[Reader-list] copy adorno, go to jail?

[Lawrence Liang]

Dear Andreas, Britta, Monica and Sebastian

A whole host of issues raised in the discussion for
the past few days. While I understand the concerns
that Britto has with regard to the unfair
'appropiation' of the labour of a a creative worker, I
think the next automatic step of assuming copyright to
be the answer may be a little misplaced. I also notice
that a significant segment of the discussion is
premised on a certain assumption of authorship,
authorial interests etc. , as well as a very stable
uninterrogated idea of information as property. 

I am including a small piece that a few of us had
compied together which tries to examine the sustaining
myths of copyright. Defintely not claiing that it
answers all your concerns, and we still need to think
through a whole range of issues, but hope it does
enough to spark of more debate and though on the area.



Lawrence



=========

Encountering the Sustaining Myths of Copyright

Compiled by 
Mayur Suresh, Atrayee Mazumdar and Lawrence Liang

1. Some familiar tales of loss and anxiety
2. Encountering the myths of copyright
A. Contextualizing Authorship and Originality
B. Copyright, Information and the Language of property
C. Copyright and the incentive for creativity
D. Copyright protects the poor struggling author
D. Economic Losses caused by Piracy
3. Conclusion



1. Encountering the sustaining myths of copyright

Copyright in recent years has acquired an
all-pervasive status, entering into the realms of the
everyday through various forms. It’s most common
appearance is as a newspaper story about the losses
caused by piracy or a description of the latest
threatno-innovative attempt to fight piracy. Post
September 11th, the war against terrorism and the war
against piracy have become close allies. Sometimes it
acquires a certain glamorous appeal when a celebrity
sues another for copyright infringement as in the
recent case of Bappi Lahiri against Dr. Dre or
Rajnikant claming a right over a sign that he uses in
his film. Apart from these stories of anxieties around
copyright piracy, there are also self-congratulatory
nationalist messages of how India is mobilizing on its
vast pool of knowledge workers to become a global
super power. Irrespective of the nature of the story
told, there often seems to be a number of elements in
these narratives which have a common thread running
through them, and in fact it could be said that it is
precisely these threads which makes it possible for us
to weave together a story of copyright in the
contemporary context.

It is our argument that an understanding of the
insertion of the discourse of copyright into quotidian
imagination is critical for an understanding of the
profound transformations that are taking place within
the realm of production and distribution of knowledge
and cultural commodities. It is in these spaces that
the myth of copyright is carefully constructed and
constantly reinforced, and out very experience of
media in any form is pre mediated by our understanding
of its circulation within the economy of intellectual
property. As Nitin Govil says “The uncanny
“everywhereness” of piracy is, of course, merely the
inverted image of the properly interpolated spaces of
intellectual property”

This brief concept paper seeks to identify and
interrogate some of the assumptions that underlie most
of the common media stories about copyright.
Copyright’s greatest success has been to successfully
transform itself into the status of myth by constantly
rendering familiar certain figures (the poor
struggling author), arguments (a man deserves to own
what is his rightful labour) and rhetorical data (
billions of dollars lost due to piracy). By
specifically naming these assumptions as myths, we
seek to question their truth premise. This is however,
a task that has just begun and we shall have to work
collectively to strive towards making arguments beyond
merely providing counter factual, if we are to
effectively counter the totalling rhetoric of
copyright.


2. Some familiar tales of loss and anxiety

Exhibit 1:-
“The failure to enforce the Intellectual Property
Rights (IPR) laws has taken a heavy toll on the
Government revenues and reduced employment
opportunities, with the Government forgoing a tax
revenue of over Rs.10,000 crores annually due to the
proliferation of counterfeit consumer products alone,
the Chief Justice of the Delhi High Court, S. B.
Sinha, said here today. Inaugurating a seminar on new
IPR laws organised by The Associated Chambers of
Commerce and Industry of India (ASSOCHAM), Justice
Sinha emphasised the need for training of judicial and
police officers in all aspects of implementation of
IPR laws so that there is adequate protection to the
manufacture of genuine products and the consumer is
not exposed to the dangers of consuming fake products.


Mr. Sinha emphasised the need for creating consumer
awareness and class action by manufacturers so that
the counterfeiters could be brought to book. He said
that counterfeit products were flourishing because
there was a ready market in the country for such
cheap, look-alike products. The acceptance of
counterfeit products by consumers comes in the way of
implementation of laws. Responding to the concerns
expressed by the alternate president, ASSOCHAM, R. K.
Somany, Justice Sinha said there was sufficient
awareness among law makers and the enforcement
agencies about the need to contain the menace of
counterfeiting by proper implementation of IPR laws.
What was, however, urgently required was all-round
societal action against the offenders. The Minister of
State for Coal, Mines, Law and Justice, Ravi Shankar
Prasad, in his keynote address said it was critical to
adjust the legal system to respond rapidly to the new
technological environment in an effective and
appropriate way, because technologies and markets
evolve increasingly rapidly. This will ensure the
continued furtherance of the fundamental guiding
principles of copyright and related rights, which
remain constant whatever may be the technology of the
day. 

