Copyrighting Culture

The Political Economy Of Intellectual Property

Ronald V. Bettig

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367315221
• eBook ISBN: 9780429980930
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Launching into a complete analysis of copyright law in our capitalistic and hegemonistic political system, Ronald Bettig uncovers the power of the wealthy few to expand their fortunes through the ownership and manipulation of intellectual property. Beginning with a critical interpretation of copyright history in the United States, Bettig goes on to explore such crucial issues as the videocassette recorder and the control of copyrights, the invention of cable television and the first challenge to the filmed entertainment copyright system, the politics and economics of intellectual property as seen from both the neoclassical economists and the radical political economists points of view, and methods of resisting existing laws. }Launching into a complete analysis of copyright law in our capitalistic and hegemonistic political system, Ronald Bettig uncovers the power of the wealthy few to expand their fortunes through the ownership and manipulation of intellectual property. Beginning with a critical interpretation of copyright history in the United States, Bettig goes on to explore such crucial issues as the videocassette recorder and the control of copyrights, the invention of cable television and the first challenge to the filmed entertainment copyright system, the politics and economics of intellectual property as seen from both the neoclassical economists and the radical political economists points of view, and methods of resisting existing laws.Beautifully written and well argued, this book provides a long, clear look at how capitalism and capitalists seize and control culture through the ownership of copyrights, thus perpetuating their own ideologies and economic superiority. }

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Introduction to the Political Economy of Intellectual Property

The political-economic theory of communications has already made a significant contribution to our understanding of mass communications and society. Denis McQuail identified three prominent trends in media business and technology that have greatly increased its pertinence in the current age: the concentration of media systems into the hands of a few transnational corporations; the expansion of the “information economy” and the convergence of technologies; and the decline of public control over communications systems.¹ With its focus on institutional structures and practices, the political economy of communications is poised to help explain the forces driving these processes and to offer up predictions about their implications.

The political economy of communications properly belongs to the larger set of critical approaches to the study of culture and communications that began to challenge the “dominant paradigm” or “orthodox consensus”² during the 1960s. In North America, researchers such as Dallas Smythe, Herbert Schiller, and Thomas Guback sought to fill the gaps in our understanding of communications processes and systems caused by the lack of attention to institutional structures and practices by mainstream communications researchers. The focus of the dominant approaches on media content, audience uses and gratifications, and effects largely left the issues of media ownership and control unexplored.

However, social movements of the 1960s prompted academics to bring questions of ideology, power, and domination to the fore. For political economists, this involved an analysis of the ownership and control of communications industries, interconnections between the communications sector and big business, and links between the communications sector and government, including the military. A substantial body of political-economic research has demonstrated how the logic of capital has resulted in the concentration of ownership and control of the communications system in the hands of the richest members of the capitalist class. The dominant class thus earns profits from ownership of communications firms, further enhancing its wealth. Political economists underscore the point that ownership and control of the means of communication also significantly augment the ideological power of this class. Furthermore, the dominant class, with its superior resources and communications networks, is generally able to organize its hegemony within the political system. Consequently, government policies regarding communications have generally tended to favor property rights over access to channels of communication.

Thematic Overview

The purpose of this book is to extend the main lines of inquiry running through the political economy of communications into the relatively unexplored area of intellectual property, particularly copyright. For example, in Chapter 3 the traditional concern of political economy with ownership and control of the means of communication is taken one step further to examine ownership and control of content, through the mechanism of copyright. In that chapter I demonstrate how copyright serves as an instrument of wealth that can be utilized in the cycle of capital accumulation to generate more wealth. Copyright can also serve as the basis for expanding market power. The cases of media capitalists Ted Turner and Rupert Murdoch show how they used ownership of rights to filmed entertainment to expand their operations into new lines of business. In these cases, the tendency of copyright to be monopolistic is exacerbated by the oligopolistic structure of the media marketplace. Ultimately, the effects of concentrated ownership of the means of communication and of the messages themselves are the same: high barriers to entry in the “marketplace of ideas” and a narrow and limited range of informational and cultural works.

Political economists highlight the logic of capital as the primary determining factor in shaping the form and structure of the communications system. Economists of information, in contrast, have sought to explain how the structure of the information marketplace is determined by the peculiar nature of informational and cultural commodities. These commodities have the characteristics of what economists call a “public good,” meaning that the product cannot be used up by any one consumer. This feature also makes it difficult to exclude consumers from using the good without paying for it. It is also characteristic of informational and cultural commodities to have relatively low reproduction costs in comparison to tangible commodities. Both of these characteristics make markets dealing in informational and cultural commodities prone to failure. For example, the videocassette recorder (VCR) opened a new market for the filmed entertainment industry, but it was a market prone to failure from the beginning. Although it was possible to sell prerecorded videocassettes to consumers, video recording technology made it easier and cheaper for a person to make multiple copies from an original cassette at a fraction of the cost.

