Tag Archives: cultural commons

Call for papers on Literature & the Copyfight, for Congress 2012

Call for papers: Literature & the Copyfight, Congress 2012.

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.]

Teachers, it’s time to flex fair dealing.

Yesterday, a happy coincidence: first, a highschool friend, now an educator, asked me out-of-the-blue on Facebook (it’s the kind of thing I love about FB) a question about copyright infringement cases involving educators; second, I received CAUT‘s new Guidelines for the Use of Copyrighted Material, a must-read primer on fair dealing for educators. I’ve reproduced my friend’s question and my response, extending the latter with more about fair dealing and CAUT’s guide — because more educators need to know how liberally we can and should be exercising our robust fair dealing rights.

Q: I need an example of a Canadian Copyright Infringement Case related to academics or education and am having trouble finding anything interesting on the net…. I thought you may have a ready example given your recent involvement on the subject. Any thoughts or suggestions on where I can find what I’m looking for?

A: Probably the most important case for copyright and education in Canada was Law Society of Upper Canada v. CCH Canadian in 2004. Michael Geist outlines and links to it in a recent blog post about fair dealing.

Canada’s Heritage ministry has some analysis of it (but keep in mind that this is one of the ministries responsible for tabling Bill C-32). The ministry analysis considers the opportunities and implications of the CCH decision, one important result of which is simply its formal recognition in law that “fair dealing, as construed by the court, now allows for a more flexible framework.” And while the ministry’s analysis suggests problems raised by the decision, it doesn’t suggest they’d be solved by the “digital locks” provision that made C-32 so hotly contested. Citing scholars’ and students’ dissatisfaction with licensing, the analysis attributes some of this to a failure of CanCopy (now Access Copyright) to recompense authors: “CanCopy ‘had more than $18 million in undistributed royalties, and no apparently systematic way of determining to whom this money belongs’.”)

Howard Knopf (whose blog, like Geist’s, is also very good on copyright) also summarizes the importance of CCH v. LSUC in this recent post:

…the CCH decision in the Supreme Court of Canada made it very clear that:
• “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.” and.
• “ The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. ‘Research’ must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”

There are also some relevant fair dealing cases and appeals underway right now:

Province of Alberta v. Access Copyright. Knopf is blogging about it, as in this post from early May; according to Knopf, the case “involves the very important issue of whether material prescribed by a teacher or provided in multiple copies can be fair dealing.”

This blog post by Knopf makes reference to the SOCAN v. Bell case, which investigated “whether providing previews consisting of excerpts of works is fair dealing for the purpose of research that does not infringe copyright.” In May 2010, the Federal Court of Appeals decided that that the free 30-second previews provided by music download vendors like iTunes are to be treated as fair dealing for consumer research purposes. Geist is reporting new appeals to and interventions in that decision.

Notably, of these cases, only Alberta v. Access Copyright directly involves educational institutions. But all three cases have significant bearing on the educational exercise of fair dealing. Enter the CAUT Guidelines, and the following. As stated in the message to which CAUT attached its Guidelines:

There has been a good deal of controversy and conflicting advice regarding when copyrighted material may be copied without permission or payment to the copyright owner. CAUT is concerned that both users and owners of copyrighted material are treated fairly. To that end, CAUT has prepared the attached document [which] explains the legal foundation of copying rights and provides direction on its lawful exercise.

The “controversy and conflict” to which CAUT alludes has resulted from debates about Bill C-32 and about ACTA and CETA, from Access Copyright’s “astroturfing” against fair dealing in C-32, and also maybe from increasing actions over mere linking. Now dead but expected back from the grave soon, Bill C-32 promised good, clear fair dealing provisions for educators, albeit provisions trumped by protections for “digital locks” like DRM. Often compared to the USA’s DMCA, Bill C-32’s fair dealing for educators actually fell short of the flexible and generous provisions given US educators. Check out this syllabus for Martha Woodmansee’s course on copyright — look at all the freely available course readings. (If that’s what US fair use now affords, then Canadian fair dealing should, too.)

Access Copyright (AC) lobbied hard against C-32’s educational fair dealing provisions, all the while while negotiating a massively inflated licensing tariff for educators. The royalty-collecting society’s campaign, in effect, pitted the creators of published works against the educators who use them, caused much confusion over the perceived pros and cons of new copyright legislation, and also provoked lots of institutions to decline to renew their licensing agreements with AC. AC is vigorously opposing the fair dealing provisions in any new Canadian copyright legislation — after all, revised and expanded fair dealing provisions could well put a collecting agency like AC out of business.

