"Free Culture", notes from the first week of April

Further notes on reading Free Culture:

Lessig carefully splits our valuation of creative work into two forms. One form sees creative work as like physical property, inherently valued, and owned by someone with decision-making power over it. However, this is not in the thrust of our legal tradition. The second sees IP as "an instrument."
Listen to the first model closely, ventriloquized:

Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value. Whenever I take something of value from someone else, I should have their permission.

This is a compressed argument, with three items in a logical sequence: value, taking, permission. That argument is essential to Lessig's view of copyright at the present moment.

How do we understand creativity? One form involves the use of another's creative work. Lessig points to The Mouse as an example of using someone else's IP to make one's own. A more recent example is from Japanese manga, the culture of doujinshi, where imitation, derivation, and riffing are encouraged and not punished. In fact,

...in the view of many, it is precisely because it exists that Japanese manga flourish. As American graphic novelist Judd Winick said to me, "The early days of comics in America are very much like what's going on in Japan now....American comics were born out of copying each other.... That's how [the artists] learn to draw, by going into comic books and not tracing them, but looking at them and copying them" and building from them...

This is a profoundly antiromantic notion of creativity. Siva Viadhyanathan writes well about this.

More coming soon.

Comments

[mythago]

I'm interested in the 'granting permission' part of that argument; is the right to grant or not grant use of a creative work absolute? On the one end you have "compulsory licensing," a la songwriting, where you have no right to deny use, and on the other end patents, where you can deny all use.

I'm hesitant about doujinshi and fanfic because, while I agree that they should be permitted uses when they're not done for profit (kind of a literary GPL), I don't trust users beyond the fan base to treat that appropriately. I could easily see, say, Disney hiding behind "fanfic use" as a means of making derivative works without asking or compensating the creator.

Perhaps there should be less emphasis on vigorously defending rights in order to enforce them later; if you didn't sue a fan for publishing Yu-Gi-Oh! doujinshi, right now that might affect your ability to sue a TV studio for making a Yu-Gi-Oh! knockoff for profit.