in which we try to allow free listening and contending ideas. Or how should we keep the media in which these voices traffic. How should we keep it common. You know we often talk about Commins in a literal sense like the Cambridge common they're sometimes physical spaces or you can also talk about Common's is the content of a book like Mark Twain's Huck Finn. But there also are these sort of interstitial places between us in which we have dialogue and these also can be common spaces I call them Kerry or Commons. The commons where the voices are carried from one to another. And how do we keep the carrier Commons open such that we can talk to one another.

I've already given one answer that the Founders would have given which is to say that you should be very cautious of giving people monopoly power. To put it another way you would want to keep centralized power out of these spaces. The founders were very wary of power in general. Here's two little quotes from 18th century pamphlets talking about this kind of man in high stations increase their ambition and study to be more powerful rather than wiser or better. Power is voracious like the grave. And they can never have enough of it. The love of power is insatiable. It is whetted not cloyed by possession. So this is the image of power in the 18th century. And the problem was then how do you have governments such that people will have some sort of power and not have it turn into this voracious kind of power. And one of their answers was that you divide power against itself. You have what's called a divided sovereignty. So their

experience in England had been you finally had a unitary sovereign who at the time was thought to have what is called negative voice in England in the 16th century. The king would claim to be able to veto anything the parliament produced. And so at the end of the day there was one single locatable source of power which could trump any other claim to power. And so the founders invented a thing called divided sovereignty. People thought this was nuts that you could not how could you divide sovereignty. Well they thought you could you would have a balance of power you would divide it up amongst different centers and. So the point is if you wish to have a deliberative democracy you've tried somehow to keep anyone who has veto power over expression out of the public sphere. So let me then come back to this problem of the enclosure of the cultural Commons. So it's right to say that

giving people copyrights and so forth incentivizes creativity. I think that is right. The problem is that incentivizes a lot of other things. It incentivizes bullying and bad behaviour. You know if my monopoly gives me the right to exclude them in particular I may begin to exclude people from debates that I don't want them to have. And I'll give you a close with just two quick examples of this from recent history some years ago. The company that makes voting machines then called Diebold. Somebody inside the company leaked internal documents which showed that the voting machines didn't work very well and that they were faking their results. And so then they began to be a debate about the use of voting machines. So these documents were then put up on the web and the DBO corporation went after people saying we have the copyright on those documents you have to take them down. The particular example is the

students at Swarthmore in the fall of an election season put up a Web site to have a debate about voting with voting machines and the DBO corporation went to Swarthmore College and said we will sue you if you let this website stand up and under the what's called the DMCA the digital millennium copyright act. They got Swarthmore College to take it down. Now the fact of the matter is that in the long run we have a thing called the fair use right in this country. And if you went all the way through the courts it would become clear that students had the fair use right to post this stuff on the Web site. In fact they did go all the way through the courts took months and cost a hundred twenty five thousand dollars and the students probably won. The problem is in election season if you step in and do this you can basically silence your opponent for the period that matters. And also you've got to have a pretty big bankroll. Second quick example as some of you may know James Joyce's grandson Stephen James Joyce is apparently antagonistic

toward his own grandfather and has denied Scalia's and others the use of Joyce's work in a capricious manner and he actually in Dublin they once wanted to read Ulysses aloud on Bloomsday and he forbade them to do it. And the government of Ireland suspended copyright law for one day in order to get around that. So they suspended copyright law for a day to allow them to. There was a scholar named Carol Schloss who did a book about Joyce's daughter and the estate refused her permission to use the evidence that she needed to use for her book. And so she published the book without sufficient evidence and it was then criticised for not having sufficient evidence. So again it's an example of somebody having the monopoly privilege and using it to suppress speech. This is another case actually which years later this people got behind the scholar in question and went after the Joyces state saying that she had a fair use right to use this material. And again they won this in

court. That one cost $240000 and took several years. So it's not exactly that these privileges and monopolies allow this complete suppression of speech. They allow what I think of as cultural aphasia or Democratic aphasia that is to say you can say whatever you want just can't say it right away and you better have a bankroll behind you if you for the happy day when you finally are able to say. So this is a little slice of my book and I'd be happy to chat now with George and with you about the many things that. You're listening to Cambridge for him as we continue our discussion of common air art revolution and ownership with author Lewis Hyde professor of creative writing at Kenyon College and faculty associate at Harvard's Berkman Institute for Internet and Society. How did our cultural heritage become intellectual

