|Collaborative Literary Creation and Control: A Socio-Historic, Technological and Legal Analysis|
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In a talk on copyright, Jonathan Zittrain described a gulf between Title 17 (a reference to the United States Copyright Act) and reality ([MIT2002]). In an article he wrote on Calling off the Copyright War, Zittrain presents examples of copyright clashes as representing a, "clash between the law of intellectual property as understood among sophisticated corporate intermediaries and the reality of intellectual property as experienced by the public" [Zittrain2002]. The Girl Scouts of America, a Norwegian teenager and a Russian programmer have each served vivid examples of the discrepancy between the way copyright articulates control and the way people feel that legal control of expression should work. Few Americans who do not work for ASCAP believe that the Girl Scouts of American should have to pay royalties to sing Happy Birthday To You around a campfire. Until recently, both the public and the copyright holders were largely content with this discrepancy. But recently, the public's ability to act as their own mass distribution medium, and copyrighted work's incredible profitability that seems to be threatened by this shift, has prompted large copyright holders to frantically grasp at their legal and technical abilities to control copyrighted works. It has prompted a legal need to control works in ways that are unprecedented in reach.
Technical responses to the increased public ability to share, borrow, and appropriate includes broadcast flags and digital rights management—technical mechanisms enforcing and enforced by the law. In the manner detailed in the previous chapter, each technical response creates a particular technological system around a conceptual basis of strong individual control in a way that makes meaningful collaboration difficult or impossible. Legal restrictions like the DMCA make attempts to redefine technology with the purpose of facilitating more meaningful collaboration—even for legitimate purposes—criminal. Together, these mechanisms present barriers to legally protected fair-use, borrowing and ad-hoc aggregatory and synthetic creation that problematizes collaborative writing in an immediate and intense way.
Copyright, as a system of strong control, is poorly suited to the facilitation of meaningful textual collaboration. Its shortcomings in this regard can be broken down into a number of more specific problems. By privileging individualized control, copyright law ignores the effectiveness of collaborative writing. Similarly, it ignores collaborative writing's persistent and historically precedented nature. In these three ways, contemporary copyright in the context of new technology works counter to its stated Constitutional goal of promoting the sciences and the useful arts. Each of these problems describes how copyright underestimates the collaborative literary process and makes writing less effective. Additionally, copyright is also problematic in that it limits the public freedom to express themselves collaboratively.
In the Constitution's copyright clause, Congress is empowered to secure for authors the rights to their works with the goal of promoting progress in the sciences and arts. Limited by this mandate, copyright's primary goal is to benefit the nation and the people; rights given to copyright holders are merely the means to this end. Copyright's grant of ownership and control and the secondary effects of attribution and compensation are merely a way of creating incentive for the promotion of a greater social good. However, copyright is only one possible model that Congress might employ in the promotion of art and science. Patents are a good example of a very different way that Congress exercises its power under this same mandate.
American copyright, itself a copy of Britain's copyright statute, was not an unchallenged method of achieving this goal when it was chosen. Thomas Jefferson makes it clear that he was uncomfortable with all monopolies, including temporary monopolies created by the government through copyright. In letters to Isaac MacPhereson, Jefferson claimed that the nature of ideas makes them particularly ill-suited to the yoke of control systems like copyright. In making his argument, he alludes the power of sharing and collaboration stating that, "he who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me" ([Jefferson1909]). Contemporary copyright is testament to the fact that the Federalists had their way and Article 1, Section 8 became a reality and in 1790, the first United States Copyright Act was passed.
However, the result is a compromise—a situation that is alluded to even in Federalist Paper 43 where the Constitution's "copyright clause" is discussed ([Writer1966]). Copyright exists because at the time of its codification it appeared to the founders to be the most effective way to promote literature, art and science. In Mazer v. Stein, the United States Supreme Court make the purpose of copyright clear:
In the opinion, the court affirms the fact that while extensions and growth of Title 17 have changed the face and nature of American copyright, it must still be defended against the purpose laid out in the Constitution. If and when it is determined that copyright is acting to hinder the sciences and useful arts, Congress is operating outside its Constitutional mandate. By underestimating the effectiveness of collaborative writing processes, contemporary copyright is clearly acting outside this mandate. The inflexible nature and the consistently growing scope and duration of copyright, paired with a common law tradition enshrining the Romantic conception of authorship, has left no room for an environment fostering meaningful collaborative literary creation.