It would involve giving incentives to creators to
produce and disseminate new creative materials;
recognising the importance of their contributions
providing appropriate balance for the public interest,
particularly education, research and access to
information and thereby ultimately benefiting society
by promoting the development of culture, science and
the economy”.
The Hindu-22nd September’ 02

Exhibit 2:-


Mr Hardee told FE in an exclusive interview that
Indian government needed to take a much more proactive
approach to deal with copyright issues. 

“India has not yet ratified the WIPO Copyright treaty
and BSA would like to convince the Indian government
to accept it for effective protection digital rights,”
Mr Hardee said, adding that he would also discuss WTO
services agreement related issues that are crucial for
conducting electronic commerce over Internet. 

“Intellectual property rights protection are the key
to the continued growth of the software industry and a
critical factor in attracting direct foreign
investment. We want that Indian politicians and
government official to talk about copyright issues to
create awareness and also adopt strict anti-piracy
policies in government departments to set an example,”
he said”. 

The Financial Express-21st August 02’

Exhibit 3:-
Book piracy racket busted 

By Our Staff Reporter 

THIRUVANANTHAPURAM Aug. 26. The City Police today
busted a racket involving unauthorised duplication and
sale of foreign medical books from two photostat
business centres in the Medical College area. As many
as 150 unauthorised reproductions of several costly
publications were seized in the raid. Police have
filed a case under the Copyright Violation Act against
the owners of the two shops. The raid followed a
nationwide campaign by the Indian arm of the
Publishers Association, U.K., to unearth piracy of
books published by international firms. According to
the police, the clandestine operation in the Medical
College area was targeted at medical students. The
modus operandi was to make a master copy of the
foreign technical books which cost up to Rs. 4,000
each. Multiple copies made from the master pages are
bound into book form and sold at Rs. 500 to 1,000
each. 
Counsel for the publishers, Priya Rao, who had arrived
from Delhi said the raid had unearthed bound books as
well as loose photostat copies. The books were neatly
reproduced and sold with brochures. 

Similar raids carried out in the Museum and Thampanoor
police station limits during the last two days had
uncovered a similar racket in popular novels. Police
raids in these areas revealed about 200 reproductions
of `Harry Potter' and Sydney Sheldon novels. While the
original novels cost about Rs. 300, the pirated
editions were selling for Rs. 50. 

The unauthorised versions were seized from book shops
as well as footpath vendors dealing in second hand
books 

Exhibit 4:-

SOON THE Indian Music Industry will be out of sight,
there will be a cultural blackout and consumers will
no longer be able to listen to music, virtually. That
is what the Indian Music Industry - IMI - joining
hands with the police and researchers tried to convey
to consumers and media persons this past week as it
held a conference to highlight the threat of music
piracy. At a briefing at India Habitat Centre
addressed by V.J. Lazarus, IMI President, J.F.
Rebeiro, former Commissioner of Police, Abhik Mitra,
MD, Saregama India Limited and Prakash Singh former
Director General of BSF, the issue of piracy was
raised and a campaign called `Sounds of Silence' to
fight the "illegitimate music" was launched. 

"Due to piracy we have lost over Rs. 1800 crore in the
last three years. Despite being an offence as per the
copyright act - Article 52 (1) (i) that calls for
severe penalties - piracy is eating into the music
companies," lamented Lazarus. 

Though he reasoned that IMI has recorded 3652 criminal
cases and made 4096 arrests in the last four years,
only 30 cases ended in prison sentences or fines,
although 191 cases ended in conviction. 

He felt that this sorry state was due to a lenient
attitude by those who should be providing the
deterrent, while Rebeiro too admitted that for police
it is one of the very low priorities. Moreover, slow
processing in the courts adversely affects the
required enforcement. The source of the trouble also
lies in the lack of major hits and the high price of
the original cassettes and CDs. For the latter they
have their reasons. "People come to us asking why
can't you sell a CD for Rs. 20 while the raw material
costs you only Rs. 8, but they don't realise that the
lyricists and each of the artistes have to be paid a
good amount," said Abhik Mitra. 

"If the government does not look into it fast, the
industry will come to a halt within a year, for two
out five cassettes and CDs get pirated now," says
Lazarus.

 
3. Encountering the myths of copyright

The snippets of news items quoted above are just a
glimpse of what has become a regular staple of
newspaper stories, and yet there is a stubborn logic
that refuses to accede so easily to the threats,
blackmail and pleas of copyright protectionists. The
spectral figure of copyright looms large over, but
fails to entirely haunt our imagination. As with any
other conflict, the ‘battle for souls’ is perhaps as
important as the transformations talking place in the
material world of practices. And it is within these
spaces of imagination that we insert our current
intervention. Drawing from the stories that we have
taken from the contemporary representations of the
conflict over copyright, we would like to examine some
of the basic assumptions in copyright’s self-narrated
life. 