Providers of informational and cultural goods and services utilize a variety of mechanisms to deal with the peculiar characteristics of the commodities they sell, including copyright, patents, trademarks, advertising, compulsory licensing, packaging, encryption, price discrimination, and so on. These are examined in Chapter 4. Oscar Gandy concluded that informational and cultural markets would inevitably be far from perfect and generally require state intervention to prevent market failure.³ The logic of the commodity thus has a determining influence on market structure. However, political economists insist that the logic of the commodity must be situated within the larger context of the logic of capital. Markets within which informational and cultural goods are exchanged may take a variety of forms given the logic of the commodity, but their general purpose always remains the valorization of capital. Accordingly, these markets follow the same tendencies toward concentration found in other economic sectors.

Although political economy provides the overarching framework for this inquiry into intellectual property, the richness of the topic facilitates an extension of the main lines of political economic analysis using related theoretical approaches within the critical paradigm. For example, in Chapter 2 the history of copyright is explored and interpreted through the historical materialist lens of political economy in combination with the systems approach to the history of communications pioneered by Harold Innis. The central problematic taken up in this chapter concerns the notion of determination. Traditionally, the method of historical materialism involved delineating the determining influence of the mode of production on particular forms and functions of various components of the superstructure, that is, politics, law, culture, ideology, and so on. Similarly, historians of communications systems have sought to identify how particular modes of communications determine the structure of social organizations as well as human cognition.

The analytical framework utilized in Chapter 2 to study the history of copyright adopts a refined notion of determination to trace the origins of literary property rights. Copyright appears on the historical stage when conditions for it are ripe: the dawn of capitalism and the birth of the printing press. This history also demonstrates the crucial role of the state in recognizing, conferring, and protecting intellectual property rights. Political economy again proves useful with its specific attention to the political forces influencing the form and structure of communications systems.

Intellectual property rights are both economic and statutory in nature. Claims to ownership of intellectual and artistic works must be recognized by law to be effective. In Chapter 5 I look at the history of cable copyright in the United States, with particular attention to the policymaking apparatus. In that chapter, radical and neo-Marxist theories of the capitalist state are drawn upon to explain the outcomes of state intervention into intellectual property matters. The central problematic taken up in both Chapters 5 and 6 concerns the effects of new communications technologies on the filmed entertainment copyright system. In both cases, new communications technologies—cable television and VCRs—were introduced into the marketplace before a set of copyright laws had been implemented to govern their uses. Also in Chapter 5 I explore how the filmed entertainment industry, broadcasters, and cable operators clashed within the state apparatus over the structure and form of a copyright mechanism for cable retransmission of television broadcasts. Thus, the state became the site in which this particular incident of market failure was resolved. The outcome of this intraclass struggle once again reveals the workings of the logic of capital. Although cable television technology carried the potential to disrupt filmed entertainment markets and to undermine the market power of the major filmed entertainment producers based in Hollywood, it has become thoroughly integrated into the prevailing market structure. This pattern was repeated with the VCR.

In Chapter 6 I draw upon critical legal studies (CLS) to help inform a case study of how the filmed entertainment industry sought to assert control over its copyrights in the face of the infringing uses afforded by video recording technology. The major producers of filmed entertainment for television perceived the VCR as a threat to their established distribution system. The VCR offered home tapers the ability to decide when they wanted to watch particular programs, taking some scheduling control out of the hands of broadcasters. Television program producers also feared losing income from advertisers as home tapers deleted or fast-forwarded through commercials. The apparent threat of this new technology caused the filmed entertainment industry to seek to protect its markets through judicial and legislative action. However, when the dust settled, the VCR, like television and cable television before it, had become yet another ancillary market for the major filmed entertainment companies.

The expansionary logic of capital drives the expansion of the realm of intellectual property at the global level as well. However, copyright owners find the tendencies toward market failure in international markets identical to those that operate on the national level. For example, the ability of filmed entertainment copyright owners to exploit cable television and VCR technology in foreign markets is based upon the copyright mechanisms governing them. Chapter 7 examines the combined efforts of the U.S. filmed entertainment industry and U.S. government to extend the law of intellectual property into new technological and geographical domains. Cable television and the VCR are used in two case studies to explore the relationship between technology, communications markets, and the state.

