Critics of contemporary copyright and patent laws as a propertization of ideas, see a second enclosure movement at work today. They see the extension of property rights over ideas, traditional cultures, scientific discoveries, as well current attempts at regulating content on the internet as encroachment on the commons of ideas. The push for longer-lasting rights and the extension of patents and copyrights into new areas is seen as a "land grab" by the powerful, to the detriment of cultural creativity and the contemporary "yeomanry" of independent web publishers. (such as this website).
Copyright is first and foremost, the right to make a copy. The first products to be protected by copyright were books. In France before the Revolution, as in England before the Statute of Anne, the regulation of publishing was through a set of "privileges" given to printers, not rights given to authors. These privileges were not a form of property rights in the modern sense, and were granted in exchange for submission to state censorship and control. The precursors of copyright law served to force the identification of the author, so that he could be punished if he proved to be a heretic or a revolutionary. (Boyle, The Public Sphere, p. 8, p.29. See also Carla Hesse, "the rise of intellectual property", Daedalus, Spring 2002, Louis Menand "Crooner in Rights Spat", The New Yorker Oct. 20, 2014)
But the concept of intellectual property rights that underlie copyrights and patents is that of state-created rights of exclusion and authorship. (Patents also require descriptions that describe a technology well enough to allow anyone to replicate it once the patent ends)
The rise of the middle-class reading public In the eighteenth century led to an explosion of print commerce, and the new authors began to seek better renumeration for their products and to claim that their creations were their own property. Copyrights at the end of the eighteenth century, such as the American Copyright Act of 1790 were meant to "promote the Progress of Science and useful Arts, by securing to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" for some length of time, after which the work would fall into the public domain. The prohibition on copying and the prospect of exclusivity was meant to encourage writing and inventing by providing financial incentive. It was also meant to be limited in duration, so that that works could ultimately become public goods. Eighteenth and nineteenth-century critics of copyright saw it as a form of monopoly, with all the drawbacks for free trade and potential for abuse that monopolies entail. It was therefore important to limit its effect. (see second enclosure movement)
While copying has become vastly simpler and more prevalent with digital media, the grip of copyright laws has become ever more tenacious, primarily through extensions of the terms of copyright. The American statutes originally set the term at, then up to forty-two years in 1831, fifty-six years in 1909, fifty years after the death of the author in 1976, and finally to life plus seventy years (and even longer with works with corporate authorship), through the Sonny Bono Copyright Terms Extension Act.
The granting of patents on the human genome, for example, is indicative of an extension of intellectual property over areas previously thought to be the common heritage of mankind and uncommodifiable. Patents have been taken out on Yoga, on traditional herbal medicines, and away from the cultures that developed these public goods. Critics of this extension of property rights consider ideas and cultures as commons. Furthermore, they point out that ideas are non-rivalrous (as opposed to limited resources such as land). In a rivalrous resource, my use of it competes with yours. (a ham sandwich, for example) In a nonrivalrous resource, my use of it does not inhibit yours. (eg. the alphabet) This is the definition of a public good -- once it's there, everyone can use it) and a pure public good is also one that is non-excludable, that is, it is impossible to exclude any individuals from consuming the good.
In Thomas Jefferson's words, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813).
Or, in Bertrand Russel's words, "If I have one apple and you have one apple and we exchange apples, we both have one apple. But if you have an idea and I have an idea and we exchange ideas, then we both have two."
The main argument for copyright is that it provides an incentive for invention and creative work by securing benefits to its holder, and Jefferson recognized that this might be of benefit to society, recognizing that "Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility..." Eighteenth and nineteenth-century critics of copyright saw it as a form of monopoly, with all the drawbacks for free trade and potential for abuse that monopolies entail. It was therefore important to limit its effect.
Part of those limitations were temporal, and a significant part of the current controversies revolves around recent extensions of copyright monopolies to the detriment of the public realm.
