2023 October 6 - Buddhism v. Copyright
Part 1: Introduction
We—writers, philosophers, and lawyers—place an extreme amount emphasis and importance on the role of authorship and creativity. This hyper fixation is the cause of many of the problems we read about in copyright law. I maintain two central claims:
(i) Authorship and artistry are deeply misunderstood. I reject the romantic notion of authorship. This notion causes suffering. This suffering is—in part—attributable to copyright law and the assumptions therein.
(ii) There is no such thing as “creativity” nor “originality” as we currently understand them. Trying to define either of these terms is both detrimental and practically impossible.
Additionally, I argue that claims (i) and (ii) support, and are likewise supported by, the tenets of Buddhist philosophy. Ideally this will remain true without any need for circular reasoning (logic and sense should prevail). I will not be providing justification for Buddhism in itself, yet I will use it to support my argument. So, I must concede that if the reader does not give some natural weight to the tenets of Buddhism, much of my account will fail to hold. I am in no way a zealot of Buddhism. Its tenets absolutely deserve to be written about, tried, and refined just in another paper.
My argument, in sum, is that the presuppositions made my copyright law are in direct violation with the presuppositions of Buddhist philosophy. Both schools of thought, I concede, are maintained by faith alone. Epistemically, Buddhism and copyright are equally arbitrary and base. It is by the act of comparing them that we draw meaning.
What copyright law is trying to do is a hopeless attempt to remove the suffering caused by desire—and moreover, the suffering attributable to just being alive. And copyright’s way of achieving this causes more problems than it solves.
First, we will look at the 6 fundamental rights contained within copyright.
to reproduce the copyrighted work in copies or phonorecords;
to prepare derivative works based upon the copyrighted work;
to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
I will not consider each of these rights on their own, but I include them to understand what they are trying to achieve. Moreover, it is important to define unless I explicitly note that I am referring to a certain doctrine or notion of copyright law, I am referring to these rights. Next, we will consider the some of the central tenets of Buddhism.
Life involves suffering.
Suffering is caused by desire and grasping.
There is a way out of suffering.
The way is the “Noble Eightfold Path.”
Right understanding: Truly and deeply knowing, for example, that unwholesome acts and thoughts have consequences, as do wholesome acts and thoughts.
Right intention: Recognizing that actions are shaped by habits of anger and self-centeredness, or by habits of compassion, understanding, and love.
Right speech: Recognizing the moral implications of speech; truthfulness.
Right action: Observing the five precepts at the foundation of all morality: not killing, not stealing, not engaging in sexual misconduct, not lying, and not clouding the mind with intoxicants.
Right livelihood: Earning a living in ways that are consonant with the basic precepts.
Right effort: Cultivating this way of living with the attention, the patience, and the perseverance that it takes to cultivate a field.
Right mindfulness: Developing “presence of mind” through the moment-to-moment awareness of meditation practice, including mindfulness of breathing, mindfulness of walking, and mindfulness of bodily sensations.
Right concentration: Developing the ability to bring the dispersed and distracted mind and heart to a center, a focus, and to see clearly through that focused mind and heart.
(1)-(4) are referred to as The Four Noble Truths. Buddhism is a global religion, so when I refer to it I am referring to these ideas almost exclusively. I will not be discussing the entirety of the eightfold path, but seeing it is helpful for demystifying what I mean by, “Buddhism.”
Part 2: Ownership and Hegel
The clashing between Buddhism and copyright seems immediately obvious. All the rights included in copyright are meant to fight what is presented in The Second Noble Truth. All of these represent an effort at control, desire, and grasping. These well-intentioned rights carry with them the ethical presumption that they are in fact worthy of our desire. At least, in as much as their existence in law suggests that one might be worse off without them.
Moreover, these fundamental rights of copyright read less like “rights” and more like rewards. Copyright says to us, “Congratulations! You have made a piece of art! Now you can do whatever you want with it!” But we should expect a wise artist to say, “Haven’t I?”
Let us consider why this may be the case. Philosopher Justin Hughes, writing on the justifications underlying copyright law, considers two perspectives, “[S]ociety rewards labor with property…on the…grounds that we must provide rewards to get labor. In contrast, a normative interpretation of this labor theory says that labor should be rewarded.” Hughes’ interpretation holds in a descriptivist sense. He accurately describes the unconscious motivations driving the development of copyright law.
