January 1st is Public Domain Day: each year, copyright terms expire and admit to the public domain the works of artists, authors, critics, scholars, and other cultural producers whose copyright protection has ended. In Canada, copyright protection ends fifty years after the creator’s death; in other jurisdictions, it can end as late as seventy years after the creator’s death.
Among the new entrants to the Canadian public domain this year is the French critic and scholar Georges Bataille (1897-1962), whose inter- and postwar criticism, philosophy, and pornography – and in particular his work on transgression – enjoyed a resurgence of interest amidst the Humanities’ turn to theory in the last quarter of the 20th century. (The first MA defence I attended was for a thesis on Bataille.)
In honour of Bataille’s entry to the public domain (pas en traduction, bien sûr – seulement en français, sa langue originelle), and in response to a Daily Post prompt to share a favourite quote, I’d like to post a scene from Bataille’s autobiographical appendix to his own novella, Story of the Eye (L’histoire de l’oeil, 1928), a scene that has stayed with me through the years.
One night, we were awakened, my mother and I, by vehement words that the syphilitic [Bataille's father] was literally howling in his room: he had suddenly gone mad. I went for the doctor, who came immediately. My father kept endlessly and eloquently imagining the most outrageous and generally the happiest events. The doctor had withdrawn to the next room with my mother and I had remained with the blind lunatic, when he shrieked in a stentorian voice: “Doctor, let me know when you’re done fucking my wife!” For me, that utterance, which in a split second annihilated the demoralizing effects of a strict upbringing, left me with something like a steady obligation, unconscious and unwilled: the necessity of finding an equivalent to that sentence in any situation I happen to be in; and this largely explains Story of the Eye. (94-95)
To me, this scene represents a moment of dramatic intensity, transgressive absurdity, and critical illumination that continues to inform and inspire my own conviction that the research imagination must be impertinent – even audacious. Story of the Eye is perhaps the most frequently lent book I own – it should go without saying that if you’ve not yet read it, you owe it to yourself to do so at the earliest opportunity.
Work Cited
Bataille, Georges. Story of the Eye (1928). Trans. Joachim Neugroschel. San Francisco: City Lights, 1987.
Critical scholarship is urgently needed to intervene on the question of copyright: once a staple stimulus for literary and cultural production that now tends more to stifle it. … This session invites papers on the relationship between literature, copyright, and the copyfight.
The deadline for submissions is 15 Nov. 2011 (see link for contact info). Thanks to ACCUTE and SDH for joint hosting.
[Instead of posting the complete call for papers here, I'm practicing not duplicating content.]
You must imagine, at the eventual heart of things to come, linked or integrated systems or networks of computers capable of storing faithful simulacra of the entire treasure of the accumulated knowledge and artistic production of past ages… –Benjamin Kaplan, 1967
Research for a talk I’ll be giving at #Congress11 includes reading some excellent studies of copyright in (or as) the history of literature. These studies share a couple of principles: they recognize the historical contingency of intellectual property law (it’s nothing natural), and they assert the fundamentally social character of all cultural production, in contrast to IP law’s attribution of it to individual “originality” (an attribution based on Romantic ideas of authorship). Mark Rose puts the matter succinctly in Authors and Owners: The Invention of Copyright:
The persistence of the discourse of original genius implicit in the notion of creativity [...] obscures the fact that cultural production is always a matter of appropriation and transformation [...] What finally underwrites the [modern copyright] system, then, is our conviction about ourselves as individuals. [...] Copyright stands squarely on the boundary between private and public. (135, 139-40)
Paul Saint-Amour builds on Rose and other scholars in emerging cultural-economic fields — New Economic Criticism and Critical Cultural Legal Studies — to study copyright in Victorian and modern literature; however, his context is insistently that of the post-millennial copyfight, and he notes the contradictions of critiquing copyright on its own terms, through strategies of appropriation and infringement (like DJing, which I’ll be discussing elsewhere at Congress):
You can seldom criticize the law by breaking it and yet expect the law to forgive your infraction as criticism. Law is not an argument so much as an instrument of self-enforcement; thus, even breaking the law confirms the logic and categories of the law, which work to criminalize any transgressive act of dissent. In the case of property law, this circularity tightens further: criticizing standards of ownership can lapse into a near-absurdity when some of the most effective critical pathways — counterappropriation or parody, for example — are by definition already owned by someone else. (19-20)
The ability of the law to successfully prosecute infractions depends, in part, on how well the law makes itself seem natural, self-evident. Demystifying the self-evident naturalness of copyright law is a project of all these books, most ambitiously essayed in William St Clair’s The Reading Nation in the Romantic Period, a sweeping cultural-economic history that puts intellectual property law front and centre as a regulator of not just the publishing business, but also literary production and, most importantly, public access to reading.
