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Петък, 15 Март 2013 00:00

Publishing on the Internet and the Abduction of Copyright

Todor Hristov

Abstract: The paper claims that web technologies have transformed the operation of copyright by destroying the balance between politics and property rights constitutive to its emergence. The claim is substantiated by an analysis of the debates spurred by an operation of the Bulgarian general agency for prevention of organized crime against the website chitanka.info. The analysis describes the practical methods which the actors based in order to articulate their quasi-legal rights, and the semantic networks developed by those methods. The principal conclusion from the analysis is that debates on online publishing split copyright into property rights and access rights, which in effect allows the abduction of copyright by governmental agencies justifying their intervention by the need to contain the risks produced its vulnerability.

Keywords: author, copyright, right, politics, monopoly, public

There are decisions woven into every text. To begin with, decisions about what and how to write. What is more, when to stop writing, what to do with the written text, whether and how to publish it, whether, when, in what way, and how carefully, the text is to be read.

Sometimes, the decisions woven into a text are contentious. For example, they may require choosing between contradictory ways of reading, writing, and publishing. In order to cope with such contentions one has to make a decision what is correct or who is right. Therefore, a certain right needs to be established.

Such rights are rarely codified. For example, the right of scholars to know the meaning of a text better than nonprofessional readers, or the right of readers to choose one book over the other, are not. When such rights become codified, it comes as a result of the need to put an end to lengthy debates. This is the case with the copyright which made possible the birth of literature in the second half of the 18th century.[1]

This article aims to show that web technologies nowadays raise new debates that can change not only the way the copyright is codified but also the way rights are codified in general. For this purpose, I am going to analyze the case with chitanka.info from the summer of 2010, which revealed with particular acuteness the fragility of rights today under the influence of the contemporary politics of security.

The copyright and its controversies

Copyright comes from the book trading monopolies in the age of early modernity (Rose 1991: 47-48, 54; Deazley 2006: 41, 141; Seville 1999: 24, 93). The monopolies granted booksellers the exclusive right of printing and selling a certain book on the territory over which the right of the sovereign who granted them extended. Monopolies as a rule lasted for several years and booksellers used to pay the ruler both for their acquiring and eventual extension.

Copyright emerged out of the democratization of these monopolies.[2] In the 17th and the first half of the 19th century, exclusive rights of printing and selling books were gradually liberated from the right of the sovereign over a certain territory and became accessible – one didn’t have to pay a high fee for acquiring them any longer; the duration of their terms was extended or the limitations on their duration were removed; they were extended so as to become valid not only for a few individuals but for all the people meeting certain criteria – in this sense, for a certain population.

The democratization of the book trading monopolies turned them from an exception to a rule. Since it gave the authors and their representatives the exclusive right to make desicions about publishing, it empowered them to decide not only what, when and at what price to present to the public, but also what, how and under what terms the public would have access to. In this regard, they used to make decisions not only about publishing, but also about the public.

One has a right to something when one can decide on her or his own. For example, I have the right of freedom of political opinion when I can decide on my own what my opinion about politics is. I have the property right over something if I can decide on my own what to do with it. Vice versa, I do not have the right to something when I cannot take decisions about it on my own, i.e. when the decision is to be taken together with someone else or by someone else on my behalf. When it is debatable who can decide, the decision should be left to the court.

The law, however, is not always an expression of rights. It is often an expression of policies. For example, if the Parliament passes a law that guarantees an unusually low corporate tax rate, it would express not the right of the corporations to a minimal taxation but the policy of stimulating economic activity by placing the tax burden on the citizens. The difference between policies and rights comes first from the fact that while rights impose obligations, policies involve choice (Dworkin 2003: 118-123). For example, the representatives of the state authority are free to decide what kind of taxation policy to adopt but they are not free to decide whether to respect the citizens’ rights. If I have the right of freedom of speech, for example, the representatives of the state authorities are not free to decide when, what or how much freedom of speech to give me, because they are obliged to grant it to me, and consequently they do not have the right to deny it to me. A second important difference between policies and rights results from the fact that, as it is generally accepted nowadays, politics consists of taking decisions about the common good.[3] But something is common when it is shared with the others, and in this case taking decisions about the common good means taking decisions about others.

