“The Empire of IP”: How Did We Get Here? (talking history of copyright with David Bellos and Alexandre Montagu)

You are listening to Policy Prompt from the Centre for International Governance Innovation. I'm Vass Bednar.

I'm Paul Samson.

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Paul, I have a weird question, I'm asking for a friend. Do you own the rights to your face?

Vass, hey, that's a very suitable question for 2025. I think I own the rights to my face, but I definitely don't control them. There are copies out there from airport visits in China, and the US, and elsewhere. And there's my phone, like every 30 seconds. How can I take full ownership of this? Is there a way?

I have no idea. I'm totally the wrong person to ask. But my best understanding is that copyright is only valid for manmade or person-made creative ventures. Initially, copyright was at least in theory designed to protect creators, but it's really evolved from then. In this age of TikTok, which I know you're always secretly scrolling on your phone, memes, and remixes-

Damn, I'm outed.

It feels like sharing, and borrowing, and sampling is actually how creativity thrives. Maybe we're all infringing just a little bit on copyright for funsies. Now copyright has to at least try to adapt to everything. Streaming, TikTok, even NFTs. It's messy.

Yeah, I know. That's a lot to think about. Well, we got the perfect guests today to talk about this. Today we're speaking with the authors of Who Owns This Sentence? A History of Copyrights and Wrongs. David Bellos and Alexandre Montagu are joining us. Their book looks at the evolution of different forms of royal and other kinds of privileges and traditions, protections that have led us to this state of copyright today. Their narrative goes way back to the Ancient Greeks and the Romans, and the invention of printing in China, French and American revolutions, literary battles in London amongst heavyweights like Dickens. And then ultimately to today, in generative AI.

It's such a fun and spirited read. These guys are an incredible tag-team. David's a British academic, translator, and biographer. He's a professor of French, and Italian, and comparative literature, and the director of the program in translation and intercultural communication at Princeton. Alexandre is a lawyer, and he teaches a course in the comparative literature department as an adjunct professor at Princeton University. They have so much context and history to how we do or don't protect creative work and who actually benefits.

Yeah, it's awesome. David and Alexandre, welcome warmly to Policy Prompt.

Thank you.

Glad to be here.

Copyright is a tricky topic to dive right into. Not for the both of you, but maybe for a listener. It's narrow, it's got tons of context. Could you say just a little bit about that history of copyright? I'm thinking of the Roman scrolls and stories that belonged to the owner of the scroll and not the author. And later, people trying to copy the grand masters in art, and that was actually the tradition. What was happening? Forgery was not always illegal. Maybe we can go back in time together.

Well, the story as we tell is a story of the conventions and habits over a very long period of time, during which creators were certainly recognized and certainly had some rights over their creation, but these weren't commercial rights. These weren't very commercial societies, after all. But there were clear codes of conduct as to what it was proper and not proper to do with the work of others or work attributed to others. But what it was proper to do, for many hundreds if not thousands of years, was to imitate them. This was, as you were saying, how to be one of the higher forms of art was to emulate great models. But it was fraught from the time of the Greeks, and certainly the Romans onwards, with an anxiety about improper copying, about taking the laurels of others for your own.

The idea of a plagiary, of a seizing of the work of another and making your own glory out of it was always on the verge of something dishonorable or reprehensible. One of my fundamental points that needs to be made, that we make in the book, and that nobody ever listens to is that plagiarism is not a product of copyright laws, not remotely. Copyright laws have nothing to do with plagiarism. The 100 and whatever it is clauses of the US Title 17 don't mention the word plagiarism once, and nor do the European copyright laws. Contemporary cases where people think plagiarism is an infringement of copyright have somehow adapted the law to their own mental fantasies about what is theirs and what is not.

That's the big reason why we feel that, to understand what's happened to copyright, how it's understood and practiced today, you need to know this longer historical story. And to realize just how recent some of our current anxieties and litigations are about, how recent those things are about.

Yeah, the history is so deep here. The book, again, Who Owns This Sentence?, is doing really well. We will have links to it in the podcast show notes, of course. We'll get to some of the legal issues as we go through the discussion here.

The history is so rich in this book that I wanted to point to another analogy, which I thought was really interesting about the movement of commons and more collective goods to those that are more privatized and controlled in few hands. You spoke of the analogy between the land enclosures movement in England over a couple of centuries, which gradually moved this common land that had shared rights and access into land that was mostly fully under private control.

Could you describe a couple of the other evolutions around this change in mentality a little bit away from more commons to more privatization?

Well, the comparison between what's happened to copyrights in recent years in the US and the enclosures in the United Kingdom in the 17th and 18th Centuries isn't something that we came up with. It is a common, actually trope really, in the critique of copyright. It's based on the following fundamental historical intellectual thing.

When it was first invented, copyright in the law of the Statute of Ann of 1710, actually de-privatized vast amounts of literary culture, of printed books since it established authors' rights over printed books for a very limited period of time, which effectively made books of any age, of more than 14 or 28 years old, common property. What has happened over the last 250 years or so is that what began as a movement to create a large public space has become a tool for privatizing everything. The story we tell essentially is how that turnaround happened. That copyright today effectively means the opposite of what it was designed as in the course of the 18th Century.

The idea that this is really a repetition of the great land enclosures is something that people have been grumbling about for some time. And indeed, calling copyright the new enclosure is something that you can attribute to Lawrence Lessig, for example, or many other scholars have pointed out. It's a striking parallel and just very obvious that that's what's been going on.

