Thursday, February 14, 2008

Intellectual Property Rights

It was brought to my attention the other night, that my theory requires me to prove that creatives are adopting a new form of property relations, and that the legal system that enforces existing property relations is a fetter on this new, otherwise more efficient system. Same way that property laws (the divine right of kings) worked in the feudal-to-capitalist transition.


This led to a debate that allowed me to more clearly state my views of intellectual property rights, and how they relate to my theory. I think that there is something going on that (with research) can satisfy this requirement. First I'll demonstrate that intellectual property is nothing more than a legal construct. Second, that this construct serves the capitalist mode of production. Third, that intellectual property law has become a fetter on production, that it's inefficient or unnecessary. Forth, I have to show that my class of revolutionaries (the creative class) have begun to develop radical new property relations to replace it.


First claim, which seems self evident, is that intellectual property is an arbitrary construction of government, not a naturally existing condition. Copyright and patents have no existence outside of the law. This makes it equivalent to the divine right of kings, a property system that is enforced by governmental control with various problematic justifications. 


Second claim is that copyright law serves to reinforce or enable the capitalist mode of production in the realm of creative products. Art has always had a tension between individual authorship and undercutting. Plagiarism, borrowing, forgeries have always been a problem, but before capitalism and the printing press, the problem was less prevalent and harder to fight against. In a pre-Gutenberg world, copyright law was mostly unnecessary because without mechanical reproduction copying a work of art was too labor-intensive to be very profitable. Painters and sculptors created unique individual pieces, the forgery of which required skills and time commitment that approximated (or more nearly approximated) the creation of the original. Limited transportation and communication meant that theatre troupes didn't interact with each other very often or directly compete. This allowed playwrights and theatre troupes to rip each other off endlessly without suffering from the competition. In addition, fighting against forgery and plagiarism was much harder with limited technology and decentralized feuding political systems. These are the reasons people never thought something like intellectual property law was necessary.

With mechanical reproduction it became possible to duplicate works or texts for works on a much larger and cheaper scale. New mediums (photography and film) are mechanical already and can be reproduced with little or no loss of quality. Even more importantly, capitalism's rise unlocked efficiencies in commodity exchange over patronage, in order for art to benefit from these efficiencies it needed to be commodified.


This presents the problem of making the production of something which is valuable not for it's physical presence, but for it's aesthetic quality profitable. If I write a poem and want to print and mass produce this poem, I have to compete with my neighbor, who happens to own a printing press, and as soon as my first edition goes out he can run a second edition and sell it for half the price. The labor of printing copies is rewarded, but the labor of the initial writing is not. Capitalism solved this by making the content of the poem into private property and protecting it through legal frameworks. This way I can be paid for my poem because no one but me is allowed to sell it. This is good, because now I have more time to write poetry rather than scrape to survive.


At this point, I've shown that intellectual property is a legal construction and that it codifies a unique form of property relations within the sector of the economy that my theory focuses on as a potentially revolutionary sector (that is, arts and entertainment) the third thing I need to show is how intellectual property law has become a fetter on production within that sector.


Going back to the theoretical poem I wrote: thanks to intellectual property law, I can now make money writing my poems and publishing them myself. This is good, but pretty soon I'm spending all my time publishing my poem and buying a printing press, and paper and ink, when I could be writing other poems. I need to sell my poem to someone else who has the means to mass produce and distribute it. I sell my poem to a publisher, who claims ownership of the rights, mass produces it and sells it for more than it cost him to buy and produce. The publisher has turned my labor into his profit. My poem is now another commodity and I'm another exploited worker, alienated from the product of my labor. I discover that intellectual property rights are a double-edged sword. The means by which the government makes ideas and ephemerals into commodities for capitalist exchange serves to protect artists from anti-capitalist actors (pirates, plagarists) but it also creates dependency on the capitalist apparatus, which is ultimately exploitative.


That's very fine in theory, but what does that mean in the real world?


Many artists thrive in that dependency, they're happy and even though they're being exploited, their pay is high enough that they don't mind. There are other artists though, who get trapped in the bad side of dependency. Examples of rather perverse effects of intellectual property rights, for artists and as well as other industries are very common. Some musicians' careers have been stalled, or completely blocked because their label signs them on and then decides it doesn't want to produce their album, but keeps them under the contract to prevent anyone else from producing their work.  See the Tucker automobile or the electric car for a similar problem occurring in automobile design. There are also various similar pharmaceutical examples, indeed it seems to be more profitable for drug companies to invent new ailments and re-brand existing drugs (with new patents) than to develop drugs that cure serious diseases. Those are extreme examples, but the common experience with selling out is that artists feel tension between their aesthetic desires and what their capitalist owners want. Artistic integrity is compromised to produce something that will sell.


