Marginalia wins innovation award

Marginalia has won the BC Innovation Award in Educational Technology! Thank you to everyone who has supported and used the software. We plan to introduce a number of improvements over the next little while, and we hope this award will introduce the software to new users and uses.


Is copyright a natural right?

This is an old question, reaching back to the 18th century, when copyright applied only to writing. A writer takes resources available to all – language, symbols, ideas, etc. – and mixes them with his labor to produce a new work. The question was whether investing that labor in the work gave the writer a natural right to control over it. One court case said yes, and overruled the term limit on copyright.

There is another question, however. Do the common resources (language, ideas, etc.) belong to all? Or do they belong to no-one? In the former case, the writer needs the permission of the community in order to assert a natural right on his work. In the latter case, they have no business interfering in his right1. This is assuming natural rights exist at all. Are rights given by God, do they already exist somewhere out there, or are they created by human beings? In the latter case, the whole argument for natural rights is short-circuited.

Later court decisions found that although a writer might have a natural right to his work, enforcing that right impinged too much on the freedom of others. Instead, the law was grounded on the economic principle that it should encourage writers.

Another way to approach this is the idea of authorship, which arose in the 18th and 19th centuries. According to the Romantics, authors played a special moral role in society. Furthermore, their works were unique personal expression of themselves. This was an innovation. The idea of human creativity wasn’t widely accepted until the 20th century; many non-Western cultures that still do not share it.

Of course courts aren’t run by philosophers. The ideal of the romantic author who creates something original from nothing has been very influential in intellectual property rulings. It appears to resolve a number of serious inconsistencies in intellectual property law2. In practice it creates as many problems as it solves. It’s also just just plain wrong: authors don’t create from nothing.

For most creators, the question of rights is rendered moot by the fact that they neither own nor control their work. This is famously the case for music, but is prevalent in other fields.


1 Peter Drahos, A Philosophy of Intellectual Property.

2 James Boyle, Shamans, Software & Spleens.


Respecting Culture?

John Degen writes, “I think intellectual property is an economic model based on a constant request for respect”. Elsewhere he writes, “My personal opinion . . . boils down to this . . . respect the text.” I have seen this elsewhere. Usually this argument treats respect and payment as interchangeable, conflating a thing’s worth with what is paid for it1. But taken seriously, I see a more fundamental conflict about authority.

Degen apparently sees a text as a stable object with a fixed meaning. It deserves respect because it is the product of the sweat and inspiration of the author. It should be taken as it is, or not at all. Because it is the product of the author’s labor, it is proprietary. Copyright, I believe John claims, should recognize this by granting the author exclusive control over her work.

The understanding I have just described is fundamentally flawed. Texts do not have fixed meanings. They are always interpreted. This is not simply my opinion; it is the conclusion of decades of research in communication and culture studies. In a living culture, interpretations vary between people and they change over time. The Stars and Stripes may mean one thing to an American, another to someone else. The meaning of Mao’s Little Red Book is unlikely to be the same for a Canadian today as for a Chinese during the Cultural Revolution. The Teletubby with the handbag is gay for some people, but merely purple for others.


Texts do not have “correct” interpretations. You could say the author’s understanding is the right one, or you could argue for a particular analysis, or for the common understanding, and so on. Disputes over the “real” meaning of a text are actually attempts to establish a particular interpretation as dominant.

Interpretation is not a passive activity. Nor, oftentimes, is it a solitary one. Experiencing a text is work. It is a creative activity. Many people have had the experience of reading a book, then watching the movie and finding that the characters don’t look the way they imagined them. That act of visualization is a creative act. It is like the creativity of the author who experiences and interprets the world when she puts pen to paper2.

This does not diminish authorship. But it does place it on a continuum. The author of a text is usually the greatest contributor to its meaning. The interpretation of the audience is guided by the text itself – though not determined by it. (Similarly, the author is not free to express the text in just any way, but must take into account cultural conventions and the expectations, resources, and demands of the audience.) Collectively, however, the contribution of the audience can sometimes exceed that of the author.


Degen privileges the intention of the author. It seems that for him there is a correct interpretation, which he argues should be respected. Copyright, then, is a legal assertion of authority. The author is in the position of a priest of the middle ages: a conduit to something higher who preaches to the congregation in a language they do not fully understand. But this is no longer how we see culture. We do not treat it as an authority held at arms length. We bring it into our homes and our lives. What we express for our culture is not respect. It is passion.

I see the pursuit of copyright control (as distinct from copyright income) partly as a romantic attempt to recapture the authority of an era (largely imagined) when The Text was a distant object of veneration. The argument for respect ultimately leads to an attempt to dispossess all of us of our ability to engage and participate in our culture. I am afraid this may be invisible to Mr Degen and others like him. They do not see the multiplicity of meanings, nor the passion of the audience. In a tragic unintentional way, they do not respect them.


