Well, may not so perplexing. Scholarly and scientific work is always clearly grounded in the past–a “review of the literature” is pretty much standard in presentation of any major study or experiment. The pathway to the current work is as important a part of discussion of it as the work itself. In the arts, where it is not so important to show connection, to present the build on the past, we are able to create a myth of originality, one that is not so possible in other activities where understanding of connection to past work is critical to understanding of current work.
Yes, understanding of the past can facilitate understanding of new art, but it is not absolutely necessary. The tools brought by the past, at least, are not necessarily in our faces as we make our examinations. We assume language, making it a given, for example, when we look into works of literature. That is, we don’t demand that the writer show the development of the words used–or even of the tropes. We don’t demand that Jimi Hendrix create the guitar–or show that he understands his creation. In fact, we don’t even need to think about the development of the guitar at all when we listen to his music. We call Hendrix an “original genius,” forgetting that he, too, was indebted to others–that he, too, stood on the shoulders of giants.
Because all of our IP comes because we were able to see further from the shoulders of the giants who came before us, patent and copyright laws, as first envisioned, contained built-in limitations, limitations on the individual creators but also ones that remove limitations on the rest of us, allowing us to stand on those shoulders in our own turn. IP, in terms of law as well as in terms of physical presence, is unlike other property–even calling it “property” is something of a red herring, diverting attention from the real debate by creating a false equivalency between IP and physical property. It is not something we can legitimately horde, for it was never “ours” alone in the first place.
Not only that, but it is not unique. Two people can invent something at the same time–but two people cannot own the same piece of land. Having no physical presence, IP requires legal and cultural protections distinct from that of any other property.
Since the first IP laws in the 17th and 18th centuries, holders of patents and copyrights have fought hard to extend their rights to this “property.” They have succeeded to the point where, today, there is almost no discussion of the fact that we have gone to far, that the “rights” we have granted to the “owners” of IP have seriously eroded the rights of others attempting their own creations in the wake of those of the past. We are reaching the point where we are compromising current creativity and scholarship, and are stifling future possibilities.
It’s time we stop simply resisting the expansion of IP protection and start demanding that the rights of the intellectual commons be protected just as strongly. Yet all we seem to be managing to do is fight rear-guard actions against the likes of SOPA and PIPA. We’ve let those who own IP define the debate and we end up discussion the issue only in their terms. It’s time we stop that, reasserting the ownership that should be all of ours.
Allowing ourselves to climb onto shoulders that seem, today, to want to shrug us off.