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The appearance of ‘Friction over Fan Fiction‘ an article in the July/August 08 of the Literary Review of Canada signals a new, mainstream concern with a burgeoning phenomenon. TIt also, without intending to, raises to important arguements for limitations to copyright which explicitly set out that fan fiction is permitted.
I say burgeoning because according to the article; “a Google search of ‘fan fiction’ brings up over 26 million hits”.

Its not a new phenomenon, and its certainly not new for it to receive academic attention. Before the Internet made fan fiction more visible it was the subject of insightful pieces in The Construction of Authorship by Marthar Woodmansee and Pater Jaszi,published in 1994. Although its the seminal work on the subject it isn’t mentioned in the article, perhaps because the sub-title reads ‘Textual Appropriation in Law and Literature’, and it features a range of articles deconstructing the central conciet of copyright, that authors produce ‘original’ works, owing nothing to any preceeding creativity.

Fan fiction is itself a product of this conceit, the idea that a particular storyteller, engaging in the human activity of narration,  narrates a story, which embodied in a particular material fashion, in multiple copies of a printed book produced by an organisation dedicated to profiting from material objects of that kind, is somehow different from other storytellers. This special storyteller is different by virtue of her relationship to those material means of production, and this difference produces the idea of an author, the privileged storyteller, and the non-authors. Other story tellers are not authors according to this scheme, they are consumers who do not know their place, pirates, thieves, but even worse, untalented, derivative, or at best fans who unable to restrain their enthusiasm seek to slavishly imitate the stories of authors.

The article suggests that it can be a benign if mediocre activity. ” But advocates for fan fiction are trying to counter a perception that fan fiction is a marginal endeavour, a bizarre pastime for emotionally immature people obsessed with reworking ephemeral works of popular entertainment to produce amateurish, second-rate writing. With even fan-generated websites acknowledging this kind of thing – see http://www.godawful.net – such advocates do have a challenge.”

If we are to accept, for purposes of discussion, that there is type of storytelling entitled fan fiction, what does it involve? While some fan fiction might reproduce large tracts of text from the source, the vast majority of textual fan fiction does not, instead it seeks to use the same characters or at least characters of the same name, and possibly some aspects of the same environment described in the source. However these are often used in ways which differ from the source. The article relies on social scientist Camille Bacon-Smith, ‘author’ of Enterprising Women to declare.
“Sub-genres include mpreg (where a man gets pregnant), deathfic (where a major character dies), curtainfic (where the characters, typically a gay male pairing, go domestic and engage in such comfortably bourgeois exercises as shopping for curtains together), and AU (alternative universe, where the characters are displaced into an entirely new fantasy setting).”

What appears from this is that these narrations do not copy text verbatim from the source, instead they simply employ the same names. It is even arguable whether they use the same characters, since they describe activities in which the characters in the source do not engage. If the character as described by a storyteller is only as described by that story teller then only the names have been copied, which is insufficient to constitute the substantial copying required for infringement. If on the other hand the character consists of something else, a shared understanding between storyteller and community of an identity in keeping with but not confined to the description thus far by the published storyteller then how can the published storyteller control that understanding, and if such control were possible, why would it be legitimate.

This conundrum isn’t unearthed in the article, which is no surprising, since the author, Grace Wescott is a Vice Chair of the Canadian Copyright Institute, which represents the interests of publishers, and the conundrum would undercut her (unsupported) claim that fan fiction infringes copyright. This conclusion is based on another rather dubious claim, that copyright law protects “characters” rather than “works”, a generalisation based on one or two rather contested cases in the United States jurisprudence.

To be fair to Wescott, the article is in an online literary journal, not a law journal, and she states several times that ” the legal status of fan fiction is uncertain”. However the extended arguement most fan fiction cannot constitute fair dealing gives weight to the assumption, and more critically from a legal perspective, obscures the role that the facts of each case plays in determining fairness.

The article goes on to give two  reasons why authors might act against the ‘authors’ of fan fiction.

“The existence of fan fiction on the Internet, even though posted non-commercially, might erode their market for licensing subsequent books or other derivative works. The caution that authors have to exercise around managing their rights can be frustrating to fans and difficult for authors who don’t want to discourage keen readers, but must.”

This picture of kindly fan-loving authors being forced to administer appropriate discipline to unruly fans is also apparent in the second reason.

“Another concern is that an author working on a series might encounter in fan fiction an idea that is similar to or the same as the author’s own. If the author goes ahead and makes use of his own idea, having also seen the fan fiction in question, ironically, he may risk a law suit for copyright infringement brought by the fan.”

