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Yours, mine, ours

A plea against modern notions of intellectual property rights and the decline of the commons of ideas

Bob Dylan’s songs built on the creations and ideas of others. Bob Dylan’s songs built on the creations and ideas of others. (Stefan Rousseau/ Associated Press)
By Michael Washburn
Globe Correspondent / August 29, 2010

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My early 20s were, typically, the poetry years. I furiously scribbled love poems that I would then arrange on the page so that from afar the sheet of paper seemed to contain not a poem but a large question mark, or other such idiocies. I mention this not to rehumiliate myself but because during one of my first creative writing classes, the lovely and talented professor discussed copyright. Our work was, she rightly claimed, under copyright the moment that we put pen to paper.

The connection between copyright and creation seemed natural at the time, but as Lewis Hyde’s commanding “Common As Air: Revolution, Art, and Ownership’’ eloquently argues, current copyright law and the regime of intellectual property rights are anything but natural, or even deeply historical. Intellectual property, Hyde argues, “is an idea not just new but historically strange. It belongs to our time, to be sure, but if we are to examine it with any care it helps to know how new it really is; it’s newer than automobiles, newer than light bulbs, newer than jazz.’’ Hyde argues that our current notions of intellectual rights threaten the integrity of civil society. In a culture where everything is demanded as a right, nothing is considered a duty.

Hyde writes that “[h]ow we imagine property is how we imagine ourselves,’’ but the obverse also obtains: How we imagine ourselves, as isolated, self-sufficient individuals, is how we imagine property. The equivalence between, say, a house as property and an idea as property has been naturalized over the past 50 years due in large part to the development of the knowledge economy, the rise of digital technology, and the fall of the Soviet Union — a final triumph for self-reliant capitalism. What suffers in this understanding of society is the concept of the commons, the “theater within which the life of the community is enacted and made evident.’’ The commons were, historically, the lands shared by a community, but Hyde invokes the term to speak of shared cultural, political, and historical creations and obligations.

Hyde grounds his argument in the founding days of the republic, effectively dismantling an erroneous narrative of the founding while simultaneously providing precedent for a change in our intellectual property culture. Benjamin Franklin furnishes Hyde with a deep historical counterexample to what he sees as a mania for expanding copyright and patent privileges. The Franklin of elementary school kitschtory is a genius who tamed electricity out of solitary, heroic effort. In fact, Franklin acknowledged his debt to his predecessors and collaborators, and as our “founding pirate’’ he was known to nick a few ideas on occasion.

Hyde seeks to prod readers into more observant cultural citizenship, not to dismantle the economy of the arts and letters. As such, he supports limited monopoly rights (copyright) for a limited amount of time, similar to Franklin. We’ve forgotten, however, that the complement to copyright isn’t “copy wrong,’’ it’s copy duty: One was rewarded not for invention but for making public an invention, and following a limited term of monopoly that creation was turned over to unimpeded public use. Franklin and his peers understood copyright to be a negotiation “between a short-term monopoly and a long-term grant to the public.’’ If one can locate a resemblance between this sentiment and the effectively perpetual copyright on Mickey Mouse, I would be stunned.

“Common as Air’’ threads its history through the lives of several notable contributors to the commonweal, including Bob Dylan, whose pivotal work violates contemporary cultural understandings of ownership. Hyde charts the genealogy of “The Times They Are A-Changin’. ’’ The song is inspired by, if not derivative of, at least two previous songs. Dylan’s freedom to appropriate, reimagine, and make one’s own proved essential to his art, but those rights have been curtailed severely during Dylan’s lifetime. As digital technology has made creative reinterpretation ever more attainable the music industry becomes more strident in its pursuit of infringement claims. To most of us, this seems natural, which is exactly Hyde’s point about the deterioration of the cultural commons.

Hyde writes, “The simple distinction between discovery and invention has been eroded.’’ It’s true. Franklin didn’t invent electricity any more than the company that decoded the human genome invented the DNA strand that contributes to breast cancer. That DNA now exists as proprietary knowledge, as a possession. Hyde sees this as larceny against humanity and an obstacle to discovery. How many innovations in cancer therapy will be thwarted because of onerous demands and fees for use?

Here, however, Hyde’s analysis proves too idealistic. Scientific and medical advancements are costly — millions of dollars spent on each potential drug, the great majority of which won’t make it past the development stage. Major incentives, such as the privatization of a gene sequence, help assure that venture capital will support this research. “We announce our sense of ourselves,’’ Hyde notes, “by saying what we cannot be parted from and still be ourselves.’’ In context, he is discussing the inalienable rights granted by the Constitution, but his maxim could be applied to what we will sacrifice for life: We’ll happily barter away the abstraction of DNA for a chance at living another day.

Michael Washburn is a research associate at the Center for Place, Culture, and Politics at the Graduate Center, City University of New York. He can be reached at mwashburn@gc.cuny.edu.

COMMON AS AIR: Revolution, Art, and Ownership
By Lewis Hyde
Farrar, Straus and Giroux, 306 pp., $26