Academe today is the site of myriad conflicts over intellectual property, including those of patent ownership, piracy of university press publications, and Google Books, to name just a few.

February 3, 2010

Academe today is the site of myriad conflicts over intellectual property, including those of patent ownership, piracy of university press publications, and Google Books, to name just a few. But, while the rise of the Internet has given it new dimensions, the concept of intellectual piracy has existed for centuries, and the disputes of previous eras have much in common with those of our own time. In a new book, Piracy: The Intellectual Property Wars from Gutenberg to Gates (University of Chicago Press), Adrian Johns details the long history of the term and its battles, arguing that those who would shape the future of intellectual property should first understand its past.

Johns, who is professor of history and chair of the Committee on Conceptual and Historical Studies of Science at the University of Chicago, responded via e-mail to questions about the themes of his book.

Q: You locate "the invention of piracy in the 17th century," when the term "piracy" came to be associated with "intellectual misappropriation" -- which was not, in itself, a novel concept. How would you distinguish the invention of piracy, and what was the significance of the newer term?

A: I’m glad that you began with this, because it is important to be specific about it. I certainly don’t think that intellectual misconduct was unknown before the 17th century. I’m sure that cases can even be found when it was called “piracy.” What I am claiming is that it was only in Restoration England that it became routine to use that term, and that by around 1710 the usage had become an everyday one. In general, when a culture adopts and retains a term in this way, it is worthy of notice even if the term and its referent each seem older. It signals the advent of a relatively stable concept or practice: a cultural fact, if you like. In the case of piracy, what emerged was a practice of intellectual expropriation, such that incidents in many fields (literature, the sciences, medicine, music, engineering) could be seen as examples of this practice. The significance of the new term is partly just this. But it also conveyed something about the meaning of the fact. Piratical acts had a scandalous aspect, as individual outrages. But, for some at least, they also had a rebellious aspect, and that was of more general import. Right from the start, those involved in contests over “piracy” couched their polemics in quite broad terms, indicating that challenges to existing customs of commerce and conduct in cultural life were at hand. One of the points of Piracy is to chart the long history of those challenges.

Q: One of the book’s recurrent themes is that the intellectual property disputes of our time echo those that have taken place in the past, and that we should “make use of past experience.” What are some key parallels?

A: While I don’t think that one can ever simply "cut and paste" approaches from past situations onto our own, the history of piracy can indeed be informative, not least by showing us that our current situation is not the only possibility. The relation between creativity and commercial life can be successfully organized in fairly fundamentally different ways, and has been so organized in the past. There are then a number of more specific lessons, arising from the various historical situations examined in Piracy. We cannot generally glean policy solutions directly from them (in fact, I think one problem that has plagued studies of IP has been too great a desire to leap to policy recommendations). But we can get a sense of how important it is to see such measures as matters not just of doctrine and principle, but of practice and convention.

These more specific messages are not necessarily ones that any particular camp in our present predicament is going to favor. For example, the fact that a complete absence of formal copyright in 18th-century Ireland facilitated what contemporaries saw as a golden age of Irish letters indicates (if you delve into how its publishers actually operated) how conventions of literary property can exist entirely independent of formal legal doctrines. But on the other hand, when a similarly radical policy was tried in revolutionary France it had disastrous effects. That is, the cultural consequences of literary property and piracy depended more on practical implementation and historical context as on the doctrines themselves. An instance in a different sense – because it relates to ideology as much as practice – is that of the relation between "free trade" and intellectual property. The debates on international copyright in 19th-century Europe and America broached the question of what that relation should be, with some advocates of “piracy” insisting that local cultural diversity must be upheld in the face of an early version of globalization. Their views were subsequently forgotten, but at the time they were taken very seriously. They provide a potentially telling counterpoint to late-modern orthodoxies. Piracy contains a lot more instances like this.

Q: Which of the current intellectual property debates do you see as most consequential, and why?

A: I see two conflicts as especially consequential: the patent struggles in the life sciences, and the copyright furor ignited by the Google Books initiative. In the life sciences, patenting has become a huge issue in several contexts. The pharmaceuticals industry has aroused fierce controversy in the developing world because of what are perceived as inequitable restrictions, agribusiness has generated similarly intense arguments, and biotechnology involves extending IP into the domain of life and its constituents. The stakes for the future of IP here are high because the human consequences are so evident, and the political interests very real. In the case of Google Books, the extraordinary promise of this vast enterprise may only be realizable via severe qualifications to the principles and practices by which publishing has operated for generations. The compromises that lie at the heart of copyright are in play once more. They may not seem so reasonable when the possibility exists of such a huge expansion of access to the world’s books. Yet on the other hand, such access would give Google itself substantial control.

