Copyright, Race, and Labor
Speaking of copyright, “Cloned,” a Jenkinson/Goode Production, comes to us via Ray Dowd over at the Copyright Litigation blog. This is quite funny and witty no doubt, but what’s more interesting to me is how it uses race as a significant factor. I don’t have statistics, but one issue that is never addressed by the “free culture” movement is how rampant free-for-all grabbing without just compensation targets and negatively affects minority artists. One can easily see the correlation between the black (or African-American) nurse and creative individuals (Jazz musicians certainly come to mind), where the exploitation of minority artists is disguised as a simple attempt (and thus denial by copyright) to enjoy culture. The cry of “culture and creativity are being killed” is proclaimed loud and strong, without even a simple indication of who actually produces this culture. There’s also an allusion to copyright’s relationship to labor, which brings to mind NYU Prof Andrew Ross and his writings on below-the-line labor and copyright (more here). Interesting and timely video indeed.
Tags: Art Law, below the line labor, copyright and public service, race and copyright, video art
Another issue almost never mentioned in the “free culture”/copyleft/copyright debates is its utter lack of ethnic, gender, or perspective diversity. There are some women (Cohen, Litman, Ginsburg), but many of them exclusively are in academia. Black Latinos (which comprise part of our editorial staff) are virtually invisible in the broader copyright/”free culture” debate, and invisible from the staffs of several leading organizations (including EFF and Public Knowledge).
This diverse perspective — and its absence — actually has important doctrinal implications. For example, if one delves into the creative process of several African-based cultures around the globe, one will find that such a process tends to be more communal. This communal aspect has implications for originality and authorship, which are the foundations of copyright protection in the U.S. (Funmi Arewa at Northwestern University — a brilliant copyright thinker who happens to be of African descent and a woman — had done several outstanding pieces that explores this phenomenon.) As a result, the Romantic authorship trope that pervades some of U.S. copyright law, and dominates in European conceptions of copyright, is totally at odds with how many other cultures manage and consider the creative process.
And if you consider the open vs. closed debate currently occurring in technology and intellectual property, that debate is about fighting exclusive, individual ownership. But is it also really about embracing communal, non-individual ownership, as is the standard in several African-based cultures? We’re not sure it is.
In any event, as copyright becomes the most prevalent (and therefore the most public) form on intellectual property, it seems curious that these debates continue to be monolithic in tone, proponents, and audience. Particularly given your reference above to jazz musicians, one could argue that few distinct ethnic groups have as much a stake in copyright as creativity’s dominant legal regime as do people of color. These audiences and factions should involved in the broader, global copyright discourse much more frequently than we are now.