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Siva Vaidhyanathan says he holds a debt to copyright regimes. Studying these systems, allowed him to explore cultural interactions in Afro-American culture and also understand the nuances of hip-hop music -- his first love. Assistant professor of culture and communication, New York University, USA, and author of the seminal work, Copyrights and Copywrongs, Vaidhyanathan was in New Delhi, recently to participate in the conference, Contesting Commons, Trespassing Publics -- organised by Sarai, Delhi, Alternative Law Forum, Bangalore and Public Service Broadcasting Trust, New Delhi, at the India Habitat Centre between 6th and 8th January. He told Kaushik Das Gupta why issues related to copyright should not be treated as akin to property right. He also voiced his apprehensions on rushing towards a global system to deal with intellectual property. A known supporter of expanding the scope of the public domain, Vaidhyanathan sees much hope in the growing outrage over the way current copyright regimes have functioned. He argues that
channelising such opposition rather than extending the reach of the state would make for more equitable intellectual property laws
In your book Copyrights and Copywrongs , you argue that copyright should be a matter of public policy and not pertain to intellectual property. Can you elaborate on that?
Copyright in the literal sense is a property right. But it cannot be seen in the same way as rights over things such as automobiles or houses. This is because copyright also concerns matters of public importance such as culture, information and education. In other words, copyright issues impinge on democracy. They should therefore be a matter of public policy -- regulatory issues that we need to debate creatively.
Questions of 'intellectual property', fair practice or even what constitutes a moment of creation are indeed political. So are we then doomed to copyright regimes that are handmaidens of state, classes or corporations?
I do argue that existing copyright regimes reflect the winners and losers of the system. But I don't think that we are doomed to an environment of complete control. This is largely because there is a great variety of interest groups engaged in these debates. Five years ago, it would have been difficult to have a large public conference in Delhi about copyrights and global intellectual property regimes -- it just wouldn't have engaged enough people. But now electronic communication has brought these issues into our living rooms, into classrooms -- even into our pockets, through mobile phones. With increasing numbers of people getting involved in the debate, I am quite optimistic that scales will tip in favour of reasonable regulations. Copyright issues now interact with many of the issues that we feel deeply about -- democracy, education, traditional knowledge, even art and music.
I am actually optimistic because I see a sense of widespread outrage at the way the system functions. I also see new forces of dissent and rhetorics of resistance in almost every corner of the world. That's indeed very exciting.
Can you give some examples?
They are not far to seek. In India, we have a group of very motivated scholars and thinkers in Sarai, Delhi, discussing how the current clumsy system interacts with the rather special circumstances of India -- a nation trying to value its traditional cultures and at the same time, leveraging the advantages of a digital economy. There are similar debates in Brazil -- groups of musicians debating how to adjust the system so as to protect Brazilian artists from misappropriation by the us music industry. There are also resistance movements in Canada, Puerto Rico, El Salvador, Mexico and in parts of Eastern Europe. And soon there will be a global movement out of these individual movements.
Our age is one of extremes. On one hand, much of our information systems are controlled by elites. But on the other hand, there are connections brought about by the Internet. It will be good, if we are able to proceed on reasonable lines, through legislations and are able to change terms through debates and discussions. However, resorting to anarchic methods such as hacking would not really lead us anywhere.
But connectedness can also work to the detriment of indigenous communities. Recently there was this case of genes of Indian communities in Brazil being put up for sale on the Internet
Yes, that's scary. That happens because we are yet to figure out the code of conduct for this connected age. We have been connected only for a short time -- hardly 10 years -- and there are going to be excesses before we figure out the proper modes of regulations. It's also quite possible that excesses might continue in future.
However, rushing into regulations, without proper deliberations is likely to result in more harm than good.
Do you see open software as a part of the resistance?
Yes, open source is a brilliant idea. But it's not a totally new one. It's based on ways human beings have behaved and interacted through the centuries. For example, a raga in India is an open source -- its elements are all known and can be used to create music. Blues music is also open source; so are our alphabets.
It's only in the last 20 years or so, that we have seen the rise of proprietary information. Before that limits to information were physical, political or geographical. But now we find ourselves waking up in a world in which proprietary relations regimes have become the dominant mode of distribution. Many have unfortunately taken it as the norm.
Do you favour a global regime of regulating copyright issues?
Not exactly. The global regime should actually be a gathering of individual systems. A system which works in India, might not work in Pakistan -- let alone the us or Poland. Each nation state has a particular set of conditions -- cultural, technological and political -- and we should be able to design a system that serves needs of a country at a particular time. The history of copyright laws over the past three hundred years or so, shows that they have been tailored according to needs of the us and countries in Western Europe. These powers now decide the terms of exchange, when it comes to culture and information.
You also refer to how current copyright regimes have created complexities in cultures based on oral traditions. Can you elaborate?
It's always been an imperfect tread between orality and copyrights. Copyright usually fixes works of art or culture for good and it is usually people who invest in such fixation -- such as publishers or big players of the music industry -- who benefit from this. I believe that cultures should be allowed to flow freely, melt into each other over time and so am quite wary of regimes that regard copyright as private property. Cultural artefacts and traditional knowledge are related to an entire way of living of indigenous people. These are also changing constantly. How can they be fixed for good?
One argument has been that we document oral cultures in order to protect them from misappropriation. What are your views?
I am not sure that would do the job. We need to ask who gets to do such documentation? What say would indigenous communities have in this process? What would happen if more than one community holds the same kind of knowledge? Who gets to decide what to do with such documents? I am also quite wary of arguments that allow states to make such decisions.
If certain elements of culture are misappropriated, then ethics -- rather than law -- is the best way to deal with such abuse. We should raise concerns in the public, shame the misappropriators and not necessarily invoke the power of the state in the matter.