Copyright: From Historical Roots to Regulating the Contemporary Complexities of Human Creativity
In 1993, pop/rock icon Prince caused a stir when he made numerous public appearances with the word “slave” stylishly written on the side of this cheek. Prince’s “slave” insignia was a reference to his relationship with Warner Bros., his record label at that time. Because Warner Bros. controlled both the rights to the “Prince” moniker and his music, Prince had little control over his very lucrative intellectual property (IP) and, in an effort to free himself from Warner Bros.’ constraints, he changed his name from Prince to “the Artist Formerly Known As.” This name change ultimately helped Prince regain control over the rights to his masters ––the copyrights in his songs’ sound recordings. At that time Prince noted, “if you don’t own your masters, your master owns you” (Heller 2016).
By referring to himself as a “slave,” Prince was referencing the asymmetrical power dynamics that exist between recording artists and the record labels that own their artists’ IP rights. While the slave analogy may seem extreme, knowledge of copyright’s colonial history leads to an understanding that lends credence to this comparison. Moreover, knowing this history helps us understand the fraught relationship between the developing world and Western IP regimes. Peter Baldwin’s The Copyright Wars and Ute Röschenthaler and Mamadou Diawara’s edited collection Copyright Africa help us understand the history of copyright law and how African local actors adapt to the legal norms created by this history.
The Copyright Wars: Three Centuries of Trans-Atlantic Battle
In today’s information age, there is a continuous demand for music, audiovisual works, books, essays, art, photographs, cultural property, and other creative works, which are all readily accessible with digital technology. This constant demand, however, often runs afoul of conventional IP laws and has reignited age-old questions regarding copyright and other forms of IP that are easily transmitted over the Internet. These questions, which date back several centuries, are the subject of historian Peter Baldwin’s The Copyright Wars ––a text that explores the history of copyright from its origins to the digital debates of today.
Baldwin’s work begins by introducing the dispute or tension that lies at the heart of copyright. Because creative works are both the property of their creators and society’s cultural patrimony, copyright rests on a fundamental tension. This tension (or dispute) asks whether authors should be granted strong, perpetual ownership rights based on natural laws or whether authors’ rights were merely temporary, which, it was thought, would stimulate their productivity and increase such cultural patrimony. Like every good dispute, there must be combatants and the IP combatants in the copyright wars are the authors, the audiences, and the disseminators. Each has unique interests at stake. At the core of this dispute then lies (1) the social role of authors, (2) the control they exercise over their works, and (3) the audience’s demand for access.
Baldwin argues that this dispute has been with us for almost three centuries and can take two approaches: one that gives IP priority to the authors and the other giving priority to the audience. From Baldwin’s historical perspective, there have been two broad trends related to the dispute. First, during the past three centuries, rights holders (whether authors or disseminators) have gained a stronger stake in their works. Secondly, while IP has grown increasingly important economically, it has been treated differently by different nations. Despite these sometimes-diverging trends, Baldwin uses historical evidence to argue that that the copyright laws adopted in the eighteenth century remain with us today.
After introducing the dispute and the actors involved (i.e., author, audience, and disseminator), Baldwin defines the rights at issue and the transnational nations at play. As for the rights involved, Baldwin suggests that the word “copyright” relates to the laws governing the relationship between authors and their works. However, Baldwin argues that, depending on the geographic region, “copyright” has taken two different approaches. The Anglophone approach, which Baldwin refers to as “copyright,” makes the audience a priority, promotes dissemination of the work, and aims for an expansive public domain. The Continental ––representing France and Germany–– approach, however, is referred to as “authors’ rights.” Authors’ rights focus on creators and seek to restrain or inhibit experimentation of their works. The contrast between copyright and authors’ rights thus represents a tale of the political and ideological values that have shaped trans-Atlantic copyright laws.
