Nearly 30 years on from his masterpiece The Gift, author Lewis Hyde turns in his sharp new book, Common As Air, a lively commentary on the present state of copyright and the public domain in America. BOMBlog’s Chris Wallace spoke with Hyde about information, art and the ownership of the intangible.

 

Nearly 30 years on from his masterpiece The Gift, author Lewis Hyde turns in his sharp new book, Common As Air, a lively commentary on the present state of copyright and the public domain in America. Animated by the same mytho-poetic sensibilities which continue to make The Gift an enduring classic—and Hyde the subject of celebrations from artists as disparate as David Foster Wallace, Margret Atwood and Bill Viola—the book champions the promethean altruism of figures, like Benjamin Franklin, who acknowledge their debt to a commons of inherited knowledge in the face of corporate enclosure for profit. I caught up with the author as he shuttled between posts at Kenyon College and Harvard to talk about greed, Bohemias and that old free-thinker Ralph Waldo Emerson.

Chris Wallace I’ve heard you mention that a spark of anger provided you with the impetus to write this book. There are points in here where that comes through rather unveiled—particularly in the passages about Martin Luther King Jr.’s son’s use of the “I Have a Dream” speech copyright and in the workings of the Joyce estate.

Lewis Hyde Well, actually, you’re right—there were several things that got me ticked off, that got me started on this book. The main one was the Copyright Term Extension Bill of 1998. The back story on that is that I sometimes get asked to talk about the problem of funding artistic practice and there had been batted around the idea, long ago, of extending copyright in order to use some of the money generated by that extension to support emerging artists. There was actually a bill introduced, going back to Dodd in Connecticut, called The Arts Supporting the Arts bill and it would have added 20 years to copyright but rather than having the money earned going back to the rights holders it would have gone into some kind of trust fund or public pot to support artists. I thought this was an interesting idea because the other models for artistic support have always been either the government purse or private philanthropy. And this was a way of saying, look, there is money in the art community and it could be channeled to support younger artists. I was interested in this opportunity at about the same time the entertainment industry went to congress and asked for an extension. What really ticked me off was that it was a power grab, what they used to call parliamentary enclosure—taking from the commons by changing the law, rather than leaving them as they were. It seemed one of many moments where you see people who have ownership stake getting the rules changed to increase it, without there being much public discussion. People seemed not to know why the public domain might matter and how they might benefit from it so it was easy to get the rules changed.

CW You mention in the book that those who are profiting financially from these enclosures seem to be the only ones aware of it while those partaking of the commons are almost blissfully innocent of their doing so.

LH Well, you know, if you have an income stream from something it focuses the mind.

CW Is greed the dominant ill of our times?

LH There is certainly an element of that. It’s almost a structural problem. When you set up corporations whose actual legal mandate is to earn income for their shareholders….We see this in the BP spill, you know, BP is in charge of their own clean-up but they are an entity whose real purpose is to make money off oil wells. So sometimes their purposes will be at odds with the public good. It probably doesn’t feel like greed to the owners who care about their ownership stake and want to increase it. But to those of us who stand outside it, it may feel like, well, how much do you need?

CW Going into this did you have an ideal for how copyright could function? At the end of the book we are left with the argument that we ought to work with what we have and impose different limits on it. Not a complete alternative. Is that right?

LH Yeah, I mean, it’s a puzzle to find the middle ground but that is one thing the book tries to do. I think there are actual good purposes for the ownership of ideas—one of them being to support independent publishing houses and publications and writers. Unless you want to go back to some kind of patronage system or government support, we don’t have ways to do that, so I’m not categorically opposed to copyright. I guess my point of departure is the Statute of Anne, this early law seemed to me quite smart in the kind of limitation it had. The two things we’ve lost, one is the registration requirement, because a lot of people don’t care to own their work and would be just as happy to have it in the public domain immediately, so we should bring that back; the second is a more sensible sense of limit. It’s hard to figure out what that should be but it is clear to people that we have exceeded the sensible limit.

CW Life plus 70 years, generally.

LH Yeah.

CW You open the book with this anecdote about, essentially, Hollywood sanctioned education programs about the evils of pirated movies. Films are themselves a really tricky area—the medium itself is a corporate enterprise—and who holds the copyright and for how long is a very difficult question.

LH It is a highly collaborate enterprise and it ends up in limited hands. On all films there will probably parties who were clearly involved and end up with no stake in the matter.

CW Emerson, who has informed some of your work in the past, makes an appearance in this book as counterpoint, giving voice to the central foundational American myth, that of the self-reliant man, influenced by none, an island unto himself.

LH Emerson is a wonderful figure and I’ve been a follower of his for years but one ends up wanting to argue with him on many points. In a sense he was a creature of his times. You know, partly the book is set up around a shift from an early American civic republican ideal to a mid-19th century commercial republican ideal, and a slow (therefore) shift away from a sense of public personhood to one of individualism and private personhood. And Emerson was very important in putting voice to that shift and re-defining what it meant to be an individual. In the 18th century individualism was a negative term—it was thought to be the kind of person who didn’t have a sense of humanity—and Emerson revalues the term and it becomes something to be honored. For the purpose of writing about cultural commons one then wants to call in the question of an individualist ideal because it is at best half the equation of any personhood—that we are always simultaneously individuals and sunk in our communities. The Emersonian ideal begins to throw into shadow the other side of the coin. There is a footnote that you probably saw about a nice, lost word, “dividual.” So an individual is somebody who is un-dividable; a dividual person is thought of as being constituted by the complexity of the world around him. That’s a truth too, well worth preserving.

