Mat Callahan and Jim Rogers, A Critical Guide to Intellectual Property

Reviewed by Jonah

Mat Callahan and Jim Rogers, (eds.) A Critical Guide to Intellectual Property© (London: Zed, 2017), 281 pp., $29.95.

Unlike the first ten amendments to the US Constitution (known collectively as the “Bill of Rights”), copyright was part of the initial document that established the foundations for the nation. Indeed, Article I, Section 8, Clause 8 assigns to Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” From the beginning, the founding fathers understood that copyright was essential for both US-style democracy, and the US version of the global market economy. Fundamental changes have taken place around the world ever since the adoption of the Constitution, but the crucial idea behind Article I, Section 8. Clause 8—the democratization of knowledge and culture—has been echoed again and again, as acknowledged by the contributors to A Critical Guide to Intellectual Property©.

In the last chapter, “Summary and Concluding Remarks,” the editors, Mat Callahan and Jim Rogers, offer a quotation from the Universal Declaration of Human Rights—adopted by the United Nations in 1948—that promulgates the idea that “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” In an earlier chapter titled, “What is Intellectual Property?” which might have been better served had it appeared near the beginning of the book, Professor Blayne Haggart cites a 2016 Indian court that ruled that copyright does not “confer on authors the absolute ownership of their creations,” but rather is “designed for the intellectual enrichment of the public.” The court might have footnoted Article I, Section 8. Clause 8.

Nearly all of the thirteen essays in this book, which were written by ten different authors—including Colin Darch, Michael Perelman, Josef Brinckmann and Caroline B. Ncube—show the distance that the US has traveled since the late 18th century and the copyright clause of the Constitution that emphasized the “progress of science and the useful arts” and that offered author and inventors “limited times” to benefit financially from their “writings and discoveries.” Like the First Amendment, which has been interpreted to cover corporations, and like the Second Amendment, which now apparently means that individuals have a right to own guns, Article I, Section 8, Clause 8 has been divorced from its initial meaning and turned upside down and inside out. Indeed, the framers never intended corporations to enjoy freedom of speech, usurp copyright and use the Second Amendment to sell guns and ammunition.

In chapter 9, “Free Software and Open Source Movements from Digital Rebellion to Aaron Swartz,” Professor Paul McKimmy explains that copyright protection was initially granted for fourteen years, and that it has been expanded again and again over the past two centuries. “Clearly, the term of copyright has dramatically shifted,” McKimmy concludes. It might be more accurate to say that copyright has been radically upended and reinvented so that corporations and governments are now the primary winners, while scientists, artists and the public have to a large extent become the primary losers. James Madison is turning in his grave.

Callahan and Rogers both emphasize the importance of history for an understanding of intellectual property, which includes copyright and trademark, but they don’t trace the counter-revolution that brought about the corporate takeover of the sciences and the useful arts, and the substitution of the idea of profit for a few in place of progress for the many. A closer look at past conflicts and landmark cases might have helped to illuminate today’s issues. After all, as Rogers explains at the conclusion of his essay, “Meet the New Boss, Same as the Old Boss,” the more things change, the more they stay the same. Rogers’ title comes from The Who’s 1971 song, “Won’t Get Fooled Again,” which suggests that all that a poor boy can do in a world where “the shotgun sings the song” is to play a guitar and sing in a rock ‘n’ roll band. The editors and the contributors to A Critical Guide aren’t as cynical as The Who.

The emphasis of this book is on more recent newsmakers like Napster, file-sharing, and Julian Assange, not on yesterday’s papers, recordings and pop music stars. Moreover, the authors look for solutions not to prayer (“I'll get on my knees and pray,” The Who sang), but rather to the contemporary protest movements that are challenging, worldwide, what McKimmy calls “the continuous expansion of copyright” and the “resulting reduction of the public domain.” So, A Critical Guide is as much a handbook that suggests radical thought and action as it is an intellectuals’ guide to intellectual property.

As often in books with many authors from different backgrounds, cultures and countries, there are significant differences of opinion and some overlap. Teachers and learners will probably benefit from Caroline B. Ncube’s down-to-earth, user-friendly essay on public school education that’s a call to join others in the movement known as “access to knowledge,” abbreviated as A2K.

Josef Brinckmann seems to be the moderate in the group. In his essay on the “commodification and globalization of traditional foods and medicines,” he introduces several terms: “traditional knowledge,” (TK); “traditional ecological knowledge” (TEK); and “traditional medical knowledge (TMK). He looks closely at the case of Peru and traces the conflicts between Global North and Global South that have pillaged the country ever since the 16th century. His conclusion: it’s “far too early” to know how the battles over traditional knowledge will be resolved, and whether the state or a company, on the one hand, or an indigenous community, on the other, will triumph.

Callahan sounds like the author and musician who wrote Sex, Death and the Angry Young Man (1993). Still, it's not sex and death that get him riled up in the Introduction that he co-authored with Rogers, or in his essay “Running through the Jungle” (the title of a 1970 hit by Creedence Clearwater Revival—the rock band that was caught up in a lawsuit that went all the way to the US Supreme Court). These days, Callahan is outraged by the corporate pirates who tried to steal John Fogerty’s song, “Run through the Jungle.” Fortunately, the Supreme Court ruled that Fogerty had not plagiarized himself or stolen from Fantasy Records, the company that owned the copyright to his song. “Absurd? Illogical?” Callahan asks. “That’s copyright law.”

Much of the time, Callahan writes as an angry, frustrated songwriter and musician, though his anger and frustration serve him well in the essay, “I Am Because I Own vs. I Am Because We Are.” There, he targets John Locke and Margaret Thatcher, who observed famously, “There is no such thing as society. There are individual men and women, and there are families.” Callahan’s retort: “There is no such thing as the individual. There are families and there is society.” One might point out that his name appears in large letters on the cover of the book and that the book is copyrighted, though in the pages of A Critical Guide, Callahan challenges the very idea of authors, authorship and copyright. And well he might. After all, the craftsmen who built the Gothic cathedrals in Medieval Europe didn’t sign their names or receive credit for their labors, nor did the slaves who constructed the Taj Mahal and who were executed when the job was done. Once upon a time, anonymity ruled the creative world. Slaves never received credit for their songs, nor did the indigenous peoples of the Americas.

It would have been helpful to know how and why the contributors to this book were selected. As the notes at the back of the book reveal, Callahan lives in Switzerland, Rogers in Ireland, Haggart in Canada, Darch in South Africa, Perelman and Brinckmann in the US, and Jolliffe in Norway. That the contributors come from so many diverse places suggests that intellectual property, thanks in large part to the Internet, knows no national boundaries. “The Internet (and related developments) carries with it the potential to fundamentally transform industrial structures” as well as “to disrupt the power or role of media firms,” Rogers writes. Potential is the key word. Every time there’s a new technology, whether it’s the printing press, radio, movies, TV, or the computer, there has been the potential for everyone to realize the benefits promised in the Universal Declaration of Human Rights. The battle over intellectual property is just now heating up; A Critical Guide arrives in “the nick of time” to borrow Henry David Thoreau’s expression from Walden.

Jonah Raskin, Professor Emeritus,
Sonoma State University, Sonoma, California