While noting the role that social and cultural stereotypes play in the copyright wars, Baldwin does a good job of focusing on the laws that shaped copyright’s development. Clichés of the French as bohemian artists are seemingly consistent with the idea of long and strong protection for authors, which is the goal of authors’ rights, as artists would benefit from strong protection of their work. This trope emerges from the Continental ideology of the Berne Union in 1886 where writers and authors from France and other major European powers sought to coordinate authors’ rights internationally (2014: 20). Interestingly, Baldwin notes that the U.S. joined Berne over a century later, in 1989. Why would it take over one hundred years for a global power such as the U.S. to join the world’s only internationally recognized copyright union? Historically, the U.S. had been a culture importer and thus a pirate. When it joined the Berne Union in 1989, however, the U.S. had become a culture exporter and its policymakers were swooned by the Hollywood content industry, which wanted strong protection for its IP. Thus, by aligning itself with Berne’s authors’ rights ideology, the U.S. had switched camps in the copyright wars and adopted European views of works entitled to natural rights of long and strong protection. Additionally, Baldwin claims that while the U.S. and Europe pirated their way to economic maturity (2014: 276) the international trade treaties of the 1990s ––namely, GATT, WIPO, and TRIPs–– helped facilitate the transition to strong IP protection by subjecting most of the globe to strict First World standards regarding trade and IP.
While there was a flurry of IP legislation in the 1990s, that decade is more broadly known as the dawn of the Internet and digital culture, an era that introduced new challenges to the disputes between authors and audience. While hackers and cyber activists found a rallying cry in the digital virtues of open access and free source, IP purists espoused the Berne tradition, which favored strong copyright protection for authors. In many ways, this turn-of-the-century iteration of the copyright wars was a battle of old media versus new. For instance, large corporate content owners, such as Disney, favored the old Berne tradition of long and strong copyright protection, while an emerging group of Silicon Valley tech companies sought to expand the limits of copyright in unprecedented ways. One such example of this proposed expansion occurred in 2004 when Google attempted to digitize the world’s books, an idea that was condemned by traditional copyright proponents both in the U.S. and Europe alike. Baldwin clearly charts these developments and the concerns of the numerous objectors who feared entrusting the public good of a universal digital library into the private hands of Google.
In brief, Baldwin’s chronicle of copyright, from its European roots to its present-day place in the digital era, is an important work that will be useful for historians, social scientists, or anyone concerned with the evolution of copyright law, IP, and even piracy. Copyright enthusiasts will indeed find it essential reading, right alongside other historical studies of IP (see Johns 2006).
Copyright Africa: How Intellectual Property, Media and Markets Transform Immaterial Cultural Goods
Whereas The Copyright Wars focuses on the European origins of contemporary copyright laws, Copyright Africa offers a collection of essays that provide essential perspective by urging the reader to remember that copyright’s European roots rest on cultural constructions that often privilege Western ideals. With this perspective in mind, the editors have compiled essays that use ethnography, history, and case studies to examine how international copyright discourse has become increasingly influential on the African continent in recent decades. In short, in the age of technological innovation, the editors seek to understand how the ownership and use of African immaterial culture (e.g., music, oral texts, artistic performances, textile designs, literature, and local knowledge) has become a commercial object of global legal regulation. Given this objective, rather than questioning whether international IP norms conform to local African practices, the essays in this collection seek to understand how local actors implement, make use of, and appropriate global IP regulations (Röschenthaler and Diawara 2016: 5). Below, I discuss three selections from Copyright Africa that examine copyright’s colonial legacy, the fraught relationship between African hip-hop and copyright, and informality in the Nigerian video industry. Together these essays demonstrate the editors’ goals of providing historical context for copyright in Africa while showing how local actors respond to foreign IP regulation.
