Rethinking copyright: Techniques of collusion and alienation
The copyright regime in Canada and the United States is often considered a necessary legal perversion of the free–market economy for the purpose of balancing an author’s rights to profit from her expression and society’s rights to use that expression and create derivative works. Further, it is suggested that copyright is compatible with a legally minimalist jurisprudence and a neoclassical theory of capitalism. The policy implications of this view can be interpreted in a variety of ways, but typically this involves the establishment of broad and protective copyright, with little or no “fair dealings” (or “fair use”) exceptions1 (§29 Copyright Act), nor educational and special exemptions (§32 Copyright Act). Ostensibly, the neoclassical view is concerned with efficiency, and takes a hand’s off approach “once a broad, proprietary copyright has been created, [because] such a regime would leave resource allocation to private ordering, rather than prospective government policy making an ex ante judicial fiat”(Netanel, 1996, 322).
The stranglehold of this view is considerable, even “critical” writers suggest that copyright reform should come as a rebalancing of these interests. This ‘balancing’ is ultimately a product of both neoclassical theories and neoclassical rhetoric. Drawing on a separate study of theories of capitalism I will argue that the copyright regime is an integral part of capital accumulation, as a means of collusion and exclusion for furthering the machinery of power, and ultimately the commodification of power itself. The copyright regime is thus analytically indistinguishable from patents and trade secrets, however the ‘flip–side’ of the coin is strategic sabotage, which constitutes ‘business as normal’. Central to both analyses is the idea that capital accumulation is not about the production of physical things, rather, the relationship of authors2 to social knowledge and processes is what establishes the ability to accumulate capital. I will argue that the copyright regime3 creates special problems, and when viewed as a power institution can result in Marxian alienation. An institutionalist view of alienation (rather than a technological view) is developed to highlight the relationship between the author and the institution of private property (which can be capital forming). Finally, I will suggest that given the unlikeliness of capitalism disappearing, alienation can be reduced through radical copyright reform. Specifically, I suggest that a very broadly construed fair dealings exception would revitalize the user and his relationship to property, and therefore reduce alienation. Even with broadly construed fair dealings, however, the copyright regime is still a power institution bent on accumulating capital for the purpose of aggrandizing power.
1 Balancing interests: the dominant neoclassical view
Since the Statute of Anne, the historical grandfather of the Canadian Copyright Act, copyright has been aligned with the twin notions of economics and “deserving” authors (Sterk, 1996, 1198). According to the dominant neoclassical view, for authors copyright is supposed to provide incentive (usually economic) to create and disseminate works of social value, further, authors deserve recompense for their contributions to social being. The neoclassical view suggests that the economics of copyright is supposed to correct the underincentive that freeriders might create through unauthorized sharing.
Copyright provides a production function that incentivizes authors to create expressions “on a wide array of political, social, and aesthetic issues, thus bolstering the discursive foundations for democratic culture and civic association” (Netanel, 1996, 288). On the other hand, “copyright supports a sector of creative and communicative activity that is relatively free from reliance on state subsidy, elite patronage, and cultural hierarchy” (Netanel, 1996, 288). The empirical truth, however, is that authors rarely receive recompense equitable to their social contribution. Worse still, because of the right of (legal) alienability of property, authors do not tend to receive a share equitable to their productive part, instead labels, publishers, and corporations keep most of the revenue for their paltry contribution of advertising, packaging, and distribution. Because few authors receive their just deserts there is little incentive to produce any more than is culturally or personally normal, and even less reason to disseminate. Most authors are satisfied if their expressions are entertained at all, much less whether they receive monetary recompense.
Legal marginalism reinforces the principle that the purpose of copyright is “simply to facilitate an efficient allocation of resources through private ordering” (Netanel, 1996, 324). These goals are clearly neoclassical, and suggest that, save market failure, no selected groups or persons engaged in particular activities should use existing works without paying full market price. The trend in recent copyright reform (expansion and extension) substantiates this view, but the tension is not new because “copyright law’s perennial dilemma is to determine where exclusive rights should end and unrestrained public access should begin” (Netanel, 1996, 285).
Expansion and extension of copyright accords with neoclassical ideals because of “its reification of claims to market potential, its emphasis on universal, concentrated, exclusive, and exchangeable property rights, and its subordination of law to market ideals” (Netanel, 1996, 312). Further, even when market failure occurs, expressions are still vendable through fair dealings and licensing (although legal marginalism and neoclassicism directly opposes mandatory licensing). Parody is one such example of a market failure where the owner may have a non–economic motive to prohibit vending and subsequent distribution (Netanel, 1996, 327).