1 Degen appears to mix up worth and money himself when he suggests a “request for respect” is the foundation of intellectual property as an economic model.

2 Degen is a fiction writer. It strikes me that his argument sells his own craft short: one of the great benefits of literature compared to film and television is the scope it leaves for the reader to fill in the blanks with his imagination.


Buttons, Calico and Copyright

Copyright is not the first instance of government implementing draconian prohibition and disproportionate penalties to shield established industries from innovation. In centuries past, people have been searched, tortured, and killed over clothing manufacture and imports outside guild monopolies.

The invention of cloth buttons in 17th century France threatened the monopoly of the button-makers guild. In response, makers of cloth buttons were fined. But that was not enough. The guild “demanded the right to search people’s homes and wardrobes and even to arrest them on the streets if they are seen wearing these subversive goods1.”

Nor were these the most extreme measures taken. Importers of printed calico fabric were imprisoned, tortured, even hanged. Sixteen thousand people were killed.

In spite of the penalties, prohibition ultimately failed. But not before many lives had been ruined.


1 Examples from Robert Heilbroner’s The Worldly Philosophers, 1961, pp. 17-18.


The Passion for the Hockey Theme

Much of the value of cultural works is produced not by creators, but by the audience. I know of no better example than the recent ruckus over CBC’s failure to re-license the Hockey Night in Canada theme song. The response was tremendous. The outrage of fans poured out on CBC message boards and letters to the editor. Argument raged about the value of the song; many pressed CBC to pay the composer, Dolores Claman, whatever it took to secure the license.

But consider: the composer is only one contributor to the value of the Hockey Night in Canada theme. What is unique about the theme is its association with hockey. Claman didn’t create that association: there is nothing in the music itself that says “hockey”. She wrote the notes, but it was the audience who gave them meaning. It was they who, over decades of tradition, made the theme inseparable from the sport they love. It is they who linked it to the events of their lives. The passion shown by fans is a reflection of their own personal investments in the music.

For popular works, the audience are always important contributors to value. That is the essence of popularity; that is how we integrate a work into our shared culture. The audience are co-producers. The contribution of each individual may be small, but together these little tidbits of labor and creativity can be greater than that of the artist.

It is a commonplace that no art is wholly original. This is not a bad thing: allusion, borrowing, integration into the culture and building on the work of others are characteristics of great art. But the process does not end when the artist rests her pen or puts down his camera or the manuscript is sent to the printer. From the moment the audience experiences art they interpret it, they give it meaning, they give it value. Some may even draw upon it for their own art – for every artist begins and remains a member of the audience.

So it is with Claman’s theme. The value of her music – millions of dollars it seems – was the product of multitudes. It is not only her theme. It is theirs too. And that is the source of their passion.


The Cosmic Horror of the Nazis

From Philip K. Dick’s The Man in the High Castle (1962), on Nazis: “They’re not idealists . . . they’re cynics with utter faith.”

Their view; it is cosmic. Not of a man here, a child there, but an abstraction: race, land. Volk. Land. Blut. Ehre. Not of honourable men but of Ehre itself, honour: the abstract is real, the actual is invisible to them. Die Gute, but not good men, this good man. It is their sense of space and time. They see through the here, the now, into the vast black deep beyond, the unchanging. And that is fatal to life. Because eventually there will be no life; there was once only dust particles in space, the hot hydrogen gases, nothing more, and it will come again. This is an interval, ein Augenblick. The cosmic process is hurrying on, crushing life back into the granite and methane; the wheel turns for all life. It is all temporary. And they – these madmen – respond to the granite, the dust, the longing of the inanimate; they want to aid Natur.

And then, he thought, I know why. They want to be the agents, not the victims, of history. They identify with God’s power and believe they are godlike. That is their basic madness. They are overcome by some archetype; their egos have expended psychotically so that they connot tell where they begin and the godhead leaves off. It is not hubris, not pride; it is inflation of the ego to its ultimate – confusion between him who worships and that which is worshipped. Man has not eaten God; God has eaten man.

What they do not comprehend is man’s helplessness. I am weak, small, of no consequence to the universe. It does not notice me; I live on unseen. But why is that bad? Isn’t it better that way? Whom the gods notice they destroy. Be small … and you will escape the jealousy of the great.

I can’t help thinking of H.P. Lovecraft’s interwar visions of cosmic horror: mad cultists worship uncaring gods that are more principles of reality than beings, in hopes of bringing forward the day when the stars are right, the gods awaken, and the human race descends upon itself in murder and depravity. His heroes fight the darkness, but in fighting it they come to understand man’s lonely insignificance, and go mad.

The most merciful thing in the world, I think, is the inability of the human mind to correlate all its contents. We live on a placid island of ignorance in the midst of black seas of infinity, and it was not meant that we should voyage far. The sciences, each straining in its own direction, have hitherto harmed us little; but some day the piecing together of dissociated knowledge will open up such terrifying vistas of reality, and of our frightful position therein, that we shall either go mad from the revelation or flee from the light into the peace and safety of a new dark age.

