Interview with Lewis Hyde
by Ana Pecar
Being privileged to stay at MacDowell Colony, an art colony in Peterborough, New Hampshire, U.S.A that has been offering a creative sanctuary to the broad range of exceptional artists for now more than a century, I have discussed a topic of ACTA, a law secretly signed in Europe just recently, with the fellow artists. Among them was a Macarthur Fellow, former director of undergraduate creative writing at Harvard University and current teacher at Kenyon College, Lewis Hyde, a sharp-minded author interested in the public life of the imagination. He had devoted six years of his work writing and researching on the topic of creative commons. I immediately dived into his stunning book on the subject, entitled Common as Air. And I went for the opportunity to ask Lewis some more questions, which have been rising in my curious mind.
A.P.: Can you tell us about the area of friction between the range of private property and the scope of things best held in common?
L.H.: To talk about the tension between private property and common property it might help to think about what we mean by property. One old definition of property is the right to exclude other people, so you know you own your house, because you can exclude people from it, you can keep them out. Or you know you own your car because you can loan it to a friend but you don’t let other people use it. And in fact in the USA one of our Supreme Court justices said that the hallmark of the constitutionally protected property right is the right to exclude.
But this than raises a puzzle, particularly about cultural things, because things like songs and inventions are famously thought of as non – excludable. Once you’ve invented the idea of making bifocal eyeglasses or once you come up with the Pythagorean Theorem, it’s hard to keep people from not knowing it.
Ideas are not only unexcludable but also unrivalrous, which is to say we can share them without anybody loosing them. If I share a bicycle with you than I don’t have that bicycle, but if I share an idea with you I have an idea and you do too. So anciently people thought that the fruits of human intelligence and imagination were by nature common property.
A.P.: When and in what context did the law start to regulate the public and the private?
L.H.: Particularly with the rise of printing and with the decline of guilds you begin to have methods of making ideas excludable and rivalrous even though they aren’t by nature so. The first copyright law came out in the context of publishers enjoying a state-sanctioned monopoly over what appeared in print. It was enacted by the British Parliament in 1710 and named the Statute of Anne.
Things we call copyright and patent are ways in which the state comes in and takes something which is by nature common and makes it possible to privatize it. A copyright gives you a state-sanctioned monopoly to exclude other people from reproducing your books. I should say that I’m not against this, it is a useful tool of public policy to have these devices, but you really have to think about why you have them and what the ends are to which you dedicate them. And right now we are having serious arguments internationally about this because the trade off between private property and common property is out of balance.
A: Why did it fall out of balance?
L: We are involved now in an international debate over how much of the commons should remain common and how much of it should be taken private and one clear reason for this is the rise of the digital internet; I suspected that another reason was the fall of the Soviet union in early 90s because in a funny way Soviet communism had put western capitalism on good behavior. Capitalists in the west were challenged by the Soviets to not simply follow the profit motive, the Soviet indictment always being that westerners were simply money grabbing capitalists. Consequently, there was a kind of soft capitalism in the face of the Soviet threat. But once the Soviet Union disappeared we began to have what I think it was market trumphalists, people who felt no compunction to spreading market ideology in the market form of exchange into areas where it had never been seen before. So it has become much easier, much more common to make the argument that for example traditional medicines should be taken private and patented or that what used to belong to the public domain should be sold off to the copyright owners.
A: Why do you place the interest of owning the patents and even owning the seeds after the Second World War?
L: Stating this very abstractly, the history of the twentieth century was a shift from a manufacturing economy to a knowledge economy, so you begin to have businesses like IBM, where their product was software – ideas that ran machines, as much as it was the machines themselves. Or the rise of biotechnology and drug companies holding the ideas about how to make certain medicines. The drugs themselves might be very cheap to make but the ideas are where you place the value. And the rise of entertainment industry which is by nature nonexcludable and nonrivalrous – movies can be reproduced endlessly if there weren’t the impediments of copyright. So these are all knowledge economies. And in the 20th century there was a great shift from more embodied manufacturing economy to more abstract knowledge economy.
A: What do you see as the core cause behind the laws like ACTA, SOPA and PIPA?
L: People who make their living in the knowledge economy need their work to be protected by the artifices of copyright and patent and again I’m not against this necessarily, but the problem has been that with the rise of the digital internet it becomes incredibly easy to make copies of everything. And it has thrown the old rules of the road into turmoil and many created things are pirated. So you have a kind of fight between people who would like to figure out a way to go back to the old system where it was very difficult to pirate something and very easy to control your knowledge economy and on the other side people who think there is great promise in the new technology which allows ideas and created things to spread widely. And both sides have an argument to make. To speak of the spreading of knowledge side, it is now the case that for example medical research can be quickly and easily published around the world for free and that is a great benefit. Academics can have discussions of what they are doing in much easier ways. I myself use the databases that Google Books has produced. I can look up any 19th century book and find the things I need to find sitting at home and do it instantly. So there is tremendous promise in this.