However, in a prescriptivist sense, these ideas—though internally opposed—are both wrong and dangerous. Whether we accept the former or the latter view, their application in society reverses itself when the point-of-view switches from philosopher to laborer. “I have labored so I must and/or should be rewarded.” This state later becomes conditioned to the point where it may read as, “I am being rewarded so I must and/or should have labored.” This later becomes applicable to artists. Their art, which may have otherwise been a meditative passion-project has now become labor, by virtue of the “rewards” given by copyright law. Copyright prevents us from experiencing creating without controlling. This is obviously not inherently the case—one may enter their own works into the public domain, which is good—but the presence of copyright law and the money put into enforcing it still suggests that we better of with those rights than without them.
This is not the only way in which copyright weaponizes authorship against the soul. Hughes, trying to understand the philosophical etiology of copyright, speaks on Hegel, “[The] [P]ersonality justification…posits that property provides a unique or especially suitable mechanism for self-actualization, for personal expression, and for dignity and recognition.” Property, in Buddhism, is not necessarily something to be avoided, but self-actualization, expression, dignity, and recognition are all almost universally desired. This points at a paradox within Buddhism—May I desire to not have any desire? The answer to this is usually, “no,” but it is also the necessary first step. The argument I present is not one of legal restructuring, but one of personal fulfillment. I think these laws are all okay as long as we remain mindful of their consequences. We should accept that there is a positive role for expression, dignity, etc. in our lives, but Hegel tells us this these things are locked behind the wall of property, or at least made more accessible by its acquisition. This is wrong. If we accept that the virtues Hegel lauds are contingent upon property, then we must also accept that these virtues apply more to those with more property.
Hughes describes Hegel’s, “Paradox of Alienation” as, “[A]lienation is the equivalent to abandonment: ‘the reason I can alienate my property is that it is mine insofar as I put my will into it.” And “the present owner maintains ownership because he identifies the property as an expression of his self. Alienation is the denial of a personal link to an object.” This “denial of a personal link,” Hegel and Buddhism would agree, alienation or abandonment is a way to express your ownership over something. Hegel’s paradox rests on the notion that once one has abandoned a thing, how are they then able to justify their abandonment? Buddhists might note that ownership of something is a kind of desire for it, at least in as much as one would rather be with it than without it. But a Hegelian would say, the desire is satisfied because they have become actualized by their ownership. Abandonment of an object by an agent, Hegelians and Buddhists would agree, constitutes “ownership” thereof. This should necessarily then be a function of the agent no longer desiring the object. It is tautological that if the agent abandons all their desire, then they will then own everything they want.
A similar perspective by Diane Zimmerman considers that the value of copyright persists from a respect for autonomy. She writes, “one could argue that the use of copyright to protect works that bear on them the imprint of the unique individual who created them implements in part the society’s fundamental commitment to the respect for the value of autonomy.” Considering Zimmerman’s view with the Hegelian view—and opposed to the Buddhist view—reveals that the opposite is true. Autonomy ought to be the freedom from property, from desire, and from suffering.
At the roots of the philosophical justification underlying American copyright is the idea that the ownership of personal property—intellectual or otherwise—is a means useful in the development of the mind and spirit: self-actualization and autonomy. However, if we maintain the Buddhist perspective, the ownership of personal property is indeed one of the most potent hinderances to these virtues.
Part 3: Theater of the Mind
In the last section we discussed mostly how certain presumptions that influenced copyright do not hold against The Second Noble Truth—and therefore neither should copyright. In this section we will focus more on The First Noble Truth.
Intrinsic to both The First Noble Truth and The Third Noble Truth is the idea that the goal of Buddhism—at least in this life—is not happiness, but contentment. If life is suffering, then the best we can hope for is just the way out. Anything that offers you more than contentment is just a greater height to fall from. Let us compare this then to the author as god idea and the very notion of creativity.
Hughes writes—again describing Hegelianism, “Mental processes—[like]… explaining and remembering—can be viewed as appropriation of the external world by the mind. Cognition and knowledge…are the world imposing itself upon the mind. The will is not bound by these impressions. It seeks to appropriate…by imposing itself upon the world.” This is what the legal idea of creativity draws from. I think we would agree that “The will” is conceptually similar to “desire.” The will does seek to impose itself on the world, and one way we do that is by “creating” our own worlds as art. In copyright, “to pass the constitutional threshold, copyrighted works must possess “some minimal degree of creativity.” Or, in other terms, some part of your will must have been expressed.
The idea that the will imposes itself on the world is an irresponsible merging of desire and selfhood. More broadly, a merging of self and the experience of self. Artistic expression ought to be the method by which I can distinguish the self and the experience therein. I make this distinction on the basis of metacognition and emotion. The difference between what is conceivable and what is inconceivable is that the conceivable may be interpreted by sense data. If you have an idea in your mind that feels amorphous or undeveloped that is because you are feeling confused. Any thought, no matter how confusing it may feel, is still expressible through words, sounds, pictures, smells, etc. It is an emotional experience that we cannot capture (yet).
