BY KATARINA GRAY-SHARPE
According to Heywood (2000), property is “a social institution, defined by custom, convention and, in most cases, by law” (p. 141). It is “an established and enforceable claim to an object or possession; it is a right not a ‘thing.’” Where enforced by legal apparatus, proprietary rights can be seen as both negative and positive, allowing the claimant to control behaviours associated with tangible and intangible products.
Intellectual property is an entitlement to an “intangible product” of “human mental activity” (Gordon, 2012, ¶ 5-6). The World Intellectual Property Organization ([WIPO], n.d.b) defines intellectual property broadly as “creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce” (p. 2). From this definition, two categories of intellectual property emerge: industrial property (such as trademarks) and copyright.
Copyright is an application of proprietary rights. Products covered by copyright include “(a) literary, dramatic, musical and artistic works: (b) sound recordings: (c) films: (d) communication works: (e) typographical arrangement of published editions” (Copyright Act 1994, s14). These rights include control of duplication (or copying), which the author may assign to others (for example, through Creative Commons licensing). In many languages, copyright is termed an “author’s right…. underlin[ing] the fact, recognized in most laws, that the author has certain specific rights in his creation which only he can exercise” (WIPO, n.d.a, p. 4).
Copyright is focused on authorship: “sustaining the conditions of creativity that enable an individual to craft out of thin air an Appalachian Spring, a Sun Also Rises, a Citizen Kane” (Goldstein, 1991, as cited in Boyle, 2014, p. 275). The writer was conceived in the 1700s “as one mouth among many” (Boyle, 2014, p. 273). However, in response to the Romantic “aristocratic cult of individuality”, craftsmanship was reconstructed as authorship, the source of inspiration moving from beyond to within the individual (Swart, 1962, p. 77). This immanent inspiration finds legal grounds in copyright.
Copyright maintains distinctions between the idea and its authorial expression. Ideas are conceived as being publicly-sourced from the commons, whilst expression is privately-derived from the creative mind. As an example, multiple filmmakers may use the same language, the same colours, and the same musical notes, but create independent, creative works for which they each can claim author’s rights. Thus, originality of expression is used as justification to manage the conflict between the public and private claims to property.
Copyright’s reliance on property and immanent inspiration are problematic for me. In the first instance, property as the claiming of something (belongings) conflicts with the idea of being claimed by something (belonging). I come from a family where we were claimed by the land and its people. My father’s generation will be the first to apply European inheritance customs. This sense of belongingness initiates obligation. My paid and unpaid work emphasises service to community. I still struggle with the conflicting forms of belonging/s. Although I respect the objects of others, it has taken almost 20 years for me to learn to lock the house.
In the second instance, I find extremely peculiar the idea that inspiration emanates from a singular mind. As a songwriter, image-maker, and academic, I do not believe that creativity is privately-derived. Although my creative works are crafted by me, they draw on objects and ideas external to my mind. Lacking a definitive method for attributing these sources does not mean that those sources do not exist. It simply means my work is always provisional. Although copyright alone demands enforceable behaviours, such conditionality engenders its own responsibilities.
Responsibility is related to duty, accountability, and actions of a “sensible, reasonable or morally correct fashion”, and has become central to my thinking due to engagements with the theorist Emmanuel Levinas (Heywood, 2000, p. 146). Bergo (2011) describes “the fundamental intuition of Levinas’s philosophy [as] the non-reciprocal relation of responsibility” (¶ 4). According to Levinas (1989), I am born with responsibility, unequal, and in persecution. As the source of my inspiration, I am “disturbed by the face of the Other” and must prepare myself to answer its call (Introna, 2007, p. 271).
I have found two tools that help me in my task. First, I have published in open formats. There are normative arguments, which claim user rights based on financial sources. However, I utilise open access publishing as one way of meeting my obligation to the muses’ call. Second, I utilise Creative Commons (CC) licensing for my still and moving images. CC licensing is not a remedy for the problem of property and intrinsically-sourced creativity. In fact, it relies on copyright as a foundation. However, it does allow me to be held accountable for my duties through my choice of CC license.
I utilise the Attribution-NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) license. This licence asserts three rights. First, the license claims the right to be appropriately credited (BY). In addition to being standard in the Academy, attribution allows me to be held accountable for my creative mistakes. Further, it facilitates connection with users to whom I owe duty of service. Second, the license claims the right to restrict use to non-commercial purposes (NC). By allowing free commercial use of my work, I limit the ability of others for whom provision provides an income. Third, the license claims the right to control distribution of modified versions (ND). I cannot act effectively to rectify the mistakes of others online. More importantly, I must be answerable for and to the creative vision that is external to me. The CC BY-NC-ND 4.0 license helps me to achieve that goal.
Bergo, B. (2014). Emmanuel Levinas. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (Fall ed.). Retrieved from http://plato.stanford.edu/entries/levinas/
Boyle, J. (2014). Copyright and the invention of authorship. In J. Boyle & J. Jenkins (Eds.), Intellectual property: Law & the information society – Cases & materials (pp 271-276). Retrieved from http://web.law.duke.edu/cspd/pdf/IPCasebook2014.pdf
Copyright Act, No. 143. (1994). Retrieved from http://www.legislation.govt.nz/act/public/1994/0143/latest/whole.html?search=ts_act_copyright+act#DLM345634
Creative Commons. (n.d.). About. Retrieved from http://creativecommons.org/about
Elkin-Koren, N. (2005). What contracts cannot do: the limits of private ordering in facilitating a creative commons. Fordham Law Review, 74(2), 375-422.
Gordon, W. J. (2012). Intellectual property. In M. Tushnet & P. Cane (Eds.), The Oxford handbook of legal studies. doi: 10.1093/oxfordhb/9780199248179.013.0028
Heywood, A. (2000). Key concepts in politics. Basingstoke, UK: Palgrave Macmillan.
Introna, L. D. (2007). Singular justice and software piracy. Business Ethics: A European Review, 16(3), 264-277. Retrieved from https://www.researchgate.net/publication/227603123_Singular_justice_and_software_piracy?ev=prf_pub
Levinas. E. (1989). The Levinas reader (S. Hand, ed.). Oxford, UK: Basil Blackwell.
Swart, K. W. (1962). “Individualism” in the mid-nineteenth century (1826-1860). Journal of the History of Ideas, 23(1), 7-90. Retrieved from http://www.jstor.org/stagble/2708058
Volger, H. (2010). WIPO – World Intellectual Property Organization. A concise encyclopedia of the United Nations (2nd ed., pp. 865-868). Leiden, The Netherlands: Martinus Nijhoff.
World Intellectual Property Organization. (n.d.a). Understanding copyright and related rights. Retrieved from http://www.wipo.int/about-ip/en/
World Intellectual Property Organization. (n.d.b). What is intellectual property? Retrieved from http://www.wipo.int/about-ip/en/
Katarina Gray-Sharp is sometimes an academic, always a patternfinder, and can be found on Twitter @teachingconsult.