Intellectual property has existed for so long that it is difficult to imagine a world without it, but it is not intrinsic to authorship, books, or reading as such, but it too came into existence in response to a conjuncture of economic circumstances which came together in the late fifteenth century. [...] The intellectual property regime has changed frequently and drastically over the centuries. [...] During the intervals when the normal intellectual property structures temporarily broke down, we can see that the whole economy of writing and reading immediately changed. (41)
So are we taking part, now, in a breakdown of IP structures, or in their further entrenchment? It can be bewildering and discouraging that the answers vary so wildly. Last week, copyright lawyer Howard Knopf blogged about Margaret Atwood’s comments on Bill C-32, which heighten “creator-vs.-educator” hostilities, and suggest misconceptions about IP law basics like fair dealing (which are especially troubling to see being expressed by such a major author). Histories of copyright bring some much-needed perspective to present debates so pressured by private-interest spin, by reminding us that copyright was invented to advance the public interest, and by suggesting ways to re-assert the priority of that interest and reclaim the cultural common wealth.
Works Cited
Kaplan, Benjamin. An Unhurried View of Copyright. New York: Columbia UP, 1967.
Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge: Harvard UP, 1993.
Saint-Amour, Paul K. The Copywrights: Intellectual Property and the Literary Imagination. Ithaca: Cornell UP, 2003.
St Clair, William. The Reading Nation in the Romantic Period. Cambridge: Cambridge UP, 2004.
This is worth wider notice: a Question Copyright post that points out the irony in Trent Reznor’s win of the Oscar award on Sunday for “best original score,” since the score in question, for The Social Network, openly borrows Edvard Grieg’s “Mountain King” masterpiece — and since Reznor himself is, as the article details, “a musician who has capitalized on remix culture”:
[Reznor's] an Oscar winner [...] thanks to the same interest group responsible for the remarkably effective industry capture of national and international lawmakers with respect to copyright issues. [...] With its sinister melody and increasingly frenetic pace, “In the Hall of the Mountain King” would make the perfect theme song for Hollywood’s escalating efforts to impose its supramaximalist view of copyright on the entire globe. Yet on Sunday, Hollywood gave its highest award to the poster child for remix culture.
And here I thought I’d never find anything at all of any interest whatsoever in the Oscars, that annual, over-exposed orgy of interminable self-congratulation, where the super-elite bow down before the one they serve to get what they “deserve.”
I had bristled at first that Lady Gaga so nakedly plagiarized the meat dress. But it now occurs to me that what she’s doing in music and fashion combined is oddly representative of today’s remix culture, in a political climate of ever more restrictive IP regulation. Lady Gaga, a major presence in both fashion and music now, is, in a way, bringing something of the copyright-indifferent business practices of the former — in which “there’s very little intellectual property protection” — to bear on the copyright-mad business practices of the latter.
Maybe not intentionally, maybe just inadvertently.
In any case, the various productions and performances of Lady Gaga stand open to some very suggestive interpretation, as critical statements on the present state of tensions and negotiations between the corporate-backed hegemony of “originality” and the creativity of open appropriation.
There are solid gains for fair dealing in Bill C-32, but the bill protects digital locks more strictly than current US copyright law or even ACTA, now — and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers, educators, and businesses. Furthermore, digital locks — TPMs, DRM, etc. — are not intellectual property and should not be covered by IP legislation.
Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. As has been widely noted, this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.
“The role of the forger, of the unknown maker of unauthenticated goods, is emblematic of electronic culture.” –Glenn Gould, 1964 (343)
In the mid-1960s, the virtuoso Canadian pianist, Glenn Gould, caused a sensation by abandoning live concert performances and tours, as well as speaking engagements, to focus strictly on recording and broadcasting. Gould had quickly tired of touring performances and the concert-hall economy that demanded them. His profession had ensconced concerts as the test and affirmation of authentic virtuosity. Gould not only dropped them, retiring to the studio and the radio booth; he also began to attack them, in thoughtful — and prescient — critiques, as the antithesis of artistic achievement in an age of mechanical reproduction.