CW Steven Soderbergh, the great film director, called The Grey Album —DJ Danger Mouse’s totally illegal mash-up of The Beatles’ White Album and Jay-Z’s The Black Album —an “astonishing, amazing piece of work.” There seem to be a lot of artists who are doing this visually, with video mash-ups. Will there be a bending of the system—if everyone starts working outside of the law, will the law have to curve to meet them?

LH I guess I would go back to the question if The Grey Album is completely illegal and it is a puzzle. Reading the law literally it is a violation, however there is a tension in our legal history between the First Amendment and our copyright laws. Both of them are parts of the Constitution—the Constitution allows the congress to give exclusive rights to authors and so forth. But at the same time the First Amendment says we’re not allowed to make any law that interferes with expression. So these two powers are literally at odds with each other. Courts have thought that they way to reconcile this is through things like the Fair Use Doctrine. So, Fair Use is a set of rules by which you can use something without asking any permission or paying any fees. I mean, if you and I quoted a Beatles song in this interview we would not need to get permission because Fair Use allows for people to use it in the context of commentary and criticism. The problem with Fair Use is that it is not well understood. The people with money attack it, so we live in a culture of fear. And the law itself is vague as to what you can and can’t do. Finally, if you want to defend a Fair Use claim it’ll cost you some money. I mentioned too, the people who went after the Joyce estate for blocking a book, claimed Fair Use and won…

CW Right, but $150,000 later.

LH Yeah, it cost them a lot of money to do the case. The same with the Diebold case with the students from Swarthmore. It’s at least a hundred thousand dollars to get in this game so, who has that kind of change around, especially if you are a mash-up artist who is trying to do something innovative. One thing coming out of the book, going forward, is if on the one hand we are seeing an enclosure of the cultural commons, on the other hand, this business of beating the bounds, of finding places to resist that enclosure needs to be taken seriously and a reevaluation of Fair Use is one of those places it can be done. There are people involved trying to do that.

CW I love that image of the villagers going around with their hoes and brooms to knock down all the illegally constructed fences and enclosures, beating the bounds. And yes, pop-culture is not only now our venue for art but also the fodder, the subject matter for it. As early as the early ‘90s movies had already become completely self-reflexive, quoting directly from other movies. It will be interesting to see how that plays out. But patenting the genome is obscene! The fact that it is off-limits and is itself a natural phenomenon—a naturally occurring…

LH Yes, it is a part of nature, not a human invention.

CW And it is patented. So people can’t even go in there and tinker, find the code to turn on a resistance to HIV, et-cetera. That blows my mind!

LH (laughter) This is a part of the closing of the culture.

CW I love that of all the people to plagiarize—though it is not that as you announce the use of the line, and, in fact, that is the point of taking the line—you take from Jonathan Lethem who has a ‘promiscuous materials’ page on his website, encouraging people to use his work. I know he is hugely influenced by your work, especially The Gift, and is very engaged in this debate. Do you two talk about all this?

LH I’ve met Jonathan once and we’ve exchanged emails a couple of times but there has been no situation for us to hang out together. But I respect his work. I thought his essay in Harpers on The Ecstasy of Influence was wonderful—that is the essay from which I took that line.

CW Last year there was a lot of talk about the National Endowment of the Arts. Bill Maher said he’d abolish it—that art will be fine without it. I know you received an NEA grant while writing The Gift. Where do you stand on the debate?

LH Well, the NEA is embattled and there are arguments on both sides. I come down in support of these things. Part of the thesis of The Gift is that there are certain parts of social life that are just not well delivered by market economies and not just artistic practice but spiritual life, teaching, healing, pure science—these are things which we often value and market economies do not do a good job of making them lively and durable. If that is the case then you need some kinds of institutions that do the task in converting our wealth in to kinds of wealth that can support it. For example, the national science foundations are similarly channeling money into scientific research which we think is needed. You know, you want to do AIDS research and you may not be able to make money doing it so you need some kind of support. The old patterns are public money and private philanthropy and they both have to be around. It is appropriate for the government to support artistic production and then I think it needs to be insulated from the other kinds of politics that always go on. The way the NEA was originally set up, it attempted to have peer panels, people drawn from the arts community itself, who made the significant decisions and who were separated from the congressmen who authorized the funding. And that wall broke down when it was attacked by the right wing in the early 90s. The right wing’s concern at the beginning of the NEA was that it would be political and they made it political. The long and the short of it is that I think it is a useful part of our public ecology of creativity.

CW Speaking of the market economy and spirituality, the yogi behind Transcendental Meditation insists that by paying for the secrets, you appreciate them.

LH That line appears in many psycho-therapeutic communities as well. And, you know, that’s a complicated question. There are also many examples of healing communities where you don’t pay, and the 12-step programs are the famous examples in this country. To the degree that people get sober in AA and don’t pay, apparently you can take it seriously in a gift economy as well.

CW This opens into some of your broader themes in the book. At one point you say that we are not talking about “just reward…but about honor, respect and reputation.” We have done such a serious job of linking money with respect that I wonder if the two words can ever be uncoupled.

LH Well, it is hard to do it alone and maybe this goes back to Emerson. We live in a culture where money is often the sign of your presence and value but if you get yourself surrounded by enough people who call that into question it is easier to realize that there are other kinds of values. I believe in Bohemias. I think it is useful for people between the ages of 20 and 30 to live in places—I think Brooklyn is one of them—where it is cheap enough that you don’t have to go nuts trying to earn a living, and where there are enough people around who care about what you care about, on their own terms not their market value. So it makes sense to do what you’re doing.

Common as Air is out now from Farrar, Straus & Giroux.

 

Chris Wallace is a novelist and editor for DOSSIER JOURNAL. He has contributed to i-D, GQ, and INTERVIEW Magazine among others.