The first case examines efforts by U.S. copyright owners and U.S. government officials to compel the Canadian government to change its copyright law to require cable operators to pay for the use of programs contained in the broadcast signals retransmitted by cable. The U.S. filmed entertainment industry effected the requisite changes in Canadian copyright law through the U.S.-Canada Free Trade Agreement. Free trade agreements have become a vehicle for U.S. foreign policy makers to advance the interests of intellectual property owners. Indeed, the North American Free Trade Agreement (NAFTA) contains provisions that provide the strictest intellectual property protection of any international agreement.

Access to the large and wealthy U.S. market drove both Canada and Mexico toward free trade agreements. Access to the U.S. market also proves pivotal in the second case study in Chapter 7, which addresses the efforts of U.S. copyright owners to eradicate piracy of video and musical recordings, software, trademarks, and other forms of intellectual property. This case study spotlights Hollywood’s international antivideocassette piracy campaign. As the major filmed entertainment companies sought to extend their home-video market abroad, they found rampant market failure in the form of videocassette piracy. Videocassette pirates take advantage of the low reproduction costs of filmed entertainment. Because they do not have to pay original production costs or royalties, they are able to undercut the market for “legitimate” sales and rentals. Accordingly, Hollywood put pressure on the U.S. government, which in turn put pressure on foreign governments, to “update” their copyright laws and practices and to halt infringements on U.S. property rights. Trade leveraging, a practice by which access to the U.S. market for foreign imports is conditioned in part upon the protection of U.S. intellectual property rights by the trading partner, is the means by which this has been largely accomplished. Trading privileges have been similarly linked to protection of human rights, treatment of labor, and efforts to eliminate drug trafficking.

The evidence in Chapter 7, reveals a pattern wherein the eradication of videocassette piracy in a foreign market is followed by entry of U.S. home-video distributors that eventually take over the market. The ranks of the top ten rentals or sales in market after market are dominated by feature films distributed by major U.S. companies. Often, these are the same films that ranked at the top in box-of-fice revenues. In sum, Hollywood has successfully supplemented its control of the world’s theater screens with control of the world’s television screens.

The global proliferation of communications technologies and the expansion of the realm of intellectual property is a process that clearly benefits the advanced economies of the United States, Europe, and Japan. The incorporation of intellectual property protection into the General Agreement on Tariffs and Trade (GATT) signaled the consolidation of control over intellectual and artistic creativity in the hands of transnational corporations based in the rich countries. The consequences of expanded intellectual property rights are always the same: the continuing enclosure of the intellectual and artistic commons. More and more, knowledge and culture are being privately appropriated and submitted to the logic of the marketplace. Political economists continue to document the negative effects of this process on democracy.

The enclosure of the intellectual and artistic commons is not inevitable or necessary, even though the emphasis on the logic of capital makes it seem as if it is. In Chapter 8 I explore some of the ways that individuals and groups have confronted or resisted the expansionary logic of intellectual property. More specifically, I isolate the struggles of human subjects in making their own history. The point of a political economic analysis is to reveal how existing structures and practices have become reified, making them appear to be inevitable and necessary and beyond the realm of human intervention. These structures and practices are critiqued to support claims that “what exists” falls far short of “what ought to be” in terms of a society that maximizes the attainment of full human potential.

A Note on Theory and Method

The relationship between structural determination and human agency is a central concern of political economy. Indeed, the conceptualization of this relationship is at the core of the theory and method of this approach. As noted, political-economic communications theory, along with other critical approaches to the study of communications and culture, gained its foothold in the challenge to the dominant paradigm. Therefore, political economists are critical of the “abstracted empiricism” of much mainstream work. However, they do seek to support their claims empirically. At the same time, they are critical of purely interpretive approaches that lapse into idealism.

Political economists adopt a formal framework through which the empir...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Tables
• Acknowledgments
• 1 Introduction to the Political Economy of Intellectual Property
• 2 Critical Perspectives on the History and Philosophy of Copyright
• 3 “Who Owns the Message?” The Ownership and Control of Culture and Information
• 4 The (Political) Economics of Intellectual Property
• 5 Capitalism, the State, and Intellectual Property: A Case Study of Compulsory Licenses for Cable Retransmissions
• 6 The Law of Intellectual Property: The Videocassette Recorder and the Control of Copyrights
• 7 Recolonizing Communications and Culture: The Expanding Realm of International Intellectual Property Law
• 8 Intellectual Property and the Politics of Resistance
• Bibliography
• About the Book and Author
• Index