Don't Fence Me In

In doing some dissertation research, I found an interesting article that gives an economic perspective on the evolution of copyright and suggests some new directions for its reconception. Neil Kleinman's 1995 "Don't Fence Me In: Copyright, Property, and Technology
in Readerly/Writerly Texts 3.1 (1995) traces some history of property
in order to explain how copyright evolved as an instrument of control in the commodification of intellectual property:

  • Common land owned by none (e.g. the American Indians use of the forests).
  • Feudal land which was not owned, but "held in trust," and texts

    and land were "to be shared" (14-15). Which leads to the principle,
    in a pre-capital economy, efficiency is based upon maximizing the use of
    an object as well as by increasing the number of links and bonds between people
    (15).

  • The English commons. Kleinman notes that the common land was gradually enclosed
    because of the following economic principle: In an early captial economy,
    profit requires efficiency in the means of production. The economic model
    here is an industrial one: the means of production are to be brought together
    under one roof so that the thing being created can be more easily controlled,
    organized, refined, and sold
    (16).
  • Authorship was different for medieval scholars and their manuscripts: "Anything
    could be used and incorporated into the manuscript; anything could be added,
    deleted or changed" (17). Why? Because texts were a scarce resource--scribes
    were limited in what they could produce--what the age before printing demanded
    were incentives to stimulate copying
    (18). When scarcity exists, when
    we can't get our hands on the information we need, we devise systems to promote
    copying in order to make access to ideas and information easier
    (18).
  • In the age of print, publishers needed to control copies to guarantee their
    investment: the idea of property allows us to find ways to manage what
    is being produced--to control both quality and quantity and set price

    (23).

The problem then with property as the principle of copyright is, as Kleinman
points out, that regulation which creates copyright is always a tradeoff: we
preserve the property interests of one group by limiting the property interests
of others, e.g. the public's right to buy and sell intellectual commodities
in the open market
(23). Furthermore, Kleinman quotes Marc Breslow, Allen
Ferguson, and Larry Haverkamp's economic analysis that it must be determined if
"each potential extension of copyright power contribute[s] more to consumer
welfare by stimulating the production and dissemination of new information than
it costs in terms of availability of the presently existing stock and in increasing
the cost of creating more information for the future" (28).

Kleinman also predicts that digital technology will make the current system
of copyright ineffective, and he suggests that we might be better off to return to "a scarcity economy
like that of the copyists who were central to the promotion and distribution
of both the old and new learning of the late Middle Ages" (33). "Or,
we might want a scheme like that found in the feudal system--one in which 'property'
was inextricably interwoven with ideas of service owed to those who use
the land" (33).

Note: the italicized portions of this post were quotes from the text, italicized within the text.