Copyright has a rather straightforward justification
for itself. We shall being with what may be considered
a rather typical account of the necessity of copyright
law. Copyright is that branch of intellectual property
law which protects original works of authorship. These
include literary, artistic, musical and dramatic
works. In recent years Copyright law has been amended
to include protection for performers rights. The key
assumption that sustains copyright law is that authors
have a natural right over their works of intellectual
labour, and copyright protection is required to
provide an incentive to create intellectual works.
Copyright therefore grants an exclusive right to the
author over his works, and these rights include a
basket of rights including the right to authorize
reproduction of the work, adaptation, performance,
distribution etc. In the absence of a system like
copyright, there would be no incentive for authors to
produce and hence there would be a general decline in
the world of creativity and the arts. However
copyright inherently includes a balance between the
protection of authors on the one hand and the interest
of the public on the other. It is recognized that
excessive protection may result in a curbing the
ability of the public to use works, and hence
copyright protects only unique expressions and not
ideas per se. Copyright therefore seeks to achieve
this balance by providing a limited term of protection
(life of the author plus sixty years). Any person who
therefore uses the works of another person’s
intellectual labour is indulging in an act of stealing
the other person’s ideas and this act of theft will
result in huge losses for the author of the work.

As with any other totalizing story, the tale of
copyright seems to have some intrinsic appeal, relying
as it does on a progress account (copyright promotes
creativity) and the dystopic world that it prevents
(there will be no creativity without copyright). The
reason why we choose to use the phrase the myth of
copyright, is because we recognize the wonderful
success of copyright in narrating itself as a
universal truth. The history of copyright is always
narrated in an ahistorical manner following a
universal natural teleological route as though it were
the natural culmination of events. Following Barthes,
we would however like to interrogate the mythologies
as forms of language, which are ideologically embedded
in various practices of power and ideology. 

We would in this section of the paper like to
interrogate some of the arguments that seems to form
the mythological structure of copyright:

A.	Challenging the ahistorical account of Copyright:
Contextualizing authorship and originality
B.	Copyright, information and the language of property
C.	Copyright and incentive for creativity
D.	Copyright protects the rights of authors
E.	The use of the language of theft and piracy in the
discourse of copyright




A. Contextualizing authorship and originality

Copyright assumes as the subject of its enquiry the
rights of the author. Simple as it sounds, this
assertion has great import to our understanding of the
conflict over copyright, for at the heart of the
statement lies the presumption that we can clearly
make sense of the idea of authorship without any
problems. To juxtapose this statement with another ask
any person to rattle of the names f the great authors,
and you will find a varied crowd from Shakespeare,
Chaucer, Kalidas, Valmiki to Salman Rushdie and
perhaps Jeffrey Archer. There are then two sets of
self fulfilling prophesies that are achieved by the
assertion that copyright protects the rights of
authors. It assumes a category which makes universal
sense across cultures and across time, namely that of
the author, and having erected this universal figure
of the author and asserting that copyright is meant
for the protection of the author, it universalizes the
relationship between copyright and creativity as well.
Our first task is then to historicize the emergence of
the author figure or the author function, as a
relatively modern phenomenon that arises in the
context of the crisis caused by the print revolution. 

Before the invention of the printing press, the act of
writing was a very localised activity and it was
impossible to disseminate knowledge in any significant
manner since the inaccuracies of copying prevented any
widespread use of the written work. The invention of
the printing press enabled a number of innovations.
Duplication became easier and more accurate. Mass
distribution became viable. The printing press
revolutionized information storage, retrieval and
usage. Printing, unlike writing, allowed a society to
build on the past with a confidence that each step was
being made on a firm foundation. Printing generated
confidence that new information was an improvement
over old. The revolution in the ability to accurately
reproduce works fostered an understanding that
progress can occur through a process of revision and
improvement. The increased accuracy and rapidity of
new editions made possible by the printing press made
the most recent editions more valued than the older.
Additionally, access was now available to the literate
public. Printing provided a mechanism by which a
larger reading public developed, thus constituting the
emerging public sphere.

This new reading public that emerged demanded books,
original and reprints, and set in stage the crucial
conflict over the ownership of such information. As
Mark Rose observes, “a sufficient market for books to
sustain a commercial system of cultural production”
had to exist before the coming into being of a formal
regime of intellectual property. What was earlier the
monopoly of the Stationers Company, a guild recognised
and regulated by the Crown, became a mass industrial
activity with a number of publishers in the provinces
(Scotland) publishing cheap reprints for the new
reading public.

