Here is the piece:
Many of us take it for granted that we can download films or music without paying. Now, new projects such as Google Book Search will make millions of books available too. What will this mean for authors and the publishing industry? John Lanchester asks who owns what in the digital age.
The words "intellectual property" have a fairly predictable effect. Use them in conversation, and nine out of 10 people immediately fall into a deep sleep, only to wake eight hours later demanding coffee and Weetabix. The 10th person, who is likely to have some engagement with the creative industries, will immediately launch into a long, articulate, autobiographical complaint.
The broad story of copyright is one of creative individuals feeling they are being stiffed, and that the public interest is losing out as a result. Everyone has a beef about it. This is mine. Between Christmas 1941 and the dropping of the atomic bombs in August 1945, my grandparents were in a Japanese internment camp in Stanley, at the far edge of Hong Kong island. Many internees died of malnutrition and illness, only three Red Cross parcels arrived during the entire war, and some of their closest friends were tortured and executed by the Kempetai, the Japanese military police and equivalent of the Gestapo.
Personal possessions were scarce. By the end of the war, my grandmother owned only two things: a one cent coin with the middle drilled out, which she wore as a wedding ring, since she had traded her ring away for food in early 1945; and a small pocket diary for 1942, which she must have bought before the fall of Hong Kong. She used that diary for the next three years, writing in pencil, and commenting almost exclusively on food - basically, every time they had something other than rice, she made a note of it.
At the end of the war, the internees were given a typed newsletter that filled them in on what had happened while they were in the camp. (Almost the first thing on it was a remark about the influence of women in all areas of civilian life during the war: "driving buses and working in factories".) At about the time she was given that newsletter, Lannie, my grandmother, must have found a typewriter, because along with the other scraps of paper from this period I found a poem that she, or someone else, had typed out. It was called "A Farewell to Stanley":
A farewell to Stanley - it's over
Of internees there's not a sign
They've left for Newhaven and Dover
For Hull and Newcastle on Tyne.
The poem must have meant a lot to Lannie, or she wouldn't have kept it for the rest of her life; it is, it seems to me, a rather good poem. But you won't find it in the American edition of my book Family Romance, because my American publisher was reluctant to let me quote it. The fact that I couldn't find anything about the poem's author made them too nervous. If I couldn't find him or her - didn't even know whether he or she existed and wasn't a pseudonym - then the poem was probably in copyright and as such couldn't be published.
There might have been a way around it, if I was prepared to indemnify the publisher from potential costs arising. That didn't seem fair to me. "I don't feel I can indemnify you for the legal risk, for obvious reasons to do with the relative balance of resources between us," I wrote to the corporate lawyer. "Pearson is a £6bn global corporation, I'm a writer with two small children and a mortgage ... One of the complaints of the people in the camp was that they were forgotten and silenced. It does seem sad that this person's voice won't be heard precisely because no one knows who he or she was."
No dice. The poem isn't included in the US edition of my book. It was cheeky of me even to ask, since, as my American editor told me, "copyright over here is like libel over there" - in other words, it is immune from common sense, with no room for flexibility or negotiation or the self-evidently right thing. It is almost impossible to exaggerate the ferocity of the copyright laws in America, which are in effect written by the large entertainment conglomerates. The most famous example of this is the Mickey Mouse effect, whereby every time the Mouse is about to come out of copyright, the term of copyright is extended. This has happened 11 times in the past 40 years. If the same laws had applied retrospectively, the US government would never have been allowed to use the name or the image of Uncle Sam.
The corporations have the power, and they are not afraid to use it. The Digital Millennium Copyright Act in the US considerably extended the range of both criminal and civil offences that could be committed over copyright issues. There is a clause in US film contracts which awards the producers rights "in perpetuity and throughout the universe and for any and all forms of expression whether now existing or hereafter devised". As far as I can tell, the only loophole in that is if you fell through a crack in the space-time fabric of the universe into a parallel one. (In case you're wondering how that bizarre clause came about, it was as a result of a lawsuit between Disney and the singer Peggy Lee over the video-cassette edition of Lady and the Tramp. Her contract was drawn up before the existence of VCRs and she sued on the basis that Disney did not automatically have the right to sell videos without her permission. She won $3.8m, and the "throughout the universe" clause was born, to make sure the studios never went through anything like that again.)
There is an irony here. Twenty years ago, the US studios announced that the end of civilisation as we know it was at hand; the destructive force was the video-cassette recorder. Jack Valenti, president of the Motion Picture Association of America, went before Congress and said that "The growing and dangerous intrusion of this new technology is to the American film producer and the American public as the Boston Strangler is to the woman alone." Today, revenue from video rentals accounts for 46.6% of all the money earned by the major studios. Without the technology they fought to the last ditch, the studios would have gone out of business.
The entertainment industry feared new technology, and didn't understand it. And then came the internet and file-sharing. First they adopted the ostrich position, then they counter-attacked by issuing semi-broken "copy-protected" CDs, and by suing alleged file-sharers, and in general did everything they could to try to make their customers hate them. Thanks to these draconian legal tactics - which have involved mishaps such as suing dead people, children and grannies who don't own computers - the industry is slowly managing to convince people that file-sharing is illegal. But that is not the same thing as persuading them it is wrong.
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