Gould’s major statement of his thesis on recording as the future of music is his 1965 CBC radio documentary, “Dialogue on the Prospects of Recording”. Gould’s argument uncannily echoed Walter Benjamin’s, on art and mechanical reproduction, of which, as far as I know, Gould was unaware; his position was more specifically influenced by Marshall McLuhan. Gould argues that new electronic media represent a more private, individualized, and aesthetically satisfying future of music in contrast to the outmoded public “museums” of
live performance that, for him, no longer lay claim to the optimal appreciation of music. Gould echoes Benjamin in criticizing the romanticization (what Benjamin would call the aura) of the artist at the expense of appreciating the artwork: “the determination of the value of the work of art according to the information available about it is a most delinquent for of aesthetic appraisal” (“Prospects” 341). To illustrate his case, Gould tells the story of a wartime forger of Vermeer paintings, Hans van Meegeren. Van Meergen was reviled as a forger who had fooled expert art historians; he got only momentary reprieve after the war when it became apparent that the Vermeers he had sold to Nazis for enormous sums were in fact forgeries. Gould hails van Meergen as a “private hero” whose case “perfectly epitomizes the confrontation between those values of identity and of personal-responsibility-for-authorship which post-Renaissance art has until recently accepted and those pluralistic values which electronic forms assert” (341).
Gould’s elaboration on the “pluralistic values” of electronic forms centres on “a new kind of listener — a listener more participant in the musical experience” — indeed, a “listener [who] can ultimately become his own composer” (347). For Gould’s new kind of listener, private listening eclipses public listening. The intimacy and clarity of home listening lends the music higher definition and opens it not only to more involved appreciation, but also to transformation by the listener: “It may well be that the very near future will produce a do-it-yourself laboratory of home recording techniques…We already see this happening in the case of the hi-fi bug, the fellow who places his own interpretative notions of questions of dynamics, of balance, of separation, of textural preferences [on] the recording which he plays on his home stereo” (“Forgery” 219). Gould is extrapolating from the increasing availability of home stereo EQ controls and home audiotape systems, in 1964, to accurately project new, participatory forms of music production-consumption (prosumption) that have since materialized: a decade later, in the vinyl-synching, cassette splicing foundations of hip hop music; forty years later, in the digital redistributions and remix forms enabled by CD, MP3, and P2P.
What’s more: Gould recognizes the symbolic and material threat that DIY listening-composing would pose to music critics, concert halls, and record labels alike. “To those who insist that the relation of audience to the performing act be a passive one, it already constitutes licentious interpretative interference” (219). Echoing Benjamin’s argument about aura, Gould identifies the “controversy [of] the tape splice” as a target of “the antirecord lobby [which] proclaims splicing a dishonest and dehumanizing technique” (337). As for the emerging pro-record (but anti-recording) lobby, Gould imagines a “local club of spare-time mechanics … concentrating upon the project of producing a master tape amalgamating the perfect virtues of the Beethoven Fifth as rendered by Klemperer, Karajan and Bruno Walter,” and then reflects that “there may be certain contractual difficulties here. Perhaps EMI, Deutsche Grammophon and Columbia Records will be less warmly disposed than I to this idea” (“Forgery” 219-20).
Gould even nods inadvertently to the discourse of intellectual property regulation in reflecting on the audience’s departure from public performance scenes to private home listening. “Those experiences through which the listener encounters music electronically transmitted are not within the public domain” (“Prospects” 347, my emphasis). For his purposes, Gould simply means that electronic media encourage domestic, individualized, and customizable music appreciation; yet by unwittingly referring to the “public domain” of copyright law, Gould ironically describes what has since become one of the most hotly contested issues in the copyfight today: the gradual disappearance of the public domain amidst the “new enclosures” of corporate copyright exploitation and entrenchment. On this account, Gould’s remark that “the technology of electronic forms makes it highly improbably that we will move in any direction but one of even greater intensity and complexity” (352) is similarly right on the money, both in terms of the technics and the legalities now involved.
Yet despite his incisive (and sometimes inadvertent) recognitions of Big Media’s impositions, Gould remained consistently optimistic about the implications “that the mechanics of electronic creation and preservation will determine the large part of the future of artistically ordered sound — if that is a safe word than music” (“Forgery” 218).