The compatible neoclassical view goes further than legal marginalism by suggesting that copyright does not merely induce the creation and dissemination of new expression, instead is directs investment into existing works (Netanel, 1996, 286). The neoclassicists deflate the image of a solitary author labouring over a work, and place copyrightable expression on the level with all other productive works. Thus, expressions must be socially and legally (but not monetarily) unimpeded as available for derivative work, but that derivative work is not to be favoured over any other form of production either, since socially–available resources are drawn for any production, derivative or not (Netanel, 1996, 287).
It is suggested that the balance of interests between authors and socially–necessary economics results because of “future use” as derivative works. Richard Posner argues in a strongly neoclassical vein that “speculation regarding the possible value of future uses is an integral part of a price–based system of efficient resource allocation” (Netanel, 1996, 315). Thus, all economic value ought to be subject to the rights of private property, these cluster rights typically include the right to possess the property, use the property, manage distribution, take income, accumulate capital, security of possession, incident of transmissibility ad infinitum, absence of term, liability to execution, and the residuary character of property (Honoré, 1987). Copyright functions like patent law in this respect, and rather than just incentivizing invention, it acts as a “prospect system” that “like a regime of mineral claims, enables the first comer to manage subsequent investment in developing the resource” (Netanel, 1996, 318). However, once the transfer of copyright is made, the expression is vended and should not have any further provisions for the author (including moral rights, which UK copyright law maintains).
Framing copyright as a balance of interests is clearly central to the motivations of lawmakers, and analytically robust in its numerous treatments. Like any rhetoric, however, there is always the worry that assumptions may preclude differing perspectives, or may cloud ulterior motives and ultimate purposes. Policy analyses invariable adopt this mainstream logic, and even ‘critical’ writers in the tradition argue that the purpose of copyright is to provide ‘balance’, and any reform should re–establish ‘balance’. It is suggested that “policies should be crafted to encourage innovation by carefully balancing the needs of creators, users, and rights holders” (Trosow, 2005, 378). Some of this balancing is ridiculous on its own terms, e.g., that extending copyright protection to architectural works will generate more creative architecture (a socially beneficial desire) is plainly false (Sterk, 1996, 1198). There is a formal parallel found in the equilibrium theory of neoclassical models of capital accumulation, although I have no opinion whether there is a historical or analytical connection between the two. There is a connection, however, between copyright and neoclassical theories of capitalism that needs to be told. Copyright law is analytically and historically connected to neoclassical theories of capitalism, and it will turn out, has little to do with incentivizing production or providing balance.
2 Copyright as collusion and exclusion
Copyright law establishes property relations and rights for human expressions, but neither copyright nor property are created ex nihilo in nature, as Jean Jacques Rousseau noted,
The first man who, having fenced in a piece of land, said, ‘This is mine’, and found people naive enough to believe him, that man was the true founder of civil society.(Rousseau, 1984)Instead, copyright was born in the context of property as described in the Statute of Anne. As property came to mean something different in recent years, so too did copyright, to wit,
Marginal utility theory represented a fundamental shift from the classical conception of property as the embodiment of previously committed investment and labor to an identification of property with the ability to capture future profits. Its emergence coincided with, and appears to have contributed to, early extensions of copyright’s scope. (Netanel, 1996, 311)
The analytical connection is even more surprising than the historical, for it turns out that copyright, far from providing balance, is a means of capital accumulation. Developed in my previous extension of Nitzan and Bichler’s theory of capital accumulation, I have attempted to show that strategic sabotage is a central means of limiting production to enable capital accumulation.4 The other side of the coin is the cluster of copyright, patents, and trade secrets, which are collusive and exclusionary techniques also intended to accumulate capital for the purpose of aggrandizing power.
