Eva Hemmungs Wirten: No Trespassing

In July last we looked at Eva Hemmungs Wirten's PhD thesis (from 1998), which was about romantic fiction; and, in the course of examining that subject, the author had quite a lot to say about the globalisation of literature and the power of the multinational media conglomerates.

Subsequently, in 2004, Wirten published No Trespassing: Authorship, Intellectual Property Rights, and the Boundaries of Globalization (University of Toronto Press).

Now I suppose we had better admit at the start that the average would-be writer -- indeed the average publisher -- could probably go through life quite comfortably without actually reading this book, which has a definite academic slant to it. However, I have always taken the view that it never does any harm to learn as much as possible about the background of the business you happen to be in. So I would encourage you to borrow a copy of this book, and at least have a look at it, even if you don't actually buy it for your bookshelf.

The book has three main subjects, which are stated in the title: authorship; the ownership of intellectual property rights (in a whole lot of other things besides books); and the 'globalisation' of the media in the last few decades. Along the way, Wirten looks at the relationship between authors and translators; the impact of the photocopier; and what I would describe (though Wirten doesn't) as the massive greed of modern media conglomerates (Wirten calls them TransNational Media Corporations, or TNMCs). I know that business is business, but sometimes these people go a little too far for my taste.

There are two aspects of the style in which the book is written which require comment, before we look further at the contents.

First, Wirten is an associate professor at Uppsala University and is, I believe, Swedish by birth. But as no translator is mentioned in connection with No Trespassing, I also assume that she wrote it in English. This situation leads to passages which occasionally read rather oddly; indeed there are more than a few points where one is not quite sure whether she has said what she meant to say; although in other places her use of English is quite idiomatic and informal.

Secondly, this is a very academic book, and there are certainly chapters where Wirten resorts to the kind of litbabble which does no one any credit. She has got in with bad company (too many professors of Eng. Lit.), and has picked up some nasty habits. On the whole, however, the book is, to use the publisher's description, scholarly yet accessible. Well, reasonably acessible. Bits of it are just plain incomprehensible, especially when Wirten quotes other academics.

Chapter 1 considers Victor Hugo's opening speech at the Congres Litteraire International in Paris in 1878, a speech which ultimately led to the foundation stone of modern copyright, the Berne Convention of 1886.

Chapter 2 uses Peter Hoeg's bestseller Miss Smilla's Feeling for Snow, which is also known as Smilla's Sense of Snow (two translations, two titles) as the basis for consideration of the complications which can ensue when translation takes place.

Then, in Chapter 3, we come to the question of how technology can result in change: the photocopier is used as a case study.

The growing interest in, and importance of, intellectual property rights is the subject of Chapter 4. And, of course, we must remember that intellectual property covers far more than just copyright; it involves trademarks, industrial designs, patents, and so forth.

This point is hammered home in Chapter 5, which looks at how a nation's culture can, in a sense, be seized and exploited as property.

The final chapter, Chapter 6, deals with two legal disputes in an attempt to decide what is or is not, and what should or should not be, in the public domain.

I'm afraid I found myself not very interested in Victor Hugo, but Chapter 1 does provides a valuable summary of events for those who need to know more about the history of copyright.

Fortunately, Chapter 2 becomes more relevant to our circumstances today. As mentioned above, we get an enlightening case study of the events surrounding publication of Peter Hoeg's 1993 bestselling novel, which I will abbreviate here to Smilla. In Hoeg's native Denmark, this book had a mixed critical reception, some of the negative comments being prompted by a belief that a big seller is, pretty much by definition, a nasty, vulgar book; and, to such critics, a big seller in America is held to be unspeakable.

What strikes me most about this chapter is just how clueless some academic critics are. This is an all-too-familiar but always somewhat astonishing realisation. By and large, academics insist on finding more in a book than is really there, and they complain bitterly when anyone actually sets out to entertain the reader. In my view, this attitude is often adopted, consciously or unconsciously, in order to demonstrate the intellectual superiority of the reviewer; and I find it socially, professionally, and morally objectionable. What is worse is that such critics' views are invariably dressed up in fancypants language, with a level of obscurity which often manages to disguise the sheer banality of the ideas on offer.

