Who owns the jungle?
And what that has to do with our understanding of intellectual property
by Alan MacEachern
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| Terms of Use: Negotiating the Jungle of the Intellectual Commons by Eva Hemmungs Wirtén, University of Toronto Press, 2008, 159 pages. |
Last year, in a fit of self-disgust about a long overdue writing project, I vowed to publish it as a closed wiki online rather than as a book, so that a hypothetical audience could read it as it evolved, for free. I’m a tenured academic, so I don’t strictly need the great prestige or small royalties that comes from publishing with an academic press. And I’m paid by taxpayers, so maybe I have a special obligation to promote open access. But my idea raised questions. Was sending my writing unedited to the world a sign of how important or unimportant I considered the work? Would archives allow me to digitize and exhibit the 19th-century documents they had let me photocopy? Would my work be seen to be of lesser value, by readers as well as colleagues, by virtue of being free? My grand plan froze like Vista.
In Terms of Use, Swedish scholar Eva Hemmungs Wirtén seeks to deepen our understanding of issues surrounding the Internet, digitization and the public domain. These issues are most often discussed today in legal terms, making the public domain “a lawyer-free zone remarkably crowded with lawyers.” The author instead chooses a “stubbornly historical” path, exploring what meanings the public domain and the commons, as well as intellectual property rights and copyright, accrued through time.
But rather than offer a sweeping intellectual history, she narrows her focus to case studies involving the actual jungle – a decision that she admits readers may find “arbitrary if not downright bizarre” – and the British Empire in the Victorian era. This allows her to examine the commons in reference to imperialism and the jungle as a site for the mining of resources. So, there is a chapter on plants (such as the cinchona tree, the source of quinine) and how the science commons model developed in the North exploited the South. Control of biological diversity has swung to the nation state in recent decades, which raises its own problems, such as more restrictions on use of biological resources by indigenous people. There is a chapter on jungle animals, which were broadly conceived of as useless in the wild and having value only if available for visual spectacle, whether in zoos or stuffed. This takes Dr. Hemmungs Wirtén to modern-day museums and art galleries that commit “copyfraud,” claiming copyright when reprinting works that are actually in the public domain, such as Henri Rousseau’s jungle paintings. The final chapter considers the route from Kipling’s The Jungle Books to Disney’s The Jungle Book, and holds up Disney both as an exemplar of the cultural value of appropriating existing works and as the godfather of copyright litigation.
The public domain today, the jungle and imperialism, the history of intellectual property rights – that’s a lot to cover in 159 pages. Imposing the jungle into the book’s fabric causes particular problems. The 19th-century case studies occupy too much text, resulting in abrupt end-of-chapter transitions to the 21st century. Most puzzling of all, the book’s subtitle actually negates one of the book’s central arguments. Whereas Dr. Hemmungs Wirtén seeks to reclaim the jungle as a site used historically for appropriating biological and cultural resources of value, Negotiating the Jungle of the Intellectual Commons simply reinforces the longstanding metaphor of the jungle as a dark and dangerous place that must be slashed through.
Despite these problems, Terms of Use is a book hard not to like. It is written with real brio, and the author’s untiring effort to squeeze more research, more 19th- and 21st-century connections, more analysis onto every page is quite winning. (And there are worse things to be said of a book than that it could have been twice as long.) There are fascinating asides relating to the longstanding peasant right to gleaning (the collecting of stray grain missed during harvest); the Prince of Wales’s 9,000-person hunting party in India in 1876; and the rationing of Disney cartoons by 1970s Swedish television to one hour per year, on Christmas Eve. More centrally, Dr. Hemmungs Wirtén in conclusion makes a compelling case that copyright, originally designed to reward creativity and so spur innovation, is now too often used to hinder innovation. Letting ideas travel in the public domain, on the other hand, allows for their free exchange and particularly encourages the “after-thinking” about existing ideas that is essential in producing new ones. Though it can be difficult to retrace how the book came to that conclusion – is the Victorian jungle, free to all (British), a model for the intellectual commons, then? – Terms of Use is indisputably provocative. Like the commons itself, it lends itself to after-thinking.
Terms of Use: Negotiating the Jungle of the Intellectual Commons
by Eva Hemmungs Wirtén, University of Toronto Press, 2008, 159 pages.
