Four weeks ago, I was basking in the late-summer sun in my Tuscan cottage (okay, my row-house just outside Jerusalem, but it does resemble Tuscany around here on a good day). Then, after a brief flight (only 12 hours) I found myself in the Cornell Club in New York City, sitting on a panel with a former Senior Counsel for Time Warner, and several other distinguised legal academics, trying to rise above the murky fog of jet lag to make pithy, or at least intelligible, comments on “The Normative Role of Copyright Law: Rethinking the Purpose of Copyright Law in Light of Technological Change.” Other than a profound sense of What Am I Doing Here — I am one of only four non-lawyers in a sea of legal expertise — I feel a strong sense of mission. Legal thinking is as far removed from art world thinking as a sunny Jerusalem hillside is from East 44th Street. The air is different. Everything is different. The language, certainly, is different. Art people I know don’t say “normative.” They say, “Yo, that’s not normal!” And the term “estoppel” sounds like a good sound bite for a rap number.
Anyway, my mission is to bring to this distinguished forum a sense of Art World Thinking vs. Legal Thinking (the title of a paper by another distinguised academic, Dawn M. Leach.) The conference, The Impact of Technological Change on the Creation, Dissemination and Protection of Intellectual Property , was organized by Prof. Sheldon Halpern of Albany Law School. Prof Halpern has written some extraordinarily cogent things about the dissonance between copyright law and the way we work with computers and digital technology, and how that dissonamce leads to normative behavior that conflicts with the law. He is one of the contributors to the book IMAGE ETHICS IN THE DIGITAL AGE, Gross, Katz and Ruby (eds.). It’s not that most legal academics don’t know that copyright law is a bad fit when dealing with art, or with a lot of visual culture outside the boundaries of conventional literature. I do suspect though that they usually see it as a vaguely interesting academic problem, not an acute and unworkable frustration of the workplace or of daily life.
I often find myself trying to explain the logic of copyright law — and it does have it’s own elegant logic — to one colleague or another who is simply mystified by it. I will suggest, “Okay, don’t think about a work of art, think about a book.” Suddenly it starts to make sense. Of course: copyright law was created to protect written works. Music, art, photography and all the rest were gathered up and shoved under the same umbrella later. Software was, too, once someone came up with the brilliant idea that since it’s written (in code) it can be classified as literature.
It’s clear that “The Impact of Technological Change,” i.e. digitization, has rendered unworkable the idea of basing legal protection intended to encourage the progress of science and the useful arts, on the mere act of copying. It’s now more than normative / normal to copy, and in fact it’s unavoidable. This wasn’t true once. Three hundred years ago, the average citizen couldn’t make exact copies and couldn’t publish. Today, everyone does. I blog, therefore I am. We’ve broken the back of copyright’s assumptions. Creators need rights, they need protection, they need economic encouragement — but the making of copies isn’t the point anymore. It’s a post-modernist, digital world, and we need post-modernist legislation.
More to come.