Never Mine in the First Place

Jonathan Lethem has a fascinating essay in this month’s Harper’s. In “The Ecstasy of Influence” he unpacks the ways culture revisits, reinvents, and remixes in ways that copyright law forbids.

Thomas Jefferson, for one, considered copyright a necessary evil: he favored providing just enough incentive to create, nothing more, and thereafter allowing ideas to flow freely, as nature intended. His conception of copyright was enshrined in the Constitution, which gives Congress the authority to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This was a balancing act between creators and society as a whole; second comers might do a much better job than the originator with the original idea.

But Jefferson’s vision has not fared well, has in fact been steadily eroded by those who view the culture as a market in which everything of value should be owned by someone or other. The distinctive feature of modern American copyright law is its almost limitless bloating—its expansion in both scope and duration. With no registration requirement, every creative act in a tangible medium is now subject to copyright protection: your email to your child or your child’s finger painting, both are automatically protected. The first Congress to grant copyright gave authors an initial term of fourteen years, which could be renewed for another fourteen if the author still lived. The current term is the life of the author plus seventy years. It’s only a slight exaggeration to say that each time Mickey Mouse is about to fall into the public domain, the mouse’s copyright term is extended.

Even as the law becomes more restrictive, technology is exposing those restrictions as bizarre and arbitrary. When old laws fixed on reproduction as the compensable (or actionable) unit, it wasn’t because there was anything fundamentally invasive of an author’s rights in the making of a copy. Rather it was because copies were once easy to find and count, so they made a useful benchmark for deciding when an owner’s rights had been invaded. In the contemporary world, though, the act of “copying” is in no meaningful sense equivalent to an infringement—we make a copy every time we accept an emailed text, or send or forward one—and is impossible anymore to regulate or even describe.

Though most of the essay focuses on cultural production, there’s a section of the essay in which he speaks of the value of “rediscovering public knowledge” – an intriguing notion for tenure and promotion committees, that extending the frontiers of knowledge is perhaps not as valuable as finding connections and hidden treasures in what we’ve already accumulated. And in the end he acknowledges his sources in a most interesting way – not in footnotes, but a web of connections that he repurposed as we all do when we think about things we’ve heard and read and seen. And he describes a workable balance.

As a novelist, I’m a cork on the ocean of story, a leaf on a windy day. Pretty soon I’ll be blown away. For the moment I’m grateful to be making a living, and so must ask that for a limited time (in the Thomas Jefferson sense) you please respect my small, treasured usemonopolies. Don’t pirate my editions; do plunder my visions. The name of the game is Give All. You, reader, are welcome to my stories. They were never mine in the first place, but I gave them to you. If you have the inclination to pick them up, take them with my blessing.

These are issues we should think about. For all our professional sophistication about open access and the need to unlock scholarship, we tend to shorten Standard Five of the Information Literacy Competency Standards – on using information “ethically and legally” (as if those are the same thing) – to “don’t plagiarize.” Admittedly, librarians rarely have time in a class to delve into these issues, but we should consider broadening our institutional focus on scholarly communication to include the equally-important cultural skirmishes around copyright. After all, it is the world our students live in.

By the way, Lethem talks with Siva Vaidhyanathan and others about this “provocation” here.

About Barbara Fister

I'm an academic librarian at Gustavus Adolphus College in St. Peter, Minnesota. Like all librarians at our small, liberal arts institution I am involved in reference, collection development, and shared management of the library. My area of specialization is instruction, with research interests also in media literacy, popular literacy, publishing, and assessment.

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