Copy as Fetish, Copyright as Paraphilia

Paper by Ian Dahlman, 2011

Repress the natural and it comes back even stronger: not everyone can be a fetishist

-Philippe Lejeune[1]

In every sense of the word, copyright renders the copy a fetish.  In anthropological parlance, the copy is a totem, imbued with magical powers through the superstitious proclamation of copyright.  In psychoanalytic terms, copyright is a method of staving off the anxiety of mechanical reproduction, the copy fetishized to restore and control the wholeness of the original.  And in Marxian critique, copyright creates the copy as a site of commodity fetishism, wherein social relations are obscured by the perceived inherent value of the copy.  However, the copy’s fetish only effectively operates anthropologically, psychologically, and economically via the material copy – that is, in analog.  The digital revolution undermined, or even completely obliterated, this carefully honed copy fetish at every site, in the end making copyright’s material fixation seem more Freudian than Marxian – that is, a perversion instead of an omnipresent, taken-for-granted premise.  Law, to be effective in the digital realm, must give up its copy fetish – at least for digital media.

In its original, 17^th century anthropological usage, a fetish was “an inanimate object worshipped by preliterate peoples on account of its supposed inherent magical powers, or as being animated by a spirit”[2].  While anthropology’s colonial roots are on full display within the definition, distilling the concept away from imperial power relations presents the fetish as simply an object which is culturally understood to hold power and value beyond its physical reality.  This conceptual base would be seized as metaphor by both Psychoanalysis and Marxism, albeit for very different purposes, but for now I wish to dwell in the religious, spiritual context of fetish’s origin.  Importantly though, a fetish is always a marker of a perceived aberration, be it in another culture, as a perversion, or as the focus of a critical lens.  However, I wish to eschew value judgments obvious in labeling a fetish a superstition or irrationality, instead interested in how a fetish emerges from its founding moment.

For copyright, its foundations were laid in England’s Statute of Anne of 1710[3].  Emerging when continued developments in the Gutenberg press put literary authors in direct competition with potentially infinite copies of their own work, the Statute of Anne ingeniously created copyright – a right in a copy – out of legal nothingness, a founding myth for a regime of private rights.  It granted to authors or proprietors “the sole right and liberty of printing such book and books” and proclaimed that any violation would result in a fine of a cent a page, and the “forfeit [of] such book or books, and all and every sheet or sheets, being part of such book or books” to the rights holder, who was to “forthwith damask, and make waste paper of them”[4].  In some ways, the right is operating as a Hohfeldian correlative, demanding a duty of respect from all non-rights holders and giving teeth to that right by instituting penalties.  But such a staunchly subject-based construction of copyright misses what is happening to the object – the copy – in this process, which is such a revolutionary change that the object  must be entirely eradicated if it is created in breach of the new right.

Looking at the totem in a Judeo-Christian context, it is clear that what the Statute of Anne accomplished was the fetishization of the copy.  When it was put into effect, the legislation was for literary authors what the second commandment was for god –

Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me; and showing mercy unto thousands of them that love me, and keep my commandments[5].

While obviously idols existed before this jealous proclamation, what is remarkable of the commandment’s phrasing is that, taken literally, any copy of god’s ‘work’ is assumed both mystic and transgressive, and so is rendered a fetish. God’s anxious status as a jealous deity could not suffer counterfeit, and so god prohibits them by decree and three or four generations of iniquity; so too the author, in god’s image, attempts to forbid the copy by statute and punishment.  And so the Statute of Anne replicates the mechanic of the second commandment – it too is a mystical proclamation declaring the power of any (literary) copy-fetish by banning them outright.  It simultaneously fetishizes and bans the graven image, the copy, the ‘Statue’ of Anne.  From the Statute of Anne forward, the copy became the fetishized focus of all legality regarding intellectual property, fixing violation materially in a totem wherein it could be destroyed and the law could be enforced.  It is an outsider’s god captured in an object, an anxious legal cage of enforcement and destruction, premised upon yet transcending its physicality.

Anxiety also forms an integral part of psychoanalytic conceptions of sexual fetish, developed by Sigmund Freud across multiple editions of Three Essays on Sexuality and culminating with his essay “Fetishism” in 1927[6].  With his notorious patriarchal flair, Freud suggests that the source of fetish is the fantasy of an impossible whole – the phallic woman.  According to Freud, when a boy first encounters female genitals, he interprets the lack of phallus not as disabuse but rather as confirmation of his fear of the father’s castration, suddenly made real by a vagina seen as a wound.  The discovery at once is “constitutive for male (sexual) identity” but also “awakens the idea that sexual identity has an arbitrary character: one can lose it”[7].  Unable to live with this contradiction – or as Freud terms it, ‘splitting’ – a fetish develops for things to stand in for the absent female phallus, thus reconstituting the fantastic whole psychologically.