Legal scholar Alexander Peukert traces the history of IP rights and their application to African countries in “The colonial legacy of the international copyright system.” In this essay, Peukert claims that copyright was specifically “more systematically dispersed via empire rather than patents and other industrial property rights” and argues that incorporating the developing world into the global IP system is due to both the colonial history and neo-colonial legacy of this body of law (2016: 39). While Peukert details how the colonial powers extended IP protection to the colonies via the Berne Convention of 1886, he emphasizes that the question of territorial expansion was distinct from the question of who benefited from such expansion. Since the aim of international copyright legislation was “to protect and incentivize European book and other cultural production” (2016: 43), the benefactors were, of course, based on Western notions of ownership. Although international copyright legislation covered colonial territory, Peukert asserts that it did not provide copyright protection for the colonized. As a result, the oral traditions practiced in many African countries remained unprotected and ultimately became known as “folklore,” a term that reinforces asymmetrical colonial power structures.
In her study “Covers, remixes and mash-ups,” Caroline Mose examines hip-hop music’s ownership and piracy issues in Nairobi, Kenya, and in Africa more broadly. Of special concern for Mose is the matter of music sampling –the use of preexisting songs or musical compositions in new sound recordings. Like other social scientists (for example, see Lippman 2014), Mose equates this type of cultural consumption to cannibalism because older forms of culture are metaphorically ingested in the creation of newer works. Yet, the question is whether or not this type of consumption occurs via a path that respects intellectual property rights (Dent 2016). Mose notes that because of the growth of the Internet and social media in Africa, along with the spread of U.S. popular music to African countries, conforming to the copyright standards that govern global music distribution is becoming increasingly necessary for African hip-hop artists. In terms of copyright, one of the most problematic issues with African hip-hop (and with hip-hop in general) is its use of samples. In her efforts to aid the reader in understanding music sampling issues in Africa, Mose creates a “hip-hop sampling curve” (2016: 162) that charts the differences between cover songs, remixes, and mashups. For this reader, however, the sampling curve leaves more questions than it does answers. For instance, Mose defines a remix as “several songs picked from the public domain and mixed together in a series of loops and repetitions to form a new entity of beats (2016: 163). She also claims that mashups consist of “a variety of songs and sounds found in the public domain” (2016: 163). What remains unclear, however, is that if both remixes and mashups consist solely of songs in the public domain, how is there a copyright issue? As I have noted elsewhere (Omari 2010), because mashups consist of the unauthorized use of two or more copyrighted songs to produce a new song, they are generally deemed legally suspect. If, as Mose suggests, remixes and mashups in Kenya (and in African more broadly) consist of public domain material, the use of samples in these genres would not be an issue because there could be no copyright infringement. Nevertheless, because it is necessary to comply with the copyright norms of global music distribution, Mose does concede that “indiscriminate sampling is no longer an option” (2016: 175) for many African hip-hop artists.
Drawing from ethnographic fieldwork conducted in Nigeria, in “Regulating mobility, reshaping accessibility” anthropologist Alessandro Jedlowski investigates piracy’s impact on ‘Nollywood’ –the Nigerian film industry (Larkin 2008). Specifically, Jedlowski examines a critical paradox that is fundamental to the Nollywood dilemma. He claims that the informality of video circulation in this industry has fueled the abundant availability of videos throughout Africa, which is the basis of Nollywood’s success. Yet, at the same time, the informality of circulation has weakened Nigeria’s economy and threatened Nollywood with economic collapse (2016: 293). In examining this paradox, Jedlowski performs an important analysis by distinguishing between informality and piracy. Informality “relates to the unregulated and unmonitored production and circulation of goods” (2016: 294). While piracy has become “the definitive transgression of the information age” (Johns 2009: 5), the term has different meanings depending on the local context and moral connotations. In the Nigerian context, Jedlowski notes that it is generally associated with “the unauthorized reproduction of specific goods, which… travel along the networks provided in the informal economy” (2016: 294). For Jedlowski, this distinction is pivotal because, in Nigeria, piracy was generally associated with the unauthorized distribution of foreign products. Traditionally, the circulation of Nigerian cultural production was not industrialized and therefore not considered piracy. This rift between IP protection for international goods versus IP protection for local products indexes what Alex Dent (2012) refers to as “circulatory legitimacy” ––the distribution of IP by governments or corporations authorized to participate in international circulatory processes (2012: 29). Problems for Nigeria arose, however, when piracy started to negatively impact the economy of the local film industry. The Nigerian example shows how widespread informality combined with weak copyright enforcement created a ripe environment for the growth of its fledgling video industry. But, the economies of scale forced Nigeria’s fledging video industry to abandon local norms and adopt globalized copyright standards.