Meanwhile, the mere act of hyperlinking is increasingly subject to regulation. In Crookes v. Newton (2009), the BC Court of Appeal ruled that a website owner is not liable for linking to defamatory sites, that decision is now being appealed. In March of this year, the US Dept of Homeland Security arrested an Internet user for linking. And AC’s proposed new tariffs for PSE call for the documentation of and collection of fees for any and all Internet linking done by teachers (this proposal has not been approved and could be debates for months if not years).

Taken together, all these different developments, together with privately imposed teaching policies and publishing guidelines (e.g. a limit of 150 words on quoted excerpts in refereed articles, which I’ve heard of anecdotally but can’t find documented), are chilling the climate for fair dealing, and enclosing that much more of the already shrinking commons of public knowledge. Which is to say, they’re chilling the climate for teaching. As Michael Geist told delegates at last year’s ABC Copyright Conference, fair dealing is a “use it or lose it provision”: if Canadian educators don’t start exercising our fair dealing rights more extensively and aggressively, we stand to lose them altogether under the pressure of Big Media’s hugely influential lobbying efforts.

Fortunately, court decisions like LSUC v. CCH can and should embolden us to flex our fair dealing rights, rather than shrink from doing so under threat of litigation. The legal precedents currently support a “large and liberal” interpretation of fair dealing, and, as public educators, we have, I think, an ethical responsibility — not to mention a huge convenience — to act on that interpretation, towards principled and productive pedagogy. Against the creeping chill over academic freedom and effective teaching, give CAUT’s Guidelines a read — take ten minutes to learn the basics of educational fair dealing — and start staking your claim to a patch of the knowledge commons. A modest and reasonable patch, tended properly and shared appropriately, can yield large and liberal teaching outcomes.

Works Consulted

CAUT. Guidelines for the Use of Copyrighted Material. Ottawa: CAUT/ACPPU, May 2011 http://www.caut.ca/uploads/Copyright_guidelines.pdf

Edmonds, Kelly. “Off with their heads! Copyright infringement in the Canadian online higher educational environment.” Canadian Journal of Learning and Technology 32.2 (2006) http://www.cjlt.ca/index.php/cjlt/article/view/52/49

Dhawan, Sona. “Potential Liability for Hyperlinking: Crookes v. Newton.” The Court [blog] 31 Mar. 2010 http://www.thecourt.ca/2010/03/31/potential-liability-for-hyperlinking-crookes-v-newton/

Federal Court of Appeal. Decisions of the Federal Court of Appeal [database]. http://decisions.fca-caf.gc.ca/en/index.html

Geist, Michael. “The Canadian Copyfight Story: The Next Chapter.” ABC Copyright Conference. Athabasca U, 21 June 2010.

—. Michael Geist’s Blog. http://www.michaelgeist.ca/

Knopf, Howard. Excess Copyright [blog]. http://excesscopyright.blogspot.com/

McCutcheon, Mark A. Academicalism [blog]. https://academicalism.wordpress.com/

Ministry of Canadian Heritage. “Fair Dealing in Canada.” Ottawa: Government of Canada, 22 May 2009. http://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/102-eng.cfm

Supreme Court of Canada. Judgments of the Supreme Court of Canada [database]. Lexum/Supreme Court of Canada. http://scc.lexum.org/en/

Woodmansee, Martha. Intellectual property and the Construction of Authorship [course syllabus]. Case Western Reserve U, n.d. http://www.case.edu/affil/sce/authorship/syllabus.html

On differing online

Three flashes of the spirit of the age:

  • A friend on Facebook recently posted something to the effect that “maturity in the 21st century means un-friending somebody instead of getting into an argument with them.”
  • Lauren Beukes’ SF novel Moxyland refers in passing to (and I’m paraphrasing this too) “news feeds so ideologically customized that people only ever hear what they want to hear anymore.”
  • “Troll, n.2: … In extended use: an unpleasant or ugly person.” (Oxford English Dictionary, Sept. 2008 draft addition)

A social network is a strange place when people start to disagree. Last November, a friend on Facebook re-posted a link I had shared — an op-ed about the exploitation of Remembrance Day on behalf of present Canadian military campaigns — and later reported that he had lost two friends over the posting. Seems he got into a status-update thread of debate over the piece, a debate that got so heated he ended up dropping the two friends.