To sum up: one is a subject of a right when no one else can decide on his or her behalf. One is an object of a policy when someone else decides on his or her behalf. From this point of view, copyright is a right because no one but the authors can decide.[4] But it is constituted as a policy as well since it allows the authors and their representatives to decide on behalf of the public. The first copyright act, the Statute of Anne from 1710, formulated the aim of this policy as “the encouragement of the learned men to compose and write useful books”. The continental copyright is based on a similar policy (Hesse 1991: 85-94, 114-124).

The policy, on which copyright is based, however, contradicts the law itself. Because the property right of the authors and their representatives restricts the access of the public, i.e. the things the public can do with the texts. On the other hand, the policy on which copyright is based insists that its fundamental goal is to expand the access of the public to more books, and hence to more knowledge. That is why copyright initially caused severe disputes such as the \"thirty years’ war\" between the London booksellers and the Scottish book traders (Rose 1991: 67-91). To begin with, copyright was contested because granting it to some people allowed them to use it as a weapon against others, as well as because it created the risk of monopolizing knowledge and liberating its price from the control mechanisms of market competition (Deazley 2006: 19).

These disputes subsided in the middle of the 19th century. They faded away not because the contradictions in the foundations of copyright were resolved, but because a balance was achieved between the property rights of the authors (and their representatives) and the policy they were meant to serve.

Later on, this balance shifted in favor of the porperty right. At the beginning of the 19th century the right of publishing an abridged or revised version of someone else’s book, reprinting a book originally published abroad, or even holding the property right after the first edition of the book, were not yet treated as copyright infringements. At the end of the 19th century, the 1886 Berne Convention substantiated the copyright not only with the policy to stimulate the spread of knowledge but also with the moral right of the authors to decide how their texts are published and used. At the same time, the convention guaranteed the validity of copyright beyond national borders. The 1996 WIPO Copyright Treaty and the 1998 Digital Millennium Copyright Act extended copyright to include programming languages.[5]

However, the increasing weight of copyright conceived as property right did not result in abandoning the policy of stimulating public access to knowledge. On the contrary, the property right is still restricted by the rights of free use whose sustainability requires a more in-depth analysis. In general, to publish something means to deliver it to the public. When the act of delivering it to the public is constituted as a subject to an exclusive right, it becomes private property, and in this sense, privatized. If this privatization, however, is not justified with the care for the public, it can easily be contested as a deprivation, or even as theft.

Publishing for free

Before the invention of the printing press, books could not be sold. Since their production required the investment of a lot of labor and a lot of knowledge, books were far too expensive, and for that reason they were rather commissioned.

Book printing reduced the price of books and made them sellable.[6] However, it required fixed capital – a printing press, letters, paper, cutting and gluing machines. Writers rarely had such capital at their disposal and because of that they had to hand their works over to the publishers. Otherwise, they would be condemning the works to a limited circulation within their own social networks, quite like the way handwritten or printed verse circulate today. What is more, it meant acknowledging that their works were not valuable enough to be printed.

In the course of time the coercive power of negotiating with the publisher has grown so much that while at the turn of the century publishers used to negotiate the rights and leave the writers write as they wish, nowadays negotiating with the publisher is frequently an element of the writing itself. Today, big international companies often buy rights in advance based on a concept and few written pages in order to empower the editor to direct and negotiate the writing of the text on behalf of the public (Saller 2009: 23-42).

Web technologies reduced the price of publishing to such extent that they practically eliminated the need for fixed capital and made possible the circulation of texts among potentially unlimited audience, independent from the social networks of the authors, without stigmatizing them as unworthy. That is why web technologies enabled not only the selling of texts but also their publishing for free.

But the opportunity to publish for free raised problems unforeseen by the conventional copyright. The most fundamental among them could be formulated as follows: does someone have the right to publish for free something that someone else would publish at a certain cost.

In the remaining part of the article, I will try to show that such problems cannot be reduced to arguments for and against the copyright because they change the logic and the way of its functioning. For this purpose, I will discuss the case with the website chitanka.info from the summer of 2010, which posed the problem of free publishing with particular acuteness.

The right of publishing vs. the right of reading

On June 22, 2010, the Cybercrime and Intellectual Property Department of the General Directorate for Combating Organized Crime (CDCOC) conducted an operation against the administrators of the website chitanka.info, which had published more than 600 books for free – the access to the website was blocked and one of the servers was confiscated. The press center of the Ministry of Interior issued a press release and a video clip showing the seizure of the server. Practically all the electronic media broadcast the clip, and the story received wide coverage in most print media.