Copyright Africa demonstrates that the standards regulating African cultural expression are based on globalized legal practices. Its essays reviewed herein investigate how these practices stem from laws originally intended to protect European rights holders (Peukert) and study the fusion of African cultural elements (Mose) subjected to the challenges of copyright and piracy (Jedlowski). Like Baldwin’s Copyright Wars, the essays in Copyright Africa also explore the European roots of copyright law. Unlike Baldwin’s work, however, Copyright Africa critically examines these Western roots and shows us how local African actors adapt to the IP norms thrust upon them. It is a work useful for anthropologists, historians, legal scholars, copyright/IP enthusiasts, and artists and musicians seeking to thoroughly understand the legal history regulating creative endeavors. Indeed, an understanding of this history and the power dynamics at play is essential for those seeking to (re)claim control over the property rights in their creative expression.
Finally, it would be remiss not to briefly mention a few of the possible ethnographic projects these readings bring to mind. Given the fraught relationship between copyright and its appropriation, studies of piracy are often at the forefront of ethnographic investigation. In the age of digital media, however, there is vast potential to take research of copyright and IP in new directions. For instance, how does copyright affect the relationships between artists and audiences in creative industries? The potential field sites are endless and possible investigations include studying bloggers (of both text and video) or content intermediaries ––ethnographies of companies like Facebook or YouTube are the obvious choices here, but smaller organizations also influence culture and might become the tech giants of tomorrow. Additionally, what copyright and IP issues arise from data-centric technological development? An anthropological study of this question could provide new insights into issues like publicity, data (mis)interpretation, privacy, and the civil rights implications of data analytics. Studies such as these could provide rich contextual understanding into the copyright and IP concerns that underpin digital media technologies.
Jeffrey Omari, UC Santa Cruz, American Bar Foundation
Reviewed in this essay
Baldwin, Peter. The Copyright Wars: Three Centuries of Trans-Atlantic Battle. Princeton: Princeton University Press, 2014.
Röschenthaler, Ute and Mamadou Diawara, Eds. Copyright Africa: How Intellectual Property, Media and Markets Transform Immaterial Cultural Goods. Canon Pyon: Sean Kingston Publishing, 2016.
Dent, Alexander. “Piracy, Circulatory Legitimacy, and Neoliberal Subjectivity in Brazil.” Cultural Anthropology, 27 (2012): 28-49.
—. “Policing the Unstable Materialities of Digital-Media Piracy in Brazil.” American Ethnologist, 43 (2016): 424-436.
Heller, Jason. “Prince Writes ‘Slave’ on Face, Changes Name to Unpronounceable Symbol (1993).” Rolling Stone, April 22, 2016. Accessed October 8, 2017. http://www.rollingstone.com/music/lists/12-wildest-prince-moments-20160422/prince-writes-slave-on-face-changes-name-to-unpronounceable-symbol-1993-20160422.
Johns, Adrian. Piracy: The Intellectual Property Wars from Gutenberg to Gates. Chicago: University of Chicago Press, 2006.
Larkin, Brian. Signal and Noise: Media, Infrastructure and Urban Culture in Nigeria. Durham: Duke University Press, 2008.
Lippman, Alexandra. “Cannibalizing Copyright: Venacularizing Open Intellectual Property in Brazil.” Anthropology Today, 30 (2014): 11-14.
Omari, Jeffrey. “Mix and Mash: The Digital Sampling of Music has Stretched the Meaning of the Fair Use Defense.” Los Angeles Lawyer, 33 (2010): 35-41.