Copying,
Culture, and Values
Good evening. I’d
like to start by thanking our host, Reinhold Schmüker,
for the invitation to think more deeply about copyright and copying in general,
to join this conference and to meet so many other scholars concerned with the
nature of copying and its implications. Thanks also, of course, to the Zentrum für interdisziplinäre
Forschung of Universität
Bielefeld for support for this conference. And after these thanks, an apology: Over the years, you sometimes speak early in
a conference and sometimes near the end, but I’ve never spoken right before a World Cup soccer match.
(poss. Add. Comment)
As
we all know from Reinhold’s introductory essay to the conferees, the goal of
our meeting is to think deeply about the nature of copying and the values that
we should associate with it. This has,
frankly been a challenge. It has also
been a challenge to explain the topic of the conference to others. When you tell other academics you are going
to an “ethics of copying” conference they naturally guess that it is a
“copyright ethics” conference. And you
have to say, no, not exactly. And then
they say, oh, it’s about plagiarism. And
you have to say, no, not exactly. It’s
more about the nature of copying and the values associated with it. And then you lose everyone. Because it is not obvious, until you start
thinking about it, that copying has a nature.
Copying seems, well, derivative.
In
the past, I have thought about copying at the level of social and economic
history and law and public policy, but a point I took from Reinhold’s essay was
that we might need to think outside of the traditional framework for copyright
ethics, and if you look at the diversity of approaches in the scholars he has
brought together, I think it is safe to infer that this is part of our
challenge in the next few days. So I
have a thesis to offer about how to think outside our typical academic ways of
framing copyright ethics, but before offering that thesis, I would like to make
a few remarks about the standard and some non-standard ways of organizing
thought about copying.
If
we are asking questions about the immediate causal determinants of modern
copyright values and cultural norms, then the social/political/legal frame is
still the right level to think on. Many
of us are familiar with the history of modern copyright in the United Kingdom,
which begins with the widespread use of the printing press and leads to the
1709 Statute of Anne, ending the royal monopoly of the Stationer’s
Company. While this history is specific
to anglo-american legal and social thought, the
principles at stake have a universality to them that is worth recalling before
we move into the thesis I hope to advance tonight.
One
of the principles at stake in the so-called “Battle of the Books,” which
culminated in the legal case, Donaldson vs. Beckett, argued before the
House of Lords in 1774, had to do with the question of whether ownership of
intellectual property was a natural property right or a statutory right. The case in question affirmed the statutory
approach, which defeated the concept of perpetual copyright. From this point forward the argument that
intellectual property was equivalent to real property (and hence that one has a
natural and perpetual right to it) found no mainstream adherents. Looking back, we can see that Enlightenment
ideals such as the promotion of learning were being balanced with the new
market ethic that suggested that an author should be able to make a living from
his or her intellectual production. As
I said, if you are trying to understand the forces that shaped modern copyright
ethics, the social and political level is the right one to focus on.
But
there are many other ways to frame copyright values aside from the soci-political and historical, and many of them are
represented in the work of the conference.
In preparing for this conference, I took some time to research some of the
citations in Reinhold’s essay that I was unfamiliar with and some of the
conferees’ work. That is, until I ran out of time and languages. This is an impressive and diverse group. There is the logical level of analysis, the
aesthetic and ontological level of analysis, the artefactual
level of analysis (something I was not very familiar with). We have legal level of analysts, and some
radical analysis which is sometime labelled in the North American library
community as the “copyleft” vs. the “copyright.”
In
addition to these more or less “standard” ways of framing our topic, there is
what I will call a Borgesian classification of
copying. Some of you may recall Michel
Foucault’s reference in The Order of
Things to Jorge Luis Borges’ refreshingly non-standard way of classifying
animals in his 1942 essay, El idioma Analitico de John Wilkins.
Borges claims to be quoting from a
classification of animals in a Chinese encyclopedia, where he finds the
following classification of animals:
animals belonging to the emperor, tame, embalmed, suckling pigs, sirens,
fabulous, stray dogs, and so on. The
point is that our classifications of things look more natural to us than they
perhaps are. If we want to think in
original ways, sometimes we need to break out of our habits of
classification. After reading Marcus
Boon’s In Praise of Copying, one of
the most interesting texts in Reinhold’s conceptual essay for the conference, I
realized that I needed to at least temporarily set aside some of the
classifications that kept pulling me back to the legal and public policy level
of analysis. While policy is something
we need to somehow arrive at (as our conference organization also suggests), original
thinking may require the path to be circuitous.