The reaction from the literary and artistic world was
to move away from the ‘ills of industrial revolution’,
and they began deploying the notion of the author as a
unique and transcendent being, possessing originality
of spirit. This romantic model was used as a means of
rescuing the artists’ works from the hostile market
and the public for whom mass production made works
available as never before, but at the risk of turning
it into an industrial product. The romantic artist was
therefore deemed to have property in an
uncommodifiable imaginary self, so originality was
elevated to being located in and belonging to the self
of the author. And because the artist owns his
original person or spirit, works created by such
authors were also deemed to be original; and they
could thus distinguish their personality from the
expanding realm of mass produced goods. This is the
moment when the romantic theory merges with the
prevailing doctrine of property of the time, namely
the Lockean theory of conversion, where an individual
through his labour creates something of value out of
nothing. This is of course also the theory that
justifies the appropriation of the commons, including
lands that did not belong to any civilized nation. 

There is then a dual move which is set in place where
the concept of the ‘modern proprietary author’ is used
as a weapon in the struggle between the London
booksellers and the booksellers of the provinces,
culminating in the landmark case of Donaldson v.
Becket. The entire claim in Donaldson v. Becket is
made in the name of protecting the rights of the
author (it must be noted that no author was involved
in the case) and the individuality of their ideas,
even though the primary benefactors from this new
system of knowledge ownership were publishers, since
all authors assigned their copyright to the publishers
before publication. The modern proprietary author
simply created a useful euphemism for protecting
company rights to copy.

This invocation of the author significantly ties up
copyright to the concept of an author. The proprietary
author emerges as the London publisher’s mode of
maintaining strict control over copyright. However,
once unleashed, the idea of the author starts taking
on a new meaning with unexpected consequences. It
emerges as a new social relationship, which will
transform the way society perceives the ownership of
knowledge. This establishment of the ideological
figure of the author naturalises a particular process
of knowledge production where the emphasis on
individual contribution denigrates the concept of
community knowledge and helps promulgate the notion of
the individual as owner.

The significant contribution of literary theory
through the works of Barthes, Foucault and Derrida has
been to problematize our notions of the romantic
individual author. What then do the work of Foucault,
Barthes and Derrida mean for the legal interpretation
of authorship. If legal scholarship and practise were
to take note of the inroads made into the very notion
of authorship and originality by these thinkers, we
will need to reconceptualise the terrain that we
understand to be intellectual property laws. This
reconceptualisation will necessarily have to shed of
the burden of the author’s originality and recognise
the millions of traces which shadow the arrival of any
work, and provide a means of structuring the
relationship between such texts, its readers and
society at large. It will mean a more nuanced
understanding of the public sphere or what IP laws
calls the public domain, with the presumption being
that the author is not a figure who has to be
protected from this public sphere but one resides and
works within the public sphere.   This restructuring
of the relationship between authors, texts and
interpretative communities will also demand a major
increase in the ways in which these works may be
modified, adapted and appropriated to enable what
Derrida would call the field of infinite substitutions
 
B. Copyright, Information and the language of property

"If you have an apple and I have an apple and we
exchange apples then you and I will still each have
one apple. But if you have an idea and I have one idea
and we exchange these ideas, then each of us will have
two ideas" George B. Shaw

In this section we examine how, conceptually,
intellectual property is justified. On examining
Hegelian and Lockean theories of how Property is
created, the fundamental question to be posed is
whether information can be considered property in the
same sense that a house or a car is considered
property. The fundamental character of information is
that it is a non rival good which means that the same
assumptions of depletion, scarcity etc that are used
while analyzing classical theories of property cannot
fit in the same manner. 

Many explanations for the propertisation of
intellectual creations are based on a Lockean theory
of the creation of property. Locke’s theory relies on
three basic principles; firstly that every person has
property in herself; secondly, everything that is in a
state of nature, i.e. not as yet propertised and is
still held in common, was given by God to be
propertised; and thirdly that labour converts things
in a state of nature into a state or property and adds
value to things so laboured upon. Therefore, Locke was
of the opinion that if A mixed her labour into a thing
that is in a state of nature, that thing becomes the
property of A.  In terms of copyright, author’s can be
said to take the ideas that are ‘out there’ in common,
add their labour to it, and what we have is the
‘work’. What Locke fails to answer is why, if authors
add labour to ideas, it becomes the property of the
author, and simply rests at the assumption that
property is the deserts for labour. 

The next question that may be asked is whether and how
a person actually has property in herself. This
property in oneself cannot be a product of one’s
labour, and therefore must be premised upon something
else. However, at the core of Locke’s theory, lies the
notion of personal freedom, with state power severely
constrained and limited to the protection of liberty,
and it is in this context that he, again, presumes the
ownership of oneself. Unlike Locke, however, Hegel
does not see humans as naturally free, and therefore
as having natural ownership rights in themselves. It
is only through the historical process of
objectification and hence self-confrontation that one
comes to be free: “It is only through the development
of his own body and mind, essentially through his
self-consciousness’s apprehension of itself as free,
that he takes possession of himself and becomes his
own property and no one else’s.”  In both theories,
ownership of ourselves enables the ownership of
natural objects as they become assimilated to our
bodies.