Deriving from a crisis of analysis—that the neoclassical theory of value is unable to quantify its unit of measurement—Nitzan and Bichler (2002; 2001; 2006; 1998) reconstruct the analysis by providing a theory of capital accumulation that departs radically from the neoclassical model. The neoclassical theory of capital accumulation cannot quantify its unit of measurement (the ‘util’) because it is based on a notion of capital accumulation resulting from the productivity vested in physical capital. The emergence of a new service–based economy puts the lie to this idea, and shows that capital is not (and has never been) about material production (Nitzan, 2001, 227). Instead, capital in the new economy is measured in pecuniary units, as ‘finance’ (Nitzan & Bichler, 2002, 36). Although capital is measured in pecuniary units, this does not suggest that capital is just money; capital is defined as that which affects profit. The ability to affect profit is power. Because capital is measured in pecuniary terms, however, it is extremely vendable (Nitzan & Bichler, 1998, 83) and thus capitalism suffers from a centrifugal force that threatens to tear itself apart (due to the possibility of rampant and rapid shifting of power and distribution). Since capital is power (the ability to affect profit), it can be usurped, and when one capitalist wins another necessarily loses a share of social knowledge and control of social processes. Thus, it is not enough to merely accumulate capital (and power) absolutely. Capital must be accumulated differentially—the yardstick is the ‘normal rate of return’ that any capitalist can expect to earn (Nitzan & Bichler, 1998, 83). Beating the average can be accomplished by outproducing or undercutting, but monopolizing these processes is difficult, instead, corporations must rely on techniques of power to constrain and limit others from gaining a favourable differential rate of accumulation. Strategic sabotage is one technique,5 but using law to collude and control social processes is another. Thus, copyright is the legal means of controlling social knowledge and processes to differentially accumulate. The ultimate end of differentially accumulating is to establish the machinery that entrenches and furthers control of power over societal processes—capitalists attempt to commodify power itself.
Copyright ensures that the centrifugal force of highly vendable products is mitigated. In an age of easy digital copies, capital (that which affects profit) can easily and rapidly shift hands. This is obvious in the power that digital media pirates now command—they accumulate capital at almost no expense to themselves, and thus control a greater share of social knowledge and processes. Copyright, with its necessary legal provisions to exact penalty for infringement, limits the production (digital sharing) of these copyrighted expressions. Merely constraining production is not sufficient however, since the stock in trade is power and its processes (measured in pecuniary terms). Thus, the relationship to these processes becomes paramount—being able to collude and limit is to share in power. Copyright limits the ability of non–authors (or non–transferees) to enter into this relationship. The relationship is colluded to include only those that are legally entitled to share in the power bound with the social knowledge and processes (distribution) of the expression. This collusion, however, establishes a relationship that turns the expression into private property. This property then, is set against the author, who is alienated from the fruits of her labour.
3 Copyright as alienation
Copyright is not intended to balance rights, instead it is a means of accumulating capital to further power institutions that aggrandize and commodify power. As it stands, it may be argued that copyright law would incentivize authors to produce socially beneficial expressions because they could share in power. If it wasn’t for the common practice of selling copyright (no small problem), it could be suggested that copyright must be strengthened to erode the stranglehold of power that large corporations currently affect. This view, however, ignores the transformative effect that copyright has on the relationship the author has to his product. By creating property out of labour the author is placed in an objective and alienated relationship to his product.
There are a number of characterizations of alienation; most studies are social/psychological (Seeman, 1975, 93). The view I am espousing results from my reading of Marx in The Economic and Philosophical Manuscripts of 1844. Although such a reading could go a number of ways, I am following Touraine’s lead and arguing that alienation is an integral aspect of social class relations that contributes to the furthering of power because “dominated actors adopt…orientations and social practices by and in the interests of the dominating class” (Seeman, 1975, 92). This institutional reading derives from a view of human nature, but suggests that techniques of power (specifically capital accumulation) are necessary and sufficient for alienation.
Marx argues that human essence is labour and it is through labour that private property is reflexively associated to the self. Marx’s theory of labour can be divided into two forms: labour can be objectified and alienating, or subjectified and not alienating. Marx calls the product of alienating labour “capital”.6 What Marx found in his analysis of feudal land–owning was that land was “estranged from man” as something that “confronts him” (Marx, 1844/1964, 100). The reflexivity of confrontation ties “man to each” through which the earth becomes the “true personal property of man” (Marx, 1844/1964, 103).
When external objects are made into property they become theoretically (rather than practically) part of the labourer’s consciousness (Marx, 1844/1964, 112). This conscious relationship changes from ‘use’ to ‘have’, in the sense that you either ‘have’ something in your direct physical possession (for consumption or use) or you ‘have’ something as capital (Marx, 1844/1964, 139). Already we can see that since copyright is capital forming the relationship the author has with her expression changes from ‘use’ to ‘have’ in the latter sense of ‘something as capital’. Marx argues that having something as capital occurs when “labour or land becomes an object instead of existing as a subject that particularizes the species life of a person” (Marx, 1844/1964, 138).
