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The Oxymoron of Intellectual Property
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„Nowadays”, complained Mr. K., „there are many who boast before the public that they can write large books completely on their own, and generally the public believes what they say. The Chinese philosopher, Chuang Tsi, wrote a book while still in his youth that was composed of one hundred thousand words, but nine-tenths of that was quotations. Today one cannot write such books because the spirit required is lacking. Consequently, everyone assembles their thoughts in their own workshop, and those who cannot create enough thoughts are considered lazy. Naturally, in this way, there are not enough thoughts to be adopted, and there is no formulation of a thought that could be quoted. What little these writers need! A penholder and a small bit of paper – and that is all! They build their shacks with no help whatsoever, simply from that miserly material that two hands can gather! They are not aware of any edifice greater than what a single man can build!”
…in this manner, intellectual work is first and foremost a collective process; one would be hard-pressed to claim that anyone could have initiatives that are completely original, in view of the fact that thought is built upon previous thoughts, embracing others, be it reflexively or without reflection. To consider intellectual yield as an object of ownership or possession is a type of appropriation that works against creativity, and nowadays – when market interests appear behind the name of the author – a type of hypocrisy too, since these cases – in significant proportion – are not for the sake of the battle driven for the author, but rather produce an effect against the intellectual enrichment of community, of culture.
No sooner than the new communicational technologies, with the Internet on their heels, give increasing space to the free exchange of thought (and files), legal protection of copyright and patent law becomes increasingly extensive, enforced and aggressive. Few and far between are the lucky ones who are capable of following and comprehending the privatisation process along the various interests of information. But we should not despair: in the face of market expansion, alternative intellectual and economic models are tenable, which have arisen in part from the rethinking of copyright function, and on the other hand, from its deconstruction.
It is staggering how day in day out catchwords sound that would deign to address a sense of justice in the users educated by regulations – on why the misuse of intellectual property is deeply immoral and destructive, its use without permission – and first and foremost, without payment – plagiarisation, piracy – or what have you. It is well-known in just how many ways art history can treat the copy, the citation, the paraphrase, appropriation, and the transcription and extension, taking the perspectives of intertextuality into account, without considering the criminal cases perpetrated in the deconstruction of the myth of originality. It is as if all of this were not an implicitly fertile ground – including likewise scientific research – acknowledging the omnipotence of the copyright. However, copying and adoption to varying degrees in the digital age are integral elements of the birth of new ideas and methods, and attack against the “author”, defrauding or profiteering do not even come up. Nevertheless, on the rhetorical axis of questions of copyright, the author stands like the solitary figure inherited from the Romantics; the recognition of his/her work and livelihood and the recreation of the myth, however, are in large part merely the portion of the drama that the third party, bound to economic interests – the intermediary – arranges in the interest of social legitimisation.
The moral tale of open source code and freeware is now practically a classic: the history of operating systems with a real lesson to be learned. Freedom primarily relates to the freedom of the user, along with all its resulting consequences, presumed or real. In any case, so long as the distributors of registered software endeavour to maintain exclusivity of material access to the programs for themselves, and they specify the conditions of use, freeware will guarantee the possibility to the user of free application, modification, development and even re-distribution, with the sole, fundamental condition that s/he will not hinder or limit its further free use in any way. The release of source code in practice demonstrates that this software, supported by common work postulated upon others within a decentralised community, in the absence of authoritarian decisions, develops more dynamically, more securely and more cost-efficiently than those provided with closed-source, and moreover, do not force the user into a condition of dependence. The publication of source code does not necessarily imply free software. The two movements, while they correspond in many aspects, nevertheless differ in part in their motivations. Taking the responsibility for simplification, we might say that while the commitments of open source code are on the technological and methodological side of programming, with an approach through the freedom granted to the user by the free software activists, one often arrives at similar solutions. And if this would be the end of the story of open code and the autonomously organising groups following in its footsteps, we could contentedly acknowledge that this once the big fish didn’t eat the small fish after all. This time, things, of course, are more complicated, e.g., by the fact that the source code that starts out as open does not always remain so. Where the licensing allows for this, it successively happens that the more fully developed version of the originally public source code software, e.g., upon becoming a part of a greater system, is no longer as communicative with regard to its own source code, and sooner or later is neatly built into the building blocks of the market.
Copyleft was born to keep a distance from this [2]. It has formulated itself as the reverse of copyright; it makes it clear that it exists in opposition to this, yet in comparison with it, and thus it occupies a defensive position in face of it. In the case of software, copyleft stipulates that subsequent programs developed with the use of the source code must continue to preserve their original legal status and may not apply restrictions in connection with their use and redistribution. Copyleft, then, is tactical rather than radical, but it works, and even departing from the world of software, it generates an expoundable model.
On the battleground ranging from total control to complete freedom, alongside many others – the initiative of Creative Commons is a friend of compromise solutions, aspiring not to eliminate questions of copyright, but in aiding the growth public ownership, to innovate. For the recognition of the right of free access, the question of distribution of intellectual output is returned to its creators – and here, it is not only about software, but literary, musical, photographic, science, etc. works. This is why a layered and clear-cut, transparent users’ contract- structure has been worked out, within which everyone can decide for themselves how much of the copyright they would like to retain, and how much to forego [3]. If we find a CC mark alongside published material instead of the well-known © (well, well, this little symbol has infiltrated the “special symbols” section of text-editing programs just as naturally as punctuation marks), from this we know with lightning speed the possibilities in connection with borrowing, without any agreement necessary on the part of the author and the mediators. And what can be known beforehand in a reassuring way is that the motivation for publication is the sharing of knowledge and the commitment to work.
It will be an increasingly rare question of individual decision as to the extent to which anyone acknowledges the presence of copyright, that slowly infiltrates every creative work; but the critical thought that demands the return of this right presumes that freedom, by which we consider intellectual output not along the path marked with limitations, but above all not isolated from other sociological questions.
(Translated by: Adèle Eisenstein)
I owe my thanks to Andrea Szekeres, Nóra Somlyódy, Gáspár Benedek for their kind assistance provided in the translation and interpretation of the texts published in this column.
open source / open content licenses:
http://www.opensource.org/licenses/index.html
http://www.gnu.org/philosophy/license-list.html
http://www.opencontent.org/opl.shtml
http://artlibre.org/licence.php/lalgb.html
http://creativecommons.org/
Negativland: Intellectual Property Issues
http://www.negativland.com/news/?page_id=9
The people vs. copyright – related texts on openDemocrarcy’s pages
http://pandonia.canberra.edu.au/opendoc/paper.html
Richard Stallman: Let’s Share!
http://www.opendemocracy.net/debates/article.jsp
Jan Newmarch: Open Content Licenses
http://pandonia.canberra.edu.au/opendoc/paper.html
Donald K. Rosenberg: Evaluation of Public Software Licenses
http://stromian.com/Public_Licenses.html
1 “Originality”. In: Bertolt Brecht: Suhrkamp Taschenbücher, Nr.16: Geschichten vom Herrn Keuner, aus Das Buch der 1000 Bücher, Harenberg Verlag, 1949.
2 GNU GPL (General Public Licence) is one of the most well-known such contracts for users, which allows for copying, forwarding and modifying, if the documentation of the source code (also the modified version) and changes accompany all this.
3 That is, everyone can decide if they allow its use only for non-profit purposes, or also for profit-oriented use.