Video 1. The video clip released by the Press Center of the Ministry of Interior.

On the next day, the website resumed its work at chitanka.gdbop.info. On the following days several mirror websites appeared and the content of chitanka.info was downloaded as a torrent on The Pirate Bay tracker. On the day of the operation, a Facebook group was created to support chitnaka.info and was joined by 3 350 members. A far less active group on egg.bg gathered 29 members. A petition signed by several thousand users was posted on bgpetition.com. The CDCOC’s operation was criticized in many blogs and forums, as well as in articles in newspapers of smaller circulation such as Kultura and Dnevnik.[7] The support for chitanka.info, however, didn’t grow into a protest, even though several of the participants in the Facebook group appealed for it. Nevertheless, the discontent with this operation was significant enough to get coverage in the electronic media, and on the following days the morning shows of BNT, Nova televizia and TV7 broadcast brief discussions on the chitanka.info case.[8]

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Video 2. A discussion on the chitanka.info case on “Zdravei, Bulgaria! [Hello, Bulgaria!]” show, Nova Televizia, June 24th, 2010.

 

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Video 3. A discussion on the chitanka.info case on “Deniat zapochva [The day begins]” show, Channel 1, June 25th, 2010.

Video 4. A discussion on the chitanka.info case on the morning show of TV 7, June 23th, 2010.

In these discussions, the operation carried out by CDCOC got support mainly from representatives of the Bulgarian Book Association (BBA), which, it was believed, had tipped off the police about the case. The discontent, though, did not succeed in making CDCOC apologize or return the confiscated equipment. On the other hand, the operation did not lead to legal prosecution since free publishing does not infringe Article 24, Paragraphs 8 and 9 of the Bulgarian Law on Copyright and Related Rights (LCRR), forbidding the free use of works for profit. It also remained unclear how to interpret the terms library and educational purpose, defining the public right of access in LCRR. The CDCOC’s operation had no significant practical consequences because about a month later the website resumed its work at its original web address.

The chitanka.info case can be presented as a dispute about rights. The founders of chitanka.info not only publish for free – they claim that they have the right to decide on their own to publish for free. On the other hand, CDCOC claims that they have the right to decide on their own who has the right to publish. The majority that supported the website insisted that CDCOC could not make decisions about such issues without taking into account other actor’s positions. Because of the interweaving of these contradictory decisions, the right to publish for free turned into a dispute about the way of articulating rights. 

When such disputes are caused by unforeseen and for that reason extraordinary circumstances, for example, by the advent of new technologies, they cannot be resolved with the means of the existing law. At the same time, resolving them cannot be postponed until the time the law would have developed accordingly. Furthermore, such debates are not peripheral to the law – they are inevitably interwoven in the execution of the law, they permeate the fabric of the law, and are capable of changing the essence of seemingly inalienable rights (Agamben 2005: 31).

Since similar disputes cannot be resolved with the means of the existing law, they are solved with practical methods and with various arts of saying and doing (Certeau 2002: 104-6) used to articulate rights before the law. In the dispute about the operation against chitanka.info I identified 12 practical methods used by the sides in the dispute to prove their right. I have called them accordingly: calculating, representing, defining public interest, warning, referring to the law, producing a secret, serializing, analogy, specifying, normalizing, shifting the weight of the proving effort, and educating the audience. I will illustrate the way they function with a summary of six of them:

  1. Calculating. CDCOC calculates the activity of the website and the losses presumably caused by it. According to these calculations, a crime group of at least six members from different cities in the country uploads more than 600 titles monthly, whereas some of the most popular titles are downloaded tens of thousands of times. Therefore, the confiscation of one of the servers has prevented losses amounting to millions of leva. Similar calculations are undertaken by BBA representatives – they have estimated the losses from the publishing of Dan Brown’s Angels and Demons at 40 000 leva and the total losses from the functioning of the site at 4.5 million leva. On the other hand, chitanka.info’s supporters also make calculations, aiming to show that the calculations of their opponents are unsound.
  2. Representing. As a rule, the subjects of rights are a multiplicity of actors oftentimes being in disagreement. In the chitanka.info case different-minded are not only the internet users but also the copyright holders – authors, translators, painters, publishing houses, and associations for rights management. In order to organize a dispute about rights, this mulitplicity of actors needs to be made to speak in one voice despite the differences in the actors’ views. The method of representation allows exactly this – the multiplicity of actors is replaced, and at the same time displaced by the voice of its representatives (Latour 2007: 51). In the case with the operation against chitanka.info, the multiplicity of the right holders was replaced by their representative organization, although several members disagreed with its policy. The set of the internet users on the other hand was replaced by the voice of a blogger who was capable to represent them – nothing more and nothing less than an ordinary user with an individual voice. This method for organizing the dispute gives the additional advantage that by replacing the differences within the multiplicities with the voices of their representatives an agreement, or even unanimity (as was the case with CDCOC and the associations for copyright management), can be reached.
  3. Defining public interest. This method consists in defining the boundaries of the public interest in a way that leaves the other side out of the dispute. Supporters of the operation against chitanka.info are apt to draw the boundary of the public interest as close as possible to the interest of the state. This method is quite often used for contesting the argument that chitanka.info is a library. The supporters of the operation claim that libraries are public, and since being public means to be organized by the state, private libraries cannot claim to be public, and therefore, they cannot exercise the right of free usage, envisaged in the Law on Copyright and Related Rights, even if they do not pursue profit and if they distribute books for educational or scientific purposes. The opponents of the operation on the other hand use this method to argue that publicity in the first place means civil society, and that they are the representatives of civil society because, unlike the supporters of the operation, they do not represent corporations or the state, and since they do not speak in their capacity of owners, they defend the public interest.
  4. Referring to the law. This method allows the participants in the dispute to strengthen their positions by putting the law on their side. This could be achieved by quoting or paraphrasing legislative texts. In the chitanka.info case, referring to the law seems quite ineffective as both sides refer to the Law on Copyright and Related Rights, and claim that it should be interpreted in their favor. That is why it seems more effective to stay on the side of the law by pleading for lawfulness, by demanding that the offenders are punished, by asserting that since the job of the the law-keeping bodies is to keep the law, they are always on the side of the law, hence, the law is always on their side and on the side of those who stand behind the law-keeping bodies. Another effective way to gain the law on one’s side is to refer to the European legislation or to precedents such as the lawsuits against Google Books (if the lawyers of such a powerful corporation cannot prove that it does not infringe copyright by publishing books on the net, the chairman of BBA claims, then it is a proof of the opposite).[9]
  5. Serializing. The Press Center of the Ministry of Interior inscribed the operation against chitanka.info in a series of other actions, sinking into oblivion – for example, the operation against the website bookbg.net, offering scanned books at the price of 4 leva per SMS. This allowed the supporters of the operation to argue that CDCOC was taking action against the same crime, even though the targets of the operations were different. They also claimed that the actions of CDCOC went beyond what was known to the public, thus preventing crimes and losses of which the public was unaware, and therefore the public should trust CDCOC. On the other hand, the defenders of chitanka.info also resort to serializing as they claimed that the CDCOC operation continued the series of actions undertaken by the publishing house “Trud”, which forced a number of websites to remove the works by Iordan Iovkov and Elin Pelin because they had been conceded the rights over them by the Ministry of Culture.[10] These actions were followed by some truly dramatic ones such as the campaign which prevented the illegal distribution of a scanned textbook in Latin in November 2010.[11]
  6. Educating the audience. The supporters of the operation use this method to counteract the accusations that they were chasing economic interests. The method consists in presenting the intervention of the law-keeping bodies as a moral lesson for the public, needed for overcoming its immorality. The BBA representatives were unanimous that the Bulgarian population had low legislative culture and that it was not educated enough to know that one shouldn’t steal, hence the purpose of the operation against chitnaka.info was to change its mentality. During the discussion broadcast on Nova televizia the deputy chairman of BBA exclaimed: “When I came to know that CDCOC intervened and closed down the site I said to myself: finally, one step forward to civilization!”

These methods are set up to articulate rights by producing semantic networks, or in other words, lists of things related to the copyrights and lists of the relationships between these things.