Such a proposition meets several objections. Robert
Nozick poses an interesting question. If  I were to
pour a bowl of radioactive soup (so that it could be
traced), of which I was the owner of, into the ocean,
and this radioactive soup mixed throughout all the
oceans and seas, could it be said that I am now the
owner all this? 

Hegel would answer this in the negative for the reason
that Nozick’s soup is not an expression of his
personality. Central to Hegel’s concept of property is
the notion that property is not only a necessary
component in the development of personality, but a
manifestation of this personality itself.  Similar to
the Romantic movement of the 18th century, for Hegel,
a person must translate his freedom into an external
sphere in order to exist as Idea, and the resultant
property is the manifestation of this translation.  

According to Hegelian arguments, occupancy, not labor,
is the act by which external things become property.
This occupancy, or taking possession, can be done in
three ways; firstly, by directly grasping it
physically; next, by forming it; and thirdly, by
merely marking it as ours. It is the second of these
ways of possession that is most interesting for our
purposes. As Hegel remarks, “When I impose a form on
something, the thing’s determinate character as mine
acquires an independent externality and ceases to be
restricted to my presence here and now and to the
direct presence of my awareness and will.”  This
statement reverberates in copyright law’s recognition
of the rights of the author of works when those works
are changed or ‘mutilated’. The law looks upon this
‘mutilation’ as an violation of the personality of the
author as manifested through that work. However, the
fundamental question that law does not answer is how
this constitutes a violation of the author’s
‘personality’. 

Moreover, as is seen with the Romantic conception of
the Author, Hegel fails to account for the external
influences on creations. Hegel’s conception of
property being the expression of the will of the
individual fails to see that this ‘work’ is influenced
by various other factors; painters, musicians,
writers, all learn their skills and are classified
into genres and styles; artists may take inspiration
from everyday scenes, and author from gossip. In such
situations can their ‘works’ be said to be an
expression of their soul?

Locke locates the desire for propertisation of the
commons in need for preservation of resources.
According to him, if resources are left in the commons
their utility will gradually diminish because of over
use or neglect. Land, for example, may be overgrazed
or may by neglect become unarable, and in both cases
the utility that this land provides is diminished.
Locke assumes that once a resource is taken from the
commons and transformed into private property the
owner of that property will use such property in a
manner that preserves its value in use. Even if we
accept these assumptions, can this theory of the need
for propertisation be extended to incorporeal ideas?
Does the ‘over use’ or neglect of ideas lead to the
reduction of their value in use?

Bernard Shaw’s quotation about the sharing of the
ideas is a simple yet effective demonstration of the
nature of ideas and information goods. Information
just does not share the same characteristics as
classical ‘real property’. The dissemination of ideas,
for instance, does not reduce their use value.
Information is considered a ‘non-rival’ good, in the
sense that usage of that information cannot impair the
utility to another user of that information. It has
also been characterised as non-excludable in the sense
that use of that information does not exclude other
users from utilising that information. The best
example of this is software. The only way a person can
prevent the copy of software is by preventing third
persons from accessing it. Once access is granted, it
can be copied for almost no cost. This copying,
moreover, does not affect the utility of the software
itself, nor does it prevent the usage of that software
by the original owner

The sharing of information goods, especially in the
digital context for instance does not diminish in any
manner the quality of the good that is shared. There
is clearly a movement away from the idea of property
as we have always understood it, and copyright
displays a stubborn drive towards taming this new
monster created out of developments in information
technology. 

There are a number of contradictions in the attempt to
equate information goods with classical property which
are becoming more glaring. Some of these are internal
contradictions within the larger machinery of
production and consumption. Thus, on the one hand you
have hardware manufacturers creating better CD writers
at a cheaper price advertising their products with the
magical words, BURN, RIP, COPY, DUPLICATE, STORE  etc.
On the other hand you have the content industry
screaming hoarse at these new technologies which are
making it easier for people to steal information
unethically.
 
C. Copyright and the incentive for creativity


It is often argued that in the absence of copyright
protection that Authors would lack the incentive to
create more works thereby depriving society of useful
works that may have been produced. This part questions
the subsumption of incentive in copyright theory.

One of the main justifications for copyright law is
that in the absence of an intellectual property rights
regime, authors of works would lack the incentive to
further create; that artists cannot produce new works
without economic incentive. Intellectual property law,
therefore, is often justified on the basis that it
stimulates investment of time and money in the
creation of new works and that many authors of the
works of copyright rely on the income that they derive
from the publication of their works for their
livelihood. 

Additionally, it is claimed that in the absence of
copyright protection covering an author’s creation,
the low cost of copying such works will induce
competitors to ‘steal’ another’s product without
penalty and therefore, rivals may profit from
another’s intellectual efforts without expending any
energy or costs other than the relatively minor costs
required to duplicate the socially valuable creation.
Consequently, the incentives of authors to generate
beneficial informational works will be greatly
diminished, if not entirely eliminated. They will not
be able to reap pecuniary rewards for their efforts or
even recover their costs in many cases because of
competitors copying their works and undercutting their
prices. Given that authors will have little hope of
recovering their investment, the production of works
will be seriously curtailed, and its associated
benefits upon society will be lost.  