The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual efforts by personal gain is the best way to advance public welfare through the talents of authors and inventors in Science and the useful Arts ([SCOTUS1954]).
Chapter 1 offered a glimpse into the prevalence and importance of collaborative writing. Through its socio-historical analysis of group writing, Chapter 2 gave a snapshot of collaborative writing's long history of production high quality literary work. With knowledge of the established collaborative processes behind many cherished works in the world's literary canons, collaborative writing is demonstrably effective and effectively indispensable. Confirming this observation is a growing body of evidence from research around collaborative writing in classroom and industrial settings supporting the argument that collaborative writing, in many cases, produces more writing and writing of a higher quality than texts written by individuals.
Some writers and literary critics are quick to condemn attempts to quantify or compare efficiency in a discussion of art and literature. They feel that discussions of effectiveness in regards to art and artistic writing are irrelevant at best and often inherently dangerous. They are correct insofar as an empirical analysis or a study of learning will only consider a few of the processes that go into a great work of art. With full knowledge of this attitude, many of the studies cited in the paragraphs above collapse the distinction between collaborative writing and collaborative learning—our society seems to be more accustomed to discussions of effectiveness and efficiency in regards to learning—by focusing on students learning composition and centering their argument not on the fact that writers produce better text when writing together but that they learn better when they engage in collaborative writing.
These critics may be justified in condemning the use of "effectiveness" as a criterion for evaluating the art of writing. However, copyright hinders creative work by limiting authors' access to particular expressions because Congress feels that the creation of limited monopolies is more effective at promoting the creation of new work and promoting the public interest than alternative methods. The analysis and discussion of the effectiveness of artistic processes may be awkward but in evaluating and reevaluating copyright, we have a responsibility to make this analysis.
In making this analysis, copyright seems particularly ill-suited to harnessing and promoting the effectiveness of meaningful and extensive collaboration. Copyright is problematic both in that it limits access to copyrighted works for the purposes of borrowing, appropriation and synthesis and that it enshrines and enforces an inflexible concept of authorship and ownership that makes the social processes of working together difficult for would-be collaborators.
By virtually eliminating the growth of American literature's public domain, contemporary copyright makes the type of flexible borrowing and ad-hoc or appropriate collaboration prevalent before the dominance of copyright impossible. Peter Jaszi describes this as the marginalization of "the cultural significance of ... 'serial collaboration'—a writing practice that cannot easily be accommodated within the Romantic conception of 'authorship'"—a conception codified in an increasingly egregious fashion in modern copyright. Recognizing the importance of this type of collaboration, copyright was created with strict limits on both duration and scope. As these limits have eroded, copyright has eroded the possibly for the creation of meaningful collaborative writing.
By placing the writing process in an environment of individualized authorship and ownership, the increasingly prevalent and largely inescapable nature of copyright limits collaborative writing in an insidious manner. In her in-depth sociological and psychological analysis of the effect of textual ownership in writing groups, Candace Spigelman describes how in effective writing groups, writers must be able to relinquish a measure of personal investment and control in their writing so that the text "temporarily becomes community property" ([Spigelman2000]). In a legal sense, unless copyright is explicitly relinquished, writers cannot relinquish personal control over their work. In describing the most effective writing groups, Spigelman emphasizes the need for flexible and dynamic attitudes toward textual ownership, property, and control. In the context of copyright and its advocation of inflexible approaches to these concepts, collaborative writing happens only infrequently. Shaped and influenced by copyright, instances of collaborative writing are less meaningful and their product less effective. In the worst cases, would-be collaborators will not work together at all. The effects of this are particularly apparent in largely hostile socio-legal attitudes toward joint authorship (discussed in depth in the Section called Joint Authorship).