The dichotomy of labour and property hangs on the relationship the author has to her product, labour is the “subjective essence of private property as exclusion of property” and capital is “objective labor as exclusion of property” (Marx, 1844/1964, 132). Private property, then, is objectively related to the author with her labour as its essence, which makes labour objective (as capital) and turned against the author. Transcendence of this relationship occurs when labour is made subjective and individualizing. Further, property should then exclude labour as something that is universal and objective.
According to Marx the worker ends up putting his life into the object, but then his life belongs to the object (Marx, 1844/1964, 103). Alienation arises because the worker becomes unified (“assimilated”) with the private property, such that the worker literally becomes property and is thus entirely alienated from labour (Marx, 1844/1964, 101). Further, private property is severely limiting for the author because private property is the perceptible expression of alienation; the object becomes part of the self, and is in a ‘direct’ relationship with the self that extends only as far as the author’s subjective capacity (Marx, 1844/1964, 140). The restriction of free labour is, in fact, more alienating than paid labour (Marx, 1844/1964, 150). Thus, freely labouring and enjoying property is the fuller realization of life.
The neoclassical rhetoric suggests all things should be owned (Netanel, 1996, 314), and thus alienation can safely be assumed as part of capitalism. It is argued that, “divided ownership is inherently inefficient because it requires coordination and negotiation to insure that each owner develops his share of the resource without interfering with or detracting from the value of the remaining attributes” (Netanel, 1996, 317). So, even under a regime of extended fair dealing exceptions the copyrighted property would still be capital accumulating, as part of generating “value” from the “remaining attributes”. However, because all authors draw on their predecessors for transformative use an extended fair dealing regime helps realign the author with the social processes he is drawing upon. Extending fair dealings for this purpose has some credence, since the Sixth Circuit Court in the US “emphasized that because all authors necessarily borrow from the work of their predecessors, fair use for transformative uses is an integral part of copyright” (Netanel, 1996, 326). If it was not for being within the rubric of a copyright regime, fair dealings does not objectify socially derived knowledge and labour. Fair dealings ensures that the author is not tied to her expression as an object, instead the labour of the expression is subjective (although perhaps not individualizing, thus creating a form of ‘crude communism’). The labour is subjective because it is made social in a way that is not fixed against its origins (the author’s sweat and labour and the social knowledge of the predecessors). The expression is only ‘used’, as a sort of ‘borrowing’ from the common–stock of knowledge, rather than being ‘had’ as capital forming and thus alienating.
I have shown that by rethinking copyright, not as a species of neoclassical economics and legal minimalism, the ultimate purpose of copyright is to collude and exclude. These techniques of power are necessary to accumulate capital which provides power over social knowledge and processes. Copyright is unique in this capital forming process, however, because it leads to Marxian alienation. It was argued that because copyright objectifies the labour of expression the author is set against her product. The relationship of author to private property is necessarily alienating, but copyright reform (while maintaining capitalism and its techniques of power) can radically expand the notion of fair dealings to reduce alienation.
1 This essay will assume a Canadian Copyright Act focus, and thus will use the terminology of “fair dealings”, but the theoretical contributions should apply to US “fair use” without any significant difficulty.
2 I will use the term ‘author’ in the figurative sense which includes all creators of expressions that are copyrightable.
3 By implication this would also include patents and trade secrets, although this would require independent study.
4 The details of the theory that underpins this essay can be found more fully expounded in a sister essay. That paper includes a critique of neoclassical economics showing why the discipline was forced to adopt an ethically sanitized theory of capital, which resulted in the legitimization of a regime of power intended to accumulate capital in the most efficient manner possible. That essay draws most principally on Nitzan and Bichler (2002); Nitzan (2001); Nitzan and Bichler (2006); Nitzan and Bichler (1998).
5 See the sister paper for an example of strategic sabotage.
6 The similarity to the definition of ‘capital’ above is no accident, however, it is well known that Marx had two very different notions of capital. Marx’s later works were written after he had read the economists, and the definition above is drawn from these writings. The definition in this section is drawn from his early ‘more philosophical’ writings. I do not find it particularly problematic to suggest that there is a continuity of thought in Marx, but aligning ‘early’ Marx with ‘late’ Marx is beyond the scope of this paper.
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