While there may be a case for the proposition that
without incentives authors would fail to create new
works, the statement that copyright law is the basis
for this incentive requires a closer examination. What
is essentially argued here is that copyright is not
synonymous with incentives, and that in the absence of
copyright authors have created. It is also argued that
in many instances, this incentive that copyright
appears to give authors is illusory.

Firstly, many authors who have little hope of ever
finding a market for their publications, and whose
copyrights are, as a result, virtually worthless, have
in the past, and at present, continue to write. While
it may not be a general phenomenon, it is possible
that people produce works for pure personal
satisfaction, or even for peer respect and
recognition. 

Secondly, historically, there is much to suggest that
copyright law and incentive were rarely linked. The
19th century saw the prolific authorship of literary
works, in the absence of any meaningful protection
afforded to authors by virtue of their copyright. 
While copyright protection existed, these rarely
benefited the author beyond an initial payment for the
copyrights in their works.  This payment, often
referred to as an honorarium, bore no relationship to
the exchange value of that work, but was rather an
acknowledgment of the writer’s achievements.  In the
vast majority of cases most of the profits went to the
publisher  and, on occasion authors were even asked to
underwrite a portion of the publishing costs. Moreover
without the publisher the copyright in effect had no
value, as the work could never get published. Hence
copyright protection in reality benefited the
publisher, and rarely the author. 

Furthermore, with the enactment of every subsequent
Copyright Act, the protection given to authors was
reduced.  In England, prior to the 1814, copyright in
the work reverted to the author after a term. The
author could renew proprietary rights in its work, and
could conceivably gain from again transferring the
copyright. However after 1814 such renewal terms were
eliminated and the author lost its position in the
mechanisms of copyright. The typical transaction
consisted of the transfer of the copyright to the
publisher by the author, of a one-time payment.
Subsequent to that the author had little role to play
in the publication of his work and the author reaped
little reward.  

This can be seen in a number of recent cases regarding
the translation of works into new media. What is at
issue is in these cases is, whether the author, who
has transferred copyright in, say a cinema,  to
another party, has a proprietary interest in
translations of this work into new media, say release
over the internet, the development of which was
unforeseen at the time of transfer of copyright. In
the United States, there are a number of cases where
it has been held that the author no longer has a
proprietary interest in these works that have been
translated into new media.  In such cases how does
copyright provide an incentive to authors?

In addition, the existence of alternative and
different types of incentives further erodes the
incentive claim of copyright protection. Two
non-pecuniary incentives have been identified above;
personal satisfaction and recognition. Many people
have created works without the thought of pecuniary
benefit. It is doubted that Anne Frank wrote her diary
or Nehru his letters with the intent to eke the
benefits arising out of copyright protection. 

Furthermore, advancement and honour in one’s field,
and recognition, are other forms of compensation for
authorship. As the honorarium discussed above shows,
there is a great prestige value to composing a book or
article or piece of art recognized as a leading piece
in its field. These incentives will always be present,
regardless of whether one is awarded monopoly rights
in her work.  

Original authors may also have the benefit of being
the first mover in the market. By entering the market
first, the authors of works may be able to capture a
certain degree of the economic rewards that
intellectual property rights aim to bestow even
without the actual conferral of such legal rights. 

Currently there exist several mechanisms, which are
primarily internet based, for creating incentives that
stand independent from copyright. The Street
Performer, or the Fairshare Protocols are examples
such devices. Under the latter system several people
make a payment directly to the author to finance
future works with the understanding that they are
given access to a portion of the consequent profits.
Under the first method, the authors contemplate a menu
of options available to artists. What each have in
common is that a release price will be set for a work,
and that it will be made available in digital form,
without (or largely so) copyright restrictions, once
members of the public voluntarily donate sufficient
funds to meet the asking price. An author might set up
her own website and announce her book project directly
to her public. Usually, although not necessarily, the
author might begin by posting a chapter or two to give
readers the flavour of what is to come.
 
D. Copyright protects the poor struggling author

We are constantly regaled with stories of how
copyright as a system acts as the basic protection for
poor struggling authors who would otherwise not have
any mode of protecting themselves against pirates who
reproduce their goods or others who steal their ideas.
Let us at the very outset clarify that we are
certainly not enemies of creative workers, and we
would of course like to see all creative labour
recognised and rewarded. But the question for us to
answer is does copyright really achieve that, and if
not why does this image of the poor struggling author
keep coming to mind? 

