A while ago, I thought that someone had stolen an article from me. I’m still not sure if they did, and I’m certainly not going to name names – but I had written, from ideas I had formulated myself, a pretty distinctive article about a pretty distinctive topic, and had it published on a website, and then a few months later a different writer, who follows me on Twitter, published a startlingly similar article in a publication with a slightly bigger readership. I was annoyed, I talked things over with the writer in question… but ultimately I’m not sure we came to any firm conclusions. He insisted he hadn’t read my article – but if I was talking about the ideas in it on social media, I’m sure it can have felt like they were ‘in the ether’, ready for the plucking. The similarities, I think in the view of anyone who read both pieces, were notable. But it is hard to definitively trace the genesis of an idea.
If you do creative work of any sort, you’re bound to be concerned about the theft of your ideas. Perhaps this is not always a conscious concern: but when it happens, or at any rate, when you think it has happened to you, it feels utterly disorienting – like someone has reached into your head and torn out a piece of your brain. And then started, you know, parading that bit of brain around as their own. And yet: myths of genius originality are usually just exactly that, myths. Even the greatest thinkers and artists have been the product of a long chain of inspiration – of influence, imitation, and adaptation. But at what point does ‘inspired by’ stop, and ‘stolen from’ begin? How strong a right should I have to my own work?
Perhaps it’s worth starting this investigation at the most basic level: with property rights. We tend to think our property rights are fairly well-protected. We live, after all, in a capitalist society – and while capitalism might not be good for much (depending on how rich you are), we do at least typically assume that an economic system based around private property rights, will serve to protect our private right to our stuff. But what exactly does a private property right mean?
The right to property is defined in the European Convention on Human Rights in the following terms:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
When you think about it, Google Books is one of the most impressive – and outright laudable – achievements in human history: in principle, Google is attempting to digitise every single book that has ever been published, and then make them available via a searchable archive. This should be a major watershed in the preservation, spread and democratisation of human knowledge – except that, due to the existence of intellectual property rights, Google is only making the books available with a bunch of random pages blanked out (Google have been sued multiple times over Google Books for copyright infringement).
This seems pretty straightforward: you’re allowed to do what you want with your stuff unless you start using it to harm other people. The state is also allowed to tax you. But do you actually own your stuff? If you go to the shop and buy a toothbrush (for example), then it is now your toothbrush – and this claim is likely to prove pretty uncontroversial unless you happen to live with someone who likes to clean their teeth with something that’s been in your mouth. But a lot of the most obvious disparities in our society are caused by the fact that a lot of the stuff you use every day will actually be owned by someone else – your home, for example, which if you’re a young person in the UK is almost certainly rented from a private landlord.
Increasingly, new technologies are being used in ways that seem like they could make property rights obsolete. You don’t own any of the content you consume on a streaming service like Netflix, for example – you pay a subscription fee (or freeload off someone else’s subscription), but the company can take away the programmes you’re enjoying at any time. Buying an ebook might feel, to some extent, like buying a physical book – even if the DRM software ebooks are programmed with means you can’t give an ebook away to a charity shop, or lend one to a friend. But that’s not the case at all: you pay money for an ebook to access it from the company who’s sold that right to you – and they can revoke your access at any time. Last month, customers of Microsoft’s ebook store were stung by this when the company simply closed the service down, leaving them bookless (although Microsoft did, in this instance, offer a refund). At this point, it seems worth pointing out that strictly speaking, capitalism isn’t really an economic system based around private property rights per se, but rather the private ownership of the means of production, hence: the rights of big non-governmental entities to profit from the labour of others.
Given this general situation, it is no surprise that the intellectual property rights of individual creators should feel pretty fraught. Intellectual property laws protect creators against forgeries or counterfeit versions of their work, but it is usually fine to produce knock-offs – similar versions that are in no way claiming to be the ‘real’ thing. This has been a matter of particular concern in the fashion industry, where designers for high-end fashion houses will often have their work appropriated by high-street retailers. Technology plays a role here too: my partner, as it happens, designs t-shirts and screen-prints them by hand – and every time she has a successful design take off, it will be stolen and copied by multiple websites which appear to be using algorithms to generate entries for their online shop, which will then sell unsuspecting punters inferior versions of my partner’s work. If you’re a freelance writer like me, you might not really have any right at all to your creative work once it’s been published – to get paid, I often have to sign contracts giving the rights to my work to my employers. This usually isn’t much of an issue: in theory, I could probably still have articles I’ve written for website re-published in a book, for example. But I’d have to get the original publisher’s permission.
