Freedom of Expression (R): Overzealous Copyright Bozos and Other Enemies of Creativity [Hardcover]

What if George W. Bush's much ballyhooed "ownership society" were taken to an illogical extreme, so that each of us owned a phrase or a sound or a gesture that would generate a little income every time it was used? Of course, we could trademark all the catchphrases we like (as, for example, Donald Trump has with The Apprentice's tagline "You're fired"), but most of us are in no position to collect. Corporate entities, however, are capable and quite willing to claim ownership of what until recently would have seemed to be public property, to dangerous ends, argues Kembrew McLeod. The University of Iowa communications professor explores the clash between free speech and intellectual property law in this absorbing and unsettling expose. McLeod eschews the role of the detached observer in favor of a more indignant and even angry voice; indeed, he's trademarked the phrase "freedom of expression" to hammer home his point and makes no secret of his contempt for "overzealous copyright bozos" and their ilk. Trends in intellectual property rights and the free exchange of ideas are serious business, however. The author supports his concerns with an array of examples, from the ridiculous (Fox's attempt to punish comic Al Franken for his satirical use of their "fair and balanced" motto) to the alarming (corporate agribusiness's development of "terminator technology" that makes patented seeds sterile after one planting).

McLeod, who's written extensively elsewhere about music, uses pop culture as a jumping-off point, but deftly ties together the legal threads that hamstring authors, recording artists, and filmmakers with their working scientific and agricultural counterparts. Indeed, McLeod deserves special kudos for demonstrating that the same forces that can be used to crush the seeds of creativity can also be used to literally smother the seeds of life. --Steven Stolder

In recent decades intellectual property (IP) law has become the handmaiden of transnational capitalism. “Fair use”, at least in the United States, has become a hollow shell: tap it and it shatters into a thousand sharp-edged lawsuits. Two recent books delve into the history of and effects on creativity resulting from globalized IP law. The overall picture for scientists and artists in all media is gloomy. As novelist Michael Chabon concluded, in a recent review-essay on the sources of Conan Doyle’s Sherlock Holmes stories, “Every novel is a sequel. Influence is bliss.” Influence is bliss indeed, at least until it falls under the boot heel of regressive capitalism. Now royalties, licensing fees and corporate secrecy make creative ‘gene swapping’ too expensive for most artists and scientists.
“Influence is bliss” could have been an epigraph for Kembrew McLeod’s Freedom of Expression. McLeod is a sociology professor at a state university and an expert in the study of popular culture-just the sort of academic whom right-wingers love to excoriate as a “liberal” waste of tax money. But Freedom of Expression justifies society’s investment in scholars like McLeod: he is learned, and his book ranges widely over key areas of the copyright and intellectual property wars, and-this is something you don’t hear every day in regard to a scholarly work-it’s funny!
“Overzealous copyright bozos” have drawn battle lines all over the map of everyday life. Mickey Mouse, for instance, should have long ago become the common creative property of we, the people; yet, thanks to the late, great hyperbozo, Sonny Bono, Mickey and most everything else from the early days of the twentieth century on, will be “protected” from creative recirculation for decades to come.
But maybe you don’t care about art and creativity. Perhaps you’ve got a sick friend or family member and the only thing likely to save that person is gene therapy. Thing is, the bozos are at work here too. Scientists have long been champions of the public domain, of the creative commons. The way science progresses, after all, is by Bob repeating Sarah’s experiment and either verifying or modifying the premises upon which Sarah’s experiment was conducted. The process falls flat on its face if Sarah, for whatever reasons, keeps her experiment and her experimental results a secret. Secrecy, though, is the name of the game in genetic research. IP thrives in a state of secrecy; creativity shrivels. When profit-mongering corporations become involved with academic research, the result is inevitable: scientists stop sharing because they’ve been forced into secrecy by non-disclosure agreements and other impediments to creativity. When asked, researcher after researcher concedes that such corporate restrictions are impeding the progress of genetic science. The same lust for privatizing intellectual property goes for medicine in general: “The kinds of constraints intellectual-property laws impose on culture may be bad for music and creativity,” McLeod writes, “but in the case of drug patents it’s literally a life-and-death matter.”
When Act Up, an anti-AIDS activist group of the 1980s and ’90s, said “silence = death”, they weren’t kidding. Thinking globally, drug patents have killed millions of people because such patents “silence” availability by quashing inexpensive generic alternatives.
Is it really the corporate hunger for profit that is impeding creativity? Yes-but corporations don’t act alone. There are, of course, an army of lawyers who file the lawsuits and argue the cases that tear apart the creative commons that we, the people, built. As well, there are “activist judges” who interpret the copyright provision of the U.S. Constitution in favor of corporations and private holdings. “An argument for the commons,” McLeod writes, “whether it’s the genetic commons or a folk-song commons-is an argument for more creative elbow room. But because of our blind faith in privatization, freedom of expression has been limited artistically, socially and scientifically.”
McLeod is good on IP law, but where he really shines is with copyright law and its “protection” of music. For instance, if you go to a public park and sing “Happy Birthday” to your child, you’d better bring along your checkbook. Even though the words were written by a group of school children to an ancient folk melody, the teacher of those children copyrighted the song her students wrote. “Happy Birthday” is still under copyright (more than 100 years later), and a music publisher holds the rights. The public performance of “Happy Birthday” is strictly controlled. Are we supposed to laugh or cry at the absurdity of that?
Perhaps even more damaging is the “overzealous copyright bozos” penchant for suing samplers. Sampling is the art of taking snippets from previously recorded music and recirculating them into a new and original piece of music. Snagging a second or two of a drumbeat from an old James Brown tune should be constitutionally protected fair use. But, thanks to activist judges and hound-dog-greedy publishers, it isn’t. James Brown wants to be paid big bucks for the privilege of sampling “his” music. Never mind that the “godfather of soul” relied heavily on his band-in particular drummer Clyde Stubblefield-to create that music. The sample-license fee all goes to Brown. This is precisely why hip-hop, after an amazing fluorescence in the ’70s and ’80s, has become sickeningly repetitive: it simply costs too damn much to license samples in order to make a richly textured hip-hop tune. According to the music industry, those of us (and I include myself here) who make new music out of old are pirates. The industry has failed to recognize that turntables and samplers are, in fact, instruments of creative production.
If all this sounds hopeless and depressing, McLeod’s book isn’t: he’s funny (or at least sarcastic) throughout, and ends on a hopeful note, at least as regards the arts. There’s a new copyright movement afoot on the Internet, called the “Creative Commons” license, which actually encourages others to reuse (with credit where credit is due) so-licensed work. McLeod’s wit, deep knowledge of the issues, and most of all his love of creative endeavor, make Freedom of Expression a delightful and empowering read.
Brian Charles Clark (Books in Canada)