–But surely these were just “Facebook friends,” I asked.
–No they were actual friends, he said (then mentioned that they’d been on his shit-list for other offences for some time).

Earlier this year, I commented on a different Facebook friend’s support for Toronto mayor Rob Ford’s suggestion to repeal a plastic bag tax. I commented because I found it odd that this person tirelessly fundraises for cancer research but opposes a tax that would curb the use of toxic products. No further comments, on- or off-thread, followed mine. More recently I’ve had lively discussions with yet another Facebook friend over the upcoming election.

While I’ve arguably played the troll in these exchanges, neither of these Faceook friends — who are definitively Facebook friends (i.e. not people I look up when I’m in the area, or people I’d send holiday cards to) — have un-friended me over them. They are people whose political convictions oppose mine, and I appreciate their willingness to field my comments, even if they don’t agree or even respond to them. Here I should say that I’m not, categorically, any firm believer in “free speech.” For one thing, any decent grounding in poststructuralist theory quickly reveals, like the red pill, what a restrictive matrix is the prison-house of language in the first place; for another, free speech has been arrogated by the more strident and extremist parties to public discourse, for which it’s become a moral-panic smokescreen to cover all types of barbarism. “Free speech,” as my ex-pat friend in NYC reminds me, “is no excuse for being an asshole.”

But while I wouldn’t defend to the death the right of someone I disagree with to say whatever it is that I happen to disagree with, I might defend it to the pain. Not just tolerance of but critical engagement with difference of opinion is a hallmark of both a robust research culture and a vital political culture. Unfortunately, both seem to be turning into cultures we may have actually have to fight to keep and strengthen. A colleague in MA-IS recently shared some thoughts on current developments in how the political right is exploiting discourses of accountability and ideological “bias” to silence leftist dissent, while funding private think tanks to more thoroughly colonize the public sphere with ever-further-right hegemony:

“Legally, replete with a full moral rationalization emphasizing public disclosure, freedom of information, and the elimination of political bias in the use of public funds, the political right comes to completely dominate the public sphere of discourse. As public broadcasting is defunded out of existence, tons of private money goes to propaganda strategists in the think tanks and to propaganda distributors on cable TV/radio (e.g. Fox News, a form of which by the way is coming to Canada). It’s not hard to imagine the day when any voice of opposition is effectively silenced either legally (criminalization of dissent when any aspect of one’s livelihood has anything to do with public funding) or economically (little private funding available to mount effective public voice or a grossly disproportionate availability compared to what is available to the above-mentioned propaganda machine).”

Larger socio-political machinations like this make the personal of the social network seem a lot more political. I don’t know that there’s any general principle of tolerance or openness that should be applied in each and every case of differing online; I’m not suggesting the friend who un-friended over Remembrance Day hostilities should instead have suffered fools, gladly or otherwise. And I certainly agree that trolls — of the anonymous and cretinous kind that lurk in the comment fields of major news outlets, and among the general-interest hash-tags of Twitter — are not to be fed. But I might counsel a moment’s critical reflection if and when the opportunity arises to un-friend or otherwise cut off some disagreeable associate or acquaintance. The postmodern feminist sex-performance artist Annie Sprinkle once said during an interview that she was glad of such a teeming abundance of different and diverging opinions in the world. The interviewer challenged her on this, citing zealous anti-NEA conservatives like Jesse Helms, with their total, dehumanizing disregard for controversial art (which I’d say has only extended since to cover most art in general) — who, the interviewer pointed out, would never afford Sprinkle the same courtesy. Sprinkle stuck to her guns, and insisted on everyone’s right to a different opinion, however radical or extreme.

Like I said, I don’t think I could bring myself ever to excuse ignorant assholery as principled free speech. But does the health of the public sphere perhaps depend on cultivating its biodiversity, rather than culling its noxious weeds? And who gets to define “noxious”? I’ve blogged before about the inherent ideological premises of social networking technologies; so where on the political spectrum sits the one-click ability to cut off a voice with whom you disagree?

Cross-blogged from the AU Landing

Before the Law: Histories of Copyright

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)

(I was reminded of this comment when I found Martha Woodmansee’s syllabus for a course on “Intellectual Property and the Construction of Authorship,” with dozens of great readings made freely available for public download. If this is what fair use affords US educators, I’ll have what they’re having.)

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.

On criminalizing & commodifying third-party site linking

So how long before doing this becomes “illegal copyright infringement”? A colleague who’s closely watching stateside goings-on alerted me to news that the US Department of Home1and Secur!ty has arrested an Internet user for linking to third-party websites.

