Who gets to own our culture?

In honour of Techdirt’s World IP Day “anti-contest”, I’ve decided to write a few words about the relationship between copyright and culture.

Specifically, I’m interested in the question of who gets to own our culture, because copyright is the mechanism we use to answer that question.  Copyright — intellectual property — is the idea that when you create something — a photograph, a song, a film, or an essay like this one — you own that creation by virtue of being its creator.  You are free to publish it or to hide it away, to be magnanimous in sharing it with the world or to set up a toll booth and charge people for experiencing your creation.  All of those things belong to you by right — and that right is called copyright.  Thus are the seeds of ownership planted for all of the cultural artifacts that are created.

Culture is a different beast.  It’s also a very fuzzy concept.  When people talk about culture, they never quite seem to know exactly what they mean.  We often seem to think it has something to do with the arts — the “cultural industries” are the ones that produce things like literature and art and movies.  Or, perhaps it has something to do with having a shared language or ethnic background.  Or food.

What I mean by culture is this:  Culture is just the things that people share between them.  And, to the extent that they share things, they share a common culture.  Culture is the lingua franca that binds a particular group of people together, whether that group is a nation, a particular ethnicity, a company (as in “corporate culture”), or just a small group of friends.  Culture is made of the common experiences that bind a group together.  Whatever group it is, the most salient feature of culture is that it is shared within that group.

That feature puts it in direct conflict with the idea of copyright.  Because if culture is fundamentally about sharing, copyright is fundamentally about controlling who gets to share.  If you own the copyright on some cultural artifact — let’s say the new Star Wars movie — you control who gets to watch Star Wars.  By extension, that also means you control who gets to talk about Star Wars and what they are allowed to say about it.  Because, if you can’t watch Star Wars, you lose access to the culture that is Star Wars and the things you are able to say about it will be very limited.

In a very real way, owning copyright means owning a piece of culture.  And, with that in mind, let’s return to the question of who gets to own our culture.  Initially, copyright belongs to creators.  There’s an intuitive appeal to this arrangement; it makes sense that the originator of a piece of culture gets to own it.  But, in reality, it is not creators who own our culture.  In fact, much of the culture that matters — the culture that is shared widely enough to be known on a large scale — is owned by large media conglomerates.  Star Wars is owned by the Walt Disney Company, not by George Lucas.

Of course, saying that our culture is owned by giant media conglomerates is a gross over-simplification.  Copyright is automatic and universal, which means everything from the e-mail you wrote to your boss last week to Donald Trump’s latest tweet is covered under copyright as a potential cultural artifact.  And there are plenty of aspects of culture that are not covered under copyright at all — language and food being two obvious examples.

Still, there is something significant about the amount of control that media companies exert on our culture.  And that significance is evidenced by the phrase that I used to describe it.  Media conglomerates don’t just own a lot of culture.  They own a lot of culture that matters.  In crass corporate terms:  They make it their business to own culture that is worth a lot of money, and, if possible, to increase the amount of money that they can earn from that culture.  What determines which culture is worth money?  Or, put another way, what determines cultural value?  We’ve already answered that question:  It is the culture that is most widely shared.

That’s significant, because it belies the intuition we had about copyright belonging rightly to creators.  It’s not creators that create cultural value.  The value comes much more from the sharing than from the creation.  A moment’s thought will confirm this.  Of the immense number of copyrightable creations, only a vanishingly small number will gain any significant amount of cultural relevance.  Chances are, the e-mail to your boss has absolutely no cultural relevance, and neither does the gorgeous piece of art that you framed and put on your wall.  It is not the act of creation that makes culture; it’s what happens to that creation after it leaves the hands of the creator.

We are now in a position to answer the question we asked at the beginning:  Who gets to own our culture?  The answer is this:  The people who popularize it.  Media conglomerates end up owning a lot copyrighted culture because they profit from taking raw creations and promoting them to the status of culture.  And, generally, creators are only too happy to exchange their copyrights for money and a bit of cultural notoriety.