In both cases the article argues it is the lack of clarity about rights.

“Authors earn money by licensing valuable subsidiary rights, such as film, television, and merchandising rights, to media companies who may lose interest if the rights are not free, clear and exclusive.”

“Even without a lawsuit, if a fan writer speculates online that the series writer plagiarized her idea, it may be enough to seriously damage the author’s reputation.”

There are in other words two compelling reasons for clarifying that fan fiction is indeed lawful, constituting as it does no more than an ongoing practise of using culturally relevant references to tell a story.  This would not constitute an exception to the rights of the author but a limit. There need be no anxiety by the potential purchasers of derivative rights about lack of clarity, they will know precisely what they are purchasing and that is does not extend to works of fan fiction. Simultaneously, authors would be entitled by the same limitation to make use of situations or events which a fan might have pre-figured in her work, with no suggest that it is illegal or indeed illegitimate since it is on the very same basis

An author need not worry obscurely about losing some indefinable revenue because of non commercial work, but can rest assured that copyright law has not intended for her to collect all the imaginable, and unimaginable revenue from a work but simply to provide a sufficient incentive for creation. J K Rowling, who features prominently in the article, need not worry that she is in some indefinite way deprived of funds to maintain her position as wealtheist woman in the UK, she’ll can be content that copyright law intended to do no more than generate her the millions of pounds she has garnered for sale of the Harry Potter books and movies, and subsidary products.
An author may have to abandon the pretence that all her ideas are original, that they owe nothing to the world around her. While that might hurt an author’s conceit there is no evidence it will hurt her pocket.

In a previous post, the Traditions of Knowledge, I referred to the appropriation of traditional knowledge by means of industrial revolution intellectual property.

My friend Ethan Zuckerman explains in Turmeric, pygmies and piracy, in which he gives an example which shows just how blatant appropriation can be:‘In 1995, the University of Mississippi Medical Center was issued a US patent for the “novel” use of turmeric for improved wound healing. This was hardly a novel use for the Indians who’d been using turmeric for exactly this purpose for thousands of years. But US patent law does not recognize undocumented foreign “traditional knowledge” as prior art.’

Returning to the subject in A bitter fight brewing: Ethiopia and Starbucks clash over coffee Ethan explains how Starbucks worked with Oxfam, ostensibly to help Ethiopian coffee farmers, but at the same time applied to the USPTO for trademarks over the traditional names of coffees grown by the farmers. Sidamo, Harar and Yirgacheffe are each well known for a unique flavour, and each has been associated with the region in which it is grown for hundreds, possibly thousands of years.

The problem is not primarily that companies and individuals in the global North use traditional knowledge, it is a failure to attribute the origin of that knowledge, and an appropriation of the benefits of the knowledge through the monopoly conferred by intellectual property which raises the ire of many in the global South.

As I pointed out in an article on iCommons entitled Traditional Knowledge and Genetic Resources (Yale A2K2)

“Appropriation is a cross border phenomenon and often involves the use of mainstream intellectual property rights (IPR) i.e. patent and trademark systems by multinational corporations to ‘own’ traditional knowledge. That suggests, to me anyway, that the problem is with conventional IP.”

My reasoning is that if intellectual property systems are unable to effectively identify prior art or prior works, then the justification that the system affords protection to novel works or inventions falls away, and the system becomes a sophisticated lottery for awarding monopoly rents.

One response appropriation has been to record traditional knowledge in collections which then serve as records of prior art, making it relatively easy to prove that the knowledge was created and used by communities. It is an approach that appeals to commons lovers and access to knowledge activists, but its also has its downside, as Eric Kansas points out.

The Traditional Knowledge Policy (accompanying the Intellectual Property Laws Amendment Bill) mandates the creation of databases for traditional innovations, copyright works, terms and expressions, designs and performances. Anyone other than a member of an indigenous community who use those works must pay a fee, to a central fund, which must then use the funds for the benefit of the community*. This goes beyond protecting against appropriation and instead seeks impose the “exclude and then extract rents” reasoning of industrial revolution intellectual property.

In doing so it prohibits not just appropriatory practises but practises, such as the use of traditional knowledge in teaching and learning, or in order to record and preserve knowledge, which are as essential for the preservation of traditional knowledge as statutory protection. The Bill will result in the removal of a great deal from the public domain. That is cause for concern.

This is why the Shuttleworth Foundation (where I get to work on access to knowledge) requested the inclusion of exceptions for teaching and learning, and the like in the draft of the Bill which will be presented to Parliament.

*Copyright works which are regarded as traditional works are the subject of copyright even if not recorded in a database