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Common as Air: Revolution, Art and Ownership

Lewis Hyde

The first 70 of Bob Dylan's recorded songs were copies, according to a Library of Congress musicologist. Two-thirds of his tunes from that period were lifted from traditional British, African and American songs. He also ruthlessly plundered the works of the folk singer Woody Guthrie and the blues singer Robert Johnson. In Chronicles, his autobiography, Dylan admits he writes by running somebody else's song through his head: 'At a certain point, some of the words will change and I'll start writing a song.'

This is no insult to Dylan's genius: Shakespeare routinely stole his plots, and TS Eliot's great poem The Waste Land was, in part, a pre-internet version of the 'mashup', a collage of the work of others. As Eliot said: 'Immature poets imitate; mature poets steal.' The point is not the theft, it is the fact that art comes from art, that any creator is constantly in debt. When Dylan heard Rimbaud's line 'Je est un autre' - I is another - he recognised it at once. It made, he said, perfect sense, as it would to any magpie mind.

Fifty years on from Dylan's beginnings, it may still make perfect sense, but 'I is another' has become a legally risky doctrine. Let me explain by breaking the law: April is the cruellest month, breeding/Lilacs out of the dead land...

I have not asked permission of the Eliot estate (via his publisher, Faber & Faber) to quote the first lines of The Waste Land; and, if I did, it would be months before I got it, and I would have to pay a fee. Yet I could say those lines to you and, as they represent the opening of one of the greatest works of art of the modern era, they form an important part of our common culture. Still, they are protected by copyright, and will be until the end of 2035, 70 years after Eliot's death. This, you may reasonably think, is daft, because I can just cut and paste those lines from an internet copy of the entire poem.

It is thanks to the internet that copyright law is now more fiercely applied than ever before. Electronic territory is being enclosed as ruthlessly as common land was enclosed in the late 18th and early 19th centuries. Indeed, the American scholar Lewis Hyde describes this as the 'second enclosure': we have entered a world in which the young Dylan might have been crushed by lawyers.

'The second enclosure,' Hyde writes, 'had not yet settled over the cultural commons, and it was thus a lot easier for him to become himself, a collective being with both great powers of absorption and great gifts to bestow.'

Hyde's book The Gift (1983) was a brilliant and critically applauded defence of the value of art and creativity in the modern world. His latest, Common as Air: Revolution, Art and Ownership, is a call for a radical reform of copyright law to ensure the protection of the cultural common land on which we can all graze. 'There is a threat,' he says. 'I feel that many things we used to assume were our common property turn out to be vulnerable to capture, and there's a sort of submerged culture war going on, in which people with a clear economic interest are happily fencing off things the rest of us assumed we have a right to use.'

He was inspired by a law passed in the 1990s that, under pressure from the entertainment industry, extended significantly the time for which works were copyrighted. 'There was no clear evidence of public benefit,' he says. 'I was irritated by that. It was a power grab on the part of commercial interests to take something from the public domain that should be preserved or dedicated to other public ends. I began to think about the way we now begin to have fights over how we think about the value and the ownership of cultural property.'

Perhaps Hyde's most terrifying example is the enclosure of the works of Martin Luther King by his son Dexter Scott King. Believe it or not, even 'I have a dream', arguably the greatest speech of the 20th century, is now hedged about with legal sanctions. It is part of who we are, yet it cannot be printed without permission and crippling payments.

So what has happened? One answer is the end of scarcity. 'Copyright exercised legal controls over the scale of scarce commodities,' says William Patry, senior copyright counsel at Google, 'but it is not true now that things are scarce.'

Patry is the author of How to Fix Copyright, another new book demanding reform. His big point is that technology has changed everything by overthrowing the idea of the unique, physical version. Any music or print file can be reproduced in an instant. Furthermore, people - especially the young - do not pursue ownership of anything. Rather, they just want access. 'I'm an old-fashioned guy,' Patry says. 'I like physical things. But most younger kids want access, they don't want to own a physical copy. So a copyright law concerned with copies doesn't make a lot of sense - you can't enforce artificial scarcity when you have digital abundance.'

