One of the things that Marxist theory insists upon is that socio-economic phenomena cannot be viewed in isolation. Every phenomenon exists within a social context, is the product of social relations (grounded, fundamentally, in economic relations), and possesses a history (i.e. it changes over time). Since this is Fair Dealing Week in Canada (Fair Use Week in the US), I thought I would jot down some thoughts about copyright and fair dealing in the broader context of the property relations of late capitalism.

We (librarians, publishers, etc) most often tend to talk about copyright as if it is a self-contained thing, though when we do place it in context, the context is a legal one (a framework of rights and responsibilities defined by legislation and past-practice). We refer to the copyright system or the copyright regime, we refer to the rights of creators and the rights of users, and Copyright Librarian positions tend to ask for legal experience, sometimes even a law degree. Most of us (again, librarians, publishers, etc) are not lawyers and have a very sketchy understanding of the law. Talking about copyright in isolation makes sense - it’s a small, well-defined area of the law that we have a chance of getting our heads around. Many of the Fair Dealing Week activities at my university are focused on clarifying the conditions for meeting fair dealing (primarily in an educational context).

But there is another context for thinking about copyright (indeed, it’s the wider context of the law in general) - the system of property relations present in contemporary capitalist society. The closest we get to acknowledging (though not critiquing) these relations is by referring to those things that are covered by copyright as “intellectual property”. Private property is one of the legal foundations of the capitalist mode of production that developed in Europe in the early modern period. Prior to capitalism, property was either held in common (among the peasantry), in fief (among those who rented land from landlords) or at the pleasure of the crown (landlords). The crown’s property was not considered private in our contemporary sense because the king or queen themselves were not considered private. Indeed, as Habermas has demonstrated (in The Structural Transformation of the Public Sphere), the very concept of “the public” developed through the public presentation of royal power and prestige.

With the development of capitalism, through the process Marx calls “primitive accumulation”, property that was originally held in common (i.e. not privately owned) was simply appropriated by the class that would eventually become capitalists. A good example of this is the process of enclosure of common land for the pasturing of (privately owned) sheep herds from about the 13th century in England. Marx’s initial critique of private property stemmed from the condition of peasants who were being prosecuted for taking firewood from once public, then privatized land in Germany. Marx recognized that the social relationships - between users (not owners) of land towards common land, rather than between owners of private land - had changed, and were causing social problems as the existing cultures and relationships - i.e. commonly-accepted use of a common firewood supply - were no longer adequate to deal with the new economic reality - privately owned firewood which had to be purchased. The theory of how this process works, how economic changes outstrip social relationships until those social relationships have to breaj, is dealt with at length in the Communist Manifesto.

Marx’s critique of private property - which he set down in the Economic and Philosophic Manuscripts of 1844 - transformed over time from the cause of material inequality and oppression under capitalism to one of the effects of a more fundamental set of relationships, the set of relationships which come together in the commodity form. Commodities - which include some but not all kinds of intellectual property - are products produced in the first instance for sale (i.e. not produced for immediate consumption, with the surplus being sold). Copyright, the law which regulates the reproduction of certain kinds of commodities, arose out of the new ease with which text could be copied after the invention of the printing press. The Statute of Anne of 1709 explicitly connects the regulation of copying with the profit to be derived from the intellectual work by the author and their family.

Essentially, copyright is an attempt to artificially maintain the exchange value of a commodity by limiting the production of the commodity. For Marx, the exchange value of a commodity was determined by the cost paid by the capitalist for raw materials and machinery, etc, and the cost paid to labour (wages). With the development of the book trade, the intellectual work of the author was not included in the exchange value of the commodity (their cost/remuneration was handled outside of the labour relations of the production process). The cost of reproducing a particular book cost only the raw materials and labour of the printer (i.e. it did not require labour by a new author), and the development of printing led eventually to economies of scale as well, all of which would lead - without copyright - to the plummeting of the exchange value of each individual commodity (in FRBR terms, each item).

However, not every intellectual work is produced as a commodity (i.e. for sale). What contemporary copyright regimes do, however, is “enclose” non-commodities within the commodity form. Until the rise of, for example, creative commons licensing, it was difficult (impossible?) to explicitly place something in the public domain (defined negatively as a region not covered by copyright rather than positively as common property). We can see this, for example, in the system of auto-registration of copyright.

So, when we talk about copyright and fair dealing, we’re talking about commodities and commodity relations. Fair dealing provisions are, to my mind, part of the attempt to manage the exchange value of intellectual commodities, just as copyright does. They are a recognition on the part of the state that the free market principle - which would prevent all uncompensated copying due to the foundational legal framework of private property) - would have social (educational, innovative) consequences that requires the right to copy to be protected. In this particular instance, the state is mediating the requirements of two constituencies of the capitalist economy: those who rely on subsidized information in order to develop the economy (managers, entrepreneurs, scientists, etc) and those who are simply protecting their private property right. So fair dealing does not, in fact, balance the “rights” of users and creators in some kind of altruistic sense; it does so only to further the development of the capitalist economy through innovation and market expansion. The use of the term “fair” here is simply propaganda, since it’s based on inherently unfair relations of production.

A few words about open-access. Some writers - most recently David Golumbia have attempted to use Marxism to argue against OA, from the perspective that it erodes the property rights of faculty members. Faculty members, in this formulation, are workers who deserve to be compensated for their labour through whatever exchange value can by extorted through private sale. In Canada, this argument is disingenuous on its face as most faculty members are already being paid for their labour (intellectual or otherwise), and capitalism will never pay twice for the same work (which sounds like a Ferengi rule of acquisition and probably is). Open-access, to my mind, serves a similar function to copyright: it mediates between the needs of one constituency of the capitalist economy (“users”) and another (“creators”). Where copyright is explicitly weighted towards creators (hence requiring an exceptional mechanism like fair-dealing), open-access is weighted towards users. But OA does not get us out of the private property and exploitative labour relations of contemporary capitalism. To lay the exploitation of workers at the door of OA (as Golumbia does) is to misunderstand that copyright and open-access are simply two mechanisms for the distribution of commodities and exchange value within an inherently exploitative capitalist system. Both open-access and copyright will become irrelevant as the crises of capitalism deepen. As librarians, we can support open-access just as we can support fair-dealing, but I think it is important to understand the socio-economic relationships underpinning each of them. As far as open-access gives more choice to the creator (author) in terms of greater flexibility in how their work is reproduced and shared, I think open-access is absolutely a plus. But it does not resist or circumvent the labour and property relations of which it is a part.