In
my Borgesian classification of copying there are
three categories: 1) The Subject; 2)
Influence; and 3) The Secret. A few
notes on these and then I will offer and argue for a thesis.
The
Subject.
The human subject is both the subject who makes copies, in the very old days at the Xerox machine, and
still by writing and publication, but also now more by disseminating emails
with pdfs attached and by creating web pages.
But the subject is not just a subject who makes copies, but, quite
literally, the subject is itself a copy, a genetic replicant,
though for better or worse not a faithful replicant. As Marcus Boon develops this thought, copying
is transformation which creates an illusion of permanence. The act of love and reproduction are
implicated in this. We believe, rightly
and wrongly, that reproduction is a path to permanence. Boon’s takes this to a metaphysical and
Buddhist level which is surprising, enchanting, and even a little disturbing.
Influence. Not all copying concerns us, but only copying
that can influence us is motivated and relevant. A computer set to make and erase copies of
its own programs is not of interest, for example. Another way to put this is to say that we are
copies, at a genetic level, that worry about being copies at a phenomenological
level. In Richard Rorty’s
famous essay on “The Contingency of Selfhood,” in Contingency, Irony, and Solidarity, he quotes a poem by Philip
Larkin which poignantly expresses this anxiety of being a copy, the idea that
one’s uniqueness is somehow less than what we think it is because it is in the
end a selection from existing choices. This is also what Harold Bloom called
the poet’s “anxiety of influence,” the horror of finding himself to be only a
copy or replica” [1].
The
Secret. I have a
strong bias to associate the “copy” with dissemination and disclosure, but we
don’t just copy to inform, we also copy to conceal and to deceive. Boon discusses this, from the concerns Plato
had about mimesis, but also in the way we use copying and cammoflage
in war. The famous theoretical
biologist, Robert Trivers also reminds us that
organisms copy as much or more to keep secrets as to share truths. In his recent book, The Folly of Fools, he details myriad ways in which copying and
imitation work in nature to promote the success of an organism by
deception. The ultimate form of this is
self-deception; the ability to use a distorted copy of truth (a lie) more
effectively by convincing ourselves of its truth.
Like
Borges’ classification of animals, our Borgesian
classification of copies collapses on itself; the subject is a copy that is anxious
about being a copy – merely influenced and not original – and promotes itself
by keeping this truth a secret from itself.
But perhaps this effort still tells us something useful. In addition to escaping the so-called
“natural” – in this case academic – classification in terms of politics, law,
aesthetics, logic, and ontology, it reminds us that we are concerned with the
tiniest subset of copying and replication in nature; the part that matters to a
live and self-aware subject.
After thinking about the various ways that we
address copying in our work and the various ways that one might create
frameworks for thinking about the nature of copying, I asked myself what the
most fundamental level of analysis of copying could be if not the
socio-political. Of course in philosophy
the obvious answer might be the ontological or metaphysical level. But I want to argue, and this is my thesis,
that the most fundamental level of analysis for discovering the values involved
in copying is the anthropological. This
came a bit as a surprise to me since, again, I thought of the moment of the
spread of literacy through the printed word as the quintessential moment for
values underlying copying. By contrast,
the anthropological frame takes us into the pre-history of the species and into
disciplines that are almost as speculative as philosophy.
I
have two kinds of arguments for the claim that the most fundamental level of
analysis for discovering the values involved in copying is the
anthropological. The first are arguments
connecting the origin and growth of culture with copying, especially cultural
learning and social cognition. The
second is more indirect. I want to
suggest two thought experiments which might help establish the deep naturalness
of our access to individual and collective memory (mental copies). So here we go.
The
anthropological frame focuses our attention on the part of human pre-history
during which we became distinctively human, and this is generally agreed to be
the period of time during which our brains grew in size (doubling and
eventually tripling in volume) and, more specifically, when we developed the
capacity for culture. The details of
this story are still murky, but forensic anthropology, contemporary genetics
and epigenetics, as well as theoretical work on cooperation and the conditions
under which values stabilize themselves in populations have helped us tell an
increasingly persuasive story about how our ancestors may have transitioned
from hunters and gatherers to tribes capable of collective learning and enforcing
collective values.