This is not a moral outrage, I'm not trying to say that evil corporations are preying on weak artists, or that greedy artists are selling out. It's just the way things work. People are trying to make a buck and sometimes it doesn't work out. That's fine.


But, it's even more fine that the artists who get burned by capitalism are developing alternatives. They change their names into silly symbols and sell themselves as "the artist formerly known as Prince". They (Negativeland for example) blatantly violate copyright law to expose the absurdity of the system. They self-release their records. They opt for indie labels that exercise less control and take less overhead. They decide to release their record on the internet for voluntary payment  (Radiohead being only the biggest group to do so recently). This final example is especially revelatory because it is made possible by new technology.


Change caused by new technology is perfectly consistent with my theory. Remember, capitalism's development was based on new technologies. In the specific case of arts and entertainment, it was mechanical reproduction that allowed capitalism to form new products and exchange relationships and ultimately to replace the patronage system.


Indeed, this new technology requires a new mode of production. Now we are faced with virtual reproduction, under which some products can be reproduced endlessly with no quality loss and through relatively common mechanisms. As technology increases, governments and businesses are finding it harder and harder to enforce intellectual property laws, especially in the arts and entertainment sector. This new technology works in two ways at once, it destroys the existing property relationship, by making the enforcement of intellectual property laws increasingly expensive, and it reduces the necessity for commodification in the first place. It takes a few minutes and relatively common technology to upload my poem, I don't need to sell it to someone else who'll do that for me, and I can still spend most of my day writing without compromising to my publisher's demands. Of course, it's also that much harder to actually get paid, or to protect against pirates.


This is not a moral outrage either, pirates aren't terrible people, they're just looking to get something for nothing, which is made possible by new technology, so it's going to happen, naturally.


It seems natural to me that artists will either starve or develop a new system. With the rapid growth of the arts and entertainment sectors of the economy, starvation seems unlikley. Artists are very creative people who've come up with many innovative ways of getting paid for their work. The medium of music continues to provide good examples of this. There are bands that are self-producing albums based on a pay-for-it-before it's recorded basis (see Einsturzende Neubauten) there are various appeals for consumers to change their habits, buy directly from the artists, or from locally owned record stores. There are more and more bands who are self-producing and the status an audiphile gets from having the rare limited run, hand-printed CD's is becoming part of the appeal of the product. But, most importantly, there is a shift going on. All these tactics will only work if the band is already popular, and in demand. Consumers will only pay for that which is of a known quality in hopes that more will be produced.


How can a band acquire this status if their music can be stolen and reproduced endlessly with someone else taking the credit?


By touring. The shift that is going on is a shift to live performances. This reunites the artist with the audience in a direct way, and it solves the problem of piracy (plagiarism is much harder when the pirates have to actually get on stage and play the music) and it creates a radically different product and property relation. If this shift is happening, then my theory is supported, artists are developing a new form of property relations (or emphasising and benefiting from an existing form) which overcomes the problems of commodification and intellectual property law.


So, is it happening?


First, to get a better understanding of that shift, lets look at how the arts and entertainment world was just recently, how it has become today, and how we can predict it will be tomorrow. Again, the music industry seems to be the best example for my purposes, because it spans the gap between recorded material and live performance and because it's popular enough that you all have some common knowledge of how it works (and I won't have to do extensive research and bore you with esoteric examples, at least not at this point).


In the recent past the music industry was dominated by a few large corporations who each had a roster of bands and musicians who they signed to deals. The corporations would record the artist's music, distribute it to radio stations, mass produce and distribute CDs of it, book giant tours. Nowadays the five largest of these corporations are losing money, while various indie labels thrive. Indeed the major labels have created fake indie labels to try and get back some of the profit they're losing to upstarts. That's not good enough. It might be good enough for film, which has a much higher overhead cost than music, but even independent labels can't compete with completely independent artists. Punk rockers can book tours over the internet from their bedrooms and expand their contacts by hosting touring bands in their basements. They can record their own music, burn it to CD's or just post it and let people download it freely. This is a completely decentralized network, people are discovering and exchanging new music in their email and myspace rather than hearing it channeled through the radio.


