3.2 COPYRIGHT – FOSTERING CREATIVITY BY RESTRICTING INFORMATION?
Incentivizing creativity stands at the heart of copyright laws. The world’s first copyright statute, the 1710 Statute of Anne, was drafted to act as an incentive for creative output. Copyright advocates opine that no economy can function without a system of incentives. Staunch supporters even go to the extent of saying that without copyright, authors, artists and researchers would simply stop working. They cannot imagine that intellectual discourse can occur without vesting an exclusive property right in intellectual output. As more and more people began to comprehend the lacunae in such a system, a counterculture emerged. Proponents of this counterculture, which we will understand in the course of this unit, argued that the idea of property as we know it does not conform to the contours of intellectual goods. A house or land is not the same as a book or a YouTube video. This provides a laconic overview of the two schools of IP thought, which we will return to at a later point. For now, it is important to understand the immense value that creativity and innovation carry in our economy. For example, the software industry would collapse if talented programmers stop writing more sophisticated code that meets the changing needs of industry and research. The question that many are asking today is whether our understanding of copyright is in consonance with its stated goal?
Let us consider a contemporaneous and relevant example and study it to get a better understanding of what we’re discussing. Universities prize publications both of its teachers and students. While students seek to rack up as many publications as possible to include in their resumes, faculty members have an entire system of promotion and research grants that are linked to the number and quality of their publications. These research papers, very often of high quality, are submitted to prestigious national and international journals where they undergo a rigorous editorial process. Authors hope to publish in a prestigious journal with the hope that their research will be read by as wide an audience as possible. This research output is not only a reflection of the quality of academics in our universities but is also crucial to the development of fields of study. Intellectual property law, for example, is shaped every day by the thousands of articles and books published every year by professors, academicians, independent researchers and students of the field. When Albert Einstein wanted to tell the world about his Special Theory of Relativity, he wrote a paper titled ‘On the Electrodynamics of Moving Bodies’, which together with his ‘Annus Mirabilis’ papers transformed the study of physics forever. Suffice to say that academia depends almost entirely on the research output that is compiled in journals. Therefore, it is crucial that these papers are not only published by eminent journals but are also accessible for the purpose of education and research, for what is the point of publishing path-breaking work on a legal doctrine or scientific data but only allowing a miniscule minority of the academic community to access it? However, that is precisely what is happening today. These journals are compiled by large corporations for the purpose of creating databases of knowledge. Very often, these corporations then exercise the exclusive right to publish or provide access to these journals. In a cruel twist of language, these ‘knowledge companies’ then charge prohibitively high fees to access these databases, thereby effectively restricting the number of people who can read them. Smaller research institutions, rural universities, individual researchers and others are precluded from reading these research papers simply because they cannot afford it. Attempts to access and use the information are met with coercive legal sanction egged on by vested corporate interests. This growing privatization of knowledge strikes at the very reason for the existence of copyright laws - encouraging creativity. The current system would rather protect Einstein’s copyright and place his revolutionary paper under lock and key rather than allow free access and engender robust discourse in physics, thereby serving the greater good. Restrictive copyright laws such as the Sonny Bono Copyright Term Extension Act that extended the term of copyright to far beyond the life of the owner stand in the way free flow of knowledge. No artist or author works in a vacuum. Authors read entire libraries to write a single book while artists study diverse genres of paintings to gain inspiration. Isaac Newton, in a moment of candour, himself admitted that “If I have seen further it is by standing on the shoulders of giants.” Access to the most contemporary works in their field is crucial to researchers, artists and authors- the purported beneficiaries of copyright. Contemporary copyright, on the other hand, thrives on restricting access by placing it in the hands of profit-hungry companies. Subjecting the logic of creativity to the convolutions of the marketplace has landed copyright laws in quite a soup. Two examples illustrate this and establish a desperate need to imagine alternatives to our copyright regimes- alternatives that contemplate the complexities of the internet, digitization of mass media, emergence of new media and the epochal proliferation of technology into even the most quotidian aspects of our lives.