Having answered the initial question, we can now ask a deeper question, the real question, namely, if significant parts of our culture are owned by the media conglomerates that popularize them, is this a desirable state of affairs?  And the answer, I think, is an unequivocal no.

This new question — the real question — is a question about power.  The question is about who has the power to determine what is culturally important and which voices get heard.  And the reason why the answer is no, the reason why we do not want media conglomerates to own our culture is because their choices about what is culturally important are dictated by what makes them the most money, not by the merits of the cultural artifacts that they promote.

When Disney decides to finance another Star Wars movie instead of a biting satire of the political system, that decision is driven by money, not by artistic merit or cultural need.  And, as a business, that’s their prerogative.  But, just because that decision is good for Disney does not make it a good one for our culture.  And our culture is more important than Disney’s bottom line.  As a culture we need to ask:  Who do we want to own our culture?  Who gets the power to decide what is culturally important?  We can do much better than outsourcing this power to giant media conglomerates.  But … how?

They key lies in the mechanism for owning culture:  Copyright.  By allowing companies to buy and concentrate ownership of copyright, we have turned culture into a commodity, where one piece of culture is as good as another as long as it can be bought and sold.  In such a market, it is money that dictates cultural importance, not ideas or artistic merit.

What is the alternative?  One possibility would be to attach copyright to the creator permanently, to make creators the permanent owners and guardians of the culture they create.  The appeals to the intuition that creators should own culture, and perhaps they would do a better job of cultivating culture than corporations.  But, such an arrangement ignores the fact that cultural value truly comes from sharing, not from creation.  If we are to respect that fact, our culture must be owned by all of us.  Which is to say, it should be a commons, owned by no one.

If we want our culture to be a marketplace of ideas, where the best ideas rise to the top and gain the most cultural resonance, we cannot allow it to be a marketplace of commerce, where the most successful ideas are the ones with the most money behind them.  To achieve that, to de-commodify our culture, we cannot allow culture to be owned.  Once culture can be owned, it can be bought and sold.

To do that, our system of copyright must change drastically.  Instead of being a system of ownership — a system of intellectual property — it must become a system for protecting the integrity of our culture.  If copyright is about who has the power to shape our culture and whose voices get heard, it needs to vest that power in the people who are best suited to creating and improving our culture, and it needs to concentrate that power in the hands of the people who have the best track record of creating positive cultural change.

This means creators.  But, not just any creators; it means creators who drive our culture forward.  Rather than rewarding every act of creation with ownership, copyright should reward those who create culturally significant works with the resources to continue creating them.

The mechanism for this is not ownership but reputation.  Rather than controlling who is allowed to access culture, copyright should encourage culture to be shared as widely as possible.  After all, culture is built on sharing.  But, whenever a piece of culture is shared, whenever the stock of that culture begins to rise, that culture should bear the imprint of its creator, and the creator should be indelibly identified with that creation.  In this way, the creators of the most resonant pieces of culture will become culturally significant along with their creations — and will be in a position to reap the benefits.

Copyright would thus become a system for ensuring that social power flows to the most culturally significant people rather than to people who are famous for being famous.  Imagine a world where we had never heard of Paris Hilton but Marie Curie had attained equivalent status and social power.

Achieving such a system in today’s political environment seems … unrealistic to say the least.  And, exploring such a radical change to copyright in depth would like require a book or two (or a documentary).  So, in envisioning this new kind of copyright system, I do not expect to make it a reality.  But, in all the reading I’ve done about copyright over the years (and it’s quite a lot), I’ve often felt that the problems of copyright have been much better explained than any sort of vision for what copyright could be.  Perhaps that’s why copyright seems to have progressively become worse for culture rather than better.