In
the first case, we could not have values until we could copy and communicate
intentional states. This ability, which
we call social cognition, is organically seated in the pre-frontal cortex. We are quite literally “mind readers;” at
least we can make copies of others’ intentions in our own minds up to the point
at which others can conceal or make secret their intentions. Individuals vary in this skill, but it is becoming
hard to imagine a naturalistic account of culture that does not give logical
priority to this capacity.
While
there is no settled theory about cultural learning itself, and ideas like the
Baldwin effect and gene-culture co-evolution remain problematic and
controversial, there are some remarkable features of Paleolithic culture that
relate to copying. The hand axe is a
small stone tool that homo erectus developed as early as 2.4
million years ago. Version 2.0 of the
hand axe is the Acheulean axe, which is worked on
both sides and has a longer cutting edge than the earlier Oldwalean
axe. One of the puzzling features of the
Acheulean axe is that we find piles and piles of them
at individual sites – far more than needed for practical purposes. This has led some anthropologists to suggest
that Achulean axes played a role in sexual selection,
as if our ancestors advertised their fitness in part by showing how many copies
of axes they could make. Another
interesting feature of Achulean axes is their
uniformity over vast geographic areas, from Africa and Europe through
Asia. The likely hypothesis is that
production of this artefact was as natural to early humans as language. In other words, at least some of the
conditions for producing this artefact became hardwired in us the way language is. Copying, learning, mental adaptations, and
social status seem inextricably linked.
If you want to develop a deep theory about copying, you might do well to
study hand axes. Copying is at least
fundamental to being human, to learning, and to human forms of
cooperation. While I do not have space
in this version of the paper to discuss the last point about social cooperation,
a distinct line of evidence and argumentation could connect social cognition
and the establishment and stabilization of values in a population of
humans. We appear to have learned this
beginning with campsites, early divisions of labor, and enforcement of social
rules through punishment.
The
second direct argument I would like to make for anthropology as the fundamental
level of explanation for understanding copying is, fortunately, more
contemporary. It is widely agreed that
cultures imitate or decline to imitate other cultures as part of the process
for conserving and changing their collective identity. Having a cultural identity – being Italian,
German, American, etc. matters in ways that we are still theorizing. One way to think about this is that our
identities are “heuristics” or shortcuts for packages of values and strategies
for living that we advert to.
Conservatism about identity makes sense if the package is tested by
time, but lack of innovation can be deadly if cultural behaviors and values
persist in the face of adverse outcomes.
The fate of Easter Island culture is a textbook example.
On
the positive side, however, cultural innovations are diffused through
imitation; that is, copying. We see this
in the way cultures imitate dominant other cultures’ technologies and this is particularly
clear in the archaeological record of Mediterranean cultures, where so many groups
collided and influenced each other and left abundant trash behind for
archeologists to sift through. When
Romans needed to jumpstart their shipbuilding technology in the third century
B.C., they captured a superior Carthiginian ship and
used it as a model, numbering the joints to replicate it by the hundreds until
they could innovate ships on their own.[2] Almost every ancient and modern culture has
done the same. Whether the technology is
pottery, warships, or computers, reverse engineering the competitions’ product
(or simple enticing, capturing, or enslaving the technologists) is a ubiquitous
human strategy. Linguistic diffusion
seems to follow this pattern.[3]
The
modern defense of intellectual freedom gives us a particularly positive way of
looking at cultural copying and imitation.
As many of you know, in On Liberty,
John Stuart Mill gives the now classic liberal defense of intellectual freedom
by arguing for a kind of “social epistemology.”
Most people recall his famous liberty principle – that the only reason
government is entitled to interfere with others is for the prevention of harm
to third parties. But Mill’s defense of
intellectual freedom is roughly that we all learn from the diversity of ideas
and lifestyles that this protection leads to.
By protecting liberty of expression of ideas and lifestyles, the society
is in a better position to know which ideas are true and which lifestyles are
successful. Copying and replication come
into play in Mill’s progressivism both in the proliferation of ideas and in the
imitation of them.
The
importance of the anthropological frame of reference for understanding the
ethics of copying is based on both the original connection of copying to human
culture and learning and the contemporary view that intellectual freedom
requires free access to ideas, including the ability to transform them through
expression and experimentation.
[1] Harold Bloom, The Anxiety of Influence (Oxford Univeristy Press, 1973), p. 80.
[2] David Abulafia, The Great Sea: A Human History of the Mediterranean (Oxford UP), 2011, 180.
[3] David Anthony, The Horse, the Wheel, and Language: How Bronze-Age Riders from the Eurasion Steppes Shaped the Modern World (Princeton UP), 2010.