In the current political climate, I imagine many artists, authors, and journalists will continue to speak up about a wide range of civil rights. While they’re at it, they should not forget their own rights.
For five years now, I’ve written in defense of copyright as a civil liberty—as a property right, a labor right, and a force for strengthening the First Amendment despite the skeptics who insist the opposite is true. Because without in any way imagining what American creative output would become, the Framers did an interesting thing when they gave Congress the constitutional authority to write intellectual property laws.
As students of the Enlightenment, the Founders knew that the United States, with its population of three-million mostly agrarian citizens, was never going to be a mature country without investing in art and science. They also knew that the young war-weary nation could not afford a national endowment for such luxuries; and at the same time, they were naturally wary of European models in which both the sciences and the arts were funded and directed either by the state or the nobility (See Article 1, Section 9 on the no nobility thing).
The intellectual property clause of the Constitution was an expression of both practicality and principle. Creating an incentive for the author or inventor to make his own investment in his work reflected—in my view—the best intentions of the Framers to ennoble the individual, hoping that doing so would enrich the nation overall. By the mid 20th century, the theory proved itself with the U.S. leading the world in the output of creative works. But intertwined with the commerce came the diverse range of expression that became the quintessentially American voice—and that voice was unavoidably political. A half century before women could vote, the suffragette and abolitionist Louisa May Alcott was one of the first truly American authors whose writing saved her family from economic ruin because one right she did have was the ability to register a copyright.
Fast forward to current events and the general reaction to the president-elect’s “demand” for an apology from the cast of Hamilton. Sure, that was probably a bit of tactical diversion, which spawned mostly satirical responses wanting to remind the Trump team what the First Amendment says, but the important piece of the story is Hamilton itself. Because copyright gave Lin-Manuel Miranda an incentive to invest his sweat equity in creating the show, that became the basis for the risky investments which produced the hit which provided a platform for a company of artists to speak to an elected official about matter of concern.
In part, what’s being communicated is that the financial success of the artists reflects political power (i.e. that there is a large population which supports both message and messenger). And artists should not lose sight of the underlying rights that give them that economic, and therefore political, voice. Or to take a different macro view, the platform Twitter, which enabled Trump’s provocation and much of the response, could still fail as a business, while theater has a pretty good track record.
Regardless of one’s policy views or party affiliations, it seems clear that the magnetic poles are shifting with regard to both tone and agenda in American politics. And because many artists are moved to respond to social conditions, we are likely to see quite a few speak out in defense of civil liberties they fear may be threatened in the current environment. This will surely include threats—perceived or real—to the sanctity of the internet as the bulwark against encroachments on the First Amendment. This is not a new theme, and it is one that has been exploited to great effect by the internet industry as an excuse to attack legislative measures to enforce copyrights online and/or voluntary measures to achieve that goal.
The sound of the rhetoric may change somewhat in the coming months. If one was inclined to believe that copyright enforcement would harm free speech before, one may be twice as likely to believe that message in an increasingly anxious climate. But it still won’t be true. If there are indeed new First Amendment infringements to come, they won’t be grounded in copyright policy. To the contrary, no matter who occupies the Oval Office, or how cybersecurity practices evolve, the fact remains that a failure to effectively protect and respect creators’ rights online only disenfranchises the professionals whose voices have always been essential to democratic principles.
In his Friday’s Endnotes for his blog Copyhype, Terry Hart cites an appropriate quote by Lyndon Johnson from the dedication of the John F. Kennedy Center for the Performing Arts on December 2, 1964:
Our civilization, too, will largely survive in the works of our creation. There is a quality in art which speaks across the gulf dividing man from man and nation from nation, and century from century. That quality confirms the faith that our common hopes may be more enduring than our conflicting hostilities.
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