For most of human history the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies regulating creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime as far as access to pre-existing expressions and reuse was concerned. From the Platonic mimēsis to the Roman imitatio, from Macrobius’ Saturnalia to the imitatio Vergili and the art of rewriting, from medieval auctoritas and Chaucer the compilator to Anon the singer and social textuality, from collaborative work at the Renaissance workshop to Shakespeare’s “borrowed feathers,” the largest part of our culture has been produced under a paradigm in which imitation – even plagiarism – and social authorship formed constitutive elements of the creative moment. Pre-modern creativity spread from a continuous line of re-use and juxtaposition of pre-existing expressive content, transitioning from orality to textuality and then melding the two traditions. The dynamics of sharing and recombination of formulas and traditional patterns – and the cumulative and collaborative character of the oral-formulaic tradition – have dominated the development of epic literature. The literary pillars of Western culture, the Iliad and the Odyssey, were fully forged in the furnace of the oral-formulaic tradition. Later, under the aegis of Macrobius’ art of rewriting and the Latin principles of imitatio, medieval epics grew out of that tradition. Continuations, free re-use, and re-modelling of iconic figures and characters, such as King Arthur and Roland, made chansons de geste and romance literature a powerful vehicle in propelling cross-country circulation of culture and in contributing to the development of modern European languages. The parallelism between past and present highlights the incapacity of the present copyright system to recreate the cumulative and collaborative creative process that proved so fruitful in the past. In particular, the constant development and recursive use of iconic characters, which served as an engine for creativity in epic literature, is but a fading memory. This is because our policies for creativity are engineered in a fashion that stymies the re-use of information and knowledge, rather than facilitating it. Modern copyright law hinders, or prevents altogether, the capacity of rap musicians, such as Chuck D and his band Public Enemy, to create digitally sampled music, or of the artist Nadia Plesner to use Luis Vuitton’s protected intellectual property to stigmatize the conditions of children in Darfur, and of a Swedish author to publish a book playing with the characters from The Catcher in the Rye and the obsessions of its author. Again, copyright law relegates users’ digital remix to a subcultural niche, by denying it access to mainstream media channels. Under the current regime, intellectual works are supposedly created as perfect, self-sustaining artifacts from the moment of their creation. Any modifications, derivations, and cumulative additions must secure preventive approval and must be paid off, as if they were a nuisance for society. Rereading the history of aesthetic is particularly inspiring at the dawn of the networked age. The dynamics of sharing of pre-modern creativity, together with the cumulative nature of the oral-formulaic creative process, parallel the features of the digital networked creativity. Digital creativity reconnects its exponential generative capacity to the ubiquity of participatory contributions. As in the oral-formulaic tradition, mass collaboration is a key element of production in the digital environment. Additionally, the formula – the single unit to be used and re-used, worked and re-worked – is the building block of the remix culture as well as the oral formulaic tradition. Today, in an era of networked mass collaboration, ubiquitous online fan communities, user-based creativity, digital memes, and remix culture, the “paradoxical” enclosure of knowledge brought about by an ever-expanding copyright paradigm is felt with renewed intensity. Therefore, I suggest that the communal, cumulative, social and collaborative nature of creativity and authorship should be rediscovered and should drive our policies. In order to plead my case, I have asked for the support of the most unexpected witnesses.
Published here in 13 J. MARSHALL REV. INTELL. PROP. L. 341 (2014).