property. I'll start the discussion with with a question for Lewis. One of the most attractive things in the gift and again in common is Air is your avocation of what we might call the ethos or dynamic of creativity. To simplify it down into a single phrase we might describe it as gratitude leading to generosity now this is painfully far from the everyday ethos of 21st century America today the largest and most energetic political movement in our country seems to be based on among other things of course an explicit rejection of social solidarity a belief that public policies that pretend to help others are in reality just schemes to enrich government bureaucrats or feckless poor people by taxing hardworking citizens

talk of public benefit or the common good words are essential to your philosophy of creative commerce seems to many people today to be little more than a scam. How did this happen and more important how can we begin to make generosity solidarity and public spiritedness. Live ideals once again. I don't know. When you say what comes to mind. Two minutes and 30 seconds. This is a wonderful question. How did this happen and how can we change it. I mean what comes to mind is I mentioned this phrase civic Republicanism which is the phrase some people now use to talk about a kind of 18th century ethos that you find in the Founders like Jefferson or Madison there are Franklin and dumb just to do it with Franklin briefly. I mean his statement about patenting

which you find in his autobiography he says I have enjoyed the inventions of so many people who came before me that I should give mine away for free. He actually mentions gratitude. His sense is that he lives in a chain of creative people whose past work has helped him and he should help the future. And so you know my image of Franklin as a creator is that he has the mind of a great host. It's not that he wasn't a genius he was a genius but it's the genius of a host who was able to invite the world into his own mind and make something of it freshly and then has a sense of indebtedness to what has empowered him such that what he makes is given way again. And I don't think this is entirely lost. I mean I do several things in the book. I think for example around a man named John Sulston who was one of the human genome researchers and Sulston sense of the way science works the kind of science he did is exactly the same. And he says you know science scientific problems it's like a huge termit mine turned termite mound at all of us

you know work on it. None of us can say I see the whole structure of a thing. But we we work together and the scientists who worked on the human genome got together at one point in Bermuda and made themselves a set of best practices of rules of how they were going to proceed. One of which is if any big center working on Gene genomic research in the world gets up to a certain level of data they must release it within 24 hours to the whole world. And this now goes on there is constantly updating of the human genome database because people understand that you have to share the data in order to make any progress. So that's one piece of it. The other thing I mentioned. Ralph Waldo Emerson briefly in the book because Emerson has a line in his essay self-reliance about Franklin. He says Where is the teacher who could have helped Franklin Franklin was a unique and it's a crazy line because if you read about Franklin you realize that he was in fact swimming in a sea of other men's ideas and dump but. But Emerson presents him as the self-made individualists which is the way Franklin

comes down to us. So something happens in the middle 19th century in which individualism of the kind that becomes thought of as commercial Republicanism becomes the dominant mode. And why exactly that is I really for others to say though I was interested to find as I wrote this book there's an older word to insult the word individual has an opposite. There is a word divisible which means to conceive of yourself individually is to conceive of yourself as being constituted by many different parts outside of your own skin so that I am made up of my family and my school and my church or my religion and my heritage and my ancestors and my children. That's how I exist. I am individual person I am multiple we constitute as Whereas individual imagine suddenly that you could be the son of contained thing. For some reason was very useful around 1845 to get people to imagine

themselves individually. And we'd need a longer time than we have to figure out why that is. Well before I turn to the audience for questions let me just mention an anecdote that that that your reference to the to the genome project recall to my mind I read once that James Watson the discover of DNA was being interviewed. This must have been in the 80s or 90s. He made his great discovery along with his co-worker Francis Crick in the early 1950s and and some few years after that discovery he became the director of the Cold Springs laboratory of biology in New York and which became the leading research

center for molecular biology and the interviewer asked him. Well you sort of peaked early. You made this great discovery in when you were in your early 20s and you know you haven't made any great discoveries since you've been kind of out of the swim that must must be kind of painful to you know even though you've even though you know you've midwifed you've brokered many many other great much other great work here at the cold springs Harbor Laboratory. Must be hard and the interviewer meant it sympathetically and was trying to add a certain human interest to the piece. And Watson Watson looked puzzled and said Why no. What's important to me is that good science be done. That's something of the same spirit as Franklin I think pockets of this

