What's mine is not yours...

February 11, 2010

... but that doesn't stop intellectual property theft. Adrian Johns tells Matthew Reisz that piracy is an age-old phenomenon - and that the concept of ownership itself faces a crisis

Adrian Johns' new book, Piracy: The Intellectual Property Wars from Gutenberg to Gates, opens with a surreal scenario.

In 2004, the Japanese electronics giant NEC discovered that its products were being counterfeited and sold in Chinese stores - not by a few opportunists but by "an entire parallel NEC organization", complete with its own research and development programme and agents carrying business cards. As the story flew around the internet, this startling example of industrial piracy became "a symbol of every cultural fear, epistemic doubt and libertarian dream suggested by the digital age".

But why do we call such activities "piracy"? It seems to have been in the later 17th century, when pirates were flashing their cutlasses in the Caribbean, that it became established as a standard term for various sins against what we now call intellectual property.

Today, as Johns notes, it has become a common and somewhat indiscriminate form of abuse, the "one charge that all players in the globalization game, from radical environmentalists to officials of the World Trade Organization, level at their respective foes".

Yet pirates have also had their defenders. In the American colonies, writes Johns, "the very act of reprinting London's books was an act of defiance (that helped) define a public realm befitting a dispersed republic rather than a centralized aristocracy". Members of the Scottish Enlightenment were equally committed to fighting the monopolistic stranglehold of English publishers.

Closer to our own times, we have seen something similar in the music industry. For much of the 20th century, as Johns explains, big record companies turned a blind eye to "the after-hours work of pressing plants" (sometimes known as "nocturnal emissions"). But when they became aware of the rise of taping, they began to issue dire warnings about "the death of music". (Similarly, in later times, cartoons depicted Japanese video cassette recorder manufacturers as Samurai warriors menacing the living room.)

Most consumers were unimpressed, seeing "home piracy" as "an inoffensive practice - indeed, a constructive one, around which sociability cohered".

Far from being hardened criminals, Johns continues, "home tapers bought more albums than average (and so) were not 'freeloaders' but the industry's most dependable customers".

As long as corporations refused to reissue rare recordings, piracy could present itself as "an exercise in conservation, sanctified by the amateur virtues of dedication and disinterest".

Through accumulating such examples, Johns makes a bold claim: disputes over intellectual piracy have touched on so many crucial issues of creativity and commerce, identity and invention, science and society, that tracing them amounts to "a history of modernity from askance".

He reached this point by a somewhat roundabout route. Now professor of history at the University of Chicago, Johns is British and was born in 1965, during the golden age of pirate radio. This world forms the subject of his next book, Death of a Pirate: British Broadcasting and the Origins of the Information Age (due to be published by Norton in the autumn), which reconstructs the 1966 killing of Reginald Calvert, a small-time pirate-radio owner. But although Johns depicts in vivid, almost novelistic detail the mad schemes of the duckers and divers in their Ford Zodiacs, he says he has no personal or family connections with that milieu.

After abandoning his original plans to study physics or chemistry, Johns took an undergraduate degree in the history and philosophy of science at the University of Cambridge, where he stayed on to do a PhD and then a research fellowship.

His initial interests, he says, lay in "the links between the printing revolution and the scientific revolution. Natural philosophers (early scientists) were facing a world of commercial printing that could be trustworthy or tremendously rapacious, unprincipled, full of errors and credulity. They had to do something to tame it."

Such concerns eventually led to The Nature of the Book: Print and Knowledge in the Making (1998). The topic gained additional interest, and perhaps poignancy, from the ways in which "the nature of the book" was mutating during the very period that Johns was carrying out his research.

"I would go around saying that printed books were never stable in the early modern period," he explains, "that uniform print runs didn't exist because of artisanal production and so on. Print culture is not accompanied by a strong notion of the fixed character of texts."

Yet in the early days of the internet, people were sceptical of this argument because they saw "digital products as radically unstable, and there was a perceived memory of the self-evidence of print: books had been characteristically stable for centuries".

During the past decade, Johns points out, such stability has dissolved, as we have witnessed "an acceleration of the sense that the book is heading, perhaps not into terminal crisis, but that we're going to see it dethroned in a fairly big way. As the technology for e-readers is perfected over the next two to five years, the book as paper-bound codex carrying one text may start to look like an aesthetic ideal rather than a practical one."

Although Johns is still "interested in the same questions" that powered his early research, his geographical and historical focus has expanded greatly. One of the spurs was a move to California, including a period in the sociology department at the University of California, San Diego, where he embarked on a project about a Japanese digital printing company.

"I moved away from the 17th century", he says now, "because of working in southern California. It's such a diverse community and looks out so much towards the Pacific. I found myself being pulled towards the present and towards Asia."

The William Andrews Clark Memorial Library, he observes, "specialises in the 17th and 18th centuries and is an adjunct to the University of California, Los Angeles, but it is in South Central and surrounded by high walls with searchlights. The Huntington Library, on the other hand, is in San Marino and surrounded by an extremely wealthy community where everybody drives around in huge Mercedes, so it's as if you're going into a little walled enclave of Europeanists. It felt like you were cutting yourself off from everything that was interesting around you."

Today, Johns argues, the many disputes and confusions about intellectual property "seem to be heading towards the kind of crisis that precedes a revolution". Yet he firmly believes that a historical approach can help illuminate our current dilemmas and reveal how seemingly intractable problems can be solved.

When Isaac Newton sulkily rejected the system of "perusal" and registration, whereby members of the Royal Society assessed and published new scientific ideas, it led to a major crisis in the 1670s. We are now, notes Johns, facing similar challenges to peer review as "open-access systems are transforming the whole economic basis of science journals". These, too, can no doubt be overcome.

More generally, Piracy shows us how the very notion of intellectual property - and its sharp division into the fields of patent and copyright - was created in response to specific pressures and so could be modified dramatically or even abolished.

"In so far as there is a conceptual framework for all this," explains Johns, "it's a framework that seems eternal but is actually relatively recent, put together in the 19th century and controversial even then, based on what seemed to be the social realities of industrial production, nation states and so on.

"It's not so clear that its basic sorting-out of the world corresponds to how people work nowadays. We are constantly trying to shoehorn problems into an intellectual framework designed 150 years ago in a different world. The basic bifurcation between patent and copyright makes increasingly little sense, because of what has happened within disciplines such as genomics."

Whatever we feel about piracy, there are also major concerns about how it is policed. In the past, efforts were often farcically ineffective. Take the attempts of broadcasters to crack down on pirate radio listeners in the UK in the 1920s. Along with those who simply refused to buy a licence, many claimed to be using their radios for the purposes of scientific research, which entitled them to far cheaper "experimenter's licences".

This led to hopeless attempts to distinguish between legitimate "experimenters" and mere cheapskates. One scientific expert helpfully set out the distinction as follows: "The experimenter may listen to The Beggar's Opera purely for the purposes of comparison, but he must not listen to it for the purposes of enjoyment."

Yet today, Johns suggests there are far more serious concerns about how "the practice of policing has become a huge global industry" with very little oversight, "reaching into controversial issues such as privacy and citizenship, with intellectual property police acting as agents provocateurs or setting up traps online".

As was so often the case in the past, it is hard to know whether we should be more worried about the pirates or the people who want to protect us from them.

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