Lewis Hyde is a rare breed of writer—a contemporary poet, philosopher, and essayist in the tradition of Thoreau, Emerson, and Czeslaw Milosz.
Hyde’s first book, The Gift, which attempts to reconcile the value of creative work with the demands of the market economy, is a revered text in the art world and has never been out of print since its publication in 1983. Artists like Michael Chabon, Bill Viola, Margaret Atwood, Jonthan Lethem, and Zadie Smith are fans of Hyde’s work, and David Foster Wallace called Hyde “a national treasure, one of our true superstars of nonfiction.”
Although Hyde received the MacArthur “genius grant” in 1991 and is highly esteemed in literary circles, his name is not as well-known as it should be. But even if you haven’t heard of Hyde before, you have likely encountered his ideas, many of which have been embraced and adapted by mainstream writers like Seth Godin. When Godin says, “Art is a gift. You can sell the souvenir, the canvas, the recording… but the idea itself is free, and the generosity is a critical part of making art,” he is popularizing the philosophical arguments made in Hyde’s work.
In the late 1990s, Hyde turned his attention to the subject of intellectual property. The resulting book, Common as Air: Revolution, Art, and Ownership, took almost a decade to complete. His timing was fortuitous, for disputes and lawsuits over image appropriation, music remixes, file sharing, and copyright infringement were on the rise and emerging as the central debate of the digital era.
We now live in an age when agri-giant Monsanto can sue farmers for patent infringement, even if those farmers are desperate to keep Monsanto’s genetically modified seeds out of their fields. One only need to listen to This American Life‘s program on patent trolls or read about Facebook’s recent attempts to trademark the words “book,” “face,” and “wall” to realize that it’s time to reevaluate our country’s intellectual property laws. Corporations may pretend that their litigious actions are motivated by protecting the work of artists, but let’s not kid ourselves. Money is the real bottom line. We have entered a period of “market triumphalism,” a term Hyde uses to describe a pure free-market, private-property ideology.
Clashes over copyright have given rise to the Copy Left or “free culture movement,” a diverse group of artists, intellectuals, lawyers, and activists, who argue that excessive legal restrictions are detrimental to innovation and creativity. In Daniel Smith’s 2008 profile of Lewis Hyde in The New York Times Magazine, Smith cites the case of Emily Dickinson as a prime case of the “corporate ‘land grab’ of information” that has “put a stranglehold on creativity, in increasingly bizarre ways”:
“Dickinson died in 1886, but it was not until 1955 that an ‘official’ volume of her collected works was published, by Harvard University Press. The length of copyright terms has expanded substantially in the last century, and Harvard holds the exclusive right to Dickinson’s poems until 2050 — more than 160 years after they were first written. When the poet Robert Pinsky asked Harvard for permission to include a Dickinson poem in an article that he was writing for Slate about poetic insults, it refused, even for a fee. ‘Their feeling was that once the poem was online, they’d lose control of it,’ Hyde told me…”
As Smith’s piece explains, Hyde’s frustrations with such incidents motivated him to become more politically active. In 1994 Hyde supported a unique bill introduced by Democratic senator Christopher Dodd of Connecticut.
“The ‘Arts Endowing the Arts Act’ was an unusual piece of legislation. It proposed auctioning off 20 additional years of copyright protection for creative works and using the proceeds to build a permanent endowment for the arts and humanities. In essence, Dodd wanted to create a gift economy.
The bill failed to gain any traction. The entertainment industry, led by Disney, which faced the imminent expiration of its massively lucrative copyrights on Mickey Mouse, Pluto and Donald Duck, lobbied for the expansion of copyright terms without restriction. In 1998, the Sonny Bono Copyright Term Extension Act passed, adding 20 years to the length of copyright, both pro- and retroactively, and ensuring that thousands of creative works poised to enter the public domain remained in private hands…
For Hyde, as for many legal and political scholars, the C.T.E.A. (the “Mickey Mouse Protection Act” to its detractors) represents a blatant abrogation of the purpose of intellectual-property law…By extending copyright retroactively, Hyde told me, the C.T.E.A. negated the logic of incentive: Mickey Mouse can’t be invented twice…
The C.T.E.A. spurred Hyde to action. He wrote letters to every member of the Senate Judiciary Committee. He published an op-ed, the first of his career. In 1999, with the writer Brendan Gill and Archibald Gillies, then the director of the Andy Warhol Foundation, he started the Creative Capital Foundation, a nonprofit that offers financial support to artists in return for a small percentage of any net profits generated by their work, which the foundation uses to finance other projects. He helped organize a low-fee writers’ room in Boston. And in 2004, he became a fellow at Berkman.
