There is a type of criticism against Creative Commons which has grown quite prominent within the copyleft recently. The main tenet in this line of argumentation seems to be that Creative Commons through its reliance on the existing copyright regime actually reinforces copyright.
For example, Crosbie Fitch recently argued for this stance on the fc-uk-discuss mailing list. He described Creative Commons (CC) as flawed, because it helps consolidating old-school copyright:
CC is flawed in that it consolidates the perception that the artist should be able to control the use of their art.
CC consolidates copyright.
It is as if the IP maximalists said to a great lawyer “How can we get the masses to respect our copyrights?”, and he replied “Simple: encourage the masses to embrace copyright themselves, in everything they do. If everyone believes in it, it becomes more powerful. They will then perceive their use of manacles upon their culture as enfranchising, as their own emancipation.”
This stance is basically classical Gramscian hegemony theory revisited; the oppressed (or “masses”) perform their own submission, through being fooled into believing that this oppression is actually their emancipation.
However, this argumentation reaches a tricky point, at the juncture where we ask ourselves: Who are the oppressed ones? “The masses” implies a vast group of users or audience-members, but does it also comprise cultural producers? We all know that consumption is active, creative, even truly productive – and that consumers can be producers too!
But weren’t the producers supposed to be the ones who were benefitting from the current copyright regime in the first place, anyway? And shouldn’t we, for the sake of consistency, include here also the 95% or so of producers who work individually, locally, often in artisanic ways, and with little profit?
Implicit in this reasoning there seems to be an opposition against the productive subject, as a strategical, active, controlling subject, as an author or producer (whose “rights” copyright sets out to defend) – yet simultaneously an embrace of the active, strategical, controlling subject when this subject is one of a consumer, user, or citizen. Further, it seems to widen the even deeper gap between supporting the consumer/user/citizen collective, and making a definitive opposition against the producer/author/rights-holder collective (such as the much-hated collecting societies and IFPI/RIAA/MPAA etc). Instead of supporting those instances of production that are small-scale or not-for-profit – something which CC might be able to do pretty well – all attempts at protecting producer rights are deemed as, by default, corrosive.
What I want to ask here is:
Why this fear of the author, and this stress on limiting the author’s authority over his/her work? Why this almost populist embrace of these implied collectives of consumers? Why this fundamentalist opposition to institutionalising the rights of the producer? (It is fundementalist since it does not differentiate, it bluntly bans the whole spectrum of cultural production.)
Because isn’t it really the case, that what really aggravates us free-thinking anti-authoritarian individuals isn’t copyright per se, but the absurd extremes of the current copyright regime? Post-mortem rights (70 years after the death of an author); DRM (unnecessary and dangerous extra layers of restriction of digital content); the selling and trading of copyrights (they are no longer bound to the original author); draconian interpretations of what is “fair use” or not; etc.
For me, these are all deeply serious issues, affecting the cultural ecosystem of the early 21st century in negative ways, blocking creativity where there could be prosperity and innovation. The fight should stand against the corporate powerhouses – in the extreme stratospheres of copyright – for example by struggling for a prohibition of the extension of copyright expiry dates, of the selling and trading of copyrights, and of the commodification of what is essentially something that should be uniquely tied to the author and act in ways that are as non-interfering as possible on our precious cultural commons.
But rummaging around in the undervegetation, fuelled by a hate towards anything authorial, acting against all forms of copyright, or copyright-like concepts, like Creative Commons? I think that is a bad idea. Moreover, it is fundamentalist, narrow-minded and counterproductive. Small cultural producers need protection, we all know that.
The sub-function that copyright has for prohibiting being “ripped off”, as well as the collecting societies and record labels for up-and-coming singer-songwriters or “bedroom producers” are quite different than the corporate, stratospheric trading of copyrights, the collecting society favouritism and the bottom-heavy, corrupted record label politics of, say, 50 Cent or Paul McCartney.
In the former mode, these systems for protecting certain “rights” of the author are essentially something good – while in the latter, they have become alarmingly bastardized. We need less of those hair-splitting, detail-obsessed, inward-looking debates on wether Creative Commons is ideologically “pure” or not, and more of PR counterattacks exposing the absurd and draconian nature of the multinational entertainment industry, and its seemingly grassroots-embracing ploys (of which MySpace is but one of the latest examples). And yes, we actually need to consolidate some kinds of protection for those 95% of cultural producers who do not inhabit the copyright stratospheres.
Fight the majors, not the indies!