Tag: history

What the Age of the “Hack” Teaches Us About Copyright Terms

(Originally published at Copyright Alliance as part its “Secret History of Copyright” series of blogs.)

“Students of the nineteenth-century drama come sooner or later to the realization that the most important dramatist of the period was Shakespeare.”  – Marvin Felheim, The Theater of Augustin Daly (1956) –

Most people are probably familiar with the word hack as a pejorative for a bad writer, or as a neutral colloquialism for a cab driver, but few may be aware that both connotations derive from the same source. Hackney, according to Merriam-Webster, is a 13th century term for a horse “suitable only for ordinary riding or driving.” Consequently horse-drawn hansom cabs were manned by hackney drivers, and the word hack for cabbie persisted beyond the invention of the automobile.

Meanwhile a hack writer was largely (if not exclusively) a phenomenon of the burgeoning American theater industry, especially in postwar New York. The Civil War transformed the city into an industrial powerhouse, and this spawned a new and growing middle-class, which meant that more Americans were suddenly at their leisure to attend theater performances. But finding a supply of new dramatic material was another matter. “There are no American works on American stages,” complained one critic of the period.

Due principally to the absence of international copyright agreements—a condition that lasted roughly sixty years from first debates on the matter to first adoption in 1891—a large volume of American theater production was based upon hastily adapted or translated literary and dramatic works from Europe. And the writers paid to do all that frenzied scribbling were called hacks.

What the copyright watcher may find interesting, though, is that this era for the American theater—a market largely predicated on a copyright free-for-all—resembled a world that contemporary public domain advocates seem to project as ideal for creativity. It was not. Least of all by contemporary standards.  

Most advocates for the primacy of the public domain espouse a general hypothesis that the duration of copyright protection fails to “promote progress” by draining the common well from which all authors must drink. This assertion endures, despite considerable evidence that contemporary authors (pandemics notwithstanding) have been producing new works much faster and more abundantly than the market can consume them.

Taking a very literal view of the author’s need to “build upon” precedent works, critics of copyright terms allege, almost as a moral imperative, that works must fall into the public domain more rapidly than they do. And this thesis is usually supported by hypothetical predictions that may best be described as the Who knows what might be done? school of copyright theory. But rather than gaze bewilderingly through a fog of possible futures, we can instead focus lucidly on the microcosm of mid-late nineteenth American theater, when the market conditions looked very much like the public domain paradigm that contemporary term critics believe should be restored.

Early Broadway was certainly an exciting market, if not a literarily sophisticated one. Centered around 14th Street in Manhattan, theater managers were constantly swapping out their playbills in a time when a month was long run for a show.  Audiences were more often drawn to see their favorite stars, or by on-stage spectacles like city fires and storm-tossed ships, than they were by playwriting itself.

It would not be accurate to say that all writers of the period lacked talent, or that some fine, original works did not emerge between the cracks. But even one of the best dramatists of the era, Dion Boucicault, complained that he could be paid more for a hack adaptation of an unlicensed “safe bet” than he could for a new and original play. This phenomenon mirrored the stifling effect that the lack of international copyright agreements had on early American publishing inasmuch as the theater industry likewise feasted, for a while, on a steady diet of transatlantic poaching rather than invest in new material.

The absence of international copyright agreements, between roughly 1865 and 1881, was undistinguishable from having a very large volume of works in the public domain—a condition that many of today’s copyright critics advocate rather strenuously. Yet for all the market activity theater managers derived from all that rampant appropriation, many of the dramatic works themselves were, in every sense, hackneyed retreads of works in the commons. Not surprisingly, hack work produced a lot of disposable plays, while the market forces of the time stymied development of more inventive playwriting.

Appropriation in nineteenth century theater was so constant that many authors (e.g. Dickens) found various workarounds to earn at least some revenue from play adaptations that they could not prevent or control. Meanwhile many dramatists were themselves such incorrigible pirates, that there were limits as to how much they could accuse one another of infringement. Not that litigation did not occur among playwrights—some landmark cases happened during this period—but the point is that nearly all dramatists of that era were very liberally drinking from a common well, just as contemporary public domain advocates would have them do.

But by the turn of the century, contemporaneous with the adoption of international copyright agreements, dramatic works authors turned their attention inward, rather than outward, for source material. Henrik Ibsen, usually credited as the father of modern drama, revealed how theater can explore the labyrinths of human psychology, that a play can be about the subtle dynamics of a family within the four walls of an ordinary home. Naturalism changed everything, including audience expectations, as the demand for subtlety in both subject matter and performance crossed into the 20th century.

Because the quantum universe of human drama is, in fact, a bottomless well of source material, it is no accident that as copyrights grew stronger, neither playwrights nor audiences suffered from a dearth of appropriation. On the contrary, not only does O’Neill’s Long Day’s Journey into Night not need to take anything (in a copyright sense) from A Doll’s House, but no modern audience would want it to. By the time we get to Pinter’s minimalist masterpiece Betrayal, or anything by Beckett, we recognize that a finite universe of common themes is infinitely divisible into an endless range of expression through dramatic works.

