Popular Culture Supersedes Copyright Law

What are the limits of private ownership of popular culture?

The people own what the people love. When a character, a story, a fictional world becomes so popular that people want to make it their own, then it passes beyond the limits of private property and becomes the property of us all.

The world and characters of Harry Potter were created initially by JK Rowling, but in the years since, Harry’s fans have written and published online nearly 300,000 original stories of their own using these characters, places and themes, not to mention tens of thousands of works of fan art, music, video and multimedia. Rowling meanwhile has sold rights to Harry to a very small number of movie studios and game producers, toy makers and even a candy company. She has made a billion dollars, and the others have made even more. Copyright law has done its work, perhaps too well.

Of course she has the right to profit, substantially and globally, for having given us all the pleasures and the resources of the imagination that come from Harry and his world. But only up to the point at which her creations become the raw material of the public imagination, the point at which what was originally her own intellectual or cultural property becomes part of the common culture, folk culture, the people’s culture, our culture.

So also with Star Wars and Star Trek, or with The Lord of the Rings, and many other recent works, just as much as with Cinderella, Pinocchio, or Don Quixote. What matters to public vs. private ownership is not how long ago they were created, but how much they have become part of the common culture of our childhoods and the raw material of our grown-up fantasies. No one today can really “own” Harry or Hogwarts, Darth Vader or R2D2, any more than they can own Macbeth or the Emerald City.

Which means what, in practice? Only that the original creators, much less those to whom rights have been sold, cannot tell us what we can and cannot create, privately or publicly, but not-for-profit, using these building blocks of the human imagination. The copyright owners can continue to reap their profits, and control the commercial use of their creations for some reasonable time, but they must not be allowed to try to control or coerce the popular culture use of these creations.

We all know that the Digital Millennium Copyright Act was corrupt. It was created solely for the benefit of the large media companies, and not in the public interest or even for the good of the writers and creators of new works. It was opposed by the nation’s public libraries, by the universities, and by every fair voice. Its sellout to corporate greed is a national scandal, and private persons have every moral right to ignore it.

As Harry ignored the Ministry’s decrees to try to take control of Hogwart’s.

After Democracy?

Is Democracy really the last word on how a society should make its decisions?

Is it possible that thousands of years from now, people (if any are left around and still consider themselves “people”) will look back and say that ideas about government changed from Egypt and Babylonia (god-kings rule!) to Greece and Rome (the rich vote, politicians decide), to Medieval Europe (landlords rule), to Enlightenment Europe (divinely anointed kings rule), to early modern times (the rich vote, parliaments rule), to now (everyone votes, politicians decide) … and then it all suddenly stopped and nothing ever changed after that??

Not very likely. Ideas about how to make good decisions keep changing. Facts about who has power (armies, landlords, rich people, managers) keep changing. And bad decisions keep being made. About when to go to war, about who doesn’t qualify for equal rights, about who should receive taxpayers’ money.

In our times, decisions are made by politicians, who are influenced by lobbyists for special interests and financed every expensive election-time by rich people’s donations, backed by media owned by special interests, and elected by voters who mostly know nothing at all about them and even less about the issues to be decided.

This is widely regarded as the best possible system of government. Not by me.

The purpose of government is to make decisions. Good government avoids making bad decisions. Decisions are bad if they go against the interests of most people or unfairly oppress any group or category of citizens. In order to make good decisions, you must:

1. Take into account the experience and preferences of the people who will be most affected by the decision (stakeholders)
2. Take into account the knowledge and projections of those who are most expert about the available options
3. Not apply decisions to people or places where their consequences cannot be foreseen or where local conditions require a different decision

The logic of good decision-making and the economics of power are generally at odds with each other. Decision-makers tend to become decision-makers because they have amassed power: economic power, political power, military power. People with power always want to have more power, because they know how they got theirs and they know someone else will grab it away if they don’t have enough power to stop them.

The result is that more and more decisions that affect more and more people are being made by fewer and fewer people. And that is basically why we are getting more and more bad decisions.

Our “democracy” is simply a justification for this bad system of government. We elect in the United States (and similarly in most other democracies) about 500 people to make all decisions about all subjects on behalf of hundreds of millions of people. That’s ridiculous!

So what would be better? For a start, a principle that each decision should be made locally unless it really has to be uniform across a nation. Each decision should be made at the most local level of social organization (neighborhood, town/city, county/province, region, nation, international organization) that it needs to be made at. Why? Because local conditions are different. What is the right decision in one place will be the wrong decision somewhere else. Unless you want to force the whole world, or the whole country, to become totally uniform in every way. I don’t want to live in that kind of country or world.

What else? Each decision should be made by a different group of people who actually know something about what they are deciding: A mix of experts, stakeholders, and elected representatives of the general interest.

Where local decisions or decisions on different issues come into conflict, and the conflicts really must be resolved, then there should be courts of reconciliation to find the best compromises.

These are simple principles. Allocate decisions to the relevant level of government. Make decisions through balanced groups who represent the relevant knowledge and interests. Reconcile differences when necessary.

Rule by power is outmoded and dysfunctional, but its what we’ve really got, even if it is well disguised. Rule by electing people you don’t know to decide things they are clueless about makes for bad decisions.

We can do better. The history of forms of government is not over. Something will follow next after today’s idea of democracy. And we had better start thinking now about what it will be.