intelligence. Well please come let's see for the radio audience. You're listening to Louis hied discussing his book Common air. Now we'll take some questions from the audience. Please come forward. Line up at the microphone. Please limit yourself to one well-phrased question. Take as long as you need to do justice to the questions complexity but do remember that other people as many as possible would like to speak as well. Please do you think the answer to this issue is either to return to the limited terms that existed in 1790 for copyrights or alternatively to say that copyrights are nontransferable and that can only be owned by the Creator and not and not sold to anybody else. Well if we were to start over again I think I think

the terms that were originally offered are. Perfectly adequate. What happened in this country. The term has always extended for most of the 20th century the term in this country was 28 years and you could renew it once if you wanted to add a total of 56. I think that's a good term. I see no reason not to go back to it. I don't think we will but it would be useful to do it. The other piece you could do is to take out what we have now is a transactional system. You have to ask for permission and you don't necessarily have to have a transactional system to at the same time honor the problem of giving an income to the Creator. So for example in the music industry people can cover each other's songs without having to ask permission because they have what is called mechanical royalties so there's sort of compulsory licenses. Yeah there are compulsory licences which you allow so you could have what's called a liability system you could have a system where I own my work and I get income from it. But I'm not in charge as long as people play by the rules you set up some rules that makes sense.

People play by the rules. I don't get to have the veto power. So there are many ways to solve this. The other piece just to add one other. You know what people have been doing now is to say well let's just abandon this not abandon ownership entirely. But institutions like Harvard we now have open access protocols whereas where if somebody publishes a paper is immediately put up on the web for everybody to use. You don't give up your copyright and you don't have to participate in the system. But the default system is open access. And we also have things that are called Creative Commons licenses which are a form of I call them claim and release. That is your claim that I own this book. And then you say under these terms people can use it without having to bother to ask me. So there are lots of innovative ways to get around it. Yes we all know the term band in Boston you know. So throughout the United States history there were a lot there were many books that were banned. And you know I Ulysses For one I can

see it in the case of the Anarchist's Cookbook you know a famous book from the 60s which told young anarchist how to make bombs. I can understand that case but what about things like you know pornography. J.D. Salinger was Catcher in the Rye was banned in the 50s because it had. The F-word and no sexual license and all that. And then of course there's a big argument you know Andrea Dworkin has gotten into it about pornography in general that it should not be allowed because there's no person per cent interest that it doesn't do a public good put in Sweden. There's another view of you know pornography is seen as something that you know can can come you know disastrous results and negative impact. You know just what do you think about banning in general.

You know my book has nothing to say about pornography it's not about porn and offer I'm talking about the idea of banning in general you know the earliest copyright laws and the way that this is laid out in the Constitution. Ask that authors that you give these privileges for the advancement of science and science in the 18th century meant knowledge that there was supposed to be some public good being served by giving people the right to own their work. And so for a long time pornography was banned in this country because it was not clear that there was any social benefit that would allow people to own it. There's an interesting piece about Ulysses. It was banned as pornographic and therefore the copyright did not vest for a long time which is one reason Steven James Joyce is still able to bully people from using this book. Right. My own sense of this is is that actually my book on called trickster makes this world has more things to say about this because I think that what you see in these

pornography trials is moments in which a culture does try to rethink what it has put it in its own edges and in argue about whether it's worth bringing something in that used to think was excluded and that pornography trials are almost ritual dirt work in which we look at what we excluded and rethink about rethink our reasons for excluding it. And then sometimes change the rules and allow things back in. So I would see arguments over banning as being useful trickster interventions in which the cosmos itself is being interrogated. Hi. I'm currently in grad's grad school for a library science. So we we talk a lot about open access but also net neutrality. And I know that your book probably talks about net neutrality some but I was wondering if if you can talk about where you see libraries in

within that can the conversation over net neutrality and corporate control of information in and it's kind of as George mentioned I've been at the Berkman Center for Internet and Society here at Harvard for six years and I must tell you that the debates over net neutrality leave my head spinning. It is a very complicated issue and I'm not going to try to stake a claim except to say that I think one reason I talked about this business of having a veto power in the public sphere and centralized power is that from the founders position that would be the piece that should be put into the argument who is in charge of these carrier Commons who's in charge of the pipes through which information travels and in particular is there a way to keep these channels free of monopoly power and so in general I support net neutrality as a principle and I am cautious about