In these realms, challenges are looming to the two basic elements of our intellectual property system. I do not think it inconceivable that they could provoke legal and (perhaps) policy shifts as major as the establishment of copyright itself in the eighteenth century, and the development of modern patent systems in the nineteenth.

Q: A perhaps more mundane -- but ever-present -- piracy issue is that of students illegally downloading and sharing files on university networks; Inside Higher Ed even published a views piece calling for institutions to "accept responsibility for the activity of their students on their network -- not legal responsibility, but moral responsibility, as educators, as organizations transmitting values." What should universities -- and professors -- be telling their students about piracy, and about intellectual property?

A: They should be telling them two things, but in different modes, as it were. First, universities should be discouraging students from simply free-riding, in this sphere as in any other. This is indeed a matter of responsibility – of living harmoniously in a civic commonwealth. But that does not imply that universities should serve as detectives or enforcers for an industry. The point about civic responsibility cuts both ways, and the IP owners need to appreciate that it may be impossible to police their kind of “property” absolutely without infringing civil principles that are prized in a democracy, such as privacy and freedom of inquiry. In the end, everyone – students, university administrators, and even industry groups – would benefit from an understanding that intellectual property is a human, sociocultural achievement, not a transcendental category. It is a matter of compromises. Upholding it is a worthwhile cause, but it has cultural costs that are sometimes dangerously high. Moreover, its current form inherits assumptions from the times and places of its development – assumptions that were controversial at the outset, let alone now. This more nuanced, historicist comprehension would be useful to underpin a realistic sense of the balance of advantages and disadvantages, or of rights and responsibilities, that any such regime must involve. Educational institutions have a very difficult role to play, because they have to uphold that kind of balance. Unfortunately for them, they are inevitably likely to displease almost everyone involved.

Q: “The confrontation between piracy and the intellectual property defense industry,” you write, “is perhaps set to trigger a radical transformation in the relation between creativity and commercial life.” What signs point toward such a transformation, and what might it look like?

A: You can see the signs almost every day, just by looking in a newspaper or online at the relentless stories about IP policing and its problems. For example, this week the BBC has been reporting on a campaign run by a British company called ACS:Law, which apparently has been sending out letters to Internet users alleging copyright infringement and demanding payments on threats of legal action. It seems that in many cases the infringements probably never happened, and that (whether they did or not) this is mainly a money-spinning exercise. The BBC reports that one company ACS represents is a Frankfurt concern called DigiProtect, the slogan of which is “Turn piracy into profit.” Whatever the truth of this particular incident turns out to have been, the slogan captures something common to a number of anti-piracy ventures. Such ventures appeal to high notions of intellectual property, but their strategies often raise broader concerns because they impinge on traditional political issues like privacy, freedom of expression, and citizenship. Perhaps that is inevitable given the nature of the property being protected, and it is certainly the case that similar tactics were employed in many creative fields from the eighteenth century to the twentieth. But now, with the development of a relatively coherent policing industry that is global in its reach, the implications loom larger than ever before.

The British example is quite possibly an extreme one. But I think that overly zealous IP enforcement policies in general could well end up creating bigger problems for the IP defenders themselves than any proliferation of downloaders. If it came to be perceived that this practical policing necessarily involved unacceptable compromises, then the pressure for a revision of the basic relation between creativity and commerce could grow quickly. There is already evidence of a proliferation of controversies that grow sufficiently intense to spark such a revision.

What makes this plausible, I think, is that the IP system itself looks out of synch with creative practices. As I was approaching the end of Piracy, a certain image kept recurring to my mind to represent this: the image used by Copernicus in the sixteenth century to describe the monstrous nature of Ptolemaic astronomy. Copernicus said of existing astronomers that “their experience was just like someone taking from various places hands, feet, a head, and other pieces, very well depicted it may be, but not for the representation of a single person; since these fragments would not belong to one another at all, a monster rather than a man would be put together from them.” This memorable portrait of a Frankensteinian creature avant la lettre was invoked by Thomas Kuhn as the perfect description of a science in a “crisis state,” with revolutionary change looming over it. Ptolemaic astronomers themselves, it’s worth noting, did not see their principles as arbitrary: they were few, simple, and commonly accepted. The idea that the planets’ appearances must be accounted for in terms of uniform circular motions is an obvious example. But Copernicus pointed out that it required continuous tweaking, and that the kind of tweaking involved was rather arbitrary. He had a different conviction about the nature of simplicity and of explanatory integrity. I do not want to lash my colors to too Kuhnian a mast, but intellectual property right now does look to me something like how Ptolemaic astronomy looked to Copernicus. It rests on a small number of apparently commonsensical premises, but in practice requires endless tuning in order to track reality. There is nothing that logically prevents us continuing to tweak it forever. But the tweaks are largely ad hoc. As more and more demands have been placed on it with the development of new disciplines, sciences, and media, so it has therefore departed from whatever initial simplicity it had. It has become more and more complex and “monstrous” in practice.