"I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad....It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good." Thomas Babington Macaulay, speech to the British Parliament, 1841 (quoted in Boyle, p.22)
nina paley (thanks)
In The Wealth of Networks, Yochai Benkler argues that the declining price of computation, communication, and storage created a communications network built on cheap and interconnected processors which are the material base for what he calls the Networked Information Economy. Instead of requiring the large capital investments which characterized the "industrial model" -- and led to commercialization, concentration, and passive consumerism -- the physical capital of the networked information economy is broadly distributed throughout society. This widely distributed infrastructure of computers (with excess capacities) and network connections affords individuals or peer groups new opportunities to make and exchange information, knowledge, and culture. For Benkler, "the networked information environment opens new domains for productive life that simply were not there before. In so doing, it has provided us with new ways to imagine our lives as productive human beings." (p. 139)
According to Benkler, "when goods, services, and resources are widely dispersed, their owners can choose to engage with each other through social sharing instead of through markets or a formal, state-based relationship, because individuals have available to them the resources necessary to engage in such behavior without recourse to capital markets or the taxation power of the state." (p. 120) "These changes have increased the role of non-market and non-proprietary production, both by individuals alone and by cooperative efforts in a wide range of loosely or tightly woven collaborations." (p. 2) Examples of these cooperative non-market efforts include free (open source) software such as Linux or Firefox, collaborative peer productions such as Wikipedia, or internet-based distributed computing such as SETI@Home. Benkler argues that the feasibility of social production of information -- rather than in market or proprietary relations -- is here to stay as an important economic phenomenon, as opposed to a fad that will pass.
A darker concept of enclosure is put forward in iSpy: Surveillance and Power in the Interactive Era, by Mark Andrejevic. If legal critics such as Boyle and Lessig focus on the privatization of information that was or could potentially be in the public domain, Andrejevic draws particular attention to the mechanisms of capture -- to the creation of a digital enclosure in which behaviors are monitored and recorded. For Andrejevic, "entry into the digital enclosure carries with it, in most cases, a condition of surveilance"(p.2) ...of "submission to increasingly detailed forms of information gathering." In a wry twist on concerns for privacy, Andrejevic points out that "Privacy itself is not only far from dead, it also forms the very basis for the value of detailed information about consumers and citizens. Companies make billions of dollars by gathering detailed information about consumers and claiming it as their private property...they prevent members of the public from accessing information that has been gathered about them by invoking their own right to privacy." In this "asymmetrical" loss of privacy, individuals have less and less freedom from scrutiny, even as the commercial organizations and arms of state employ the shield of privacy and national security to remain stubbornly opaque. Those who are increasingly subject to surveillance are prevented from learning about the details of the surveillance process itself. Even more perversely, this asymmetrical interactivity comes to be marketed as a form of radical participation, as "empowerment" of individuals through consumer choice.
This is the Faustian pact that has come with "free" access to the internet. The services provided by search engines like Google, consumer distribution systems like Amazon, social networks like Facebook, Youtube etc. have become indispensable to individual self-determination and new social experiences. The "networked public sphere" that Benkler celebrates could bypass old boundaries and be reconfigured to provide experience "how I want it, where I want it, and when I want it." Yet the vast quantity of personal information that is produced as "big data" has become a resource over which consumers and citizens have little control, or even understanding. It is done without their knowledge or consent. The covert capture of user date is at the heart of the business model of Google, Facebook, and other. The information produced by every move on the internet will inevitable extend to the "real" world through devices such as google glass, driverless cars, and the "internet of things." The possibilities for abuse, by corporations, intelligence agencies, or criminals, is enormous, but the power itself is "ubiquitous, hidden, and unaccountable" (Shoshana Zuboff in "Dark Google")
For Zuboff, “big data is the foundational component in a deeply intentional and highly consequential new logic of accumulation” that she calls surveillance capitalism. This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control. It leads to the migration of everydayness as a commercialization strategy; to selling access to the real-time flow of your daily life –your reality—in order to directly influence and modify your behavior for profit.
Privacy seems to be a thing of the past. According to critics like Shoshana Zuboff, "Privacy hasn't been eroded. It's been expropriated." “The assault on behavioral data is so sweeping that it can no longer be circumscribed by the concept of privacy and its contests.
AI Large Language models have introduced a new layer of copyright issues. According to a current case, ““Their copyrighted materials were copied and ingested as part of training,””