Although Hyde is focused on a new book project now, he remains an essential voice on the subject of intellectual property, art, and the marketplace. I’ve heard Hyde speak on multiple occasions over the years–at the Peterborough Lyceum, at a small gathering at NYU, and also during multiple residencies at The MacDowell Colony. He is sharp, humorous, and erudite–far from a starry-eyed idealist.
It was during Hyde’s most recent residency at MacDowell that the author met Ana Pečar, a video and intermedia artist from Slovenia. Over the course of their stay at the Colony, a series of conversations ensued. The following interview is the serendipitous result of their face-to-face discussions, and a fine example of the types of spontaneous collaborations that can happen when artists of different disciplines have the opportunity to mingle and consider big ideas. As Hyde himself has said, genius needs to “tinker in a collective shop.”
There is much here to ponder about free speech, the ownership of ideas, and the corrupting influence of money in politics. Hyde’s interview makes one fact clear: the system as it exists today—one that treats corporations as individuals and forces our congressmen to spend two-thirds of their time raising money—isn’t working.
Hyde suggests that we are asking the wrong questions about intellectual property, the free market, and art. Perhaps it’s time we reframe the debate? After all, aren’t all artists borrowing from their predecessors to a certain extent? Art isn’t created in a vacuum–it’s a dialogue with the larger culture, with the art, music, films, and books that are already in existence. ”Creativity is subtraction,” as Austin Kleon has said.
It is original thinkers like Lewis Hyde—visionary artists with the ability to imagine a different paradigm—who can help us reinvent our broken system.
Copyrights and Copyduties: Ana Pečar Interviews Writer Lewis Hyde
Ana Pečar: Can you tell us about the area of friction between private property and the scope of things best held in common?
Lewis Hyde: To talk about the tension between private property and common property it might help to think about what we mean by property. One old definition of property is the right to exclude other people, so you know you own your house, because you can exclude people from it, you can keep them out. Or you know you own your car because you can loan it to a friend but you don’t let other people use it.
And in fact in the USA one of our Supreme Court justices said that the hallmark of the constitutionally protected property right is the right to exclude. But this then raises a puzzle, particularly about cultural things, because things like songs and inventions are famously thought of as non-excludable. Once you’ve invented the idea of making bifocal eyeglasses or once you’ve come up with a Pythagorean Theorem, it’s hard to keep people from not knowing it.
Ideas are not only unexcludable but also unrivalrous, which is to say we can share them without anybody loosing them. If I share a bicycle with you, then I don’t have that bicycle, but if I share an idea with you I have an idea and you do too. So ancient people thought that the fruits of human intelligence and imagination were by nature common property.
Ana: When and in what context did the law start to regulate the public and the private?
Lewis: Particularly with the rise of printing…you begin to have methods of making ideas excludable and rivalrous, even though they aren’t by nature so. The first copyright law came out in the context of publishers enjoying a state-sanctioned monopoly over what appeared in print. It was enacted by the British Parliament in 1710 and named the Statute of Anne.
Things we call “copyright” and “patent” are ways in which the state comes in and takes something which is by nature common and makes it possible to privatize it. A copyright gives you a state-sanctioned monopoly to exclude other people from reproducing your books. I should say that I’m not against this–it is a useful tool of public policy to have these devices– but you really have to think about why you have them and what the ends are to which you dedicate them. And right now we are having serious arguments internationally about this because the balance between private property and common property is out of line.
Ana: Why did it fall out of balance?
Lewis: I think we are involved now in a kind of international debate over how much of the commons should remain common and how much of it should be taken private.
One clear reason for this is the rise of the digital internet, but I suspect that another reason was the fall of the Soviet Union in early 90s. In a funny way Soviet communism had put western capitalism on good behavior. Capitalists in the West were challenged by the Soviets to not simply follow the profit motive (the Soviet indictment always being that Westerners were simply money grabbing capitalists), and so there was a kind of soft capitalism in the face of the Soviet threat.
But once the Soviet Union disappeared, we began to have market triumphalists–people who felt no compunction in spreading a pure free-market, private-property ideology. So it has become much easier, much more common to make the argument that, for example, traditional medicines should be private and patented or that what used to belong to the public domain should be given back to the copyright owners.
