Maybe you can, but you MAY not!

Dependent Child: “Hey Mum, can I go jump off that cliff?”

Custodial Parent: “Yes, you can. But you may not.”

DC:Aw, that’s not fair. Why not?

CP: Because I said so.

There’s nothing quite as frustrating as being informed by an entity with clout that you may not do something that you’re fully capable of doing, and reeaaally want to do. That “you-can-but-you-may-not” frustration is a familiar feeling for a lot of us these days, now that digital advances have made it possible to do eye-popping things that are creative, intellectually riveting, progressive, revolutionary, educational – but not not quite permitted by the powers-that-be.

This is not new to the digital era, of course. In the early days of mass music consumption in the U.S., the recording and radio industries were locked in combat, each fearing that the other would sap its profits. “The national radio networks did not play ‘canned music’ on air, and record companies printed ‘Not Licensed for Radio Broadcast’ on the labels of their records. Record companies also prevented their artists, whom they had under contractual relationship, to perform on radio broadcasts.” (Geels, Analysing the breakthrough of rock ‘n’ roll (1930-1970)). So, it pretty much boiled down to the question “How about we broadcast recordings to millions over the radio?” answered by an emphatic “Sure you can, but you may not.”

A while back I heard an interview with a 1940s era performer – was it Bing Crosby? Frank Sinatra? I can’t recall – who described how violently opposed he and fellow performers were to having their recordings played over the radio for fear no one would come to hear them in person any more. They were also afraid that they would be cut out of work from radio networks if they were no longer broadcasting live. Naturally, the fact that phonograph recordings COULD be played over the radio meant that they eventually WOULD be broadcast over the airwaves, and new revenue streams would blossom accordingly – it was only a matter of time. And sure enough, once radio stations and DJs started connecting directly with audiences to launch the Top 40 phenomenon, unimagined revenues flowed in to performers, producers, composers and everyone in between in those industries.

The simple fact is that human beings like to create stuff. They often want to share their stuff with other humans. They also like to profit materially from their own and others’ stuff. And they have always liked to pass comment on what the other human beings are up to. Sociologist and professor-extraordinaire Philip Ennis visualized these artistic roles as a four-cornered “diamond” that is “as necessary to creative life as the family is to reproductive life.” The four roles, Artist, Audience, Distributor, Critic are the essential elements in arts production, and each has a distinct role. The artist’s job is simply to “say something.” The distributor’s job is to get that artistic utterance (in whatever form) to the audience, and the audience’s job is simply to react with “yay!” or “yuck!” Finally, the critic’s job is to place the artwork in its context in relation to other works, past and present. In the 21st century, these roles seem to overlap in ever more dizzying and mind-blowing ways. Bloggers can be artists, distributors and critics – all at the same time, while also serving as the audience for fellow bloggers. Mashing up data streams with artistic vision and then sharing with others who add their own creative spice to the mix is easily possible – but, oh, by the way, not officially allowed. The fabulousness of Napster made it possible to freely and easily share music on a global network but of course it was shut down and that wild exchange of musical tastes was funneled into narrow commercial outlets.

In the arena of digital texts, the same temptations apply to create, share, change and share again. Higher ed faculty yearn to (and sometimes, shockingly, do!) annotate and post unlimited numbers of scholarly articles for their students to read online, even though those articles are owned by publishers and database aggregators who work hard to restrict access to them. Although books can be easily scanned and freely distributed online, as the recent Google Settlement shows, that’s not allowed, for the same reasons that Bing Crosby – or whoever it was – didn’t want his recordings broadcast over radio! As Peter Brantley put it in his blog post “Fire on the Plains”, from the perspective of rightsholders (that is, author or publisher representatives), “having unhindered access to books online at libraries might (among other issues) encourage libraries to decelerate buying print books, thereby reducing royalties to authors and profits to publishers. In this equation, more public access = less revenue.”

And look at yesterday’s news! AP has accused artist Shepard Fairey of copyright infringement for basing his iconic image of Barack Obama in the ubiquitous “Hope” posters on an AP photo. “AP protects its assets”, says a spokesman. One wonders how they’ll view the next spin of the wheel, the “Obamicon” website that allows you to make your own iconic portrait based on Shepard Fairey’s iconic portrait that was based on an AP photo….

One hopeful sign of progress towards “You can and by golly you may” has been the invention of “Creative Commons” licensing, which announces itself as a way to “Share, Remix, Reuse — Legally!” By assigning a Creative Commons license to your own work, you can change your copyright terms from "All Rights Reserved" to "Some Rights Reserved.” In Ennis’ terms, this is leading to refreshing twists on the conventional conversations between artist, audience, distributor and critic. (You want creativity? Check out the hilarious LOLCats, to watch the collective refinement of the fine art of photo captioning…)

Along the open source lines, the Internet Archive’s “Open Content Alliance” project is collaborating with libraries around the world to digitize millions of books and make them freely available online. The Internet Archive, a 501(c)(3) non-profit organization, describes its mission as attempting to build a digital library of Internet sites and other cultural artifacts, with “free access to researchers, historians, scholars, and the general public.” The catch is that all of the scanned works must be free from copyright restrictions, that is, published before 1928. But at least the full texts are online – thousands of them – and they’re fully searchable, and legal, too. Here in Massachusetts we have a great public library system that offers online access (through your local library or through the “Library of Last Recourse”, the BPL) to e-books and e-journals, and the Digital Commonwealth project is working to offer access to a wide range of digital texts and artifacts in Massachusetts archives and libraries.

As a culture, we’re waiting for commercial interests and the laws that serve them to get out of the way of the creative tsunami that’s pent up behind the walls of copyright and intellectual property protections. There is inevitable movement in that direction, and there will be big changes in regulating creative property and digital artifacts during this century; I hope I’m still around to see what kind of “diamonds” emerge when people can and may and do.


Geels, F. W. (2007). Analysing the breakthrough of rock ‘n’ roll (1930-1970) Multi-regime interaction and reconfiguration in the multi-level perspective. Technological Forecasting and Social Change, 74(8), 1411-1431. doi: 10.1016/j.techfore.2006.07.008. p. 1418

Ennis, Philip H. (1992). The Seventh Stream (p. 21).

Author: Joanne Riley

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