That cult would never die till the stars came right again, and the secret priests would take great Cthulhu from His tomb to revive His subjects and resume His rule of earth. The time would be easy to know, for then mankind would have become as the Great Old Ones; free and wild and beyond good and evil, with laws and morals thrown aside and all men shouting and killing and revelling in joy. Then the liberated Old Ones would teach them new ways to shout and kill and revel and enjoy themselves, and all the earth would flame with a holocaust of ecstasy and freedom.

Like the Nazis, Lovecraft was obsessed with race and blood: miscegenation with fish people, people devolving into rats things, the ancestry of bad blood making itself known and turning innocent descendants into monsters. Moving briefly to New York City, Lovecraft was terrified of the multicultural multitude and fled in horror back to Providence.


MA Thesis: A Community-Based Model for the Production of Ideas

I have uploaded my thesis for my Master of Communication degree, A Community-Based Model for the Production of Ideas. I argue that treating ideas as the products of communities, rather than the exclusive property of individuals, resolves a number of significant flaws with copyright. More importantly, community-based production promotes communities and aids the self-development of individuals. Since community and self-development are desirable in and of themselves, they provide both a motivation for community production and a moral argument in favor of it.


Fair Copy Site

The Canadian government has indicated that it intends to push ahead and change copyright law – without consulting with ordinary Canadians who will be affected in their everyday lives. But the issues remain unclear to many citizens and journalists. I have put together the faircopy site to help explain what this is about, how it affects all Canadians, and what we can do about it. This is intended to put together a clear overview, augmenting existing efforts like the Fair Copyright for Canada Facebook group.


Why Canada's Upcoming Copyright Law is Bad

In order to stop ordinary people from violating copyright, companies have encoded content (particularly music and film) so that it requires special software to access. The software embeds rules determining what access is permitted and what access is not. Unlike copyright, which is interpreted by human beings, these rules are enforced by a machine. This law makes it illegal to circumvent the machine’s determination.

But the machine is inflexible. It doesn’t know whether it’s ok for a student to copy a journal article, for a researcher to look for security or privacy flaws, for a Microsoft customer to play music on an iPod. So the software prevents activities which are otherwise perfectly legitimate and legal. Where copyright grants control over some uses of a work, this technology (DRM) grants control over all uses. And the U.S. version of this law, the DMCA, by banning all circumvention regardless of the purpose, makes that control inviolable.

That’s the first problem.

The second problem is that to decode the content, this software must be present in every device that plays it back. It’s in your cell phone. It’s in your DVD player. It’s in your computer. In order for the law to be effective, it forbids you to interfere with the operation of the devices you own. It becomes illegal to unlock your cell phone to use it with a different wireless provider. It becomes illegal to play DVDs on operating systems other than those made by Apple and Microsoft. The only one who can determine what your devices can and can’t do is someone else. You lose control of your own property.

But that’s not all.

Access must only be given to the right people (companies that make the technology – DVD players, operating systems, etc.) but not to the wrong people (you and me). Who decides? The answer must be a single company or organization. They make the rules about who can play back content – and who can encode content too. You can’t publish protected music for the iPod without Apple’s permission. You can’t make a device to play it back without Apple’s permission either. These companies and organizations have tremendous monopoly power. Control of the content requires control of the technology (and of our property), which becomes control of the market.

That control does not lie with artists, authors or musicians. In fact, because the technology is primarily American, it doesn’t lie with Canadians at all. This law would place Canadian innovation and Canadian culture in a position of dependency relative to the United States.

That’s only the part of the law we know about. There will be more.

Oh yes, I should mention – the copy prevention mechanisms don’t work. They might stop you and me from making legitimate use of material, but they don’t stop the serious pirates from profiting off someone else’s work – after which ordinary folks can use those pirated copies, which, because they are digital, are perfect. This raises the question: are these technologies and laws really meant to stop piracy – are they really meant to benefit creators – or are they intended to consolidate the power of the monopoly and cartel positions of certain publishers and technology companies?


Canada's Copyright Disaster

Canada faces a copyright disaster. Next week, Canada’s Industry Minister is set to introduce a revision of the Copyright Act. A similar revision in the United States produced the Digital Millennium Copyright Act (DMCA), which has hobbled innovation and produced lawsuits against ordinary people while failing in its aim to stop piracy. The government has not consulted with Canadians, but by all accounts the Canadian law has been written in close consultation with American interests. Over the past few days thousands of angry Canadians have joined the Fair Copyright for Canada group on Facebook to work to stop this law. There isn’t much time. Canadians who want Canadian culture and innovation to maintain vibrant and independent should join us by writing to their newspapers and members of Parliament (scroll down for contact information) immediately to stop this disaster from becoming law.

  1. Previous
  2. Next