In order to reconstruct these semantic networks, as an object of my research I chose the press releases of the Ministry of Interior about the operation against chitanka.info, the petition in support of the site, the open letter by BBA, and the debates in the morning talk shows of Nova Televizia and Channel 1.[12

I analyzed separately the statements supporting the operation and those rejecting it. The texts were processed with the help of Automap, a software for analyzing semiotic networks. The analyzed texts were simplified by applying the function Rhetorical Delete Processing, which keeps the number and the distance between the “bracketed” words, ignoring their semantics. This simplification did not lead to a significant shift in the overall weight and the relationships between the examined concepts. Since the software is not designed to work with Bulgarian texts, I performed manually the operations of disambiguating the deixis, recognizing the proper names, summarizing the word forms, and constructing a meta-glossary.

Having constructed the semantic networks of the statements for and against the operation against chitanka.info, I analyzed their structure with the help of ORA, a software tool for network analysis. The first stage of the analysis involved rating the communicative power of the concepts, constitutive of the semantic networks.[13] For example, in the statements of the supporters of the operation the words signal and guilt were classified as ordinary concepts, users and decision – as factoids, books, Bulgarian, European – as stereotypes, rights and authors – as symbols, with significantly higher conductivity and density than the other concepts, followed by access, BBA, chitanka.info, and law. In the statements of the opponents of the operation Google was classified as an ordinary concept, BBA’s lies and CDCOC – as factoids, Bulgarian and access – as stereotypes, whereas works, users, chitnaka.info, economic interests, rights and publicity – as symbols.TH_il1

Ill. 1. A word cloud of the strategy of the supporters of the operation.

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Ill. 2. A word cloud of the strategy of the opponents of the operation.

Both semantic networks give significant weight to rights. However, they register them in different kinds of vocabularies. The first one tries to connect them as closely as possible with the rights holders and with the organizations for rights management, as well as to present publishing for free as an ordinary infringement of the law, bearing the same guilt and deserving the same punishment as any theft. The second semantic network tries to connect the rights as closely as possible with the users, by interpreting reading as a right which limitation cannot be in the public interest, and is therefore caused by disguised private economic interests.

The described semantic networks change the essence of copyright because they shift the balance of policies and rights on which it is based.

The first strategy reduces copyright to property right. Thus, giving texts away for free can be denounced as an infringement of the law. Because, unless it is done by the owners themselves, it appears to be giving away someone else’s property. Moreover, it appears to be giving away for free property which could have been otherwise sold, and is therefore an illegal act of taking away someone else’s profit.

But if copyright is simply a property right, it can, and should, no longer be limited for the sake of a certain policy, even if this policy envisages the increasing of public knowledge. Taking this into consideration, the success of this strategy would mean an immediate and complete privatization of knowledge.

The second semantic network articulates the copyright as a form of the policy for increasing public knowledge. That is why it posits that even when someone else’s knowledge is distributed, this is not an infringement of the law, since knowledge is inherently public and cannot be the subject of an exclusive right, even if articulated as an property right.[14]

The unfolding of these semantic networks destroys the balance between policy and law, on which copyright was based before the advent of the Internet. Since this balance made it possible to settle the relevant disagreements, its undermining causes a disruption in copyright as it forces us to decide whether, above all, it is a policy or an property right.

This undermining changes the operation of copyright. Because as it is split between policy and law, we are now forced to take sides – either against the policy of stimulating the progress of knowledge, or against the interpretation of copyrithg as a property right. In effect, regardless of what we choose, copyright has turned into a matter of disagreement and contestation.

If a certain right is contested, that allows the law-keeping bodies to intervene in order to defend it from its infringement. But when the law-keeping bodies intervene in defense of contested rights, they have to make a decision not only what the alleged law infringement is, but also who the alleged violators are. Thus, they also make decisions about the essence of the right that they are in charge of keeping.

Since, as it is generally said, this decision is an operative one, it operates before the case is presented to the court. In effect, it allows for the articulation of preliminary rights, which do not breach the legal rights but go before them as their shadows, being implemented and enforced prior to the proper legal proceedings.

When the law-enforcement agencies are engaged in defending these shady rights, this are entitled to define what acts infringe the law before and beyond the proper legal procedure, to articulate areas of infringement and enforcement detached from justice and rights. In a word, this allows the emancipation of law enforcement from legal rights.

