CARTOGRAPHIES OF COPYRIGHT: Crisis & Propertization Turun yliopisto Historian, kulttuurin ja taiteiden tutkimuksen laitos Kulttuurihistoria Pro gradu -tutkielma Paul Flanders November 2016 The originality of this thesis has been checked in accordance with the University of Turku quality assurance system using the Turnitin OriginalityCheck service. University of Turku, Humanities FLANDERS, PAUL Cartographies of Copyright: Crisis & Propertization Master’s Thesis, 109 p., Appendix Cultural History, November 2016 Cartographies of Copyright is a cultural history of copyright that maps out various contradictions and tensions that give shape to the crisis of copyright and its relations to US music industries. More specifically, this work charts the radical dissension of copyright in recent history and argues for an understanding of the crisis as an internal transformative process. This formulation shifts the analytic approach from an abstract conceptual-legal perspective to a series of discrete points within a lived history, culture and materiality of copyright thought, audio technologies and neoliberal capitalism. Seen in terms of territorialization, the expansion of copyright via the music industries gives unique insight into the particular ways music and its media formats effect the evolution of copyright culture and law. When framed this way, an investigation into music and copyright leads to recognizing new forms of control, changing modes of administering access and contemporary relations of power. To chart the effects of these transformations I draw upon the tensions and problematics that constitute the Wu-Tang Clan’s 2015 one-of-a-kind release: Once Upon A Time In Shaolin. After accessing contentious foci within traditional copyright paradigms, I argue that classical models lack explanatory power, pose problems for understanding the transformations of copyright throughout history and fail to provide a comprehensive account of the present crisis. Taking inspiration from the reoccupation thesis presented by Hans Blumenberg and recent research in copyright I propose an alternative model rooted at the dialectic crux of property metaphors, audio technologies and formats, and neocapitalist commodity logic––all of which give shape to an internal transformation within copyright law and culture I term propertization. Cartographies of Copyright is not a legal treatise, per se; rather, the work sees law as text set within a larger social milieu liable to change and evolution. Drawing from legal theory, cultural studies and media studies the work engages copyright from the perspectives of critical history, rhetoric, media-materiality and speculative economics. The multidisciplinary approach also stakes out new formations to the problematics faced by music historically and to draw connections between the music industries and the broader social contexts they are situated in. Cartographies argues for a new lexicon to begin imagining alternative models to account for copyright’s transformations––ones better suited to imagining viable alternatives. It calls attention to the urgent need of public discussion concerning the role of copyright in contemporary music and culture and provides modest suggestions for thinking about the future of the copyright regime and the musical properties within it. Keywords: copyright, property, intellectual property, propertization, culture, rhetoric, metaphor, reoccupation, media, format, platform, technology, economics. Introduction 1 Research Focus 2 Approaches to Crises 6 Sounds of Copyright 9 The Rise of Copyright Talk 11 I. Cartography of a Crisis 18 Combatting the Static Narrative 19 Disentangling the Crisis 23 Copyright’s Existential Crisis 29 Limitations of Crisis 33 II. Background Metaphorics of Copyright 36 Legal Troubles 38 The Reoccupation of the Authorial Position 41 Mapping the Metaphors 44 Foregrounding Rhetoric 48 Once Upon a time…Property 52 III. Re-formatting Copyright: The Material Conditions of Change 58 Material Labor and Theories of Property 60 Material, Media and Music 65 Re-formatting Property 74 IV. Financing Musical Properties: Monopoly, Access and Speculation 82 Accumulation, Manifest Discography & Platform Logic 84 Allocating Acoustics 90 Conclusion: Charting the Future 98 Appendix: 103 Bibliography 104 Introduction “The crisis of artistic reproduction which manifests itself in this way can be seen as an integral part of a crisis in perception itself.” Walter Benjamin, “On Some Motifs in Baudelaire” Scholars have long decried the expansion of copyright, and while most theoretical formulations demonstrate it to be the effects of a plurality of forces, these approaches belie a certain logical organization that forbids asking certain types of questions, namely just into what copyright is expanding? This question may at first glance seem absurd, but the logical consequences of seeking out possible answers requires engaging with a copyright far more implicated in society, industry and culture than dominant legal or conceptual frameworks prescribe. If copyright expansion is, as many scholars have argued, antithetical to its core goals and rational, new approaches to understanding the function of copyright and its expansion are needed. What follows aims to provide such an approach. Written as a speculative history, this work surveys and charts developments within copyright to map out dimensions of the expanding copyright regime. It is ‘speculative’ on a number of levels; in the first, it proceeds along a conjectural route with the intention of asking new questions of copyright, its conceptual formation, its pragmatic function in the music industries and its growing position in American culture and history more generally.1 In the second, drawing from the unique one-of-a-kind album, Once Upon A Time In Shaolin, this thesis plays on the etymological root, specere “to look at, view”, to consider what I will argue is the spectacle of copyright–––that is, certain schematic metaphors that give copyright its form, determine its power within contemporary culture and vectorize its effects on the social relationships that constitute it.2 To map the extent of these relations and their historical transformations is, I argue, to 1 Throughout the reminder of the thesis I will be referring to “copyright” in the United States of America and am not, say, more generally equating copyright with authors’ rights in the European Union unless otherwise noted. The culture of copyright, while not a common denominator globally, is intimately involved in a steadily growing number of trade agreements with the U.S. and thus reflections in this essay, I hope, can seen in light of larger ramifications for a globalizing culture more broadly. 2 While not being a commodity itself outright, copyright represents the framework and network for understanding and facilitating the commodification of cultural products while simultaneously affecting our perception of cultural goods more generally. !1 account not only for the ways copyright has transformed and the consequences of these developments but serves to see how copyright is transforming the musical landscape. Research Focus Research directed at copyright has previously taken aim at accounting for how copyright has expanded with little attention spared for engaging with the question of “into what?” Given its historically factual origins and its common linguistic formation in spatial terms (extends, distends, expands, etc.), why does the spatial metaphor always run aground? This is all the more alarming when we consider it in chronological terms. All arguments for or against copyright’s expansion throughout history have involved inherited views of the past and a diverse array of models for imagining the future. Take for instance the music industries. Views of composers and their compositions transformed with the advent of the player piano and again with the LP. More recently remixing, mash-ups, P2P file-sharing networks and online streaming have all had profound impacts on imagining and reimagining the role and position of copyright for industry and individuals alike. Yet acknowledgement of a historical consciousness, both indebted and expectant, appears rarely, if at all. For many scholars it surfaces only when indicating how far astray we have come. Thus, questions of the sort “into what?”, aim to locate formulations of copyright within specific historical epochs wherein possible views of the future of copyright arise and can be conceptually circumscribed. For the purposes of this thesis it has a second function as well. “Into what?”, aims to draw attention to the spatial dimension of the copyright regime, to the set of relations that comprise the concrete social, material, and economic worlds wherein the copyright regime excesses its power. The expansion of copyright cannot be limited to conceptions of a stable or maturing copyright extending temporally––a mere question of duration–– but must account for the multiple public and private dimensions of experiences copyright affects. Accounting for multiple dimensions stands in contrast to the impression one might get from much discussion surrounding copyright. A standard history might suggest the fairly simple equation where a growing moral decay amongst an audience less and less !2 inclined to pay for musical works plus a declining difficulty of entry to access content equals the collapse of major cultural industries. These simplifications and abstractions famously supplant the real material and historical conditions rendering