I suspect that the political problems of IP’s policing may prove the trigger for a fundamental reconsideration of IP’s premises. What will ensue? I am hesitant to predict, being a historian. But I do think – and hope – that it would bear a closer alignment to the structure of the knowledge enterprises as they now are, and as they are set to be for the foreseeable future. It is clear, for example, that life-science research that spans the academia/industry divide is a coherent enterprise that is not going to disappear. So are things like social media and cloud computing. Yet these are kinds of knowledge work that were virtually unthinkable in the eighteenth century. A revision of the basic conceptual framework of IP is in order such that such enterprises – and others equally important now but nonexistent when patenting and copyright took shape – are given their due. We need a new basic logic of IP itself. I suspect that by the mid-twenty-first century it will be seen to have taken shape.

Q: You see a correspondence between the "[academic] disciplinary system and the modern principle of intellectual property." What is the relationship between the two -- and what might an overhaul of the latter mean for the former?

A: The alignment between the structure of the disciplines and intellectual property is not obvious or explicit, but it is nonetheless real. The basic elements of IP, patenting and copyright in particular, emerged historically from the period when the modern disciplines were taking shape, and the two processes owed something to each other. In the case of copyright, the British debates of 1710-74 that culminated in the establishment of that principle hung on distinctions between literary and mechanical authorship, and on the application of history to documentary evidence dating back to before the Glorious Revolution of 1688. The controversies drew on and developed the critical currents that shaped modern historiography. The distinction between scholar and craftsman was defeated resoundingly in 1774 with the confirmation of copyright, and this too was a key moment in the development of modern disciplines. It played into Romantic conceptions of research that directly influenced the establishment of research fields in the nineteenth-century universities. In the IP sphere, these copyright debates established the notion that there was one basic entity at stake: what later came to be called creativity.

In the case of patenting, the disciplinary fragmentation that sparked the invention of the category scientist in the 1830s was similarly intertwined with the development of a modern patents system. Since that founding moment, the refinement of patent law has often involved its extension into new disciplinary areas as the sciences have created them. This has been one of the driving forces behind the problems I wrote about above.

Specifically legal doctrines are not the heart of the issue of the disciplines today, but conventions of authorial credit and responsibility certainly are. These are often relatively tacit, but they are nonetheless firmly held and consequential. What is striking is that the crisis in IP coincides – again – with a crisis of confidence in the disciplinary system of knowledge. A recent issue of Critical Inquiry (35:4, Summer 2009) highlighted some aspects of this, such as the rise of “shadow disciplines,” as James Chandler there calls them – that is, things like science studies, which on some accounts is my own field. I would expect that new notions of authorship and IP would take shape first in those enterprises, where customs from different disciplinary traditions are mixed together. And in fact it does seem that the impact of the crisis in IP has been manifest first in the newer, interdisciplinary sciences. It was from genomics that the “open access” movement sprang, and it has now spread with dramatic success to become a norm for much of the scientific research community. Biomedical enterprises have effectively revolutionized conceptions of authorial credit and responsibility already. Other fields are beginning to face similar questions. In the humanities and humanistic social sciences, we traditionally use diverse conventions of authorship in research – in history, for example, the individual author still reigns, but in sociology this is often not the case at all. For authorial conventions to dissolve and be reconstituted in fields like these would imply radical shifts in everyday research and writing practices. (This is implied, as I take it, in a newly released report on the subject: D. Harley, S.K. Acord, S. Earl-Novell, S. Lawrence, Shannon, and C.J. King, "Assessing the Future Landscape of Scholarly Communication: An Exploration of Faculty Values and Needs in Seven Disciplines," UC Berkeley: Center for Studies in Higher Education, 2010; http://escholarship.org/uc/item/15x7385g). There are signs that it may be happening. If anything, the current plight of academic publishing is probably hastening the process. Certain major enterprises – history for one – seem bound to endure. But it nevertheless seems plausible that as patterns of collaboration, publication, and accreditation change, the disciplinary map of the humanities may change as profoundly as it seems to have done in the sciences.


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