While the realm of intellectual property may at first seem infinitely removed from Freud’s apocryphal pscyho-sexual drama, there is an affective structure and economy not unlike that of the sexual fetish operating in copyright.  The myth of a right in copy is very much a myth of an impossible whole, whereby every copy is seen to be inherently connected and controlled by its origin, rather than a totally dismembered piece in circulation.  Pre-Gutenberg, this myth was sustained by the sheer costs and labour required to produce a copy, and so a technological limitation was mistaken for an essential quality of the connection between original and copy.  The subsequent development and improvement of the printing press made the link increasingly tenuous, to the point that the Statute of Anne was needed to maintain and preserve the antiquated copy-original relation.  The Gutenberg press forced the world to face the fact that the dissemination of text – and with it, knowledge, discourse, and power – was not limited by any inherent essence in the original; in fact, it was just the opposite, outside the rule of the original and dictated entirely by external technologies of reproduction. What the Statute of Anne accomplished was to imbue the copy with qualities it did not have, thus relieving the anxiety and drama the ‘Gutenberg galaxy’ had produced.  In that sense, the law re-established the mythic whole by legally fetishizing the copy, tethering it to its origin.

Of course, this picture is entirely incomplete without one last economic slice of fetishism.  In Capital, Karl Marx argued that capitalism was premised on the “mystical character” of the commodity, termed commodity fetishism[8].  In Marx’s theory, while a commodity’s value finds its source in real labour, social relations, and hierarchies, instead capitalist societies take the commodity itself to be inherently valuable.  As a result, a commodity is “a mysterious thing”:

… simply because in it the social character of men’s labour appears to them as an objective character stamped upon the product of that labour; because the relation of the producers to the sum total of their own labour is presented to them as a social relation, existing not between themselves, but between the products of their labour[9].

Human relations are thus fetishized by being thrust into commodity objects and then obscured entirely.  This is not to say there is no value in commodity, but rather that we misperceive the source of value.  The process of production is consequently lost behind the facade of the commodity.

It is untenable to argue that it was copyright that rendered the copy a commodity.  By the time of the Statute of Anne, mercantilism in England and the rest of Europe had already embraced the copy as a good to be bought and sold, be it hand copied or created with the Gutenberg press.  But what Marx’s insight stresses is that, in legally proclaiming the copy (i.e. the copy of the expressed idea) to be a property right – separate from the property right in the raw materials of the copy – the Statute of Anne had created a new commodity, one further degree abstracted, a fetish in which real relations and sources of value could be further obscured.

In copyright, there are two key fronts of commodity fetishism in operation.  The first is the traditional site of Marxian critique, the means of production.  While copyright on its surface claims to give rights to creators such as authors and artists, the social realities of power and control over the means of production create a multitude of ways, typically by contract, wherein proprietary rights are alienated in order to create or disseminate works.  So while the copy-commodity, by merit of having a named creator, may appear to link its value directly to that creator, what copyright does by creating a transferable property right is open up a legally validated space for middlemen, which can occasionally be propitious but is generally prone to institutionalized abuses by respective industries.  The second front is what might be best described as the value in circulation, that is the innumerable moments wherein value is created for a copy beyond the creation and sale of the copy itself.  While copyright legislation, as a balancing act between the need for just reward of a creator and the broad good of a dynamic and healthy public domain, is certainly aware of the value works provide in circulation abstractly, its fetishization of the copy inevitably buries the value created post hoc for the work itself.  Sharing, discussion, recommendation, cataloguing, citation – these are all forms of promotional and cultural labour, of creating value, which do not fit into the aforementioned, temporally limited copyright equation.

Each sense of copyright’s paraphilia – anthropological, psychoanalytic, and economic – was fine-tuned for an analog age.  The accelerated development of digital and online communications technology in the late 20th century undermined the efficacy of the copy fetish on every front.  Anthropologically, digitization meant, to quote Sandy Pearlman channeling Gertrude Stein, that “there is no there there.”  The material object of capture and destruction was rendered fluid, the fetishized copy no longer an efficient means of tracking transgression and enforcing the law.  Psychoanalytically, the affective stop-gap measure of copyright that temporarily extended the myth of the origin-copy whole was revealed for the technological fallacy it truly was.  As internet speeds and miniaturized storage capacity advanced at an exponentially accelerated rate, the copy fetish gave way, its adhesion unable to sustain the unnatural bond it presented as inherent.  Economically, the internet has almost entirely ripped away the veil of the commodity fetish.  Despite legal efforts to the contrary, the ability to directly connect with artists has rendered middlemen superfluous and their claim to copyright almost entirely unenforceable.  The online traceability of the cultural labour of fans as promoters and cataloguers renders that labour visible where it was previously obscured. Furthermore, online extra-legal networks have succeeded where the atomized rights of copyright have failed in creating the functional equivalent of Alexandrian Library online for music, or what Sandy Pearlman refers to as the state of asymptopia.  In short, the previously efficient analog fetishes of copyright have all been rendered dysfunctional in the digital age.  Copyright simply does not command the same power, respect, or obedience amongst legal subjects when its fetish upon the copy is anachronistic and meaningless.

This new digital reality demands a bifurcated approach, one from the producers and the other from the law.  The first, espoused by Sandy Pearlman, is to embrace the higher sound quality of the analog and turn the industry’s technological focus back upon it.  Following this path guarantees that copyright’s fetishes can still operate as they stand, since in the analog they are still functional.  The law, however, can neither keep deploying copyright in the digital realm as it stands, nor merely extend copyright unexamined onto a digital horizon.  The copy has become fluid, rhizomatic, dematerialized, and defined by its circulation – it can no longer serve its function as the fetishized fixation and centre of an intellectual property regime.  In the analog, copyright is still serviceable, but it is time to start anew in the digital.  Not everyone can be a fetishist.