In pre-18th-century England, guild printers were licensed to produce books, an effective monopoly. This was broken in 1710 by the Statute of Anne, which took copyright away from the printers and gave it to the authors. The statute formed the foundation of copyright throughout the world for the next 300 years and, along with patent law, is generally regarded as one of the great triumphs of legal history, laying the foundations for the wealth enjoyed by the industrialised nations. If Hyde and Patry are right, that period is now over.

Neither is against a system of copyright that rewards creators for their work, but both feel that the old system is failing, and that the imperious extension of copyright powers since the 1990s is a disaster for free speech and creativity.

They are not alone. Negativland is partly an experimental San Francisco band, partly a legal cause. Its members make collages of music samples, a method that landed them with a famous legal case when U2 sued over a single called, well, U2, a provocation compounded by the fact that the single was a parody of a U2 song. Negativland effectively back Hyde and Patry when they speak of the way they use the deluge of available material - 'pranks, media hoaxes, advertĀ­ising, media literacy, the evolving art of collage, the bizarre banality of suburban existence, creative anticorporate activism in a media-saturated multinational world, file sharing, intellectual property issues, wacky surrealism, evolving notions of art and ownership and law in a digital age, and artistic and humorous observations of mass media and mass culture'.

Or, as Hyde puts it: 'All of us presently live in a soup of commercially and politically motivated stories, images and music.' The only way we can make sense of this soup and avoid drowning is by reprocessing it as our own private narrative or as art. It would seem to be impossible not to be a sampler. Yet this is precisely what the copyright hawks would prevent us from doing.

Hyde is generally a pessimist about this state of affairs, assuming that the rich and powerful will have their way, but bottom-up projects like Negativland give him hope, as does Creative Commons, a Silicon Valley not-for-profit organisation that augments copyright. So, for example, a CC licence may allow public use of an image, subject to certain conditions that ensure only a few key rights for the owner, such as commercial exploitation.

CC is crucial to the development of Wikipedia, as it allows extensive use of its material. It was started by Lawrence Lessig, an academic and activist who has warned of the dangers of a 'permission culture', in which creators get to create only with the permission of the powerful, or of creators from the past.

Incontestably worthy as all of this may sound, there is a problem. The other side of the coin is institutional collapse in the face of digital abundance. The existence of every media industry is now threatened by the routine and almost universal undermining of the old traditions of copyright and by the sheer cheapness of electronic reproduction.

The Silicon Valley pioneer Jaron Lanier has spoken eloquently of the destruction of the musical middle class - engineers, producers and so on - by the economic catastrophe of illegal downloads and the deflationary pressures of the internet. This, he points out, is exactly what the early internet idealists did not want to happen. 'In my view,' he says, 'music is the canary down the coal mine for humanity. If the musical middle class is killed, then eventually the whole of the middle class will be killed.'

Yet it is hard to see how this middle class can be saved on any kind of scale, now that recording is more or less a defunct or loss-leading business. The earnings of the big bands - U2, the Rolling Stones - come overwhelmingly from touring, and, increasingly, recordings are simply the promotional tools for gigs. 'Musicians,' Hyde says, 'have the natural monopoly on their own live performance.'

Artists learning to switch their income streams is not a new development. Charles Dickens used to complain that the Americans were defrauding him of his royalties, but in fact he made a fortune out of giving readings and lectures in the USA. Ultimately, the best protection of the artist's income may lie in a change of business plan.

As ever in the digital world, nobody really knows. Yet, arcane and complex though it is, the status of copyright law is now one of the most important problems facing our culture. On one side are the old media players, whose instinctive response is to extend legal protection as far as possible. (Jack Valenti, the late boss of the Motion Picture Association of America, was once asked how long copyright should last. Forever minus one day, he replied.) On the other side are the internet radicals who would make everything free, and who ignore the fact that this would all but destroy the incentive to create.

In the middle are thinkers like Patry and Hyde, who want to preserve a viable way of life for the artist while protecting the landscape of the cultural commons, a place where we can all play. If they are right, then copyright must be shrunk radically, and artists must be made to consider what Hyde calls 'copyduties', their obligations to the past and to the people who made them.

'Dear Landlord,' sang Dylan (breaking the law again here), 'please don't put a price on my soul.' But, in the end, someone, somehow, must.

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