So the DH S has arrested the user for running a website whose express purpose seems to be redirecting traffic to streaming TV. But the charge of copyright infringement alleges no copying. The potential implications are positively monstrous for the very character of the Internet.

Stiffer regulations of such fundamental Internet activity are closer than you might think in Canada, where Access Copyright that has already started down this treacherous road. Its proposed education-sector tariffs would controversially impose fees and penalties on third-party linking, which means that educators would be required not only to document any and all third-party links, but also to pay a fee for doing so.

“What this has to do with “Home1and Security” I have no idea,” writes said colleague who alerted me to this news, “but the DH S seems to be merely revealing its true character as a disciplinary machine whose real purpose is the surveillance and control of citizens for the sake of commercial interests. Although this is in the US, I have little doubt that Harper is watching and may try to follow suit (e.g. with CS1S).”

And here I thought a proposal to charge fees for third-party linking was about as insane as digital IP policy could get.

QuestionCopyright.org on this year’s “most ironic Oscar winner”

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.”

Who’s “speaking out” on copyright? “Canadian writers” — or Access Copyright?

I just got an e-mail forwarded from the Writers’ Union of Canada (TWUC), which promotes a Youtube video about the new copyright Bill C-32, and includes a “petition”-style message for sending to MPs: a message that, like the video, speaks out against Bill C-32’s new fair dealing provisions for educators.

So as a Canadian educator, I am supposed to write to my MP and the government against C-32’s new fair-dealing exemption? See the vid for yourself. And, oh, by the way, watch for the positive mention of Access Copyright, about a minute and a half in:

Having watched the video, I am emphatically more inclined to agree with the shrewd critical comments posted to Youtube about it. And with the more extensive analysis given the video by one commentator, a Canadian novelist who is less than thrilled to have Access Copyright and TWUC “representing” him in this misleading way — Cory Doctorow makes the important but disturbing point that a message like this “uses lies to pit creators against schools.” For more skeptical critical analysis, Canadian copyright lawyer Howard Knopf has weighed in on this too, calling the video a piece of “orchestrated and inaccurate hysteria.”

The problem with C-32 is its protection of digital locks, not its new fair-dealing provisions: these actually represent a big gain for Canadian educational institutions (though still not on the order of what US educators can do under their fair-use laws). However, clearer and more flexible fair-dealing provisions for educators could well spell trouble for Access Copyright, which is, nevertheless, still doing its utmost to alienate Canadian PSE anyway.

Cross-posted from my AU Landing blog

Lady Gaga, copyfighter?

Google search results for “Lady Gaga infringement”: 630,000
For “Lady Gaga copyright”: 270,000,000

That’s a lot of Intertubes about Lady Gaga and copyright. Sifting the results, though, turns up little by way of actual actions. She threatened to sue the maker of a “Lady Gag Gag” sex doll, for instance; and action against her has been threatened by an alleged co-writer.

(If anyone knows of other actions, please comment — I just haven’t time to sift all two hundred and seventy million results!)

Rather more of the results have to do instead with Gaga’s perceived lack of originality, pointing out rather obvious similarities between her image and music and those of Madonna, or, say, between her meat dress and Canadian sculptor Jana Sterbak’s 1987 meat dress.

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.

Update: I’ll take this story about Lady GaGa’s endorsement of a little Canadian girl who covered “Born this way” on Youtube as some solid evidence supporting my hunch here.
The Youtube vid in question is pretty excellent.

UPDATE 2.0! TorrentFreak confirms that “Lady Gaga Is a BitTorrent Loving Pirate.”
Apparently “she asked her fans to send a torrent (or YouTube) link of the Top Chef Just Desserts finale.”
Now, about that thing with the photographers

Canadians have until Jan. 31 to comment on copyright bill

As Michael Geist says in his blog post today, we Canadians have until the end of this month to send comments on the new copyright bill, Bill C32, to the legislative committee now responsible for it. I’m not sure it’s exactly the “Canadian DMCA” that Cory Doctorow describes it as (especially since the DMCA itself is now more flexible on fair use and digital locks than our expected bill), but a copyright bill has no business protecting digital locks. IMHO.
For the record, here’s the letter I’ve just sent. (To send your own, consider these sources and strategies.)

Dear Bill C32 legislative committee,

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.

Thank you for fielding my comments on Bill C32.

Glenn Gould, copyfighter

“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.