In the electronic age the art of music will become much more viably a part of our lives, much less an ornament to them, and that it will consequently change them much more profoundly … The audience would be the artist and their life would be art. (“Prospects” 353)
As an iconoclastic icon of Canadian culture, Gould shared important insights about art, adaptation, and appropriation — not to mention “pluralistic values” — that have proven prescient and urgently critical to current debates over intellectual property, and how best to define and regulate it, among the fast-changing technoscapes of electronic media. In the face of the attempted lockdowns, confiscations, and extortions of Access Copyright, Bill C-32, ACTA, and so on, I take as a heartening affirmation Gould’s assertion that “there is, in fact, nothing to prevent a dedicated connoisseur from acting as his own tape editor … exercising such interpretive predilections as will permit him to create his own ideal performance” (348, my emphasis).
Works Cited
Benjamin, Walter. “The Work of Art in the Age of Mechanical Reproduction” (1936). Rpt. in Marxists Internet Archive, 2005.
Gould, Glenn. “Dialogue on the Prospects of Recording.” CBC Radio, 10 Jan. 1965. Rpt. in Time 4 Time [blog], 7 Oct. 2008.
—. “Forgery and imitation in the creative process” (1963). The Art of Glenn Gould: Reflections of a Musical Genius. Ed. John P.L. Roberts. Toronto: Malcolm Lester, 1999. 204-221.
—. “The Prospects of Recording.” The Glenn Gould Reader. Ed. Tim Page. New York: Knopf, 1984. 331-53.
See also: “Glenn Gould on recording.”The Music of Man. Perf. Yehudi Menuhin, ,Glenn Gould. CBC et al, 1987. Rpt. at Youtube.
Bill C32, the Act to amend the Copyright Act, has passed second reading and is now in committee. There are solid gains for fair dealing in Bill C-32, but they’re meaningless if the bill remains inflexible on protecting digital locks: the technological protection measures increasingly placed on media content and devices. (See this CBC article for a good explanation of digital locks and what their protection in this bill could mean.)
The committee debating Bill C32 needs to keep hearing from Canadians about the major problem with the bill–and about its simple solution:
The problem:
Bill C32 protects digital locks more strictly than current US copyright law or even ACTA, and this protection trumps the bill’s otherwise substantial gains in fair dealing for Canadian consumers and educators. Furthermore, digital locks — TPMs, DRM, etc — are not intellectual property and should not be covered by IP legislation.
The solution:
Bill C32 should provide protection for circumventing digital locks when undertaken for lawful purposes. (As IP law professor Michael Geist says — in item seven of this article — this provision would still let Canada meet its obligations to international copyright agreements like WIPO and ACTA.)
Tweet or e-mail the committee members, as well as the ministers behind the bill, to let them know how to fix Bill C32, in order to protect flexible fair dealing for Canadians. Protecting fair dealing, not digital locks, is what will keep Canadian industry competitive, Canadian research innovative, and Canadian culture creative.
AC’s sought-for fees are exorbitant and excessive; they will unfairly burden public education budgets; they will gravely chill Canadian research and teaching; and they seek to arrogate licensing authority over a set of rights and a repertoire (of digital content and everyday communication practices) to an organization, AC, that does not own either these rights or this repertoire (some of which are protected under fair dealing provisions, as decisions like that in the 14 May 2010 SOCAN “previews” case continue to uphold).
For a distance-education institution like Athabasca University, the fees and restrictions (as well as the consequently onerous record-keeping) being proposed by AC will acutely compromise our ability to teach and research effectively, and to fulfil our mandate of removing barriers to access to postsecondary education.
Thank you for fielding and registering this objection.
with best regards,
- Dr. Mark A. McCutcheon
Assistant Professor
Centre for Language & Literature
Centre for Integrated Studies
Athabasca University
That guide encourages you not to e-mail a form letter, but to mail your own comments to the cabinet ministers and MPs concerned (the guide helpfully summarizes each party’s approach, too).
What’s interesting in this latest bill is its glimmer of support for fair dealing. There’s a “Youtube” clause to permit noncommercial media remixing as fair dealing; there’s a $5K cap on damages for individual infringement (which is actually a win, given how the RIAA and MPAA have gone after individuals like Jammie Thomas in the US). Maybe Canadians are actually being heard on this issue: isn’t it pretty to think so?1 As Michael Geist told the Congress of Learned Societies in Montreal on Monday, this is a bill to fix, not one to kill. New protections for noncommercial copying and other forms of fair dealing are a good start. But the bill’s strong protection for “digital locks” like DRM would trump fair dealing when it comes to almost any DRM-protected content or hardware (they’ve made an exception for phones). For example, you couldn’t make your newly authorized Youtube video legally if it meant working around a DVD’s DRM to rip a clip. Digital lock provisions would always trump fair dealing provisions.
