(this is a draft of an article for the forthcoming OSI Magazine.)

Copyright is supposed to provide for the orderly functioning of creative production in our society, to maintain a balance between economic and civic interests. It has certainly failed. Any semblance of order in our media, either in content or distribution, has today broken down utterly. Consolidation of record labels, television networks, publishers and movie studios into multinational media corporations, means finance is now the primary motive force behind media production. The economic imperatives of these media multinationals impel them to demand blanket extension of copyright in term (see the US Congress’ repeated extensions of the duration of the period of copyright at the behest of entertainment industry giants such as the Walt Disney Company) and scope (see WIPO’s much maligned Broadcast Treaty). As these demands are satisfied, the ‘fair use’ provisions that educators, documentarists, academics and others have traditionally made use of in their work are being dismantled. Even the blind are no longer allowed open access to digital copies of audiobooks, for fears that precious copies will escape into the wild.

That ‘wild’, of course, is the internet infrastructure on which we’ve all come to rely, which by design is a massive copying machine without master. One of the net’s core functions — the transmission of digital files, which includes creative works of most types — continues to expand in inverse proportion to copyright owners’ attempts to extend their jurisdiction over it. No less than fourteen of world’s top one hundred websites at the time of writing are related to filesharing. Nestled in alongside behemoths like CNN, Comcast and the rest, they are uncomfortable proof that sharing media, far from being the marginal, illicit activity the copyright lobbies would like to present it as, has now become indubitably mainstream.

Bad news for creators? That depends on where you’re standing. For a documentarist like myself, the fact that ‘traditional’ modes of distribution are so consolidated makes them very hard to see positively: not only are they by nature exclusive — due to technological constraints they only have limited amount of space in which to place their media — they’re conservative, beholden to shareholders, bosses, or whatever other bottom line means that you and your project are not interesting to them. Today’s censorship, an inevitable result of market forces, comes with distributed, subtle or ’soft’ mechanisms for suppressing free expression that have become as powerful as any known in other centuries. ‘Instead of calling the process by which we limit our expression of dissent and wonder ‘censorship’”, said the playwright David Mamet, ‘we call it “concern for commercial viability.”

No matter what the mechanism, the result is the same: the range of what we can say, see, hear, think, and even imagine is narrowed. Entertainment and media companies’ compulsion to impose rigorous ownership on cultural materials has a ‘chilling effect’ on expression of all kinds. We live in a world in which audiovisual sequences, from news reports to Hollywood movies to TV shows, have an immense and unprecedented motive force in terms of what our societies value, think, and believe. We are immersed in and surrounded by such sequences, on televisions, billboards, radios — the public sphere has become completely suffused with them. Yet our power to detourne them, to answer back, to use the power they contain to create our own messages, is thoroughly constricted by an intellectual property regime that increasingly protects only the interests of its sponsors. Of course, media conglomerates have no reason at all, and are under no obligation, to give us the airtime to criticise their own messages.

That’s why “peer to peer” distribution seems less like a devil and more like a boon to some documentarists. Our films STEAL THIS FILM I & II, (www.stealthisfilm.com) which investigate elements of the crisis in intellectual property, have reached over 4m people through P2P networks, bypassing market censorship and raising the question of new approaches to copyright in the public sphere. We deliberately use the internet’s power to copy and transmit files to self-distribute our works, forgoing copyright for what Walter Benjamin once called our ‘right to be copied.’ Before anything else, a political or social idea must be auditioned in the public sphere: and it is no hyperbole to say that today, peer to peer distribution represents one of our best chances to sustain such an Agora on a global scale.

Does this promising ‘life in the wild’ solve all the problems of encouraging new voices and new ideas? Far from it. I am sure that business models based on restriction of copies, associated with the litigious corporatism of the media-entertainment complex, are buckling under the weight of burgeoning information technologies. I am sure that by looking beyond copyright, we are discovering distribution models of unprecedented efficiency and efficacy; we have said as much and shown as much with STEAL THIS FILM II. But we are only at the early stages of understanding how to support ourselves while working in this new way, without relying on foundations and institutes like the OSI. It is clear that copyright is no longer the solution to balancing civic and economic needs with regards cultural creativity, but the heart of the problem. We now need time, help and encouragement to find a new solutions, ones suitable to our own imperatives of extending knowledge, understanding and awareness.