Right. But yet, a long time ago, and not really at top of mind for people, so they need to be reminded of these histories.

Just to add to what David said. As David was saying that initially copyright was a very short timeframe. It was only 14 years, and renewable for another 14 years in the 18th Century, and it was limited to books. That gradually has extended out in time, so that today it's the term of protection is life of author plus 70 years. The timeframe has expanded, but also the subject matter has expanded a great deal. Not just under copyright, but in terms of its sister rights that we describe also in the book, which are are rights of publicity you talked about at the beginning of this, about how to protect your face, and various other things. Voice, designs, all kinds of things. Computer code being one of the major ones also falling under that.

This expansion of something that was intended to really limit private control of intellectual works is being used as a tool to expand private control of the products of the mind. At the same time, why this is so important is that in the 18th Century, land was still the predominant economic engine of economic activity. Land and the cultivation of land. It was only industry really took off at the end of the 18th Century. Well today, that's not the case. Today it's products of the mind, intellectual property is the most valuable property. This is why this has become so important. We discuss this in the book.

Yeah.

The intangibles' economy is utterly dominating.

Exactly.

Policy Prompt is produced by the Centre for International Governance Innovation. CIGI is a nonpartisan think tank based in Waterloo, Canada, with an international network of fellows, experts, and contributors. CIGI tackles the governance challenges and opportunities of data and digital technologies, including AI, and their impact on the economy, security, democracy, and ultimately our societies. Learn more at cigionline.org.

There's so many historical things. Vass, do you want to jump in? We're going to bounce a little bit -

Yeah.

... between going back in history and current things. But, Vass, I don't know, did you want to jump in with something here?

Kind of. I wanted to stay on Alex for a second and ask a follow-up question, because we've fast-forwarded to today, as you were just saying. There's this fascinating legal battle I was reading about in The New Yorker that's emerged, involving claims that a bestselling romantasy novelist may have appropriated another writer's story. For me, the case exemplifies the modern complexities of copyright, with genres that often share common tropes and themes. Could you maybe break down and contextualize some of that controversy for us? Why would another author think that they've been infringed upon here?

Well, I suspect from what I've read about this that there's some similarity between the two works. And also, that they shared the same literary agent. I can talk about the legal standard that applies here, and then I think we can have a bigger discussion as to what's actually happening.

Yeah, sure.

What is actually happening, the bigger picture.

The legal standard here is relatively straightforward, which is that to prove copyright infringement, you have to show two things. You have to show access. The second person had access to the first work.

Okay.

And there's substantial similarity. Substantial similarity, substantial similarity of expression because copyright protects expression only, it doesn't protect facts.

This is a very crucial point in this case, and actually in all copyright cases. The seminal case on this is a case in the US called Feist Publications, where the Supreme Court decided that a phone directory that was an exact copy of another phone directory was not a copyright infringement. Because the phone directory consists of facts and figures, and things like that-

Yeah.

... and people's information, so that was not copyrightable. It's not protectable expression.

Applying that standard to this particular case, we have two books. One was in manuscript form, the first one. It was never published. The second one was published and became very successful. The first author claims that the second author had access to her manuscript because they shared the same literary agent, and that there is substantial similarities between the two.

I think that the difficulty that the claimant, the plaintiff, is going to have is that proving substantial similarity in the context of two books is very, very difficult because copyright protects expression. Unless the second author has actually lifted the expression of the work, meaning actual sentences or paragraphs, then it's going to be very hard to prove copyright infringement.

Just taking ideas, the fact that the setting of the book is in Alaska in both cases. I haven't read the manuscript, I haven't read the book, so there's no way that I can be certain.

It's okay. If you have, you could admit it. It's a safe place. I haven't either. I'm not a big romantasy reader.

I haven't. But from past cases like this, I can say ... There was a very similar case against the Da Vinci Code.

That's right.

When Dan Brown-

Yeah.

... published the Da Vinci Code, there was another book that was published before that had similar ideas, these ideas that were very unique. That Christ had married Mary Magdalen and had a child, and that this was the secret that the Templars were protecting on the Mount of Solomon, and it was passed down. These were common to both books, so the authors of the first book brought a lawsuit claiming that Dan Brown and his publishers had infringed the copyright. The answer was no, he hadn't, because he really hadn't lifted any of the expression of the original book. Okay, so that's that.

The bigger issue here is what is actually happening in this industry. Why was the first author unable to publish her book?

Yeah.

Why was the second one so successful? I think that maybe there's another, from a legal avenue also, that the agent had access. Did the agent disclose that manuscript to the second author? We don't know any of these, we don't have the answer to these questions. Maybe is there a claim for a breach of trust or fraud, or something? I don't know what that is.

But stepping back and looking at this publishing industry and how it works, and David know a lot more than I do about this, but it's gone along the same way of this concentration of wealth and power in a few private hands. Which is the story that we tell in the book as to how copyright has become one of the primary engines in this concentration of wealth and power in a few hands. If you look at the publishing industry, a few publishing companies are now dominant.

You write this in the book. I have a quote, just if I could jump in and read to you from your own book, because it's so perfect. You say that, "The empire of IP is the futile domain of our day." And the handful of corporations that you mention that, "Now control most intellectual property of substance strut the world's stage as the new barons of the 21st Century. Today, six of the largest corporations in the world, Apple, Microsoft, Alphabet, Amazon, Meta, and Disney, each having a larger capital valuation than the gross domestic product of many of the world's nations are almost entirely constituted by their ownership and control of copyright material."

