Sayonara Amerika, Sayonara Nippon

God Save the (Cultural) Village Green

Posted in Books,Change is Bad,Current Events,Japanese literature by bourdaghs on the January 31st, 2010

A few years back, as part of an ongoing project to rethink the works of novelist Natsume Soseki (1867-1916) in relation to the rise of modern regimes of property ownership, I wrote an article on him in relation to Mizuno Rentaro (1868-1949), chief architect of Japanese’s 1899 copyright law, a legal code that remained in effect — albeit with amendments — until 1970.

Under that law Soseki’s copyrights expired in the 1940s and his works entered the public domain. But in 1979, when Readers Digest Japan advertised a new series it was publishing that reproduced first editions of Soseki’s works, it found itself the target of multiple lawsuits filed by various publishing houses and other parties. The plaintiffs claimed that they held intellectual property rights in the physical appearance of those first editions. In essence, a moral right of authorship was being asserted for the acts of typesetting and printing of a book. As a result of out-of-court settlements in the Readers Digest Japan case, a new “right of reproduction” became standard in the Japanese publishing world. In a move the current U.S. Supreme Court would no doubt beam down upon with approval, the locus of the creative, original mental labor that was the original justification for copyright protection was shifted away from the personality of the author and onto the act of investment of the publishing house. Capital was granted the status of moral personality.

In a depressingly similar move, this week the NFL claimed ownership over the “Who Dat?” slogan used by fans of the New Orleans Saints football team. Though the phrase has a long history preceding the 1988 trademark registration filed by the team, the NFL is claiming exclusive authorship privileges and threatening to sue anyone who uses the phrase without permission. The NFL claim rests on very shaky legal ground; in fact, another business registered a trademark on the phrase several years before the Saints did, and the phrase has been in popular circulation for more than a century. But few small businesses or individuals have the financial capacity to engage in a court battle with a huge corporation like the NFL when it mounts this sort of intellectual enclosure.

This sort of situation is increasingly common in trademark law. Trademark originally was supposed to pertain only to specific, denoted meanings of a phrase, but increasingly legal decisions are expanding its domain to include secondary connoted meanings produced in the public commons by anonymous users of the phrase. Hence, McDonalds Corporation, for example, has claimed to own the nickname “Mickey D’s.” As legal scholar Rosemary Coombe notes:

The trademark owner is invested with authorship and paternity; seen to invest ‘sweat of the brow’ to ‘create’ value in a mark, he is then legitimately able to ‘reap what he has sown.’ The imaginations of consumers become the field in which the owner sows his seed—a receptive and nurturing space for parturition—but consumers are not acknowledged as active and generative agents in the procreation of meaning. The generation of new, alternative, or negative connotations are ignored, denied, or prohibited because patrilineal rights of property are recognized as exclusive: no joint custody arrangements will be countenanced.

(Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law. Duke University Press, 1998, p. 71)

The author may be dead in literary studies, as we focus more on the dialogic process by which meaning is produced through the relationships between author, text, and the community of readers. But in trademark law, the High Romantic version of the Author as the seminal source of all Meaning remains alive–or, more accurately, undead, a kind of zombie creature that lives on by sucking the living blood of readers and, now, of football fans.

It’s another instance of what scholars like Kembrew McLeod (the man who trademarked the phrase “Freedom of Expression”) and James Boyle have attacked as the contemporary equivalent to the enclosure of public commons land during early capitalism. It’s depressing to watch Japan in recent years follow the lead of the U.S. (which in turn is following the lead primarily of the motion picture and television industry) and propose extending the length of copyright protection to seventy years. I’m not opposed to copyright per se, but we are seeing an alarming destruction of the public domain, assaults on the notion of fair use, and a general attempt to transform into private capital the cultural and intellectual discourse that by its nature must be shared in common.

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