What the metaphor of the poor struggling author does
is invisibles the critical difference between the
authorship of a work of intellectual labour and the
ownership of the same. While there is a tendency in
copyright law “to invoke liberal individualism to
justify economic structures that frustrate the
aspirations of real-life individuals,  it is somewhat
surprising to encounter the individualistic Romantic
conception of "authorship" deployed to support a
regime that disassociates creative workers from a
legal interest in their creations: the "work-for-hire"
doctrine of American copyright law. Where the doctrine
applies, the firm or individual who paid to have a
work created, rather than the person who created it,
is regarded as the "author" for purposes of copyright
ownership”. Thus we have a situation where more often
than not works of copyright conflict are created by
unromantic authors sitting in their cubicles creating
for a large corporation like Microsoft. 

When a work is deemed to have been made “for hire,"
the alienation of labour is formally and legally
complete: the "author" of the "work" is the person on
whose behalf the "work" was made, not the individual
who created it. In this legal configuration, the
employer's rights do not derive from the employee by
an implied grant or assignment. Rather, those rights
are the direct result of the employer's status.
Ironically, the employers' claims are rationalized in
terms of the Romantic conception of "authorship" with
its concomitant values of "originality" and
"inspiration."

Secondly if one were to closely analyze the publishing
agreements of various publishing houses, one notices
immediately that unless you are an author of some
fame, the contracts are absolutely one sided, with the
individual author having little bargaining power, as
s/he assign all rights in favour of the publishing
house. 

Piracy has always been portrayed as being an assault
on the rights of authors. It is interesting to note
for instance that during the initial days of T series,
T series were often approached by various small time
ghazal singers requesting them to release their works
through the pirated circuit, as HMV, the owners of the
copyright in the work were unable or uninterested in
issuing the works, and the authors of the works
therefore did not have a chance to ensure that the
works were available to the consuming public. 

The example of J K Rowling as a struggling singe
mother is often used as the analogy for whey copyright
protects the rights of poor authors. While we are all
happy for Ms. Rowling, what is not convincing is how
the example applies even after the publication of the
fifth or sixth Harry Potter book, by which time Ms.
Rowling is now one of the highest paid authors in the
world, with many millions in excess. Clearly pirates
respond only to a market demand, and it is not every
book that is pirated. There is a particular popularity
or price limit that is required to be achieved before
it enters into the piracy circuit, and presumably if a
book has achieved a certain status for it to become
pirated, the poor struggling author has already
disappeared. Thus, the sight of Madonna appearing in
TV ads condemning piracy, because it deprives her of
livelihood does not quite convince.
  
D. Economic Losses caused by Piracy

The most common use of statistics in the copyright
tale is the amount of losses caused as a result of
piracy.  Thus for instance in the case of computer
software one would encounter the following:

The extent of software piracy and losses due to such
piracy cannot be given in exact quantitative terms
though it is believed that piracy in this sector is
wide spread. In Europe alone the sofware industries
lose an estimated $ 6 billion a year. In fact, Europe
holds the dubious distinction of accounting for about
50 per cent of world wide losses from software piracy,
more than any other region including the number two
Asia. According to a study of Software Publishers
Association, a US based body, losses due to piracy of
personal computer business application softwares
nearly equalled revenues earned by the global software
industry.  In 1996, piracy costed the software
industry US $ 11.2 billion, a 16 percent decrease over
the estimated losses of Us $ 13.3 billion in 1995. The
country-specific data show that in 1996 Vietnam and
Indonesia had the highest piracy rate of 99 per cent
and 97 percent respectively, followed by China (96%),
Russia (91%), Thailand (80%) etc. In India software
piracy is costing the IT industry quite dear.
According to a survey conducted jointly by Business
Software Alliance (BSA) and NASSCOM in May 1996, total
losses due to software piracy in India stood at a
staggering figure of  about Rs. 500 crores (US $ 151.3
million) showing about 60 per cent piracy rate in
India.
-	MHRD Report on Copyright Piracy

These statistics often rely on certain dubious
economic assumptions. The main one of course is the
assumption that a person buying an illegal copy would
necessarily buy as legal copy of the same if piracy
did not exits. Thus while we know that most computers
in India have an illegal copy of Microsoft XP and
Microsoft Office, can we assume that every user would
be willing to pay an additional Rs. 23,000 for these
two software alone, especially in light of a free
alternative in the form of Linux.

In a very insightful study, Carlos Osorio seeks to
empirically understand the phenomenon of piracy. He
starts with the assumption that Computer software have
the characteristic of being a non-rival and quasi
non-excludable good.  Thus “One may prohibit a third
person from using it only by not letting him (or her)
to access a version of the software. Once access is
granted, however, the software can be copied at almost
zero cost. By doing so, new users cannot exclude the
earlier from using the software -as with a bicycle or
a jacket- and, by direct and indirect network effects,
the new user adds value to the whole network of users
(legal and illegal)”. The question for him then is
What are the effects of illegal copying of software,
commonly known as “piracy”, on the overall software
market? Why do some software companies enforce their
intellectual property rights differently across
countries? 