Speaker 6:

CEOs like Apple's Tim Cook know that patents are critical.

Tim Cook:

For us, our intellectual property is so important to your company.

Speaker 6:

This is clearly the case, because Apple has nearly 100,000 patents globally that belong to close to 35,000 unique patent families, which roughly equates to around 35,000 unique inventions they have covered.

Particularly in the form of content, films and songs for Disney and Amazon, partly in design of registrations and patents, Apple and Microsoft, and mostly in computer software, Alphabet and Meta. It's fascinating. How did we get here?

May I just add that, in terms of this case that we're talking about.

Yeah.

How does this apply really to what's happening in this case? Well, one of them was published and the other one wasn't.

Yeah.

Readers didn't get to read the first one. It may have been a very good book. In this environment that we have, she wasn't able to get published. The other one was published and became a bestseller, and was a winner-take-all. Winner-take-all for that, but also primarily for the publisher. It's the mechanics of money that are dictating what art here, in this case writing, literature. This is spilling over into everything that we're doing. It's spilling over into the art market. Everything that we're doing is getting privatized in a few hands, that are then making these important decisions that affect all of us. Then these are the symptoms, these types of lawsuits. That you think, "Why would one author bring a lawsuit against another one?"

Yes. Yes, they're symptoms of something that is out of order. Maybe that's pathological symptoms because it was foreseen long ago that this would happen. The great French Mathematician Condorcet wrote in the 18th Century he was opposed to intellectual property laws of any kind. He said, "They will not create support for geniuses. They will not support the public good. What they will do is to subsidize hacks who dress up conventional ideas in pretty language and provide rents for the middlemen who publish frivolities." That's 300 years ago, spot on. That's exactly what we're seeing now.

Yeah.

The dispute over the romantasy novel, it also harks back to Mark Twain over a century ago, when he came to the defense of Helen Keller, the deaf and blind author, her stories. Mark Twain said, "The kernel, the soul, let us go further and say the substance, the bulk, the actual invaluable material of all human utterances is plagiarism."

Sure, these two novels are very obviously like each other, but they're meant to be. They're part of a genre fiction. They're exploiting a particular combination of tropes and topics. I would say that just as it is true that there really is nothing new under the sun, or in romantasy fiction, there seems to be nothing really new in the case against the publisher entangled. That's to say it's the kind of case you could have imagined happening any time. Except this. It involves the copying of an unpublished work. Copyright originally protected printed books. Unpublished manuscripts only came under protection in some countries with the Berne Convention of 1886. That's a convention that the United States didn't sign until 1989. It's really, from the American point of view, an extremely modern, contemporary case.

And it's just another example of how this creep of copyright forwards into ever, ever expanding domains results in, well, what I think is a case of no cultural importance whatsoever. But I'm sure there are many kinds are more proper involved. Since the published book has made lots of money, we go back to the old adage from the music industry, "Where there's a hit, there's a writ."

Robin Thicke and Pharrell Williams paid $7 million after courts said their hit Blurred Lines copied the feel of Marvin Gaye's Got to Give It Up.

Speaker 7:

It was a controversial verdict, one that I feel was incorrect. It really basically let people believe that a vibe or a feel was protectable.

Let's talk about that creep a little bit more. One thing that you said, Alex, as well was the facts and figures and things coming into play. I guess the US Copyright Act of 1976 allowed for computer software and things like that to ultimately be included in copyright. Now we've got a much wider lens than historically we had, and it's increasingly driven by the way that global trade has evolved as well. Now what is outside of copyright? What hasn't been included? You talk about ambiguous and gray spaces, and things. How many things remain very gray, or have we largely started to pull everything into the copyright space in one way or another?

Maths, facts, and the truth so far lies outside of copyright, but that's about it. Well, government edicts, maps and charts, one or two things like that. But basically, the most important and absolutely fundamental and paradoxical exception is mathematics.

Yeah.

That has never been included, and yet it is one of the most creative uses of the brain that is possible. Absolutely fundamental that mathematics is not the subject of any property rights. I think that undermines, contradicts deeply most of the pseudo-intellectual defenses of copyright law that you will hear. Namely, that it spurs creativity. Well, mathematicians don't need it, and they have been the most fundamentally creative of all workers of the mind these past few centuries.

The law, in the sense of rulings, judgements, the laws themselves, litigation and so forth, that is also outside the domain of copyright. That took some time to establish.

What else, Alex, is outside of copyright, truly outside of copyright?

Well, you started with your face. Your face is not protected by copyright. Your voice is not protected by copyright. There are other domains, there are other laws depending on the jurisdiction, the country you're in. For example, there's the right of publicity that comes in to protect the commercial value of your face and your voice in various states in the US. There are certain privacy laws, primarily in Europe, that protect your face from being used by others, or your name, or your voice without consent. There are these additional areas that are not necessarily within copyright, but they're there.

Right. Is that exact face or likeness? That's that. How do they distinguish? Sorry, just finish what you were saying, but I'd like to know that.

Well, it depends on where you are and it depends on the situation. For example, there was a case against Los Angeles Magazine that had published a photo of Dustin Hoffman in a dress. In the '90s, this case was in the '90s. He had appeared in this film Tootsie in a dress, but the dress that he was featured in in Los Angeles Magazine was not the dress in Tootsie. The question was was that an infringement of his right of publicity? California is a big right of publicity case because it's the Centre of Hollywood. This is a commercial right. This is a commercial right.