Abduction of rights

Rights have a number of features that we oftentimes fail to take notice of, but which are worthy of our consideration:

  1. The implementation of rights has a certain cost: for example, the cost of initiating legal proceedings, or the cost of knowing how to initiate legal proceedings, how to formulate and file a legal claim, how to argue the case in court, whom to ask for legal advice.
  2. The implementation of rights takes time. Since it requires the court’s time, which is limited, we can presume that the more claims there are, the slower the implementation of the rights is. Of course, the time a claim takes also depends on the details of the legal procedures, the ways and the terms of appealing the sentence, the volatility, mutability and complexity of the legislation.
  3. The enforcement of rights carries a certain risk, for example, the risk that the court may rule on behalf of the defendant or it may not come up with a decision on time. We could assume that the less established a right is, or the greater the power of the defendant is, the higher this risk is.

The higher the cost of the enforcement of a right is, the more time it takes, the riskier it is, the weaker the right grows. The more expensive, slower and riskier the enforcement of a right is, the more increases the number of those who lose their rights, because they cannot afford to pay the price of their enforcement. What is more: the more expensive, slower and riskier the enforcement of a right is, the wider opens the gap – the “no man’s land” between the emergence of a disagreement over rights and its resolution.

The bigger this gap grows, the greater the risk the right is exposed to. Let us take for example the property rights. Since the respective property is subject to taxation by the state, one can claim that its violation would reduce the state income and would therefore impair the interests of the state. This would entitle the law enforcement agencies to intervene in order to protect the interests of the government. Since the intervention of law enforcement agencies is targeted at risk, it could be successfully justified even after the court would eventually decide that the property right and therefore the interest of the state, weren’t actually violated. Because even if the risk is never actually realized, this would not make the intervention illegal, it will make it nothing short of effective risk management.

But when rights are constituted as an object of law enforcement emancipated from the proper legal procedure, they are no longer rights against government. They rather turn into rights of the government, as the emancipation of law enforcement makes it possible to process rights against government into rights of government. I believe that this reversal can be properly called “abduction” of rights.

Technologies per se can neither liberate, nor subject. They can serve the purpose of both liberation and subjection. Web technologies can provide opportunities for free publishing, for liberating the users from the cost of publishing. Yet because of this, they also provide opportunities for identifying risks, for defining the targets of police intervention, for emancipating law enforcement from legal authorities. Disagreement about copyright are able to produce excessive arrays of these risks, targets of police intervention and areas of emancipation. And if copyright is embedded into such disagreements, it can be transformed from a right against government into right of government, into right to demand and enforce subjection in the interest of the government or of corporate actors, recognized by and working synergetically with the government. As a concequence, web technologies allow for the “abduction” of copyright. 

Bibliography

Agamben, Giorgio. 2005. State of Exception. Chicago: Chicago UP.

Buerger, Peter. 1997. The Decline of Modernism. Pennsilvania: Pennsilvania State UP.

Certeau, Michel de2002. Izobretiavane na vsekidnevieto [The Practice of Everyday Life]. Sofia: LIK.

Deazley, Ronan. 2006. Rethinking Copyright: History, Theory, Language. Cheltenham: Edward Elgar.

Derrida, Jacques. 1987. The truth in painting. Chicago: Chicago UP.

Dworkin, Ronald. 2003. Da se otnasiame kym pravata seriozno [Taking rights seriously]. Sofia: Critique & Humanism. 

Foucault, Michel. 1991. Shto e avtor? [What is an author?] In: Literaturen vestnik, 21.

Hesse, Carla. 1991. Publishing and Cultural Politics in Revolutionary Paris, 1789–1810. Berkeley: California UP.

Hofman, Julien. 2009. Introducing Copyright: A Plain Language Guide to Copyright in the 21st Century. Commonwealth of Learning.

Kawohl, Friedemann. 2010. The Berlin Publisher Friedrich Nicolai and the Reprinting Sections. In: Deazley, Ronan, Martin Kretschmer, Lionel Bently (eds.) Privilege and Property. Essays on the History of Copyright. Cambridge: Open Book Publishers, pp. 207-241.

Latour, Bruno. 2007. Reasemblirane na sotsialnoto: Uvod v sotsiologiata na deetsa-mrezha[Reassembling the Social]. Sofia: Iztok-Zapad.

Rose, Mark. 1991. Authors and Owners: The Invention of Copyright. Cambridge: Harvard UP.

Saller, Carol. 2009. The Subversive Copy Editor: Advice from Chicago. Chicago: Chicago UP.

Seville, Catherine. 1999. Literary Copyright in Early Victorian England: The Framing of the 1842 Copyright Act. Cambridge: Cambridge UP.