the great consolidations that we see for example this Comcast NBC collaboration that's just been approved. I think once you get more and more consolidated power with people having monopoly privileges more and more are asking for trouble in terms of the dialogue you want to have. As for librarians you know the one thing just to add something that wasn't in your question but is the place I think about this I mentioned fair use which is a part of our American law. There is a statute that allows you to use things without permission because your use is fair. And people have been working in several communities to try to expand our understanding of fair use and make people give people a sense that you have agency that you can do more than you thought you could with other people's material. So a wonderful document has been produced for documentary filmmakers called best practices and fair use for documentary film which sort of frees up they use questions for

filmmakers. We're just about to publish a pamphlet for poets and for people who publish poetry and criticism that is hopefully helping people understand their fair use rights and librarians should know more about this too because libraries all throughout the country pay a lot of fees to put stuff on reserve and so forth. And in many cases they don't need to pay the fee that the fair use statute would allow them to use it because there are exemptions for education. Hi. I've not studied this subject much so please excuse the innocence pure innocence of my observations in question. I think that we're all aware of the economic inequities in the world. And I think that intellectual property law might be the elephant in the living room. I recently read that Bill Gates is worth more than 40 percent of the lowest 40 percent of the American population. And I would imagine that his worth is all due to his lecturing

the legal fiction of intellectual property law and I use legal fiction in its legal term. It's a contrivance which has allowed economic inequities to explode totally out of control. And my question is do you address economic issues at all. Yeah I would see if I can find this thing about Franklin and property. So yes I agree. You know say there's another way. The founders also thought they were making a middle class nation and that if you wanted democracy you do not want wide disparities in wealth between the rich and the poor and that is the basis of things like the inheritance tax in which we say if you get fabulously wealthy you have to realize that it was the society itself that helped you get fabulously wealthy and it makes sense to tax that wealth. It's a creature of society and it belongs to the society in the long run. And

and you find this in the Founders. If I have this. Well I'll just tell you what I mean when you find one place where Franklin talks about property but basically what he says is you can distinguish between superfluous and necessary property and all of us we have necessary property. And beyond that anything that you have that superfluous finally belongs to the community and not to you it's nice if you have a perfect humanity has needs they ought to be able to tax you for it. This was this was the 18th century understanding. So yeah I think actually at the beginning of which I was thinking the other way this works is internationally that this country has been very aggressive in exporting its intellectual property laws to the rest of the world. And one effect of this is to have gummed up the works. For example in the distribution of medicines to third world countries and when third world countries try to intervene and lower the price of medicine they get called before international courts and accused of violating intellectual property laws. So

there's a whole power dynamic that goes on around this that is not just in this country but internationally as a book by a man named Dracos gold. It has the word feudalism. Can't remember the whole title. Unpacks it's a great length so. Absolutely. You know again to go back to the civic republican idea that the purpose of property in the 18th century was to give you a basis upon which to do something beyond yourself. And so it's not about the self aggrandizement or making a fortune for you and your children. Hello I was wondering if you could describe some of your intellectual evolution from the time that you wrote your. Earlier book The Gift of up through this latest volume. And

also if you had any comment on the effects of television on the common cultural Commons as to whether it enlivens or didn't about TV I think it deadens about my evolution. One thing to say you know. So my only book The Gift is about the problem of creative artists in a commercial society and it's the sort of defense as George said of the non commercial part of artistic practice. And as a result of having published that book I often get asked to speak about the problem of funding artists. How do you how do we support young people who want to become artists or even scientists or you know all these walks of life where you need some support as you mature and in the early 90s one idea that was being batted around not just by me but others was maybe one way to fund emerging artists would be to extend the term of copyright for some number of years let's

say 10 or 20 years and take the money that was earned instead of giving it back to the original rights owners have it go into a public endowment of some kind that would then be used to support emerging artists. I thought it was an interesting idea because it imagined that there is wealth created by art itself that could be captured to support art. And so some of us were batting this around and it turned out just at the same time the entertainment industry had gone to Congress and asked them to extend the term of copyright for 20 years. And what was going on was for them the copyrights on their early 1920s 1930s sound recordings and movies were about to run out and they wanted a retroactive extension so that they would not lose this stream of cash. And the Congress did it. They gave them 20 more years. So the term coverage for corporations now 95 years and with no clear public benefit it really was a power grab. It was a taking from the public domain on behalf of these industries and it ticked me off because it seemed to me if you were going to do this at all extend the term of copyright. You should do it for some public benefit and there was clear reason