Most of file sharing is not illegal at all. It’s just great boom to conversation. But the problem is that the money and power lie with the proprietary companies, with the film and recording companies and the publishers and they tend to get the ear of the legislators so they devise anti-piracy laws, many of which would have the effect of inhibiting the good side of file sharing.
What was of interest in the recent laws in the United states, one called PIPA (PROTECT IP Act) – these laws got stopped partly because there was money and power on both sides, that is to say on the one side were the content owners who would like to stop piracy, on the other side were the technology companies who are constantly devising new ways to improve the conversation that can be had on the web and both of these sides have money and power. Some of the other fights that have come up have been between powerless idealists and the rich content industries and in those cases the fights tend to be won by the content industries.
A: Do you think that PIPA, SOPA and ACTA have something to do with having control over the communication on the internet? We saw that Arab rising had been communicated through the web and there are many other issues being discussed and communicated through it by the common people.
L: The two laws that you mentioned, SOPA and PIPA, have not been passed, they were stopped. But yes, one reason that they were stopped is that many people worry that an unintended consequence (or perhaps even the intended one) of Internet control would be to make it easier for governments to control debate and dialogue. And it is certainly the case that there are countries, China for example, where the state rigorously controls what happens on the internet, because they are not interested in open debate and dissent. Yes, that’s always the risk. The worry is that if you try to hunt down all the pirates and make the world free of piracy what you will have done is to also suppress all the dissident voices and maybe even the news of places where something interesting would be said, whether it is dissident or not. So you want to be very careful; you may have to allow a certain fuzzy areas, rather then trying to control everything.
A: You argue in your book that in order to have democracy and liberty, it is essential to have literate people, citizens informed about politics.
L: Part of the project of my book is to think about different frames within which we have the discussion about owning ideas. In USA we have a linguist named George Lakoff, who has been of interest to political activists because his idea is that a lot of political debate sort of ends before it begins because the people who initiate the debate set up a frame within which you have your discussion and the frame itself determines how are you going to have a discussion. For example, we have a big debate over abortion in this country. If you begin by framing the debate in terms of the fetus you are trapped in a certain frame of talking as opposed to framing the debate in terms of a woman. Or we have a tradition of inheritance tax, which is an attempt to keep families from turning into dynasties, so we tax big fortunes when people die, but this debate has been framed as “the Death Tax,” so as soon as you say ‘Why should I pay a death tax’ it sounds like you shouldn’t.
But to come back to owning ideas: the entertainment industry has framed the discussion in terms of theft; that people should own their ideas and if you take them without the permission, it is stealing. And this isn’t a foolish frame but it also isn’t the only frame available. One thing I’ve done in the book is to go back to the founding generation in the USA looking for other frames. One of these would be democracy. In the U.S., the Founders were trying to create a self governing nation, for one of the first times in the history, and if you want a self governing nation you need people who can talk to each other and you need very low barriers to the circulation of knowledge. So they looked with skepticism on copyright because copyright allows people to control the circulation of knowledge, so while they thought it was useful, they also limited it to 28 years. And partly the reason was that their frame was democracy, not property.
A: USA was formed on idealistic constitution with liberty being its main driving force, which it seems to me, is still echoing today. And the capitalism doesn’t seem to be present at that time.
L: When US constitution was written in 1787, we did not have capitalism as we now know it. It really begins in 19th century. A lot of the idealism of the US constitution assumes an agrarian nation, a nation of small farms.
A: Would you say communism flourished in Slavic area of Europe because its ideology was close to the anciant Slavic tribal view of the world?
L: There is a big difference between small communities which hold some property in common and states which claim to hold property in common, because the scale matters and once you get a communist state which announces that certain things belong to the state and therefore to everybody it has a different feeling and different consequences than if you have common land in a village that raises sheep.
A: It often seems ironic that the patent laws are applied over common knowledge on farming and medicines that have been used for centuries.
L: When US occupied Iraq, the occupying force issued a set of orders which essentially were instructions about how Iraqis should change their laws and two of them have to do with copyright and patent. One of them particularly made it clear that you can patent industrial seeds. So if you develop a particular strain of wheat you can patent it and prevent other people from using it without paying you a fee. This case is amusing partly because Iraq sits in the land where wheat was first domesticated and where there were hundreds of varieties of wheat adapted to particular ecosystems and not privately owned but bred according to need. So what you see is a typical modern technological property regime laying over a traditional commons regime.