Stallman, Richard. 1996. Reevaluating Copyright: The Public Must Prevail. In: Oregon Law Review. [06.03.2011].

Westbrook, Steve (ed.). 2009. Composition and Copyright: Perspectives on Teaching, Text-Making, and Fair Use. New York: SUNY Press.
 
 
 
Todor Hristov is an associate professor of literary theory at the University of Sofia. He holds PhD degrees in sociology and literary theory, and is currently teaching courses in critical media theory, literary theory, poetics, political sociology. Todor Hristov is an author of four books, on literariness, legitimation of state authority in the context of politically unstructured riots unable to articulate coherent and sensible claims, governmental effects of identity policies and multiculturalism, and the emergence of particular regimes of sovereignty without sovereign that triumph in the age of imperial administration we are currently witnessing. Todor Hristov’s principal research interests are governmentality studies, critical theory and cultural studies. E-mail: Този имейл адрес е защитен от спам ботове. Трябва да имате пусната JavaScript поддръжка, за да го видите.
 
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[1]  Certainly, copyright is not a prerequisite for writing poetry or novels but it was the constitution of authorship as a right that made possible the particular discursive constellation that allowed the writing of poetry, drama and novels to be conceived as literature in the modern sense. On copyright as a discursive function – see Foucault (1991); on copyright as a parergon, as a constitutive addition to the work – see Derrida (1987: 11-13, 55-56); on the connection between the development of the concept of literature and the development of copyright – see Buerger (1997: 11-18).

[2]  Here, I ignore the different trajectories this democratization took in England, France and Germany. Their common outlines can be traced in Hofman 2009: 4-23. The differences in these trajectories do not undermine the argument presented here.

[3]  When policy is defined in this way, the common good is usually perceived as universal – for example, what is common for everybody in a state, nationality or city. We can also use “common” when someone has something in common with someone else, when they share something. As far as they concern anything shared in common by a multiplicity of actors, decisions about things that are not universally shared – such as books, ways of publishing and ways of life – can also be conceived as political decisions. In fact, even decisions about things that a relatively small number of actors share, for example, the allocation of free time and labor in the family, can be micropolitical.

[4]  In the 18th century, it was initially based on the right to collect the fruit of one’s labor; afterwards, it was based on the natural right and on the right of occupancy, as elaborated by Locke (Deazley 2006: 39-42). Since the point of intersection of these three argumentative regimes is the right of property, they constitute the book trading monopolies as an expression of a specific property right (Rose 1991: 114-120). However, the concept of property on which copyright is based is stronger than the conventional one, as it presumes that the authors and the publishers in their capacity of representatives of the authors retain their property even after selling it to the public. In the last quarter of 18th century, this stronger property right was grounded on the exceptional characteristics of literary labor, reduced most generally to its creative nature, or in other words, to the fact that unlike the products of ordinary labor, its products are original (Rose 1991: 104-112). Since literary labor rests on a certain tradition, however, its repertoire, plots, techniques and rhetorics are rarely original. That is why it seems convincing to situate originality at the level of expression, conceived as saying-exactly-these-words. Hence, the property on which the copyright is based is also situated in the expression (Rose 1991: 132; Deazley 2006: 106).

[5]  In this respect it is worth noting the gradual extension of the period of copyright protection. Whereas the first copyright law in the United States, dating back to 1790, envisaged copyright protection for a period of 28 years, the Sonny Bono Act from 1998 stipulates copyright protection for 75 years after the death of the author, 120 years after the creation or 95 years after the publication of collective works, including software.

[6]  Of course, books were sold even before printing was invented, but it was the printing that created a market for books able to transform selling books into capitalist venture rather than a series of isolated instances of trade.

[7]  Of particular importance I find the articles “Pirati vurshat rabotata na durzhavata” [Pirates do the work of the state] by Boyko Penchev, published in Dnevnik on 22.07.2010 and “Not this way, gentlemen! Copyright” by Rayna Markova, published in Kultura, no. 25, on 02.07.2010.

[8]  In these discussions it is worth noting the asymmetry in the allocation of media time. The BBA representatives are the first to talk in the discussion on Kanal 1, speaking for more than 10 minutes, as against the 4 minutes or so allocated to the blogger Hristo Blazhev.  