He states that classically, illegal copying is
commonly assumed to be function of the software’s
price, potential market’s average income per capita,
and marginal cost of copying versus producing the
software. However he states that in addition to these
common assumptions, it is also important to examine
the role of direct and indirect network effects in
explaining the importance of illegal users in the
diffusion process. His argument is that software
companies might have a direct and indirect role in
helping the generation of illegal copying in
underdeveloped markets, and incentives for doing so.
In terms of business strategies, for instance, some
ways of doing it are by undersupplying system
compatibility, generating lock-in for users of their
product, and by lack of
“sponsorship” in some markets

Furthermore, piracy often acts in underdeveloped
markets as the most efficient manner of creating a
market or user base and also to create a lock- in
period for the product. Thus Microsoft has
consistently refused to  enforce its intellectual
property rights in markets in developing countries
till such time that  market base is created for its
products. Piracy works to produce network effects:
Network effects are important because, in terms of the
total user base, the illegal users of software add
value to all the users, legal and illegal, and act as
agents in fostering the software’s diffusion process
by word-of-mouth. By this way, they indirectly
generate additional positive effect for the software
company.
 

Conclusion

“Justice is the first virtue of social institutions,
as truth is of systems of thought. A theory however
elegant and economical must be rejected or revised if
it is untrue; likewise laws and institutions no matter
how efficient and well-arranged must be reformed or
abolished if they are unjust. The only thing that
permits us to acquiesce in an erroneous theory is the
lack of a better one.”
-John Rawls in A Theory of Justice

“the admiring fascination of the rebel can be
understood not merely as the fascination for someone
who commits a particular crime but that someone, in
defying the law bares the violence of the legal system
or the juridical order”
-Jaques Derrida, The mystical foundation of authority

The task of this paper has been to examine the various
myths that sustain copyright. This is just the
beginning of the process and if we are to seriously
engage with the totalizing logic of copyright, there
are two tasks. Firstly, we will need to continue to
chip away at the foundational logic of copyright,
exposing the shaky grounds on which it makes its
universal claims. Secondly, we need to actively
examine alternative models through which we can
understand the production and dissemination of
knowledge and culture. The existence of alternatives
to copyright, such as Copyleft, the Open Source
Movement, Fairshare and Open Street Protocols belie
the reality of Copyright. Conceptually, these
alternatives challenge the fundamentals upon which
copyright rests; there is no single, the emphasis is
on the ability of users to modify and distribute
works, yet there is still ‘incentive’ to create as is
evidenced by the success and spread of Linux;
essentially there is no contradiction of purpose as it
creates public rights for a public purpose. 

If the world of copyright constructs itself as the
only model of incentive, reward etc for creative
labour, the symbolic power of the open source movement
rests in the creation of alternative social
imaginaries which turns every assumption of copyright
upon itself. 

There is however a world of quotidian media practises
which do not fall squarely within the alternative
progress narratives of copyleft, open source etc., and
this is the world of illegal media networks and
practises. This is also the world that copyright seeks
to demonize and in our search for alternative models,
it is also critical for us to engage with the
‘subterranean’ other of the open source movement, as
the pirates go about redistributing wealth in the
information era.

End Notes

  The internet for instance has radically challenged a
number of the traditional claims of intellectual
property and authorship. The free software movement
along with the concept of online writing communities
have revealed the myth underlying the philosophical
claims made by intellectual property.

  John Locke Two Treatises of Government 
  Tom G. Palmer “Are Patents and Copyrights Morally
Justified? The Philosophy of Property Rights and Ideal
Objects”  Harvard Journal of Law and Public Policy
817. 

  Ibid., at 837.
  Robert Nozick State Anarchy and Utopia 
  Supra n. 4, at 837.
  Id.
  Ibid., at 838.
  Steve P. Calandrillo "An Economic Analysis of
Intellectual Property Rights: Justifications and
Problems of Exclusive Rights, Incentives to Generate
Information, and the Alternatives of a Government-Run
Reward System" 1998 Fordham Intellectual Property,
Media and Entertainment Law Journal 301. 
  Ibid., at 316.
 Diane Leenheer Zimmerman "Authorship without
Ownership: Reconsidering Incentives in a Digital Age"
2003 DePaul Law Review 1121, at 1128.
  Id.
 Martha Wodmansee The Author, Art, and the Market 42
(New York: Columbia University Press, 1994).
  Id. Also see David I Bainbridge Cases and Materials
in Intellectual Property Law10 (2nd ed., London:
Financial Times Management, 1999). 
  Supra n. 9, at 1138
  Supra n. 9, at 1138.
  Id.
  See generally Jeffrey K. Joyner "Future Technology
Clauses: Would their Lack of Compensation have
Discouraged Shakespeare's Creativity and Denied
Society's Access to his Works in New Media" 2002
Southwestern University Law Review 575.
  Supra n. 9, at 317.
  Ibid., at 318.
  See Carlos Osorio, A contribution to the
understanding of illegal copying of software: Working
paper June 2002, available at
http://opensource.mit.edu/papers/osorio.pdf



 
 



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