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 Doyles 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.
Follow the money is the credo of investigative journalists. As Eva Hemmungs Wirtén argues in No Trespassing, its also the logic of empire when scoping out the landscape of IP law in general, and copyright law in particular. No Trespassing is tightly focused on book culture: the rise of copyright law in Western Europe and the U.S., the role of translation in commodifying authorship, and the blood-drawing lawsuits that result from the bliss of influence and the influence of technology (the photocopier in particular). Wirténs book, with its tight focus, deep historical view, and thorough-going scholarship make it a well-written complement to McLeods more free-wheeling Freedom of Expression.
Wirtén, a professor of comparative literature in Uppsala, Sweden, begins and ends her book with an analysis of Victor Hugos role in the development of international copyright law. Hugo was far from the first author in Europe to promote the moral and economic right of the author in respect to his labor, but he was the first to assert those rights in a nationalist framework. The novel, after all, was the perfect vehicle for the nation-state to promote itself. Hugo was Frances national literary hero, and France was the nineteenth centurys literary center. (Wirtén claims Paris is still the center; if capital is the name of the game then Id be inclined to point to Hollywood as the literary center of gravity.) Hugo didnt just belong to France though; as Wirtén points out, his books were widely translated and pirated. It was the rise of the nineteenth-century novel in a trans-Atlantic context that corresponded with increased efforts at copyright legislation, and economic control.
Hugo gave a famous speech in 1878 at the Exposition Universelle in Paris in which he argued that literature is not something local, but something universal, and that to deny the author the fruits of his labour was to deny him his independence as a human being. Thus began a long march toward international copyright and IP law. The road was fraught with difficulties, not the least of which was the unwillingness of certain countries to go along with the project. The United States, for instance, didnt sign on to international IP treaties until late in the twentieth century: the U.S. long held on to a piratical attitude towards the artistic labor of other countries, especially Britain. Americans considered British literature a fair-use goldmine, fair recompense for the years of colonial rule. This is ironic, of course, considering that now the U.S. is leading the pack in more and more restrictive IP legislation.
Hugos argument for copyright legislation went further. He was quite clear that he thought the control of an author over his or her creative property should end with the authors death. In her final chapter, Wirtén examines two sequels to famous books: François Cérésas Cosette ou les temps des illusions, a sequel to Hugos Les Misérables, and The Wind Done Gone, an unauthorized sequel to Margaret Mitchells Gone with the Wind. Both of the originating authors were dead, and by the terms of Victor Hugos own IP philosophy, Les Misérables was fair game; indeed, the novel has long been in the public domain and turned into musicals and films a number of times. The heir does not make the book, Hugo argued, and cannot have the rights of the author. Pierre Hugo, a great-great-grandchild of Victor, nevertheless sued the Cérésas publisher. Justly, the French court decided against Pierre Hugo, citing Victor Hugos own words in its decision: If I have to choose between the rights of the author and the rights of the public domain, I will choose the rights of the public domain.
With Alice Randalls The Wind Done Gone, however, the situation was very different. Mitchells work was still under copyright (which had recently and retroactively been extended by the so-called Sonny Bono Copyright Extension Act), and the owner of the rights to Gone with the Wind, Suntrust Bank, attempted to sue Randalls publisher, Houghton Mifflin, for damages. Suntrust eventually lost, as the courts found that The Wind Done Gone fell under the auspices of fair use as a parody of the original-a triumph for the public domain, or so it would seem.
Perhaps so, but, as Wirtén argues in her conclusion, the public domain is under-theorized. It is seen as a gap and therefore falls under the radar of judicial scholars. In an era where content is king, and control of content is paramount, the public domain is viewed as anarchic, something that must be tamed or obliterated, like wilderness, by the pavement of IP legislation. But what is... unique about information and knowledge is that it is nonrivalrous, it cannot be depleted. Unlike, as Wirtén writes, a park bench, two or more people can utilize an idea at the same time. In that sense, all efforts that seek to minimize the public domain... and maximize that of intellectual properties will contribute to the foreclosure of new knowledge-production. Influence, in other words, isnt just bliss: its a necessary constituent of human creativity. Brian Charles Clark
(Books in Canada)
-- Books in Canada