The history of the 20th century was a shift from a manufacturing economy to a knowledge economy, so you begin to have businesses like IBM (whose product was software–the ideas that run machines–as much as it was the machines themselves) or biotech and drug companies that own the ideas about how to make certain medicines.
The drugs themselves might be very cheap to make, but the ideas are where you place the value. And the rise of the entertainment industry, whose products are by nature nonexcludable and nonrivalrous–movies can be reproduced endlessly if it weren’t for the impediments of copyright. So these are all knowledge economies. And in the 20th century there was a great shift from more embodied manufacturing economy to more abstract knowledge economy.
Ana: What do you see as the core cause behind the laws like ACTA, SOPA and PIPA?
Lewis: People who make their living in the knowledge economy need their work to be protected by the artifices of copyright and patent, and again, I’m not against this necessarily, but the problem has been that with the rise of the digital internet it becomes incredibly easy to make copies of everything. And it has thrown the old rules of the road in the turmoil and many created things are pirated.
So you have a kind of fight between people who, on the one hand, would like to figure out a ways to go back to the old system, where it was very difficult to pirate something and very easy to control your knowledge economy, and, on the other hand, people who think there is great promise in the new technology, which allows ideas and created things to spread widely. And both sides have an argument to make.
To speak on the spreading-of-knowledge side, it is now the case that medical research can be quickly and easily published around the world for free and that is a great benefit. Academics can have discussions of what they are doing much more easily. I myself use the databases that Google Books has produced. I can look up any 19th century book and find the things I need while sitting at home–and do it instantly. So there is tremendous promise in this.
Most file sharing is not illegal at all. It’s just a great boon to conversation. But the problem is that the money and power lie with the proprietary companies, with the film and recording companies, and the publishers. They tend to get the ear of the legislators, so they devise anti-piracy laws, many of which would have the effect of inhibiting the good side of file sharing.
What was of interest in the recent laws in the United States, one called PIPA (PROTECT IP Act) –- these laws got stopped partly because there was money and power on both sides. That is to say, on the one side were the content owners who would like to stop piracy and on the other side were the technology companies who are constantly devising new ways to improve the conversation that can be had on the web. Both of these sides have money and power. Some of the other fights that have come up around the internet have been between powerless idealists and the rich content industries and in those cases, the fights tend to be won by the content industries.
Ana: Do you think that PIPA, SOPA and ACTA have something to do with having control over the communication on the internet? We saw that the Arab rising was communicated through the web, and there are many other issues being discussed and communicated through it by the common people.
Lewis: The two laws that you mentioned, SOPA and PIPA, have not been passed. They were stopped. But yes, one reason that they were stopped is that many people worry that a consequence, intended or not, of internet control would be to make it easier for governments to censor debate and dialogue.
And it is certainly the case that there are countries, China for example, where the state rigorously controls what happens on the internet because they are not interested in open debate and dissent.
Yes, that’s always the risk. The worry is that if you try to hunt down all the pirates and make the world free of piracy, what you will have done is to also suppress all the dissident voices and maybe even the news of places where something interesting would be said, whether it is dissident or not. So you want to be very careful. You may have to allow certain fuzzy areas, rather then trying to control everything.
Ana: You argue in your book that in order to have democracy and liberty, it is essential to have literate people, citizens informed about politics.
Lewis: Part of the project of my book is to think about different frames within which we have the discussion about owning ideas. In the United States there is a linguist named George Lakoff, who has been of interest to political activists. His idea is that a lot of political debate sort of ends before it begins because the people who initiate the debate set up a frame within which you have your discussion and the frame itself determines how you are going to proceed.
For example, we have a big debate over abortion in this country. If you begin by framing the debate in terms of the fetus you are trapped in a certain way of talking, as opposed to framing the debate in terms of a woman’s choice. Or we have a tradition of inheritance tax, which is an attempt to keep families from turning into dynasties, so we tax big fortunes when people die, but a tax on inheritance has now been framed as the “death tax.” As soon as you say ‘Why should I pay a death tax?’ it sounds like you shouldn’t.
But to come back to owning ideas: the entertainment industry has framed the discussion in terms of theft: people should own their ideas and if you take them without the permission, it is stealing. And this isn’t a foolish frame, but it isn’t the only frame available.
One thing I’ve done in the book is to go back to the founding generation in the United States. One of their frames was democracy. Their problem was that they were trying to create a self-governing nation for one of the first times in history. And if you want a self-governing nation, you need people who can talk to each other, and you need very low barriers to the circulation of knowledge. So the founders looked with skepticism on copyright because copyright allows people to control the circulation of knowledge. So while they thought it was useful, they limited it to 28 years. And partly the reason was that their frame was democracy, not property.
