Cultural Enclosure

In the late 18th century, English society underwent a major structural change: the enclosure of the commons. The enclosure movement effectively destroyed ancient patterns of rural life, as wealthy land-owners used legal clout to turn peasant farmers into landless laborers. Something similar is happening here and now; an attempt by powerful media companies to enclose our common cultural heritage inside a fence of copyright law.

Copyright is one of the few specific powers enumerated in the American constitution. “The Congress shall have the power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright was initially established at 14 years, with a 14 year renewal, but the term has been lengthed repeatedly, with the Sonny Bono Copyright Term Extension Act bringing the duration to life of the author plus seventy years, or 120 years for corporate authors. At the same time, the scope of copyright has expanded from maps and direct copies of literary works to all forms of media, adaptations, and translations.

The stated rational is that extending copyright benefits creators, and while it does, this grand cultural enclosure has inflicted grievous harm on our cultural vitality. It walls off immense tracts of our shared heritage, fights against technological architecture, and has raised high barriers to entry. At the current rate, any work created after 1923 will remain in copyright effectively forever, even if it has become completely out of print and of only limited utility to anyone. Bringing old works into the open is very difficult, because there is now registry of copyright owners, and prospective publishers must prepare for surprise lawsuits. For a devote of old culture this is a crime.

On a computer, there is no difference between the act of reading and the act of copying. Software controls are required to prevent copying, strictly making our digital tools less useful. As a simple example, Adobe's restrictions on use mean that I can't easily highlight and annotate academic papers. So much paperless office, or a searchable, linked database of articles I've read, and for the protection of who's rights? The penalties for violating copyright are entirely excessive. The putative fines associated with a typical pirated music library are an order of magnitude larger than the gross revenue of the entire music industry.

But most significantly of all, no cultural artiface exists in a vacuum, and internet culture especially is a mash-up, a juxaposition and collage of objects in a new context, whether it be youtube videos or fan fiction. I can't deny the quality of a lot of internet culture is terrible, but it is sandbox tomorrow's artists play in. As it stands, monetizing internet culture is basically impossible, and working in the medium exposes you to those putative copyright violation penalties. There are ways around this, through fair use and getting permission, but that's expensive in terms of time and lawyer's fees. Copyright has become a barrier to commerce and creative expression.

What can we do? We can slap the Creative Commons license on everything, but that's a crude patch. Copyright law should be rewritten to recognize that not all works of art are equal. If you want a copyright, you should be forced to pay a nominal fee for it. The term should be short, and extensions easy, but rising in cost with the term and value of the copyright. Lobby your Congress-drones, support open media, and prepare for the infopocalypse.

((With thanks to Lawrence Lessig and his book Free Culture))


  1. Doesn't paying for copyright set up almost the opposite incentives as the rest of this scheme, where the most lucrative (and therefore probably the most culturally impactful) copyrights are locked up for longer and longer by corporations that can afford the fees?

  2. I will side with Sir Arthur in expressing doubts about your solution.

    Since I have nothing useful to add, try this.

  3. I don't think one should have to pay a fee for copyright. This could make © as broken as patents.

    It seems, at first glance, reasonable to return to the 14 year rule, with no possible renewal.

    I also think slapping creative commons on everything is a fairly decent solution. Or, having all work not explicitly signed with © revert to some basic, creative-commons like licence.

    I have a blanket statement saying all WeAlone content is creative commons attribution share alike licensed.

    I remember reading that some European country actually started requiring registration if you want to keep a work creative commons. That seems pretty insane to me, and not particularly in the common interest.

    also, more terror.

  4. One could certainly make an argument that the 14 year term should actually be shortened in the modern age, due to the vastly increased speed of cultural transmission since 1790. In 1790, it would probably take half that long for your book to even reach all of the areas that copyright was enforced in. Maybe the similarly increased size of "culture," here defined as some kind of literate-man-hour-dollar unit, would counteract that?

  5. The method for copyright registration that Lessig proposes is something like that for websites, with private providers competing to provide cheap and easy access to copyright, rather than the patent office-esque clusterfuck. Copyright is easier to enforce than patents, since comparing media artifacts requires considerably less expert knowledge than judging the validity of patent disputes.

    The idea with increasingly expensive copyright registration is as follows: The big problem with the current copyright scheme is that something like 98% of material is under copyright, but essentially abandoned. So by forcing people to pay to register their copyright, we also encourage them to do something worthwhile with it, rather than leaving it to sit in a vault.

    The current system is a product of Disney extending general copyright every time Mickey Mouse might enter public domain. This is worst possible system for all concerned.

  6. Ok, but don't charge for first copyright. It seems to be important to protect artistic works, by default, to prevent exploitation.