Whose Is Whose

THE PUBLIC ­DOMAIN: Enclosing the Commons of the ­Mind.

By James Boyle. Yale Univ. Press. 315 pp. $­28.50

Earlier this year it came to light that guerilla artist Shepard Fairey, whose iconic poster helped to define Barack Obama’s presidential cam­paign, based his design on a 2006 photograph by an Associated Press freelancer. The fact that it was well over a year before someone tracked down the source material indicates the extent to which Fairey altered the photographic image. Now the ­AP—­which claims the rights to the ­photo—­is caught up in a legal battle with Fairey, who argues that he didn’t violate copyright law because he dramatically changed and reinterpreted the original work. Whatever the outcome, this incident underscores how the once obscure body of intellectual property law has crept into virtually all areas of contemporary ­life—­sometimes for better, but often for ­worse.

It’s this point that Duke law professor James Boyle hammers home in his remarkable book The Public Domain, the ­long-­awaited ­follow-­up to his deliciously titled study of rights in the information age, Shamans, Software, and Spleens (1996). Today’s restrictive intellectual property laws don’t just make it possible for recording industry executives to sue teenagers who download music from the Internet. They help determine the food we eat (a patent has been granted for making a sealed crustless peanut butter and jelly sandwich), the medicines available to us, and how freely information can spread. Exploring an eclectic range of ­topics—­the book’s index lists Benjamin Franklin directly below actor/singer Jamie ­Foxx—­Boyle makes imaginative connections between environmentalism, the Internet, home video-recording technologies, and open-source software.

Boyle worries that culture and knowledge are increasingly fenced off and privatized, despite the fact that the Constitution articulates a theory of intellectual property law that is much more open than what we have today. In the early 19th century, a copyright lasted 14 years and could be renewed just once. Under legislation passed over the last three decades, a copyright now lasts the life of the author plus 70 years. Furthermore, in 1980 the U.S. Supreme Court ruled that patent law covers living organisms, such as bacteria, paving the way for patents on human DNA sequences. These expansions occurred as intellectual property was becoming an engine of the economy and, not coinci­dentally, as technological advances were making copy production increasingly ­easy.

The intellectually dexterous chapter “I Got a Mashup” underscores what is at stake when copyright extends its reach into previously untouched areas of culture and creativity. Boyle traces a genealogy of rapper Kanye West’s 2005 hit “Gold Digger,” a song that has already been sampled, and which itself quotes from Ray Charles’s 1955 breakthrough hit “I Got a Woman.” That song heavily borrowed from one, perhaps two, earlier gospel songs. This sort of appropriation was common in the mid-1950s, when Charles and other singers such as Sam Cooke scandalized the gospel world by secularizing church ­songs—­inventing soul music along the ­way.

While jazz and soul were able to evolve and thrive ­mid­century, ­hip-­hop, a more recent ­African-­American musical genre, has been stymied by heightened copyright restrictions. Multiplatinum artists such as West can afford to pay $50,000 or even $100,000 for the use of a song snippet that may last only a few seconds. But the dense sonic collages produced in the late 1980s by experimental artists the likes of De La Soul and Public Enemy would be prohibitively expensive to distribute ­today.

Boyle persuasively maintains that we cannot continue to turn a blind eye to the harm that pervasive intellectual property law is doing. “A better intellectual property system certainly will not end world hunger,” or, for that matter, cure AIDS, fight malaria, or save the planet. “But,” he concludes, “overly broad, or vague, or confusing patents could (and I believe have) hurt all of those efforts.” Still, Boyle assures us that there is no need to succumb to doom or gloom. In the final chapters, he docu­ments the ways ordinary citizens have successfully pushed back against the law’s expansionist tendencies—­for example, by attaching generous terms of use to their own ­work­. The future is still up for ­grabs.