Assemblage of idiots

Piracy: The Intellectual Property Wars From Gutenberg to Gates

by Adrian Johns

University of Chicago Press (Footprint Books), $64 hb, 626 pp, 9780226401188

When members of the rock band Men at Work recorded their legendary hit ‘Down Under’ in the early 1980s, they wanted to inject a stronger sense of Australianness into the song, so they included a flute riff of a few bars echoing the classic Australian children’s chorus ‘Kookaburra sits in the old gum tree’, just as one might, in a different geographical context, quote from ‘Rule Britannia’ or the ‘Battle Hymn of the Republic’ to convey a sense of a particular national identity. Little did the songwriters realise that someone owned the rights to the Kookaburra tune, such that reproducing even just a couple of seconds of it without permission could constitute an infringement of copyright.

Thirty years later, the infringement proposition was tested in the Federal Court in a case brought by the rights-holder Larrikin Music Publishing against Sony and EMI, the rock group’s record label and publishing company. The judge found in favour of the plaintiff. He held that, despite some obvious differences in tempo, harmony, and other musical characteristics, the tiny extract from Kookaburra reproduced in ‘Down Under’ represented a ‘substantial part’ of the song and that therefore an infringement had occurred.

The case raises yet again the ambiguous nature of copyright law. Does it exist to guarantee fair payment to the creators of original artistic work, or is it an impediment to the free circulation of ideas? The issue is especially difficult when, as they often do, artists derive inspiration from other artists’ work. Is such appropriation simply a respectful hommage from one creative artist to another, or is it theft? In the Kookaburra case, the songwriters’ actions could scarcely be described as stealing in the same sense as a mugging or a burglary. But in the wider world of intellectual property – covering copyrights, patents and trademarks – deliberate theft is and has always been widespread. Perhaps this is not so surprising: when someone owns something valuable, it’s likely that someone else will try to steal it.

The wilful misappropriation of intellectual property has long been labelled piracy, a term that conjures up a vision of colourful characters with eyepatches, flashing swordplay on the deck of a Spanish galleon, perhaps a parrot or two. Regrettably, the real world of copyrights and patents is far more mundane. So if you pick up Adrian Johns’s Piracy hoping to read tales of thievery on the high seas, you will be disappointed. Well, not quite. In Johns’s account of the history of this species of theft from its invention in the seventeenth century to the present day, many characters emerge to whom the description ‘swashbuckling’ might well be applied. In the first half of the eighteenth century, for example, parallels were drawn between the deeds of pirate captains in the West Indies and those of heroic literary pirates in England, Scotland, Ireland, and even the American colonies. These renegade booksellers were hijacking books and reprinting them for sale at affordable prices in a direct challenge to the tightly controlled monopoly held by the London booksellers. The London trade was based on the belief that there was a common law right in literary property that lasted in perpetuity. The pirates’ challenge rested on the argument that any such right was overridden by the Statute of Anne of 1710, which had granted a fourteen-year term for a copyright, renewable once. The matter was vigorously contested in the courts, finally reaching the House of Lords in February 1774, in an appeal brought by a Scottish pirate, Alexander Donaldson.

Their Lordships ruled in favour of the appellant, thereby affirming an interpretation of the rights in creative work that continues as the foundation stone of copyright law to the present day. In most jurisdictions around the world nowadays, copyright in a creative work exists as a statutory right of limited duration applying not to ideas but to the expression of those ideas in some form such as an artwork, a literary text or a musical composition.

The rationale for providing copyright protection for creative endeavours is straightforward. Works of literature, music or the visual arts exist in tangible form as books, records, or paintings, and as such can be bought and sold, yielding a financial return to the creator. But once these works are published, broadcast or exhibited, they can be photocopied, listened to, recorded off air or photographed without the knowledge of the artist and without payment. Copyright exists, so the argument runs, to ensure that such usages are paid for and hence to provide an incentive for artists to go on producing.

Yet there are problems. Most copyrights continue for many years after the artist’s death, providing neither reward to the creator nor incentive for further output, simply a windfall for the beneficiaries of the dead artist’s estate or, as in the Kookaburra example, to anyone fortunate enough to acquire a potentially lucrative right along the way. Moreover, many argue that those who benefit most from copyright legislation are not artists at all but the giant publishing and recording companies that produce and distribute creative product.

Overshadowing all this remains the issue of piracy, a huge industry in the contemporary world in the fields of media, pharmaceuticals, and agriculture. In copyright, the major threat has been the advent of the Internet. Artistic works which can be fixed in digital form are capable of infinite reproduction at zero cost. They can be copied and transmitted from one person to many others, regardless of location. The anti-piracy industry has tried various strategies to counter illegal downloading and copying but with only limited success. It might seem that technology – the source of the problem – could also provide the answers. But technological fixes have proved inadequate, especially since pirates are just as smart as the anti-pirates and soon find ways of circumventing the latest detection or prevention devices.

Some artists have responded to the new digital environment by advocating the abolition of copyright altogether, recognising instead the public-good nature of human knowledge and making their creative work freely available to all via the so-called ‘creative commons’. Such noble sentiments may please consumers, but they also oblige artists to look elsewhere for their remuneration.

Johns’s book is based on the premise that in order to understand present-day piracy we must comprehend its history, a story spanning four hundred years of tension between creative people, consumers wanting access to creative products, and those seeking to make money from the ownership or exchange of intellectual property. The corresponding themes – labelled as creativity, communication, and commerce – run like connecting threads through the book, tying together all the most important piracy debates, whether relating to gene patents, traditional knowledge, software, pharmaceutical drugs, books, music, or movies. The book provides a comprehensive account, but with its impenetrable prose, its haphazard organisation and the author’s inability to distinguish between important argument and inessential detail, it is a difficult read. Nevertheless, there is a wealth of factual material buried in its more than five hundred pages of text and almost seventy pages of meticulously documented notes, making it undoubtedly a major contribution to the field.

In the book’s concluding pages Johns foreshadows the end of intellectual property as we know it. Lawyers everywhere will view this prospect with alarm. But perhaps they have only themselves to blame, if Mark Twain’s view is to be believed. Writing in his notebook on 23 May 1903, he observed that God, who had managed to make man in six days, would nevertheless be unable to discern any sense in any copyright law on the planet. ‘Whenever a copyright law is to be made or altered,’ Twain wrote, ‘then the idiots assemble.’

Published in February 2011 no. 328

David Throsby

David Throsby is Professor of Economics at Macquarie University. His most recent book, The Economics of Cultural Policy, was published by Cambridge University Press.

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