Part of the project of my book is to make it clear the degree to which any created thing has roots in the commons. Even a genius like Shakespeare relied on books and myths that were available to him from the past. In the book I write about Benjamin Franklin, the American who depended upon a tremendously wide reading of French and English periodicals and books.
All creative and inventive minds are not simply solitary. They are also great hosts who are able to invite into their consciousness the wealth of inherited knowledge. So this raises a question about what it means to take your work private once you finally make it. And again, I am not against doing it, but I am against doing it as if you had no debts and doing it in perpetuity.
We talk about having copy-rights but we also have copy-duties. We have a duty to those who came before us but we also have duty to those who come after us. And this duty means that at some level the work needs to be shared.
Ana: How deeply do laws and political strategies influence artistic expression? It seems like there is much more going on in new media and performative art in Europe than in the U.S. I would think that might have to do with art being mainly supported by public funding in Europe, while in the U.S., art is mainly supported by private capital. So in order for artists to survive on this continent, they are producing paintings and sculptures, objects that can be treated as private property, sold and put into the market.
Lewis: That is interesting. So do you think capitalist’s art tends to produce commodities and state support tends to produce ephemera?
It would be interesting to look in this. You know in the United States there are actually several models. We have a lot of private philanthropy in this country; so for example, you and I are at The MacDowell Colony, which is supported by donations. And we have a lot of private foundations that support the arts. We also have a tax system where you can pay less tax if you give money to non-profit organizations, so that is a way of letting individuals support the arts. We do have some public funding, not as much as you do in Europe, but a little bit.
But I think a lot of American artists struggle with this problem of making ephemeral work versus work that can be commodified. A lot of my friends don’t make sellable work and some of the artists that we’ve been having dinner with here, at MacDowell, do not create work that is clearly one or the other. But you may be right that if you did a study of how the weight falls, maybe Americans are more focused on art they can buy and sell.
Ana: How can we participate in shaping the collective society? You’ve said something very beautiful in the book: ’True citizens are not the audience of their government, nor its consumers; they are its makers.’
This is a theory that we can all agree on, but if we want to fight for a cause, we need to put a lot of our energy and time into it. In this world we have our jobs that we have to be devoted to as well. So how can we also be politically and socially active, which I think is definitely our responsibility?
Lewis: To come back to the sentence that citizens are not the audience or consumers–I say that partly because in the United States what has happened is that politics have become more like entertainment, and you watch it on television and the candidates promise that they will cut your taxes and send you a check. It is like, “Elect me and you can buy a television!” So you feel like a consumer and an audience, and not like somebody who is an actor.
I think the simplest way to begin to shift this would be to figure out ways to change the way the money works in American politics. It is now the case that our congressmen spend half to two-thirds of their time raising money. And that means that they are finally indebted to the people who have money, and those are the people who feel that they have some agency.
If we would, for example, have a public financing of political campaigns so that nobody had to raise money, and therefore, nobody had influence on the candidates, it might just give people the sense that, even if they don’t have time to be activists, when it comes time to vote, their vote means something. It’s very different from somebody paying 7 million dollars for a bunch of television adds.
Ana: You state that the problem arises, because people go out of their territory of jurisdiction. Politics or church intervene with our private lives.
Lewis: This notion comes partly out of American writer named Michael Walzer and his book called Spheres of Justice. He has a section that he derives from Pascal’s simple definition of tyranny. He says that there are different realms of social life: there is the family and the church and school and business and the military and so forth. And “tyranny” arises when one of these spheres encroaches upon another.
For example in a theocracy, the church claims that it can tell you what to do in the marketplace and in your family. Or in an aristocracy, certain families get to say that they can tell you what goes on in the military. Pascal’s idea (and Walzer’s idea) is that in fact, one kind of freedom is to have a society in which you have spheres of social life that don’t interfere with each other. If you have a Congressman or a politician who is the boss of your school, that seems a crossing of the line.
And this comes up for me because what has happened under the digital internet is that the entertainment industry, which has its own sense of how things should operate, has tried very hard to get the educational system to follow its model. It would like colleges to treat all file sharing as a crime whereas, in fact, file sharing at the colleges is a very useful way of having conversation and sharing research. The internet is a medium which many different professions can use in many different ways. So there should be complexity when it’s used rather than our legislators passing simple laws that are modeled on one industry’s sense of proper behavior.