So, in honour of World IP Day (though probably not in the spirit intended by WIPO), I hope I have articulated a vision of copyright that could enliven and enrich our culture rather than restrict it.  As imperfect as it is, at least it holds a glimpse of a better system.

Congratulations Mr. Trudeau. Now, about that election promise…

We got what we wanted.

Harper is gone.

I think we may have overcompensated though.

This time, yesterday, I was contemplating whether I would be driving through the streets in the evening, honking the horn like we do when the Canucks win a playoff series.

But, now that results are counted, I just feel empty, like a breakup after a bad relationship.  I don’t take joy in our new Liberal majority, just relief the worst-case scenario didn’t happen.

This time, we voted strategically, and it worked.  Oh boy, did it ever work.  We listened to the pundits who told us voter turnout was a problem, and our voter turnout went up to 69%.  Our youth voted.  Our First Nations voted.  And we all voted strategically.

We got more that we bargained for.  In our fear of Harper, we threw all our votes at his strongest opponent, and the result is a Liberal majority.

In doing so, we have become victims of the broken first-past-the-post again.  We did not want a majority.  Popular vote for the Liberals was 39.5% — almost exactly the same popular vote that elected Harper in 2011.  We wanted a minority that would force parties to work together, to compromise across party lines.

Past estimates of the effectiveness of strategic voting put the effect at about 5% at most.  But, the effect in this election was far greater.

We started the election a more or less dead heat.  The left vote was split; we needed strategic voting and local polling to figure out who to vote for so we could defeat Harper.  30% of us wanted a Liberal government, another 30% wanted NDP to win.

The popular vote in the final tally put Liberal support at 40%, and NDP at 20%.  The Conservatives attracted 30%:  The same percentage they started the election with.  The Liberals basically took 10% of the votes from the NDP, or about 1/3 of their supporters.  The Green party also dropped by about 1/3, from 5% to 3.5%.

That 10% is the strategic vote.

There’s a trap here.  The strategic vote started to swing as soon as the polls started to show a clear winner.  The infamous niqab debate that cost Mulcair support in Quebec, even temporarily, became a signal that the Liberals were the stronger party.  And the dogpile started.

In an ideal world, all the strategic voters would have been watching local polls, and the strategic voters would have split according to the strength of their local ridings. That didn’t happen, because local polls are expensive and infrequent.

It was much easier to watch poll *projections* on threehundredeight.ca (aka the CBC poll tracker) and other similar sites.  These projections were more accessible and more widely publicized, and thus constituted the most frequent source of poll data for strategic voters, to our detriment.

The problem with projections is that they are derived from national polls, which only report provincial-level variations, not riding-level ones.  Thus, when Mulcair’s support dipped in Quebec, all the Quebec projections started to favour Trudeau, even though this was not uniformly true across the province.  And a Quebec dogpile started.

Once the swing started in Quebec, it started to affect the national polls … which began to affect projections in other provinces.  The whole thing snowballed, leaving only the NDP’s base (mainly urban pockets in B.C., Ontario, and Quebec).

This election validated everything we were told about the power of strategic voting, the power of voter turnout, and the power of the Youth and First Nations votes.  We found our voice.  But, we found it in a immense primal scream, not an articulate oration.

I regret not voting Green.  I regret voting strategically.  I regret the cynicism that I gained in 2011, when I could have sworn that the momentum was against Harper, and I could have sworn that the Youth would show up at the polls.  I was wrong in 2011, and it affected my expectations for this election.  It made me mistrust the anti-Harper rhetoric I was hearing, and trust the polls that gave Harper a legitimate chance of winning the election.

We have a danger now.  The Liberals have promised electoral reform, but they have just benefitted massively from our winner-takes-all first-past-the-post voting system.  I am sure the powers that be within that party are thinking of ways to delay or avoid their promise of electoral reform.

We needed a cooperative minority to ensure electoral reform, a minority in which the lines of power weren’t clearly drawn, where it wasn’t so clear who benefitted from first-past-the-post.