In the ways illustrated above, modern copyright clearly fails to account for the demonstrable effectiveness of collaborative writing. Because in many cases, collaborative writing can be shown to be more effective than the products of Romantic authorship, Congress, in supporting, expanding, and reinforcing copyright as the the lone method for the promotion of science and the useful arts, is failing in its Constitutional mandate.
If collaborative writing were demonstrably effective but exceedingly unusual, rare or difficult, copyright's chilling effect for collaborative literary processes might be more easily supported. However, the contrary is true; collaborative writing is both historically precedented and culturally persistent—even in the context of unsupportive legal, technical, and social environments.
Chapter 2, has through its description of changing social attitudes toward collaboration, already established the persistent nature of collaborative literary creation. While the modes and methods of collaboration have evolved and grown from those employed in the creation of the Talmud, the King James Bible, Elizabethan drama, traditional Chinese literature, William Wordsworth and Samuel Taylor Coleridge, T. S. Eliot and Ezra Pound, Raymond Carver and Gordon Lish, and ubiquitous examples of contemporary ghost writing, they represent points along a continuum of literary collaboration. They demonstrate that collaborative writing is as old as writing itself. The analysis demonstrates that copyright, as an institution of systemic control, hinders and limits collaborative writing in an inexcusable fashion. Chapter 2 also demonstrates the effect that copyright exerts on attitudes toward literary ownership, control, and collaboration. Collaborative writing has persisted but largely in emaciated, limited, and mediated forms.
Collaborative writing represents a trope in the history of literary creation whose power, effectiveness, and presence play a major role in defining literary history. The past decades have seen contemporary collaborative writing revealed as alive and prevalent. As a result, the threats and limits to collaborative writing described above represent a real and immediate danger. In providing a hostile context for collaborative writing, copyright limits, restrains, and threatens one of the most effective models of literary collaboration in an immediate and dangerous fashion.
I've argued in the previous two sections that in creating a system of control purely reflective and supportive of individualized authorship, copyright fails to reflect the power and persistence of collaborative writing and demonstrates a failure to promote the progress of science and the useful arts in the way that the Constitution demands. However, there is a second Constitutional point from which to critique copyright: As a system of law that regulates speech, copyright should not be immune to examination and challenge under the First Amendment. By stating that no individual can sing, speak or write a particular expression—by stating that no individual can articulate an idea in a particular way—simply because it's been said in the last century casts copyright as potentially dangerous intrusion on free speech as guaranteed by the First Amendment. As a result, restrictions on speech created by copyright must be weighed carefully against the First Amendment.
Alexander Meiklejohn's argues that the First Amendment aims to protect speech as it plays into a broadly defined social and political discourse essential to any well functioning democracy ([Meiklejohn1975]). In this narrow definition, copyright's ability to interfere with democratic discourse is clear. While in theory copyright restricts only the use of expressions, not ideas, certain protected expressions may be essential or important to the articulation of an idea within a political discourse. Martin Luther King, Jr.'s famous "I have a dream" speech represents a good example. Dr. King's estate has and will bring legal action against those who appropriate any part of the speech without permission and prior arrangement. This serves as an example of the powerful implications that copyright can have in limiting speech and the importance of free speech considerations in evaluating copyright. While many writers or speakers wishing to use Dr. King's speech may be able to obtain permission from his estate, copyright provides a barrier that will often create a chilling effect blocking the works' use. In the case of large corporate copyright-holders with blanket policies regarding use of their copyrighted material, borrowing or appropriation for any purpose may be impossible. In one documented case, a scholarly journal refused to publish an article containing excerpts of Civil War era correspondence unless the researcher obtained signatures from families or copyright holders because, under the CTEA, works created by the last living Civil War veterans would not expire until 2039. Unsurprisingly, the cost in time and money required to do this additional research and obtain the necessary permission prevented the article from being published altogether ([Lutzker2002]).