ways to do that. So in a certain sense what I'm telling you is that this book is a is the fruit of my being ticked off after having written the gift and tried to think about this problem and then seeing the way things actually work in this country. So this book has a kind of practical piece to it that is not present in the gift book. And so I suppose that drew me back in and become political when I tried to escape into mythology. Thanks. I'm going to attempt to form a coherent question. I want to talk about the public domain of what we see every day. You know when we walk when we drive we see advertisements billboards and you know I guess there is a sense of ownership that well they project ideas from these places from their property and it's limited to

what they think is misfitting usually buy this or buy that. And then you have. Graffiti obviously you know breaking the law but in a sense sort of taking the right to express ideas in that domain. It's a question I should say is that a question like that. I mean yes you know we live in a sea of commercial messages. There's absolutely no denying that. And one group I quote in this book is a music collaborative called negative land that does mash ups of taking pieces of this thing and that and putting it out. And they basically can't operate if they have to ask permission for everything so they say you know we don't ask permission. It's kind of aural graffiti in the sense that they take what they what they want and put it together.

But what they basically say is it would be impossible for them to be actors in their own creative world if they had to go through the permission system. And so there's a question of agency here and at the beginning of the book One thing I offer a kind of weird old definition of property that property is a right of action. It is to say if I own something it means I have certain actions I can take in regard to it and probably not all other actions like if I own a house in Cambridge I can't turn it into a fat rendering plant or something. You know there are zoning laws that take certain actions away from me. But I have other rights of action. But but I mean just in the action part the property enables us to act. And so one special kind of action is the right to exclude but the right to exclude means that other people's actions are cut off. And so this is the kind of attention. One of the tensions in the book is built around which is if you want to have agency in a democracy or in creativity you need to be able to be the actor and therefore you need property rules that allow you to act and therefore you should be cautious of property rules that exclude you from action.

And so I'm not that fond of graffiti myself but I suppose graffiti is at some level a sign of people taking action where they're not allowed to. And certainly the line from Negativland is we are swamped by these commercial messages. And just to have our agency as citizens we need able to use them and feed them back on our own terms. How do you feel about Mickey Mouse. I'm just kidding. My question is having to do with culture objects that are born digitally. And I wondered if you had any thoughts about. Authenticity in a digital format because it's sometimes hard to determine that when things are changed over a period of time. And then also maybe the impact of the ownership of a digital object in the fact that it doesn't persist by itself like a like a book or some other material that would be a cultural a

transport for a cultural idea what that impact of whether or not I'm rambling but whether the impact of the fact that owners of digital objects need to migrate them into new platforms and software as we go along if you had any thoughts about how that would impact the cultural Commons and I think that's a question. Well just to say my own piece this. I don't know how tightly it'll relate to what you're thinking about. You know part of the problem since the 90s of the rise of the Internet and digital copying is that you know used to be and still isn't something that this book has ideas in it. And then it's a physical object. And so you have the tangible thing and you have the intangible thing and the right I have is is over my expression the way I've written this particular book but that's not the tangible part. However for me to control the commerce of that intangible part it's handy to have something as physical as this because the book has to be shipped. It has to. You have to pick it up and buy it. You can tell if somebody stole it. Same with movies used to have

to cart the reels of film around. So you had physical containers for intangible content and what you actually owned was the intangible you take away the physical container and you've lost the ability to control the flow of the commodity that you're trying to own. And so this is the problem of the digital universe. And on the one hand where people have been trying to do is trying to figure out how to make the digital world as sticky as the old physical world by wrapping things in digital rights management software in and click through licenses and so forth and so on. At the same time you know all of us feel this astounding remarkable promise in the fact of digital copying. I mean as I was writing this book there was one moment where I needed a quote from an 1845 book the only copy of which I could find was in the Bodleian Library but came immediately to my computer screen because it's been digitized and and I could do a word search on it it's astounding. So I mean again if we were to start over and try to make rules for the ownership of creative things in this

world. We'd be fools to lose the astounding fluidity that digital copying gives us and we would have really have to try to figure out some other ways you know to pay creative workers for the work they do. That's that's appropriate. But so I mean the main thing I have to say about this is it's in such turmoil that it's you can become a fool quite quickly by trying to make any prophecy about how to work with this. So I won't go on air here not read your book or follow all the intellectual arguments that you represent but I do want to ask your question because it seems to me you'd be a perfect person to answer this question. What do you think is the impact to the cultural common of the digitization of the books at Harvard University and that add to that

currently all the books of the Vatican library are being digitized for the first time so any way it can with a click of the mouse access to our Jewish theological library which previously the only way you got of course was to first of all have to be a Catholic but then you also had to on the Vatican side prove you had to show that you were interested in scholarship for a certain type. Now you can just go to the Vatican essentially allowed free access for everybody regardless of the point of view. And I want to know your view on that because it seems to me there are good things for the common that come from that. But I guess if I were a book writer and expect to have some return from the copyright maybe my family brig's needed that I might not like it much.