Yet the best overall fix may turn out to be dead simple.
Protect digital-lock circumvention when it’s done for lawful purposes. According to Geist, what Bill C32 needs most is just a single provision confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes (that is, for private, non-commercial uses). This provision, Geist says, “would allow Canada to implement the World Intellectual Property Organization’s Internet treaties, provide legal protection for digital locks, and preserve the copyright balance.”2
Here are three other points I think worth bringing to the C32 debate. (Any other tweet- or postcard-size points you might make to #fixC32 would be welcome comment on this post.)
Make the fair dealing provisions broader and more flexible. Under Bill C32, they are still restrictive for educators, and they still fall short of US fair use norms (and that’s after over a decade with the DMCA). Given the polarized digital trends in higher education—towards open access on one hand, and device-tethered e-books, on the other—Bill C32′s “blanket provision against all circumvention … will lock down a vast amount of digital material, effectively preventing its use for research, education and innovation and curtailing the user rights of Canadians,” as the Canadian Association of University Teachers states in its response to the bill.
Extend the private copying levy to digital devices. If you want to get radical, support Charlie Angus’ proposal (from his now-dead private member’s bill) for extending the private copying levy already placed on blank storage media to digital devices (like iPods and laptops), which would address the concerns of creator organizations like ACTRA that C32 is insufficiently attentive to creators’ compensation.
Get Canada out of ACTA. No, not ACTRA: “ACTA,” or the Anti-Counterfeiting Trade Agreement, is a global agreement being secretively negotiated by several countries, but led by the US Trade Department and US Big Media lobbies. ACTA isn’t really about trade or counterfeiting, it’s about copyright, and it would effectively impose a punitive DMCA model of copyright enforcement on all participating nations. At least not all nations are participating. But Canada is. And by agreeing to ACTA, Canada would forfeit many of the important gains and compromises already in Bill C32. And even if Bill C32 is amended to permit digital lock-picking when lawful, if that were to be prohibited by ACTA (and all reports show it would be) then any such amendment would be moot. So Canada needs either to insist on provisions for lawful DRM circumvention under ACTA, or walk away from it.
So take a coffee break to read up on what’s at stake, then find another five minutes to send a short letter to the government, lauding what’s likeable in Bill C32, and suggesting how you’d fix it. Keep it short, clear, and hand-written.3
And while you’re at it, maybe tack on a P.S. that Canada should not only get out of ACTA, but also CETA as well …
Notes 1. Note to Hemingway’s estate: call off your lawyers. I’m claiming satirical fair dealing. 2. One close reading of C32 argues that “lawful DRM-breaking” may already be protected: “Section 41.1(3) of the revised Act provides that statutory damages are not available to an owner who sues an individual for ‘breaking’ a digital lock when that breaking was done only for private purposes.” But reducing damages for private digital lock-breaking is not the same as prohibiting damages for it, and the numerous research- and teaching-related reasons that would justify circumvention by educational institutions remain criminalized. According to Geist, interpreting C32 like this cultivates a disrespect for copyright (and, I’d add, the law in general), whereas “making a sensible law” (i.e. one with clear personal and pedagogical provisions for lawful DRM circumvention) would build respect for copyright in law and in principle. (It’s worth reiterating that the principle of copyright has never been in question on this blog, only the increasingly exploitative character of its regulation. Thanks to Prof. Geist for making time to correspond on this question.) 3. Anyone remember handwriting? Now there was a DRM-free medium!
It's the scholarly blog of Mark A. McCutcheon, Associate Professor of Literary Studies at Athabasca U. Topics include Canadian pop culture, copyright and new media, and postcolonialism. This blog is CC 2.5 (Canada) licensable.
Among the new entrants to the Canadian public domain this year is the French critic and scholar Georges Bataille (1897-1962), whose inter- and postwar criticism, philosophy, and pornography – and in particular his work on transgression – enjoyed a resurgence of interest amidst the Humanities’ turn to theory in the last quarter of the 20th century. (The first MA defence I attended was for a thesis on Bataille.)