A: In our contemporary culture we don’t acknowledge our ancestors or our descendants, we think in very short time scales. Would you say that is the reason we don’t understand that we are constituted of our specific upbringing and our cultural as well as geographical environment? And is it hard to claim that we as individuals own our ideas?
L: Part of the project of my book is to make it clear the degree to which any created thing has roots in the commons. Even a genius like Shakespeare relied on books and myths that were available to him from the past. I write a bit about Benjamin Franklin, the American, who depended upon tremendously wide reading of French and English periodicals and books. All creative and inventive minds are not simply solitary they are also great hosts, who are able to invite into their consciousness the wealth of inherited knowledge. So this raises a question about what it means to take your work private once you finally made it. And again, I am not against doing it but I am against doing it as if you had no debts and could own things in perpetuity. We talk about having copyrights but we also have copyduties. We have a duty to those who came before us but we also have duty to those who come after us. And this duty means that at some level the work needs to be shared.
A: How deeply do laws and political strategies influence artistic expression? It seems like there is much more going on in new media and performative art in Europe than there is in US. I would think that might have to do with art being mainly supported by public funding in Europe and in US art being mainly supported by private capital. So in order for artists to survive on this continent, they are producing paintings and sculptures, objects that can be treated as private property, sold and put into the market.
L: That is interesting. So do you think capitalist art tends to produce commodities and state support tends to produce ephemera?
It would be interesting to look into this. You know in US there are actually several models. We have a lot of private philanthropy in this country; so for example, you and I are at the MacDowell colony, which is supported by donations. And we have a lot of private foundations which support the arts. We also have a tax system where you can pay less tax if you give money to non-profit organizations. So that is a way of letting individuals support the arts. And we also have some public philanthropy, not as much as you do in Europe but a little bit. But I think a lot of American artists struggle with this problem of making ephemeral work versus work that can be comodified. A lot of my friends don’t make sellable work and some of the artists that we’ve been having dinner with here, at MacDowell, do not create work that is clearly one or the other. But you may be right that if you did a study of how the weight falls, maybe Americans are more focused in art that you can buy and sell.
A: How can we participate in shaping the collective society? You’ve said something very beautiful in the book: “True citizens are not the audience of their government, nor its consumers; they are its makers.” This is in theory what we can all agree it should be, but if we want to fight for a cause we need to put a lot of energy and our time in it. But in this world we have our jobs that we have to be devoted to as well, so how do you see that we could be politically and socially very active, which I think is definitely our responsibility?
L: To come back to this sentence that citizens are not the audience or consumers, I say that partly because in United States now what has happened is that a lot of politics has become more like entertainers and you watch them on television and the candidates promise that they will cut your taxes and send you a check. It is as if to say, “elect me and you can buy a new radio.” So you feel like a consumer and a member of the audience and not like somebody who is an actor. I think the simplest way to begin to shift this would be to figure out ways to change the way the money works in American politics. It is now the case that our congress people spend half to two-thirds of their time raising money and that means that they are finally indebted to the people who have money and those are the people who feel that they have some agency. If we could, for example, have public financing of political campaigns so that nobody had to raise money and therefore nobody had a different level of influence on the candidates, it might just give people the sense that, even if they don’t have time to be activists, when it comes time to vote, their vote means something.
A: You state that the problem arises, because people go out of their territory of jurisdiction. Politics or church intervene with our private live.
L: This notion comes partly out of an American writer named Michael Walzer and his book called Spheres of Justice. Walzer he has a section that he derives from Pascal’s simple definition of tyranny. He says that there are different realms of social life–there is the family and the church and the school and business and the military and so forth–and that “tyranny” is for one of these spheres to encroach upon another. For example, in theocracy the church claims that it can tell you what to do in the market place and in your family. Or in an aristocracy certain families get to say that they can tell you what goes on in the military. Pascal’s idea and Walzer’s idea is that in fact one kind of freedom is to have society in which you have spheres of social life that don’t interfere with each other. And inside these spheres you might have some people who are in charge and some people who are more subservient, so you have famous academics and you have lesser academics and that is fine, but if you have a congressman or a politician who is the boss of your school that seems a crossing of the line. And this comes up for me because what has happened under the digital Internet is that the entertainment industry–which has its own sense of how things should operate–has tried very hard to get the educational system to follow its model. It would like colleges to treat file sharing as if it were illegal. Where as in fact file sharing at the colleges is very useful way of having conversation and sharing of research work. To take the internet as an example, this is in a sense a medium which many different kinds of professions can use in different ways. So there should be complexity in its use, rather than the simplicity that would follow if our legislators passed laws modeled on one industry’s sense of proper behavior.