But how much does any of this really matter? Even where strong intellectual property rights exist, they can be used officiously against creators – the estate of Marvin Gaye, for example, which for some reason is owned by an investment banker named David Pullman, has sued Robin Thicke, Pharrell Williams, and Ed Sheeran for using similar chord progressions to Gaye in their hits (which, you know: whatever you might think of these individual artists, is almost certainly not a good thing). Strong intellectual property laws can also be used to stifle innovation. What alternative directions might hip-hop have gone in, for example, if The Turtles had never successfully sued De La Soul for using samples of their work on 3 Feet High and Rising, effectively making it impossible to replicate the delirious postmodern collage of records such as the Beastie Boys’s Paul’s Boutique (although of course later producers such as DJ Shadow and The Avalanches did their best).
You don’t own any of the content you consume on a streaming service like Netflix, for example – you pay a subscription fee (or freeload off someone else’s subscription), but the company can take away the programmes you’re enjoying at any time.
Then again, the rampant appropriation of the work of others can also be an excuse to produce bad, commercialised dross like Jamie Oliver’s notoriously inauthentic ‘jerk’ rice (that contained no actual jerk seasoning). This might not really be about intellectual property laws per se, but when it comes to cultural appropriation, the insistence on authenticity can be the last refuge of those less powerful than celebrity chefs or large corporations. Meanwhile, in his 2014 book Ghosts of My Life, Mark Fisher complained that contemporary popular culture seems to have lost the “recombinational delirium” it was possessed of in the 20th century, giving way to a “crushing sense of finitude and exhaustion.” The music of bands like the Arctic Monkeys or singers like Adele is rooted in the sounds of the past, but is not even marketed as retro: instead, its non-specifically ‘classic’ feel offers “minimal variation on an already familiar theme.” A still-creepier phenomenon would be that of a band like Greta Van Fleet – Led Zeppelin sound-alikes who have been accused of being “a new kind of vampiric band who’s there to catch the runoff of original classic rock using streaming services’ data-driven business model,” algorithms enabling their derivative music to rack up millions of plays on automatically-generated Spotify playlists.
Another interesting example is that of Google Books. When you think about it, Google Books is one of the most impressive – and outright laudable – achievements in human history: in principle, Google is attempting to digitise every single book that has ever been published, and then make them available via a searchable archive. This should be a major watershed in the preservation, spread and democratisation of human knowledge – except that, due to the existence of intellectual property rights, Google is only making the books available with a bunch of random pages blanked out (Google have been sued multiple times over Google Books for copyright infringement). A similar situation persists in academic publishing, where restrictive paywalls (illustrative example: £28 to access a single article for 24 hours from the top philosophy journal Mind) have led to mass piracy from websites such as sci-hub, which offers a way of unlocking academic articles for free. Sci-hub is an invaluable research tool, even for people who get access to academic journals via university libraries (very few libraries can afford to subscribe to every useful journal) – the only problem, of course, is that the service is basically illegal.
In another work, his unfinished introduction to ‘Acid Communism’ (included in the recent k-punk collection of his writings), Fisher tells us that we ought to conceive of capitalism designed to “block the emergence of… common wealth.” There are, I think, few starker illustrations of this than Google Books: imagine if a communist state was digitising all the world’s knowledge instead of big private corporation, surely they would feel motivated to offer it to their citizenry for free. Obviously given how the world is organised at present, creators need paying – but of course, in the example of academic publishing, no authors are actually ever paid by journals for their work (academic authors routinely give their work to journals for free!), the paywalls only benefit big academic publishers. And besides which: why can’t Google, one of the world’s largest corporations, simply pay authors themselves? They could obviously afford to pay a small fee every time a book was accessed.
Technology is helping to erode the force of property rights: but as long as the institution as such serves the interests of big corporations, this will fail to benefit both producers and consumers. What we really need is a system of ownership that can serve the common interest – this would be the only system under which creative innovation could optimally flourish, and in which work as such would be fairly remunerating. As I believe someone else once said: from each according to their ability, to each according to their needs.