[9]  Of course, the lawsuits against Google are far more complex. First, the legal proceedings initiated in 2005 by the Authors Guild, Penguin, McGraw-Hill, John Wiley & Sons, and Simon & Schuster, ended with an agreement in 2008, without defining the right to public access, without denying Google Books the status of a public library, and without ruling free publishing as an infringement of the law. Moreover, the agreement distinguished between books whose copyright has not expired, but are not on the market, and books offered on the market or books whose copyright has expired. Most generally, the agreement allowed Google to digitalize practically all books that are subject to copyright under the legislation of the United States, but to establish a fund of 45 million dollars (divided into single payments of 60 dollars per book) in return for compensating the authors whose works had already been published. Google had to set aside another 34.5 million dollars for establishing a copyright register, for developing a system for censoring unacceptable or protected content in the books published, for enabling the sale of the books, supplemented by an agreement on the distribution of the profits, as well as for setting up mechanisms allowing the right holders to stop the publishing of their works, while implicitly giving their consent to the project, unless otherwise declared. Currently, there are other lawsuits filed against Google Books – for example, the lawsuit on the copyright of the published photographs or on the books of French publishers. Besides, the agreement on the case “Google vs. the Authors Guild et al.” is criticized by associations such as the Open Book Alliance on the grounds that it runs the risk of Google gaining monopoly over online book publishing (for more information, see Open Book Alliance website, visited on 5.03.2011).

[10]  The Iovkov case is particularly problematic since a year before the expiration of the 70-year term of the copyright, stipulated in Article 27, Paragraph 1 of the Law on Copyright and Related Rights, the publishing house “Trud”laid claim to the exclusive right of publishing his works. For further details on the case of bezmonitor.com, see the website of the Bulgarian National Library (visited on 05.03.2011). The director of the publishing house “Trud” responded to the protests with a letter where in a rather vivid way he summarized the arguments behind the claim that online publishing is an illegal act of dispossession: “It is quite easy to claim that the works of a given author – let’s say, Elin Pelin – belong to the people. Then, shouldn’t your apartment, too, belong to the ‘entire nation’? (Quoted in Grigor Gatchev – A Weblog, visited on 05.03.2011)

[11]  For more information on the operation, see “Uchebnitsi po latinski, kacheni v internet – na mushkata na spetspolicaite” [Latin textbooks, uploaded to the internet, targeted by the police]. In: Dnevnik, 16.11.2010.

[12]  I did not include the discussion in TV7’s morning show because the participants invited in it focused on the conflict between the website bezmonitor.com and the publishing house “Trud” rather than on the operation undertaken against chitanka.info.

[13]  The assessment of the communicative power is based on the classification of the concepts according to three dimensions – density, conductivity, and intensity. Density is the sum of the total number of nodes connected to the focal concept; conductivity is the number of two-step paths through the concept; intensity is the fraction of all nuclear statements that contain the concept (Krippendorff 2004: 296-297). Concepts are classified in 6 major groups: ordinary concepts, characterized with low density, conductivity and intensity; factoids are concepts that are low in density and conductivity but high in intensity; general topics are low in density and intensity but high in conductivity; allegories – low in density but high in conductivity and intensity; allusions – high in density, yet low in conductivity and intensity; stereotypes – high in density and intensity, low in conductivity; substitutes – high in density and conductivity, low in intensity; and symbols – high on all three dimensions.

[14]  These strategies, of course, can be elaborated in even greater detail. For example, one can claim that copyright is not an authentic form of property, that it is only a metaphor of property (Kawohl 2010: 170), or that it is an intangible asset, similar to patents and trademarks, that publishing a book is not the same thing as publishing online, that knowledge is a public good that must be given for free to the people just like security or education, that copyright today has a loose connection to creativity, that after the Digital Millennium Act it is subject to an intolerable inflation, threatening to turn any unclaimed knowledge into a subject of copyright, let’s say, because it is traditional or because it has long ago entered the public domain. For a more detailed analysis of the arguments for and against free publishing, see Westbrook (2009). A brief overview of the key arguments underlying the copyleft movement and the alternative copyright regimes, such as GNU and the Creative Commons, see Stallman (1996).

 

The article is published with the support of the “Transforming Social Sciences in a Knowledge-Based Society” project, funded by the Young Scholars Programme of the National Science Fund. It is part of a larger study of the arguments used to address free publishing online and the attempts to criminalize it as a copyright infringement.

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