The question was whether Los Angeles Magazine had infringed, and actually the court found yes, that there was an infringement and awarded Dustin Hoffman, I think it was $6 million at the time. Then it was reversed on appeal saying that actually, no, it was fair use.

But this brings me to I think a more fundamental point that we try to make in the book. Which is that the goal posts of the debate on this issue are too narrow.

Yeah.

The goal posts of the debate do not consider what is best for the public interest, what is best for our society at large.

I'll give you an example. Right now, there is a big debate, there's a fierce debate and lawsuit, and potential legislation all over the world, around whether machine learning devices are allowed to use peoples' voice, or copyrighted text, or images to train these machine learning algorithms that are the basis of all artificial intelligence.

The large language models in particular, and the generative AI, yeah.

Speaker 8:

The cases are from authors, news outlets, visual artists, musicians, and other copyright owners. They accuse Open AI, Anthropic, Meta platforms and other technology companies of using their work to train chatbots and other AI-based content generators without permission or payment.

Should these machine learning models be allowed to do that or not? It's being analyzed in the context of copyright law. The debate, the goal posts of the debate are is it a copyright infringement or isn't it?

Right.

In the US, the question is is it a fair use or not? The question hasn't been decided yet. In Europe and in the UK, there was an effort to legislate on this, to provide an actual exception to the copyright laws, to explicitly allow this. They said that there was an outcry from the creative industries and that bill was pulled. The status is unknown at the moment.

The debate here is between ones that have large companies, the content companies that own the copyright to all of these things. Getty Images is the plaintiff is one of these lawsuits. Against the AI companies, they're either big technology companies or they're big VC-funded private equity type things, like the defendant in the case that Getty Images has brought, Stability AI. The plaintiffs are arguing that this is a copyright infringement, that the law should not be amended, and the defendants are arguing that, "No, no, no, in fact it's a fair use." Okay.

Well, what do we want as a society?

Yeah.

Where are we going? The problem with this is that we are in a society where everything is commodified and measured from a perspective of commerce and economics. We started this discussion with the ancient times, where that wasn't necessarily the case. There have been societies before where the products of the mind have not been tied solely to money and commerce. In Ancient Greece for example, if you copied someone else's work, it wasn't a commercial claim. That the plaintiff wouldn't even think about a commercial claim. It would be the wrong thing to do. It was more analyzed from a perspective of, "This is against morals." It was a moral claim.

Today there is no such thing. The public comments has been what is best for ... We'll say for example in the Stability AI case, the plaintiff argues that this damages the individual creator.

Right.

But if we step back, Getty Images is not an individual creator. You see what I mean? Why is Getty Images bringing this lawsuit? Is it bringing it to protect the honor of an individual creator? No. That's one side.

The other side is why should these large technology companies be allowed to use all of this material for free in order to create basically a digital fiefdom that's bigger than any? Imagine what these AI companies will own.

Yeah.

Yeah. That's what I would like to add to this. That, as you say, the goal posts are too narrow.

Sure.

And the disputes over generative AI large language models is the wrong problem. It's just a way of dividing up the spoils between these big giant companies. What is not being talked about enough, maybe because it's hard to imagine, but what is the status of a text, video, movie, et cetera, produced by AI? Because the laws we have, however abused and transformed, still fundamentally and definitionally are about writers and inventors. They're about persons and only a person can own a copyright, except when he's a company.

Now the product of an AI algorithm or device has been created by no person, and no person has sold those rights to a company. To whom does the right of that text or image belong? There is no answer to that question at the moment. Or rather, there is an awkward answer, which is that the copyright office will register for copyright anything that somebody sends in and registers for copyright. There is no check up procedure as to whether that person actually wrote it.

They just say they did. Right?

That's right.

Yeah.

That's all you have to do.

What?

You have to claim your right in it. We are about to be inundated with a vast amount of material that should not be copyrighted, but which will in effect belong to the owners of the algorithm in practice. We're going to be awash in a tsunami of muddle over what is and what is not copyright material. That is what may bring the entire copyright regime to its knees because we won't know how to operate it. Nobody's talking about that, except me.

The book spoke about the other areas that remain outside of clear copyright rules right now, even today. Sorry that I'm always bringing it to digital. Is YouTube one of these spaces, and how? I was also thinking about memes. Memes borrow everything, images, text, audio, or viral dances on TikTok. Do people try to own those? Should they? Do you think memes are proof that copyright is out of sync with how and what people share and create in the digital age?

I was also thinking about reaction videos. It seems like none of us are big in the romantasy sector. But I do notice more and more people showing copyrighted pieces of culture or listening to full songs, and showing their reaction in realtime and chatting about it. That format seems to have built a strange empire, or an entire business off just watching and commenting on other peoples' work in a way that appropriates it.

I guess the question I'm getting at is, is this transformative to just fall under fair use or just another clever loophole?

I know nothing about this area.

That's okay.

There are some areas of modern and contemporary life that are, either by design or by accident, outside the regular functioning on intellectual property laws. There is the free software movement. There is creative commons. There's Wikipedia, for heaven's sake. This huge adventure used by billions around the world is issued under a creative commons license, which involves no financial transactions whatsoever. And there's YouTube.

YouTube is the product of a deal between the owners of the platform and the owners of a very large media company that sued them for infringing copyright, which YouTube most certainly does. Most certainly allows its users to post copyright material without requesting permission or going through the routines that are required to reuse copyright material. The deal is that, if you register your ownership of this or that clip, or movie, or whatever with YouTube, you can get a share of the revenue from the advertising that the display of your content generates. It's totally corrupt. But it works, everybody's happy.

