from intellectual property to the gift economy

Kathleen Fitzpatrick

30 August 2009

¶ 1 Leave a comment on paragraph 1 0 The notion of the scholarly remix, however, raises some quite serious questions about the “ownership” of ideas — which is to say intellectual property — and its relationship to our authorship practices. If we come to accept remix as a mode of scholarly authorship, a form of academic bricolage, how will the relationship between the bricoleur and the texts he or she uses be understood? And what kind of relationship will be assumed to exist between the bricoleur and the products of his or her work?

¶ 2 Leave a comment on paragraph 2 2 As numerous recent explorations of the history of copyright and intellectual property have demonstrated, the original reasoning behind this legal protection of authors’ rights over the distribution and use of their texts was the assumption that such protections would reserve to the ability to benefit financially from their labor, if there were benefits to be gained, thereby encouraging new invention and production.[2.25] Retaining ownership of intellectual property has, through the defense of copyright, come in fact to seem a pre-requisite for continued production; why would anyone innovate if they couldn’t benefit from the results of that innovation? However, as studies of intellectual property law also demonstrate, copyright has increasingly come over the course of the twentieth and early twenty-first centuries to be assigned to corporations, rather than being retained by the individuals whom the principle was meant to protect,[2.26] and as the term of copyright has been repeatedly extended long beyond the life of the author, and is now straining to approximate the life of the corporation, its purpose has been radically eroded. Despite the rhetoric suggesting that the illegal downloading of music represents theft from artists, in fact, it’s arguable that illegal downloading more closely represents theft from corporations who have already appropriated the property of artists, by using increasingly arcane distribution channels to require them to work within a system that does not have their interests at heart. This made sense, perhaps, when the costs of media production were such that only large organizations could afford to produce and distribute new material; now that such production is affordable, all one need do is straighten out the distribution channels, and then more of the profits will go directly to the artists.

¶ 3 Leave a comment on paragraph 3 0 Or so the theory goes. Number of musicians have experimented with such new modes of distribution, including most famously Radiohead, who released their In Rainbows album as a “pay what you will” download in 2007 [see screenshot 2.2].

¶ 4 Leave a comment on paragraph 4 1 62 percent of downloaders, perhaps unsurprisingly, paid nothing for the music, but the other 38 percent paid an average of $6 for the album. These statistics led a number of publications, including, most notably, Fortune magazine, to declare the experiment a failure.[2.27] However, as other commentators pointed out, it’s estimated that more than 2 million people downloaded the album, and at an average of $6 for 38 percent of those downloads, the result would be revenue of $4.56 million; compare this with the $1 from the sale of a traditionally distributed album that goes to the artist, and one can see that Radiohead could conceivably have more than doubled their income on the album. But even more remarkably, after the album was available for download for more than three months, it was also made available on iTunes, where it sold 30,000 copies during the first week, and it was also produced as a physical CD, selling another 1.75 million copies, plus 100,000 copies of a deluxe box set (“Exclusive”).

¶ 5 Leave a comment on paragraph 5 4 It’s arguable, of course, that only a band of the stature of Radiohead could have successfully pulled off an experiment like this one; others are still dependent on the channels of promotion and distribution provided by the music industry. But that industry is beginning — if all too slowly — to recognize the need for change, and other media companies are beginning to follow suit, gradually realizing that content is no longer king, and that, paradoxically, one can earn more by giving it away.[2.28] And that’s the key point that I want to make with respect to scholarship, as digital publishing forces us to rethink what it means for us to “own” the texts that we produce. Scholarly authors, after all, already exist in a fairly attenuated position with respect to copyright’s original purposes; it’s only the rare academic who earns much of anything directly from the publishing he or she does,[2.29] and the incentives that we have to produce — obtaining and maintaining academic positions, primarily — by and large include the financial in only an indirect sense. Clinging to a principle designed for the marketplace when our own mode of exchange doesn’t adhere to marketplace values seems rather beside the point. Instead, we might usefully ponder the mode of exchange that best suits academic culture, and what rights within authors must retain within that mode of exchange. We should carefully consider what the potential value in “giving it away” might be — not least that, as Radiohead found, and as Cory Doctorow has demonstrated across his own career, “releasing electronic texts of books drives sales of the print editions” (“Science Fiction”). If the purpose of scholarship is to be read, understanding its distribution as partially driven by a gift economy only makes sense.

¶ 6 Leave a comment on paragraph 6 0 One might look to the free and open source software community for a model of such a gift economy; as Chris Kelty has explored, it’s of course an imperfect community, but one that might teach us much about how to orient our work. Kelty introduces the concept of the “recursive public” to talk about this community, defining it as “a public that is vitally concerned with the material and practical maintenance and modification of the technical, legal, practical, and conceptual means of its own existence as a public” (3, emphasis in original); digital publishing tools might provide the scholarly community the opportunity to become precisely such a recursive public, one that understands itself as working toward a common goal, and that is explicitly focused on improving the communication systems that foster its work. By and large, programmers working on free and open source software projects do so less out of any sense of altruism than out of the desire to work with better tools. So with scholarship: we already contribute our work to a community of scholars out of a primary desire for better knowledge; if we focus on the commons-based aspect of that community, giving our work away in a manner that acknowledges that its primary purpose is to be re-used and repurposed, we have the potential to contribute to the creation of both better tools and a stronger sense of the scholarly public.[2.30]

¶ 7 Leave a comment on paragraph 7 1 Even within such a gift economy, however, there remain numerous mechanisms through which authors can maintain some kinds of control over what becomes of their texts, as ways to ensure that the author receives appropriate credit for that work. Most famous among these is Creative Commons licensing, which allows an author or other creator of intellectual content to specify precisely what rights to the material she is giving away; the license can allow the full reuse of the text while requiring attribution, or it can restrict reuse to non-commercial purposes, or it can even require that any resulting texts be shared in the same fashion as the original.[2.31]

¶ 8 Leave a comment on paragraph 8 0 The point, finally, is not to promote one particular form of licensing scholarly work over another, but rather to suggest that we might fruitfully separate our notions of authorship from their association with ownership, or at least to question that linkage, in order to think about more productive ways of distributing and sharing that work with the people we most want to read it.