The aesthetics that molded creative expression throughout the twentieth century reveal that originality is as limitless as copyright’s protections are nuanced. The skeptics who claim that contemporary authors suffer for want of more works in the public domain not only tend to misunderstand the creative process of individual authors, but they also fail to acknowledge that history has, at times, shown us what their ideal paradigm would look like. And there is a reason why we still refer to those authors who rely overmuch on using the works of others as hacks.

Image: Street types of New York City: Hansom driver standing in front of horse and cab. , ca. 1896. Photograph. https://www.loc.gov/item/2002699101/.

HART: Copyright and the Historical Record

In a new post on Copyhype, Terry Hart responds to the general assumption that the Founders would be “appalled” by the state of copyright today.  Personally, I think the Founders would be appalled by the application of the 2nd Amendment today and impressed as hell by the role professional authors and creators play in their Republic–but that’s me.  Hart writes …

“…there’s always a danger with using history. Someone who’s trying to make a point may try to find evidence in the historical record to support that point, so there’s a danger of abuse. And perhaps there’s no period more prone to this type of myth and mischief then the Founding period, the period beginning after the end of the Revolutionary War, through the drafting and ratification of the Constitution, and through the first Congress.”

Read full article at Copyhype here.

Probable Causes

iStock_000008641273XSmallIn his book At Home, Bill Bryson describes how the English clergy system, through the 18th and 19th centuries produced a local renaissance in the sciences and arts.  By that time period, the English were not an especially pious bunch, and as such the clergy system fostered a generation of well-educated and financially comfortable young men who ended up with a great deal of time on their hands. According to Bryson, most of these sons of the gentry studied classics rather than divinity and many of them were not expected to do much more for their rural parishioners other than recite an unoriginal sermon on Sunday mornings.  As a result, many of these otherwise idle hands produced a flowering of discovery, ideas, inventions, and creative works.  Or as Bryson describes, “Never in history have a group of people engaged in a broader range of creditable activities for which they were not in any sense actually employed.”  This period yielded, among other things, The Life and Opinions of Tristram Shandy; the power loom; the Jack Russell terrier; numerous first works on botany, paleontology, and other natural sciences; the economic principles of Thomas Malthus; the first aerial photography; the invention of the submarine; and the theorem of Mr. Thomas Bayes.  All the result of time, financial security, and curious minds.

There is a lot of discussion lately, including comments on this blog, about open access, which was of course central to the activism of Aaron Swartz; and the subject got me thinking about this particular revelation in Bryson’s book.  In a sense, we could think of the English clergy system as an incubator much in the same way we’re meant to think of digital technology today as a catalyst for innovation.  There is even a parallel in the democratic aura in which these rectors and vicars became the amateur, DIY scientists, authors, and inventors of their time.  In simple, idealistic terms, recreating this phenomenon on a global scale appears to be a foundation upon which the principle of open access is based — that the next life-altering idea might come from anywhere and, therefore, keeping a running spigot of data is of paramount importance.  To quote the start of Swartz’s manifesto, Information is power…

But is it?

What, for example, would the aforementioned Bayes’ Theorem tell us about the probability of achieving some of the more utopian aims of open access?  (Let’s be clear, I’m personally on the side of allowing especially publicly funded data to flow to the public; but this is a different question.)  Bayes provides a means to predict probabilities based on limited data, and as Bryson points out, the theorem was intriguingly of little use at its conception given that there were no computers to perform the calculations.  Today, Bayes is applied to work like climate change models and financial markets, but could it predict the probability that is the underlying question of this entire blog — i.e. will more access to more data produce more social benefit?

Naturally, we’d have to agree on what social benefit looks like, but assuming we’re using western notions of freedom, social justice, well-being, and enlightenment, does it stand to reason that adding more content into the pipeline must inevitably serve as a catalyst to improve or increase these humanistic goals?  It seems clear that there are far too many variables to accurately make such a prediction.  Even in a broad sense, consider how polarized the U.S. is, then spend about five minutes on the Web searching any number of topics. It becomes self-evident that data aren’t even data — that one man’s fact is another’s government conspiracy and vice-versa.  Or as Big Think posts here, even one man’s exercise can be another’s road to perdition.

Aside from the fact that data interpretation on a macro scale is a total crap shoot — we still have school boards fighting evolution for crying out loud — we might keep in mind the three conditions that were necessary to produce the innovations described by Bill Bryson:  they were education, financial stability, and time to indulge. There are ways in which digital-age tools provide more time, as in the Kurzweilian sense of adding additional brain power; but I’m sure I’m not the only one to feel that sometimes the constant flow of disparate information and social media ephemera can also become an obstacle to focused contemplation.  Additionally, there are aspects of the open access idea that are disruptive to existing economic models, particularly affecting the financial well being of some of the leading producers of quality information and cultural content.

I think the principles of open access are fundamentally good, and often principle alone is reason enough to demand support for a social agenda.  But the principle should not necessarily be confused with the reality that application in this case does not guarantee a renaissance. (The new era could look like 4Chan, too, which is the Web equivalent of the Dark Ages.) History is full of unintended consequences; and while the next big idea can indeed come from anywhere, this includes the possibility that it will originate in the mind of an individual as removed from our digital wellspring as an 18th century English clergyman.