Richard Jones writes, “thinking is viewed as concept manipulation, i.e., a process necessarily involving representations (expressions). The notion of an expressionless idea is totally alien” and “There [cannot] be a piece of music apart from an expression.” Jones is correct on this, but it does not feel like that is the case. The reason is because we associate emotions with our ideas and expressions. Authorship, then, is the fixation of an idea-expression into a medium, but without emotion. Any emotion that art causes is completely internal and perfectly unique to every consumer thereof. This is where the act of creating art draws its therapeutic properties from. This is evidenced by The Fourth Noble Truth or The Eightfold Path. Creating art is, or ought to be, an act of mindfulness, intention, and understanding.
The law struggles with this notion of authorship because it is non-creative. All thoughts and ideas are just unexpressed, yet fully developed expressions that are the culmination of various sense data. It must also be the case that all thoughts are just reordered sense data. The way we talk about creativity legally is as if artists create new colors instead of painting with them. Or, for Hegel, it is as if their will is imposed on world, not the world on their will. Artists are less “creative” than they are industrious. An artist is an art factory whose raw materials are sensation and perception. Jaszi writes, “at base, however, the law is not so much systematically hostile to works that do not fit the individualistic mode of Romantic ‘authorship’ as it is uncomprehending of them.” This is how the disconnect between the idea of creativity and the reality manifests itself in law.
Jaszi’s choice to describe the law as “uncomprehending” in relation to non-romantic creativity is a kind of beautiful irony. Instead, we should say that the concept we call “creativity” is incomprehensible. To accept the romantic notion of creativity in which art is created ex nihilo is to deny causality.
Part 4: On Language Games
One would not be mistaken to ask, how is it then possible that we may even talk about all these “incomprehensible” and “inconceivable” notions. The answer comes to us, in part, from Ludwig Wittgenstein, “When language-games change, then there is a change in concepts, and with the concepts the meaning of words change.” Meaning, Wittgenstein asks us to consider, is not a reflection of facts, but a reflection of language. Wittgenstein suggests that we are capable to talk about anything as long as it follows the rules of our language game. The factual comprehensibility of a statement is entirely irrelevant. This is how he dismantles epistemic skepticism, “doubt about existence only works in a language-game.”
On logic, Wittgenstein writes, “[I]f I make certain false statements, it becomes uncertain whether I understand them; what counts as an adequate test of a statement belongs to logic. It belongs to the description of the language game.” This is how the law is able to develop and enforce non-factual notions like creativity. Romantic authorship is a kind of solipsism which is also a kind of skepticism.
Wittgenstein also helps us to break down the romantic notion even further. Romantic artistry is egocentric—which, again, may only be possible to discuss because we have these concepts in the language game. Without friction between the language game and reality, authorship would be entirely ego negative. Where traditional authorship is more of a brutish command, ego negative authorship is more of a gentle plea.
To summarize, ego negative authorship is closer to an accurate description of how we actually think, feel, write, create, and communicate. The language game allows us to have our legally supported concept of an egocentric, romantic, author—despite its inaccuracy.
Part 5: Conclusion
The intersection of Buddhism and the philosophy of copyright provides insight into the nature of creativity, authorship, language, knowledge, and experience. Through an examination of the presupposition of Buddhism, copyright, and Western-philosophy in general, it should become evident that the conventional, legal, definition of copyright—as perpetuated by governing bodies—is deeply flawed.
Buddhism’s central focus on the recognition and overcoming of desire challenges the entire framework upon which copyright law is built. This is because Buddhism enlightens us to the problems with an ego-centric, romantic notion of authorship. Buddhism does this by focusing on the interconnectedness of all things and the separability of the self from momentary desires or emotional states. The pursuit of self-actualization, freedom, and autonomy—which copyright claims to facilitate on the societal level—are actually hindered by the desire, grasping, and attachments that necessarily follow ownership.
Moreover, an examination of creativity and authorship through Ludwig Wittgenstein’s language games offers a new and interesting perspective on the subject. The problems of copyright are the cause of friction between the language game and material reality. My ego-negative authorship conception challenges the conventional, romantic ideal of the author as a god. Instead, I acknowledge that all knowledge, thoughts, or expressions are a form of communication. Whether entirely internal or external it remains true that the only way to communicate is within the rules of a language game.
With all these considerations in mind, it should be obvious that copyright’s attempts to label authorship and creativity should be rejected.