In a literary environment of meaningful and extensive collaboration, writers must be able to borrow freely and merge their own ideas with those of their contemporaries and predecessors. Copyright's idea/expression dichotomy aims to allow the most basic form of collaboration—synthesis but even this falls short. In her analysis of copyright and the First Amendment, Janice E. Oakes notes that it is often the case that "ideas alone are not sufficient to enable an author to express his own ideas, and the rights of free speech and free press demand access to the particular from of expression contained in a copyrighted work" ([Oakes1984]). In such cases, copyright is inflexible and restricts speech of those who which to express themselves synthetically or collaboratively without explicit and complex legal or business relationships organized in advance. While technically this only bars transgressive collaboration or collaboration without prior consent, the effective barrier to creative work and borrowing is huge.
While in the Eldred v. Ashcroft Ashcroft, the court was dismissive of the petitioners First Amendment arguments in regards to the unconstitutionality of the CTEA, the court has a long history of balancing First Amendment law and copyright ([Lessig2002], [SCOTUS2003]). This balance is perhaps most important not on a case-by-case basis but in evaluating the acceptable length and scope for copyright and controlling the nature of copyrights systemic limits on free speech. While the location of this balance is ultimately up to Congress, there is a point when copyright becomes expansive enough to limit expression otherwise protected under the First Amendment in ways that raise Constitutional concerns.
By creating monopolies based on what has been said, sung, or written by others, the full severity of this expanding interference will continue to be felt on appropriative and collaborative speech.
The significance of this speech regulation has only increased over time. The scope of the monopoly that the government confers under the copyright laws has expanded dramatically over the nation's history, and with it the severity of copyright's interference with freedom of speech ([Lessig2002]).
The petitioners continue and point out that the only justification that the Supreme Court has recognized for restricting free speech for the benefit of authors were based on the concept that the restrictions would create incentives to create more speech. However, by barring appropriation and synthesis that lies at the root of a demonstrably effective and widely prevalent form of literary creation, Congress seems to have demonstrated poor judgment in setting this balance ([Lessig2002] 41).
The Girls Scouts of America were threatened with legal action by the copyright royalty collection organization ASCAP to pay for the use of music at camps that included song sung around the campfire like This Land is Your Land, Edelweiss, God Bless America, and Happy Birthday ([Bannon1996a]). All of these songs are still copyrighted and their use is restricted and controlled accordingly. Jon Johanson is a Norwegian teenager who was arrested for writing software that under the DMCA qualified as a copyright circumvention device. His software, DeCSS allowed users in possession of a DVD to decode the DVD security scheme allowing for previously impossible uses that included playback under GNU/Linux and the export of video for use in reviews. Of course, it attracted attention because it also facilitated digital DVD copying (the MPAA even claimed this was the only legitimate use) ([HeraldSun2000] [Harvey2000]). Finally, Dmitri Skylarov is a Russian programmer who, while in Russia where laws like the DMCA do not apply, wrote a program that decoded an encryption scheme protecting Adobe E-books. He was arrested by the F.B.I. and held in the U.S. while attending a conference in Las Vegas [Lee2001]. Each of these actions provoked outrage and protest from a diverse range of communities.
Broadcast flags are electronic "watermarks" placed on all broadcast materials that all recording equipment will be mandated to recognize and, when instructed buy a flag, refuse to record. Digital Rights Management is similar types of watermarking and control mechanisms built into larger computer-based digital media. They aim to prevent people from sharing copyrighted digital media between devices or individuals.
Martin Luther King, Jr.'s speech is a particularly good example because it has been the subject of a high profile copyright case between Dr. King's estate and CBS. While a District Court's opinion placed the speech in the public domain on a technicality, this decision was reversed and the copyright's validity confirmed in a Federal Appeals Court opinion ([USDC1998], [FedAppeals1999]).
Recently and perhaps most influentially, the free speech and copyright relationship was considered in the decision in Harper & Row v. Nation Enterprises (SCOTUS1985).