So so there are really two pieces of this. One is the digitization of books which are in the public domain. Basically anything before 1925 Nobody owns and if it's digitized. So let's take that as the first case. This is fabulous. It is really remarkable and it should proceed. The only two pieces of it that come to mind that are worth worrying a bit about is most of this work right now is being done by Google and Google is a private company and it will have a history of some kind and to the degree that they control the database you wonder shouldn't this in some way be governed such that it's a public database. Maybe you're some public private partnership. Who knows. But many of us who've been watching the Google Book Search settlement process are cautious around the fact that these are private entities. Second piece is you know Google went to five grade libraries Harvard was one and worked out arrangements to digitize their collections. But it's been curious to many of these were done in secret with

protocols that were not allowed to disclose the rules. When Robert Darnton showed up at Harvard to be the librarian he found that this was ongoing and that nobody you know it was you couldn't find out how how the rules had been made and so that that also stinks a little bit. It should be somehow above board. What kind of arrangements are being made and as for the books that are still under ownership. And so there's ways to work with this. And in fact the Google Book Search settlement which has been this is an arrangement that's been worked out between authors publishers and Google about how to handle this database that they've now made and the rules of the road if it is approved. Is that anything that's still under copyright would pay royalties to the owner. You would not be allowed to download my books unless except on the terms that I set. And there's a lot of complexity to this but it's not a taking away of the of the royalties stream. In fact there's a promise that it would in fact increase the Raleigh stream and it would also create a market for out of

print books. So a lot of books say you publish a novel in 1950 and only 500 people in the world care about it. There's no market for it at all. Nobody can find it or use it under the Google Book Search settlement. You could say it's for sale for 20 bucks apiece. And those 500 people could buy it and you'd get some money. So there are ways to manage the ownership privileges of still own still copyrighted books even though they've been digitized. A lot about the importance of the accessibility of knowledge to democracy. But aside from the copyright side there's also the mass media side and how do people get the information. And because of all of the concentration of the media you know even you are saying by the way that the Tea Party is the law. I assume that's what you were referring to. Mass movement aside from the fact that it was largely financed by those billionaire Koch brothers. I also think it was created a lot by

the media. Yeah so I mean one thing that the founders had no idea about was corporate power. I mean Madison has an essay on corporations but he doesn't you know you never heard of the kind of corporations that we have. And and also the consolidation of the media. So these again seemed to me to be rightly thought of in terms of monopoly powers. And I teach part of the year at Kenyon College which is a little town in the middle of Ohio. The only thing you can get there on the radio is Rush Limbaugh. There's nothing else on the radio. And so that's not agonistic pluralism you're not getting you're not getting a range of voices. And sadly you know it seems to be what's happened the last 50 years is the slow erosion of the plurality of the media. Yeah I was just curious if you were younger say just graduating from from graduating from law school and

having these sorts of views that you have now as a result of the work that that you've done and you wanted to go out into the world of intellectual property law and be an advocate for increasing the realm of the commons or at least holding the line. What kind of things you might be interested in what what what parts of IP law that you might think something could be done with and which ones you would have given up hope on. Well I've mentioned some already just to say again I'm interested in fair use and increasing people's understanding and agency around fair use. I think that Creative Commons businesses is a fabulous innovation. I think there should be. I think we should bring back a registration requirement right now. Things are copyrighted immediately and if you write a grocery list is technically copyrighted and this means that things don't enter the public domain right away. And many

people don't care to own their things so let's have a registration requirement. This business of compulsory licences would be another thing to think about. So that work still can produce an income stream but nonetheless you take the bullying aspect out of it. What else I would. Well just to jump to one thing. Connect this to an earlier statement. Some of us are interested in sort of augmenting what Google has done with a public digital library. I think that's a very useful idea. Let's let's get we seem to be in a recession. People are spending money to give people jobs. Let's have some jobs to help digitize the Library of Congress and make it a public digital library that all Americans have access to. And and and figure out the Orphan Works problems orphan works are works that are plausibly owned but you can't find the owner. So they're very hard to use. Let's clear that up. Let's figure out how to how to do a digital library that is a public benefit

