should we move from copyright to workright?

One of the more frustrating experiences a copyright defender can have these days is talking to a technology-focused person about copying. Copyright doesn't work with digital technology, we're told, because every interaction between technology and content involves some sort of copying. You can't access a web page without your computer making a copy of it; you can't receive an e-mail without making a copy of it; etc.

I have always made the distinction between what I call the incidental copying of certain technological functions and the intentional copying involved in either permitted or infringing uses of content. What's more, I've always thought my distinction made a lot of sense; and yet, I'm still regularly confronted with the same technology can't work with copyright canards. This focus on copying in the copyright discussion leads inevitably to one of free culture's favorite logical constructs, that copyright will break the internet. Please see my last post for thoughts on that.

Equally frustrating for those favouring strong copyright is the need to conceive of one's copyright-protected works within the language of property, as in intellectual property.  Now, I certainly understand how the IP I produce is like property, especially when my ability to sell my IP brings in revenue, much in the same way that selling other kinds of property does. Still, the term intellectual property invites all sorts of confusing conflations with physical property. The if I bought it, it's mine and I can do whatever I want with it school of copyfighting is born of these conflations. So, someone who has paid $9.99 for a DVD copy of a film feels perfectly justified ripping that film from its media and uploading it widely across the Internet as though he were the actual owner of the film itself.

Intentional confusions over the meaning of words are at the heart of so many disagreements around free culture. How many times have I been challenged by a free culture true-believer on the concept of sharing, and the meaning of being a creator. How could sharing ever be a bad thing, and since when does artistic creation have anything to do with money? Well, I answer, sharing is a bad thing when what you're sharing doesn't belong to you (also known as stealing) or when you are forcing someone to share something they don't want to share (also known as bullying); and artistic creation has a lot to do with money when it's what you do for a living.

So, the copyright wars are as much about intentional confusion of terminology as they are about bad-faith theorizing about free culture.

Enter Abraham Drassinower, Associate Professor and Chair in Legal, Ethical and Cultural Implications of Technological Innovation in the University of Toronto Faculty of Law. Prof. Drassinower has recently published a paper that challenges us to reconsider some of the basic terminology of copyright, creative works and ownership.

Drassinower's paper is pretty heady stuff, drawing on Immanuel Kant no less and offering a compelling solution to the problems that arise when technology and copyright intersect. You can download a copy of "Copyright Infringement as Compelled Speech" here, and it will be published in New Frontiers in the Philosophy of Intellectual Property next year from Cambridge University Press (edited by Annabelle Lever).

Drassinower's main thrust is an attempt to move from thinking of a work as a thing that must be protected (as property is protected) to conceiving of a work as an act. As he writes:

"at issue is the 'work' not as a noun but as a verb... Copyright infringement is less a matter of disposing of an object than of repeating or reproducing an act of authorship without authorization."

Furthermore, a creative work is a special kind of act - the act of speaking one's mind. To think of it this way puts a fascinating new spin on just what it means to infringe the copyright of such a work/act.

"I want to argue that unauthorized publication amounts to forcing another to speak. Unauthorized publication is wrongful because it is compelled speech."

At one talk I gave about a year ago, I was challenged to defend my use of the word theft when describing copyright infringement. My response was that infringement may not always be, technically, theft under the law, but it almost always feels like theft to the author. Drassinower has put his Kantian finger on another one of those visceral descriptors for what it feels like to have one's copyright violated. It feels like being forced to speak.

I want to immediately apply this new lens to the current debate over educational use of copyright-protected material. Canadian creators are very concerned about a vague inclusion of "Education" as a category under fair dealing, feeling that it will open the door (a door already half-pried open by colleges and universities themselves) to widespread unauthorized use of creative works in the classroom. What such an outcome would feel like, I suggest, is being forced by law to teach with no expectation of compensation. We would be compelled to speak our work over and over again.

Drassinower's paper concludes with the idea that this concept of compelled speech is "a viable alternative... to the concept of reproduction as the axis around which copyright law must function."

If that's so, maybe we need to rename the whole law.

Workright?


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