BROOKE GLADSTONE: The Internet has instigated a raging debate about piracy and intellectual property. It’s never been so easy to access copy and distribute so much work created by somebody else. And yet, according to Lewis Hyde, Kenyon College professor and a fellow at Harvard’s Berkman Center, the issues underlying intellectual property aren't new. They were of utmost concern to America’s founding fathers. In particular, says Hyde, the founders brought three ideas to bear on the issue of copyright. The first was in regards to democratic participation. They had seen the way the British monarchy controlled the flow of information by giving publishing monopolies to favored printers. Uninformed people were less likely to participate. But Jefferson, Adams, Madison and Franklin were building a new republic in which the citizenry needed to participate, and so they took pains to lower the barriers to information.

LEWIS HYDE: So John Adams’ very first political essay was an attack on the Stamp Act. Now, when I was a kid, they taught me the Stamp Act was bad because it was taxation without representation. But Adams never talks about that. What he talks about is this was a tax on paper, and paper was how ideas were carried, and therefore it was a tax on ideas, and therefore it was like the old monopolies that the church and the state in Europe had used to keep the population in what he called a “state of sordid ignorance and staring timidity.”

BROOKE GLADSTONE: Now, I'm right in saying that there were three views that prevailed at the time, right? There was the one that talks about democratic governance, which you just described, and a second one that was focused more on the need to foster a creative community. And for this, Ben Franklin was the guy.

LEWIS HYDE: Yes, Franklin was a wonderful inventor but also a scientist who was a member of an international scientific community. And he felt and understood that scientific community works best if the barriers to expression are very low. So Franklin himself never took a patent, never copyrighted his work and, in fact, when was approached by people who did what we would now call acts of piracy, he tended to support them if, in fact, it was to the benefit of the public.

BROOKE GLADSTONE: Tell me about the third view of copyright. Who championed it? It involved the ability of the public to be public actors.

LEWIS HYDE: Well, in a sense, all of these people did. The very first Copyright Act in this country gave owners 14 years that they could renew once. That’s 28 years. The puzzle here is where to place the limit. One way I come at this is to talk about what used to be called Civic Republicanism, and it begins with the assumption that the point of property is not simply to enrich individuals but to give them a base from which they can then begin to turn their attention to their community. So there’s two steps to this. I call it the Republican Two-Step. On the one hand you have individual autonomy, but then the question is, why are you autonomous? Why are you free? And the answer to that for the 18th century was, you are free to try to serve your community. And I think that the early copyright law had this built into it. It gave a short-term private privilege in exchange for a long-term public benefit.

BROOKE GLADSTONE: What about the argument that people have the right to make a living [LAUGHING] off of their creative work?

LEWIS HYDE: People absolutely have this right, and nothing in my book is opposed to that. The question always is, what are the larger public ends by which we have shaped these rules? The founding generation was very wary of what’s called perpetuities, situations in which property was owned forever, because perpetuities were one of the ways that the aristocracy in Europe controlled their power for centuries. This is one reason that they put a limit on the term of copyright. And what we've done now is to extend the term of copyright such that it is statistically almost perpetual. The founders would be astounded.

BROOKE GLADSTONE: You cite three modern illustrations of how these ideas played out.

LEWIS HYDE: Yes.

BROOKE GLADSTONE: The Human Genome Project, Bob Dylan and the work of Martin Luther King.

LEWIS HYDE: So what you can do is to take the founders’ ideas and use them to think about the modern situation. So a positive case would be the way the publicly funded Human Genome Research was done. This was done internationally, funded both from the public purse in this country and from private philanthropies in England and so forth. And the whole way it was done was to share data in a collective enterprise. And this would have made perfect sense to somebody like Benjamin Franklin. And similarly I look at a creative artist like Bob Dylan in the early '60s who was a cultural sponge, not that he doesn't have individual genius but the individual genius is mixed with the collectivity that you can only have if the culture around you is freely available.

BROOKE GLADSTONE: And Martin Luther King?



LEWIS HYDE: Well, the King case is a sort of sorry reversal of this, because his estate has regularly stood in the way of scholars and others using King’s work in the way that King himself clearly would have wanted it used. Simple example is USA Today published his I Have a Dream speech on Martin Luther King Day one year, and the estate went after it for copyright infringement. I mean, this is crazy. You know, this is a person who wanted – and was a spiritual and political public actor and whose work came out of a great collective of African-American action over the past century.

BROOKE GLADSTONE: Then there’s another example, the civil rights anthem We Shall Overcome.

LEWIS HYDE: Nobody quite knows where the song came from, but it begins to be used in picket lines in the 1940s and then it gets picked up by people in the civil rights movement, and then people like Pete Seeger and his friends sing it, and they change it. And then there comes a moment when they realize that if they don't protect it in some way, it may be abused, and so they actually take out a copyright. But what they do is to set up a public trusteeship and give the income from the royalties on that song to the civil rights movement in the South. It’s an example of what I call “claim and release,” [LAUGHS] that is to say, using the law to say, okay, I own this thing but now that I have claimed it, I'm also going to let other people use it. And what happened in the last 30 or 40 years is others have adopted this model. So in the software community, they have a thing called the General Public License, in which somebody writes a piece of software and then gives it to the world under a license that lets anybody use it so long as they continue to treat it as a common property. It’s a nice middle ground between pure private ownership and an unowned commons.

BROOKE GLADSTONE: Lewis, thank you very much.

LEWIS HYDE: It was my pleasure to talk with you.

BROOKE GLADSTONE: Lewis Hyde is a faculty associate at Harvard’s Berkman Center and authority of Common as Air: Revolution, Art and Ownership.

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