Will the political momentum for reform be as strong when Harper is 18 months in our memories — when Trudeau has promised to introduce legislation?  It will not be.

So, while I will quietly celebrate our new, non-Harper Prime Minister, I only have half of what I wanted in this election.  The other half requires holding Trudeau to his promise of electoral reform.

Time for some horse trading

Dear “next” Prime Ministers of Canada, Messers Mulcair and Trudeau:

It’s time to take action. Mr. Harper has spent the last two weeks taking control of the election campaign by throwing “dead cats” into the debate, and the result has been an ugly, racist media bloodbath about niqabs and terrorism. Both of you talk about avoiding fear-based politics, and this is nothing if not just that. Both of you are failing to prevent this fear-mongering. It’s time to throw your own cat on the table. A live one.

What “live” cat would that be? Strategic voting. Or maybe it’s an elephant in the room, not a cat. Everyone is talking about strategic voting; it’s everywhere in the media, both social and traditional. There are numerous grassroots strategic voting campaigns commissioning their own polls to enable it. Yet, both of you are largely silent on the subject.

This is understandable. You are both in this to win it, and talking about strategic voting injects some doubt into your messages. But let’s face some facts. A majority of voters see your parties as roughly interchangeable. A majority of voters think it’s more important to get rid of Stephen Harper than it is to elect either one of your specific parties. If polls are to be believed this majority is roughly 60%: the number of voters who count Liberal and NDP as their #1 and #2 votes.

So, it’s time for some strategic horse trading. Ali Kashani has identified 16 ridings where the Conservatives have a narrow lead over one of your parties, and the other party is significantly behind. These are all ridings where a Conservative victory is likely unless something changes, and none of them are three-way races. There are 8 Conservative-Liberal races, and 8 Conservative-NDP races. Both of your parties stand to gain 8 seats at the expense of Harper’s Conservatives, and in the process, one of you will likely win a minority government at Harper’s expense.

To gain these seats, you need to endorse strategic voting, and in some small way, each other. You both need to acknowledge that, while you would like your party to be elected, you would rather see each other in opposition than Mr. Harper. And, in doing so, you would need to cooperate to trade these 16 ridings between you. Have the weaker candidate endorse the stronger, and both of your parties will be better off, to say nothing of the citizens of Canada. Mr. Kashani has laid out the details in this Medium article here: https://medium.com/…/there-is-actually-a-way-to-guarantee-h…

If you truly want to derail Harper’s politics of fear, and re-take control of the campaign, I can think of no better way of re-taking control of the debate than by mutually endorsing each other in certain key ridings. Suddenly, instead of talking about niqabs, the conversation will shift to how the NDP and the Liberals have done the unthinkable: They are *cooperating*. They are acknowledging what every progressive voter in the country already knows: Harper is poison for this country.

The media will eat this up. The media has been reporting on strategic voting for nine weeks now. They have been reporting the same story for nine weeks because they know it gets attention. They know people care about this issue. Imagine what that media coverage would look like if you actually gave them something to report on. Imagine how many other voters would reconsider your parties because you are actually giving people what they want to see.

There is no downside here, except that you will both have to eat some pride. So, I’m calling on both of you: Please, just pick up the phone and have a conversation. See what you can work out. You don’t have to make it 16 ridings — your own internal polling is probably far more accurate than any publicly reported numbers. But, those close Conservative battles exist for both your parties. I’m sure you can figure out which ridings deserve cross-party endorsement.

I look forward to a Canada led by one of you as Prime Minister. Please, help each other make it happen. As a voter, I *desperately* want to see the two of you cooperate. I don’t care about your ideologies, or your platforms. I care about electing people who will work with others and make the right decisions. I can’t think of a better way that either of you can demonstrate that than to acknowledge the elephant in the room, and to work together for a better Canada.

All the best,

Devon Cooke
Vancouver South