If you don't want them to display your material, the law allows you to write what's called a take-down notice. You have to prove your rights to issue the take-down notice, but you can do it. It's laborious and time keep. Of course, if you're a big corporation that owns a whole load of intellectual property, like lots of movies or songs, you can employ lawyers and tech people who keep a 24-hour watch on the whole blasted web to spot illicit uses of your material, and send automatic take-down notices. But if you're just me or Alex, and somebody reads out three chapters from Who Owns This Sentence?, and makes a little video with, I don't know, dancing girls in the background, are we going to notice? Probably not.

Vass almost did that earlier. She read out ... I think she was dancing as well actually, when she read it, the paragraph.

No.

Anyway, just to make the point that is actually virtually impossible for a mere individual to police the internet and to actually exercise your rights to have these things taken down.

Yes. Just to go back to your question, because people have these questions. One thing, since I practice in this area, is that you cannot ask general questions about the outcome of a particular situation. Fair use is very, very fact-specific, so you have to have the exact facts laid out before you can even venture to offer an opinion. Whether this particular meme, this particular image as used on this platform constitutes copyright infringement or is it protected by fair use, which law applies. You can't generalize these things. It's a very fact-specific question, and the outcomes are-

Imponderable.

Larry Lessig said that, "Fair use is simply the right to hire a lawyer," or something like that.

Well, I would point out as well, and I know, Alex, it's a bit embarrassing for you, but lawyers come very expensive. Very few individuals have the means to use the law to defend their personal intellectual property. The cost of simply going to court, let alone winning in court, is crushing, even to a publishing house. That's not the fault of copyright, but of the [inaudible 00:41:05] that has been created in America, and in many other countries. But it does mean that the law does not really protect individual intellectual property, only the intellectual property of institutions with plenty of financial muscle and a real purpose in fighting a case.

Is that by design or did that just happen? It's a subject that is not part of our book, but it also comes down to the fact that we are living increasingly in a system that is privatizing wealth and power in a few hands. If the justice system is only accessible by a handful of people, where does that leave everybody else?

One of the things that I was looking for in the book was getting to that evolution of copyright being part of a global regime or being a global regime itself. I liked the part where global trade comes into the story. As markets opened up, there was obviously need to clarify rules around copyright, even in the early days. Then you talk a lot about translation, which was interesting. But it really happened when world trade started to be more formalized through the World Trade Organization, in particular what followed GAT. That agreement known as TRIPS, which probably only 1% of the population knows what that acronym stands for, trade-related aspects of intellectual property rights. All countries to the WTO actually signed it, right? That brought it very much into a global framework. China's in there.

Can you talk a little bit about how that's played out? Has that really reinforced the whole copyright regime? Are there dissenters that are breaking off from this regime? That question of where it's going.

Well, the Marrakesh Treaty, TRIPS, which is late 1990s. I was already living in America by the time TRIPS was signed, it's that recent. Yes, it does mark, I don't know about a fundamental change, but the absolute ultimate victory of the movement towards the privatization of everything. Because as you say, for a territory or state to be admitted to the WTO, the World Trade Organization, it has to sign up to the Berne Convention, now known as WIPO, the World Intellectual Property Organization.

Right.

The Berne Convention, the Berne Union sets minimum standards to which you have to ... There are lots of variations between copyright regimes in different countries, but they have to meet a minimum standard. That's what Berne does.

Yeah, there are only maybe at the most 20 states or territories that are not signatories, and they're mostly, with two exceptions, really very small places. The large exceptions are Iraq and Iran, both of which have significant literary traditions and cultural industries. The others that are not signatory are small island states and things that aren't quite states, like Palestine, and so forth.

Right.

It is a global regime now. It is extraordinary how things both change and stay the same. For 200 years, the United States dragged its feet, stayed outside of international arrangements. For a century and more, wouldn't even recognize the possibility of a non-American holding a copyright. Little by little, by the scruff of its neck, it was dragged and drawn into sharing at least some of the basic principles of copyright with Western European countries where it all began.

Then suddenly, it turns around completely. Suddenly in the 1970s, America realizes there's a load of money to be made. America becomes the promoter of longer, stronger, deeper, more expansive copyright from the 1970s through to the 1990s, through the technological changes from video cassettes to sound recording and CDs, et cetera. With at each stage, panic reactions strengthening the protections of the rights holders in these new media. Then, bang, it succeeds only a few years after joining the Berne Convention itself, in forcing the entire world to join the Berne Convention. It's an extraordinary story. I don't know whether we've told it as dramatically as we should have.

Nobody noticed in the United States that what was going on between the 1970s and the 1990s was basically a takeover of the world economy.

Could I just say that, in a way now, it's back to the future again because, in the age of protectionism, where global trade rules are broken down to some degree, and maybe very, very explicitly, is this going to be an area that is vulnerable as well? I don't know where that's going, but certainly everything is vulnerable at the moment in the global trade wars that are brewing right now.

The US, as David said, was very resistant to this concept of international copyright. And insisted, until quite recently, on copyright registration and a copyright notice, the C in the circle, those were mandatory. They were prerequisites for copyright protection in the US. Effectively, most foreign copyrights didn't have that, they would never be able to be enforced in the US. The Berne Convention does away with all those those things as a precondition. So basically, the Berne Convention is a convention that requires you to eliminate all of these barriers to the enforceability of international copyrights.

