The Dialectical Opposition of Creativity and Intellectual Property

This is not the first time that I have launched an attack on how the very concept of "intellectual property" has corrupted not only our language but our very way of thinking, particularly when creativity is involved. Nor is it the first time I have looked for allies who could express themselves in writing far better than I could hope to do. By my records the last time I took on this case I was able to summon forth Karl Kraus, Robert Musil, and C. Wright Mills, hardly the best integrated trio but a good sign of how many sharp minds have contended with this matter in their own respective ways.

Yesterday, as I launched into the first chapter of James Wertsch's Mind as Action, I discovered another ally; and ironically the source was a book of his that I had read some time ago. The book was Anatomy of Criticism by Northrop Frye. I had forgotten that in this book Frye had coined the phrase "copyright age" to express how he felt our view of artistic creativity had been corrupted. This term reflected what Frye called "a tendency, marked from Romantic times on, to think of the individual as ideally prior to his society." His point was that all creativity takes place in a context of established conventions; and the problem with the priority he was considering was that all attention was focused on the individual creator, rather than the contextual influences of prevailing conventions under which creation took place.

Any study of music history that rises above the trivial pursuit of the "genius element" in the "great composers" of the past understands the value of such conventions. They constitute the established practices that Johann Sebastian Bach engaged in his weekly activities of providing music for church services. They provided a foundation of practices behind what is meant to get together to "make jazz," whether as a member of a big band or a more unique voice in a smaller group. We think of the "revolutionary creators" as the one's who broke free from the straitjacket of those conventions; but this disregards the fact that, whether one considers Bach or John Coltrane, those conventions were a point of departure rather than some set of confining boundaries. Furthermore, when one "departed" from one of those points, one often carried along some parts of that point. This is what Paul Ricœur called "appropriation." Bach appropriated much of the sacred music that was already being sung in the congregations of his day and elaborated that music into far more sophisticated settings for both voice and organ. Centuries later Ferruccio Busoni would be developing his own ways to appropriate from Bach. Not too long after that John Coltrane would practice playing along with the opening measures of Béla Bartók's "Concerto for Orchestra," from which his "invention" of "Giant Steps" would eventually emerge.

Under the mentality of the "copyright age," however, appropriation is theft, unless it can be established that the source is in the public domain. This is not the world of creative artists or, for that matter, inventors in domains of science and technology. This is a world of lawyers who harvest financial gain through efforts to ensure that the priority of the individual is rewarded with appropriate compensation.

This is not to argue that those who create should not be compensated. Those involved in creative activities know that it is hard work and have no problem with the premise that anyone engaged in hard work should be compensated for his/her efforts according to the "abilities" that enable those efforts. Hopefully, at least that sliver of Karl Marx' "Critique of the Gotha Program" does not meet with too much opposition! The point, however, is that we insist on compensating on the basis of the products of those efforts, rather than the activities that engage them. To get back on one of my favorite hobby-horses, we can only think of compensation in terms of nouns, rather than in terms of verbs. (Even the "billable hour" is more noun-based than verb-based.) Therefore, in the interest of satisfying our misconceptions about compensation, we invent concepts like "copyright" and "intellectual property;" and then our ruling classes sit around in refined settings (like Davos) and ask among themselves why we are all not being more "innovative!" Until those who basically make the rules for compensation recognize the impact of their misconceptions, it is likely that they shall never get much further than sitting and wondering; and those with the capacity to create will be selected out of the population, either by wasting away or by redirecting their efforts in the interests of survival.