not a private corporation. As I hear you talk we seem to have moved very very far away from the ideas of the founders and the scientific community may maybe the the strongest survive for their ideas. You talked a little bit about the rise of the concept of the individual and how that brought about the change in perception of ownership of intellectual property. It seems to me maybe the rise of the corporation had something to do with that as well. But could you go into this transformation a little bit more than you did in your formal remarks. The transformation of the transformation of the original concept of copyright and monopoly power to the very different notion of theft that we have today.

Well just one thing to say this was quite specifically to copyright the first copyright law in this country of 1790 and it gives you rights to own books but particularly for verbatim copies. So nobody is allowed to go out and print your book exactly as you wrote it or you know change the typeface and stuff but it meant that people were allowed to make translations and abridgements other kinds of uses of your work which would now be called derivative works were allowed and plausibly So I mean if somebody translates a novel from English and Spanish it's a lot of work why not incentivize that work why not let the Spanish author translator get some income. In fact there's a case Harriet Beecher Stowe found Uncle Tom's Cabin translated into German in the 1850s for German speaking Americans living in Philadelphia. And she went after them for copyright infringement and then went to the Supreme Court and the Supreme Court said she doesn't have standing as

long as she published that novel only her only right isn't the verbatim copy. Somebody wants to make a translation. It's now common property and can be done. She lost that case. Same thing with making abridgement but the famous case about abridgement was in the 1840s. There was a 12 volume set of vente of George Washington's papers and a guy here in Massachusetts made a two volume set for schools and he made in Bridgman to this 12 volume set and the 12 volume publisher went took him to court for copyright infringement and again under the old system this would be an allowable use. You've done something that was done for the schools have done for education. You put some work into what you've made a different thing it's not a verbatim copy. So up until about 1845 this was an allowed use. This went also to the Supreme Court and Justice Story. So we have story street here in Cambridge and there's a marble statue of justice story in law school Jim Justice Story ruled that this was an infringement

and he basically changed the rules around what copyright meant and it was the beginning of what's called fair use because he said there's an abridgement. Sometimes this is fair sometimes it's not how do we decide. And then he began to talk about market value. And so one of the things you think about when you're looking at fair use is market value. This was never before part of the argument the argument was verbatim copies. Now suddenly you're in an abstraction. It's not about the book itself it's about an abstract kind of book that could be translated into any language that bridged into any form somehow it exists but not in a tangible form and it has a market value. And so you slowly get a kind of different kind of Commerce of ideas emerging in the mid-nineteenth century. You know my feeling is this is a whole thicket of intellectual history around the Jacksonian democracy and the rise of individualism but it all begins to happen in the mid 19th century and around this stuff you can see it in the injustice stories adjudication of that case.

So I don't know if I can tell you more about causes but that comes to mind as an example. One final question Louis. For the sake of those unfortunate people in here tonight or in the radio audience who haven't read The Gift. Would you risk just briefly on my favorite phrase from that book. The gift must always move so the gift is a book about artistic practice but what happened was I was introduced to a lot of anthropology which more people study small groups tribal groups peasant communities and so forth in which you find that material property food and clothing and axes and jewelry and stuff circulates through gift giving not through purchase and sale. In fact eBay originally this was probably how all material things moved from hand to hand through gift exchange. So there's a lot of very wonderful complicated things you can say about gift giving. And one of them is that if I give

somebody a gift in our culture we think well you feel some gratitude Maybe you give me something in return. In these cultures not only do you have to receive the gift but you end up and give something away in response. But you don't have to give it back to the person who gave the thing to you. I'd say I give you something George. And then you would give something to a third party and that third party would give something to a fourth party. So the ethic is that in gift exchange the thing that's been given either the thing itself or something equivalent to it should then be passed along again. So that's that's summed up in this phrase the gift must always move. And I end up using it also in terms of artistic practice that most artists are brought to art by art itself. And so this fabulous world comes into your consciousness and helps you become the person you wanted to be as an artist a poet or a painter or a dancer or something. And then what do you do with this thing you have. Well the lesson is it must always move so you give it away again.