The US agreed to that in 1989, and dropped these two very important barriers to the enforceability of international copyright, registration and notice, in 1989. Then on the heels of that, as David just said, were the TRIPS agreement and the GAT, where Berne became mandatory. In that way, we eliminated all these barriers, and now it's very seamless. If you have a copyright, copyright comes into being without notice, on creation without any registration, without notice. You can basically enforce it anywhere in any country that's a member of the Berne Convention.

That's why this romantasy case now arises because copyright now arises on creation.

Yeah.

Whereas up until the 1980s, it arose on registration. It really is, for America, it's a very new kind of case.

The question you were asking is are we going to go back now that there is talks of trade disputes and tariffs. Are countries going to go back and start putting up barriers towards the enforceability of intellectual property rights? I don't know. I don't see that right now. I don't see that because it seems that we've gone more and more in the direction of enforcement. The US was a country that was more a consumer of intellectual property in the 19th Century, which is why it didn't want to give effect to others' intellectual property rights, as Dickens complained that is books were not protected. Because intellectual property really does increase the costs of whatever is protected. Whether it's pharmaceuticals protected by patents, whether it's books protected by copyright.

Or [inaudible 00:50:20].

Yeah.

The US was a consumer but [inaudible 00:50:22]. The US was a consumer, so then the US gradually became the biggest exporter of intellectual property. Think about music, videos, video games, all of these things are the basis of the protection is intellectual property. Even the design of the iPhone, all of these things are intellectual property. The US became an exporter rather than the biggest consumer of IP, which was books basically in the 19th Century. Suddenly, the US ... It then turned, so it would not be to the US' interest to put up barriers for this type of thing.

Right. They're the dominant player now, and it doesn't appear to be in the Trump 2.0 playbook so far.

No. China took the place of the US as a consumer of intellectual property. But now, interestingly, China is also changing and becoming an exporter of intellectual property. The question is what is their position going to be? For many years, as you might know, China was accused of counterfeiting and ripping of intellectual property, and not providing sufficient protection for others' intellectual property. The question is now which direction are they going to go now that they are so dominant in so many technologies that are potentially protected by intellectual property.

I'd just have to add here though that, for middle countries let's say, like Canada or perhaps even the UK, Japan, and others, they have to position this themselves in this IP space and they're not very successful right now, comparatively to the US dominance and China's emergence.

Well, if you think about it, the economies, it's the size of the economies. I don't have the exact figures, but the US is what, 23 trillion, and China is catching up at 19 trillion. But the UK and Canada are far, far behind that.

Yeah.

The EU together is also ... We're really talking about these three blocks economically that are going to be ...

India's emerging. India's emerging quickly, but still much smaller. Yeah, yeah.

Still far behind. And India is interestingly a country that talks about intellectual property, and there are all these laws because it is a former British colony, so its inherited all of those laws from England.

Yeah.

But in fact, there's not much by way of enforcement. Enforcement is a very difficult thing. Just to give you an idea, that a lawsuit in India, the average time of a lawsuit in India is around nine years.

Wow.

Enforcement is a very difficult thing in that particular country.

Well, let me be a little bit more optimistic.

Yeah.

Perhaps fantastically. But I do think that in a number of countries, there is growing dissatisfaction with the sheer length of copyright protection.

Yeah.

For actually rather material and not very noble reasons, which is that writers and creators sign contracts at the beginnings of their careers that attribute copyright for long after their grandchildren's deaths. But 15 or 20 years later, they become much more famous and regret bitterly the copyright deal they signed when they were 23. It's arisen in Spain, it's arisen in Italy. I think it might begin to arise here. There is a deep injustice in standard boilerplate contracts for IP which attribute the copyright to the publisher or the studio for the duration of copyright. That that should be limited, those kinds of deals should be limited to say 15 or 25 years, when they can be reviewed. In 98, 99.5% of cases in 25 years, nobody's interested whatsoever in renewing the license. But in those exceptional cases where a writer, an author, a creator, a painter has taken off, then there is a good case for reviewing and returning the rights to the creator.

That might be just the beginning of how you could chip away at the over-weaning and over-dominant impact of today's copyright laws on the entire world of creation, from computer software to banana costumes and everything in between.

Banana costumes.

Yeah. Yeah, there was a court case that decided a banana costume was an example of human creativity and was entitled to copyright protection. You couldn't rip it off or just copy it.

Okay, that's good to know, especially around Halloween. I want to jump in with more of a rapid fire question, really. You have some interesting phrases in the book. Of course, one of them is in the subtitle. I wanted to ask what is a copyright wrong? You also talk about copyright creep and copyright prison, and I thought these could be three concepts for our listeners that they can really grab onto as they think about the evolution of this.

Alex, do you want to answer on copyright creep?

Yes. Copyright creep is basically how copyright has subsumed ... If you recall, we said that it began as a protection-

Yeah.

... of a limited time for books only. Then gradually, that was extended. First it went to sculpture and paintings, and then eventually to all sorts of things. Choreography and computer code being the last one. Even bits of computer code, APIs, the Supreme Court had occasion to visit that to see if it's copyrightable. They decided that they're not going to decide that question.

Wow.

Whether APIs are copyrightable. We've gone from books and copying, to APIs. That's copyright creep, and in a sense subject matter creep.

Well, I'd say we call it creep because at no point in all of this history over 300 years did anybody stop to say, "Well, what is copyright and what should it cover?" Each of these stages, it's a creep because it went by dodgy analogical arguments from one thing to the next little thing, to the next. See what I mean?