That's the situation today, the record industry is dying. What's going to happen tomorrow? As the internet becomes more and more democratized it's also becoming more mediocratized. The comfort of staying home and watching pirated movies or listening to ripped CD's is declining relative to the appeal of going out and witnessing a live performance of a band. This is going to increase as time goes on. As it gets harder to make money by recording music, fewer artists are going to do it. The artists who focus on touring will be more economically stable and will be able to produce more and better work.
These trends are not just speculation on my part. Marketers are talking about "the experience economy" and how that effects packaging, branding and product choice. But experiences, by their nature cannot be commodified or increased to the kind of economy of scale that makes things profitable in a high-overhead capitalist distribution system. There are exceptions to this. Advertising departments can work some magic and make things like online gaming or watching a sporting event on television seem like a real experience to people, a real experience that is linked to all kinds of commodity exchange. I think those exceptions are fads and last ditch efforts to hold on to commodity production, and they will fade.


Within the next generation we'll see a rapid rejection of the current trend for home entertainment in favor of real experiences. Television is doomed. The film industry will shrink significantly. YouTube, MySpace, and all other digital content exchanged on the internet, indeed recorded music itself, will become nothing but a low quality sample or document of the real thing. The real thing will be the concert or play that's happening down the street or on the other side of town.


Film makers beware. The home entertainment boom will burst and when tomorrow's consumers demand live performances, the bottom is going to fall out on your artistic medium. This isn't a cocky provocation from a theatre producer, it's not a moral outrage, it's just a fact. It's also exactly the same thing that mechanical reproduction allowed your medium to do to painting and sculpture. Different economic systems treat art mediums differently. Patronage benefited visual arts. Commodification benefited film and recorded music. The as yet unnamed post-capitalist property relation will benefit live performance.


Joe Pine said...

Experiences can be commodified -- indeed, they are the fourth level of economic value after commodities ("stuff"), goods ("things"), and services ("activities"). They are a distinct economic offering, and become commodified whenever someone charges for *time* via an admission fee, entrance fee, membership fee, etc.

That's why my partner Jim Gilmore and I believe that the government should create and recognize "EMs" -- experience marks, going beyond service marks for services and trademarks for goods.

R. Winsome said...

your definition of commodity is so broad as to be meaningless in the context of something being "commodified" if saying "i saw a play last night" is synonymous with "i commodified a play last night" then there is no need for the word "commodification".

Commodification occurs when something is exchanged from person A to person B, if B then has the ability to exchange the same thing to person C, (preferably after a mark-up). Experiences cannot be exchanged in this way. Time and money can only be exchanged for a distinct experience once, because a distinct experience only happens once. Person A can perform a play for person B, person B can retell the story of the play, even memorize it and re mount the production, but person B cannot take his experience of the play person A performed and give it to person C, without traveling through time, having an out of body experience, transplanting his memories, or some other science fiction.

If you are going to consider person B retelling the story of person A's play, or remounting a production of it "commodification" and codify that through new "EM" intellectual property right laws, you are creating a whole new class of government regulation, i don't even want to imagine what enforcing that would involve. I mean, what are you talking about?

Patenting an arabesque? Will your "experience mark" say "this gesture belongs to Zero Mostel, and anyone who raises his hands above his head and shuffles his fingers while singing in Fiddler on the Roof owes him a royalty?"

Chad Van Schoelandt said...

"It was brought to my attention the other night, that..."

I see your dislike of intellectual property also involves a dislike of attributing credit to other thinkers.

R. Winsome said...

Actually, the main reason i didn't credit you was because i didn't want to put words in your mouth, or publicly broadcast the fact that you, a high-falutin philosophy grad student would condescend to speak with uneducated sludge like myself at all without first getting your consent.

At the same time, you are also correct, teh reason i didn't think to ask your consent before posting is that I dislike the idea of crediting people for casual conversations in the public sphere while writing informally on my blog. I think excessive attribution of opinions and ideas to individual personalities tends toward an emphasis on the status of thinkers, rather than on openess of rational debate. Indeed, it has been brought to my attention that a disregard for such status is a primary element of a viable "public sphere" type interaction.

I'll conceed though, and attribute this conception of the public sphere to Jurgen Habermas, cuz, y'know, contradicting myself is amusing.