Often, protecting one new little thing turned out to be immensely meaningful. The big example of that is that protecting punched paper tape pianola rolls for the sake of the music publishers when the old honky-tonk pianola was a hot thing in New York restaurants. That, the outturn of that is a protection of computer code by analogy, because early computers had the data fed into them by a punched paper tape. It's creep because one thing leads to another, to another, to another without, at any point, an overall revision of what is copyright for.

Speaker 9:

This face! Naruto, the adorable monkey that took these selfies and sparked a legal battle over who owns the pictures. As ABC7 News Reporter Jonathan Bloom explains, today the court made its decision that animals can have rights, just not copyrights.

Audio:

Monkey see, monkey sue will not do in Federal Court.

The oral arguments were straight up bananas.

Is there a similar holding by the Supreme Court that man and monkey are the same?

No, your honor.

What's wrong with that is that, as we said, the debate is too limited. Because this has started to effect everyone and everything, but we don't realize it, but in fact, who is making these decisions? Who is deciding what is protected and what's not protected?

Right now, who is going to decide whether these AI companies are going to be able to use text, and data, and images in order to create their AI models? That's a big decision. Whose going to decide that? Are we, as a public, going to have any input in this? Chances are, we won't. We don't even understand it.

That's part of the problem, yeah.

Do you know what I mean? We don't understand what is at issue, what is at stake. Both, on the one side already that the media companies have amassed all of this power, but also that the AI companies could amass even greater power.

Yeah.

This just seems to be happening through this creep, this process of creep. It just seems like this creep is natural, it's inevitable. It isn't. It's manmade. It's just happening because there's no discussion about it. Or the discussion is framed in such an arcane way that people just glaze over it. They think, "Oh, this is something that I don't really understand."

Hey, if you're busy getting a new banana costume or revising your Taylor Swift albums, it's hard to pay attention to. That's just a fact.

Yeah. I thought you might use ... You used creep as a verb, but I thought you might have been talking about copyright creeps as nouns possibly as well.

Quite possibly.

That's a subtext here.

Sorry, may I say this?

Yeah.

That there's a big cost of living crisis right now going on everywhere in the west. One thing that is not discussed at all here is the role of intellectual property in the prices of things that are going up. Prescription drugs are all intellectual property. Think about it. If there was no copyright protection, think about all of these big Microsoft Word-

Yeah.

Apple.

Yeah, yeah.

Everything.

Absolutely.

Everything we're using. Think about how much is this more expensive? If there was no intellectual property, people could freely copy and make the stuff.

Yeah.

Wouldn't that reduce the price? Well, surely it would.

Yeah, it absolutely would.

Of course.

Yeah.

Copyright prison you asked about as well.

Yeah, okay.

Yeah. I don't want to go there.

We are all already there.

No!

It's a much narrower thing. It's this. Copyright prison arises simply because copyright lasts for a century or even a century-and-a-quarter. Over that period of time, of course the original copyright owner not to mention the creator dies or goes out of business. The rights to whatever it is get inherited by a niece or a great-nephew who gets divorced and moves abroad. Finding out who is the copyright owner or who is the owner of the copyright of some earlier work, written or created 50 or 70 years ago, is an incredibly difficult task for a very large number of works, those that have not stayed in print. Say you really want to reprint a wonderful treasure of American literature that appeared in the 1930s. Well, you can if you get permission from the copyright owner. But you can't, because you can't find him or her.

Yeah.

You might say, well, you've done your best, I'll go ahead. Well, no publisher will dare to do that because their liability insurance requires them to actually obtain permission, otherwise they're not covered for any case that might arise. The bulk of 20th Century culture is unusable and people don't realize this. There will be no new additions of most books published between 1900 and 2000, full stop. You may think I'm exaggerating, but I really am not. Much of modern culture is locked in copyright prison. They call it orphan works.

Yeah.

But we prefer to call it prison.

Donald Duck and other characters are there in the prison with us, in some ways. Is there those-

Well, they've just come out of it because-

Congrats.

... corporate copyright lasts 95 years from first publication. The original shape of Mickey Mouse came out of copyright first of January last year. The others, Donald Duck and so forth, will come into the public domain [inaudible 01:04:15]. But don't worry, Disney Corporation has got another way of keeping you in prison, which is to trademark the images.

Exactly, because trademarks go on-

Right.

... as long as its being used. There's no time limits on trademarks. Mickey Mouse and Donald Duck are not just protected by copyright, but they're also protected by trademark. As David said, that protection will continue. That prison will continue.

Really enjoyed this conversation. One last question, if I might, because we're running up against the end here. You both talked about AI potentially being the big thing that will make or break the current regime. It makes me think of when the Gutenberg press came along, or these watershed moments. The technology is moving so quickly, and I'm sure you're following it too and wondering, "What's the latest thing?" Now there's these large language models that are now in parallel, there are things called world models that are being developed that is very new in the last few months. Take a look at it. These are real world simulations where you ask or prompt about the entire world, and it simulates everything. There's attempts to build these things. It may be heading in a way that is even more fundamental than just the large language models. Whether it's good or bad, or good technology in terms of the quality, it's out there. The courts are going to have to deal with this.

The question for you would be is this a time when policymakers and legislators should be getting involved, and not just leaving the evolution to the courts? Which is where it, to some degree, is heading now, at least in the US.

Yeah, absolutely. Because the question that needs to be raised is the ownership, the ownership of all of this.

Yeah.

If the ownership of this technology is in a handful of hands-

That's it. It's a monopoly, or an oligopoly.

... of just two or three corporations that own all of this. Then because of the underlying intellectual, if it's left to the courts, that's exactly what's going to happen. There's no doubt, that's where we're going.

Like the New York Times lawsuit, and things are going to take a while, but you feel the destination is already certain how those will play out?

Well, the New York Times, this is what I was bringing up earlier. That the question there is the big lawsuit right now, the New York Times is one, the Getty Images is another one, is whether text, and data, and images can be used to build these AI algorithms.

Yeah.

But who is going to own these AI algorithms? The battle is between whether these AI algorithms ... Right now, the direction we're going is they're going to be owned by a handful of corporations. The question in these lawsuits, what the courts have to decided is whether they're going to have to share some of their profits with some other large media corporations or not.

Right.

The question that is not being asked is what is going to be the outcome on the rest of us on these large AI corporations owning all of this AI technology. What is a society in the future going to look like where a handful of people, a handful of corporations have owned everything? I think the clue in that is in history, where a handful of people owned all the land.

Yeah.

You saw when that happens-

You end up with the Russian Revolution, yeah.

I would just add to what Alex has said, that it may seem paradoxical in the American situation to talk about public property. But we do cope very well with a large domain of public property in the US. The sea, the air, the shoreline, the national parks, lots of things we treasure do not belong to anybody. In the cultural sphere, we need to reconsider what the boundaries of the public domain should be. Alex and I are of course quite convinced they should be larger than they are at the present, much larger.

Exactly how they're going to be made large enough to prevent AI companies from owning us all is the question that should be being debated. And yes, it will require legislation because the current way in which copyright laws are written means that the disputes are, as Alex said, between these very narrow goal posts, and about aspects of AI that are actually probably irrelevant to the future of the world only to the division of the spoils. But the big debate about AI really ought to be about what is public commonly owned and what is not.

So well said. Just to round out very quickly, who does own Paul's face?

It depends on where you are.

Just kidding.

Yeah.

It depends on what you mean by ownership.

And face. Just kidding.

Also, that's right.

And face. Image of the face, a copy, you know what I mean?

Yeah.

Those are the questions.

Expression, yeah.

We've written a book to answer the question-

I know.

... who owns this sentence, and even that is a very complicated answer.

I know, I know.

Thanks so much.

We loved the book and we've loved this conversation. Thank you so much.

Thank you.

Thank you for having us. Delighted.

Thank you. Great to see you both.

Hey, Vass, what did you think? What were your reflections on the conversation?

You know, I'm not a lawyer by training or by any means but, Paul, you and I are always sharing links about legislation and things like this. Copyright has sometimes been something I shy away from because it seems like it's just for lawyers, or it's very protective, very official. Understanding how we got here, how we got to this era of monopolization and control, and how that might inhibit creativity, I think was fascinating to think about it. And just a reminder of how we need to push to evolve copyright, but the interests that are so entrenched that might really want to resist that.

What about you?

Yeah. It was great that we had a historian, or comparative literature historian and a lawyer together, because it was the yin-yang on it, definitely. When you think back in history, there were poets and philosophers and others that talked about these kinds of issues, and then it became a lawyer issue.

Yeah.

The lawyers dominate this space now. It's, as they said, how do you divide up the pieces of the pie that we've already defined? There's no longer that philosophical debate around it. It's time for that. AI is prompting it, it's poking at the fundamental questions here. That's a good thing that it probably deserves a shake. We will need policy discussions and legislation framing discussions around this, it shouldn't just be left to working itself out in the courts.

No.

I think the new technologies are going to do that. Like I mentioned, the world models which are coming on stream and are going to shake things up. But even beyond that, there are things like the brain computer interface technologies which are, on the positive side, sometimes helping paraplegics and others access things that they couldn't do. But also, opening up the box of, "Okay, well I thought something, AI turned it into a thing. Who owns that? Do I really own it? I thought it, but I wasn't really thinking it."

Yeah.

I didn't intend somebody to do something about it, but they did. The interface with the computer turned it into a meme, or whatever, or a book. All this stuff is coming super-fast. All the technologies we're talking about, they're moving at light speed. Technologies are super-fast, and then the legislation and the policy discussions are super-slow. Canada needs to reinvent itself right now, and I think a number of other countries, too. This is a moment.

We did a review of the Copyright Act.

Yeah.

We recently did a review of the Copyright Act.

Yeah.

I don't know that it was framed in this fascinating avant-garde digital area-

Jazzed it up a bit.

... catch up, who benefits, who it protects. No, that's the thing. On its face, I do think these topics seem boring or esoteric.

Totally, yeah.

That's why this book and this conversation was such a delight.

Yeah.

They're a little bit cheeky with how they present the evolution.

Yeah.

But they also just put it in wonderful context.

Yeah. That was great. We'll catch you again next time.

Bye.

Thanks, everyone.

Policy Prompt is produced by me, Vass Bednar, and Paul Samson. Tim Lewis and Mel Wiersma are our technical producers. Background research is contributed by Reanne Cayenne. Brand design by Abhilasha Dewan, and creative direction from Som Tsoi. The original theme music is by Josh Snethlage. Sound mixing by Francois Goudreau. And special thanks to Creative Consultant Ken Ogasawara. Please subscribe and rate Policy Prompt wherever you listen to podcasts, and stay tuned for future episodes.