Smilla, for my money, was just a thriller which started brilliantly and ended much less so.Wirten reminds us that the heroine in Smilla turns out, at the end, to be trapped on board a ship while the bad guys are after her. And one highbrow commentator maintains that 'the ship is a useful metaphor for the relationship between the empire and the colonies.' And metaphors, of course, are A Good Thing.

Now, I don't pretend to know how Peter Hoeg's mind was working when he wrote the end of Smilla. But I do know how 99% of the authors of thrillers would be thinking. Smilla develops into a woman-in-peril story. And when you're writing a woman-in-peril story, it's a good idea to put your woman in a really tricky situation. You put her somewhere where there is no easy way out. A sealed sewer system, for instance; or a train; or -- now here's an idea -- on a ship! In the vast majority of cases, metaphors about 'empire and the colonies' would have fuck-all to do with it.

Wirten, I fear, tends to side with the academic and highbrow critics in this regard. 'Smilla's "dustbin" identity', she tells us, 'struck a cord with readers who perhaps recognized the constant negotiation of "otherness", its function of incorporation and negotiation.' Or perhaps not. Perhaps readers just read it as a thriller (and it was later made into a not-very-good movie).

The sentence quoted immediately above is a prime example of the occasional bursts of litbabble that I warned you about. And there is more. According to someone called Danius, 'Smilla is first and foremost a text about the contemporary conditions of postmodern uncertainty and postcolonial ambivalence, and only second a literary pastiche.'

That, I'm afraid, is gibberish.

Wirten is on much surer, and more interesting ground when she tells us how it was that Smilla came to have 'two' translations. It seems that the American publisher commissioned a translation from Tiina Nunnally, with the title Smilla's Sense of Snow. When the translation was finished, the author went over it in detail, and asked for certain changes. Some were agreed to by the translator, and some weren't. The US publisher went with their translator's version; but the British publishers preferred to accept all of the author's changes. And the translator, who had a highly distinguished track record, thereupon declined to have her name on the British edition, and the translator was therefore shown as a non-existent F. David.

It is arguable as to which version of the book best served the readers and the author.

There is a lot more in this chapter about translations, much of the discussion being mercifully free of academic jargon. English, for better or for worse, is the dominant language in the world today, and hence translation tends to be largely forgotten in the UK and the US. Comparatively few translated works are published in the UK or the USA; and from 1968 to 1992, only 2 per cent of US bestsellers came from non-English-language authors.

The third chapter considers the question of what happens to authorship and intellectual property rights when they meet the machine, and most of the chapter is concerned with the development of the photocopier. This is a fine old story of missed opportunity.

Chester Carlson was a man who found it inconvenient not to be able to make copies of documents, so he devised a new method: but when he tried to get his ideas implemented he was turned down by IBM, Kodak, General Electric, and RCA. What a testimony to the success of capitalism.

Things did not go smoothly even when the Xerox company took over. The early Xerox machines had a nasty tendency to catch fire. So common was this that each machine had to be provided with a fire extinguisher. But, true to the American principles of plain speaking, these were referred to in the company literature as scorch eliminators. The Japanese, it later turned out, built better machines at half the cost.

All in all, Chapter 3 is an entertaining read and a great relief from the nonsense of Chapter 2. And what this chapter demonstrates is that, with the invention of the photocopier, anyone on earth could become an author -- at least in a modest sense. You no longer needed lead type and a machine that used ink.

And that possibility, of course, greatly alarmed those who had hitherto controlled the flow of information. As Wirten puts it, 'As soon as we see new technological modes enabling access [to information], we will see a direct response on all levels to delimit and police that possibility.' Yes indeed.

Chapter 4 is entitled How Content Became King: Economies of Print. And its subject is the process which affected publishing and the media in general from about 1960 on: conglomerisation. 'Where once there was a publishing house relentlessly searching for quality... there now stretch desertlike corporate spaces of major multinational media conglomerates whose understanding and appreciation of books and reading is tantamount to nil.' Quite.

During the course of this chapter, we learn that, historically speaking, large corporations have done whatever suited them. In the nineteenth century the Americans pirated European literature, and vice versa; in the twenty-first century the big firms try to implement digital-rights management, and they sue fifteen-year-old kids who download music. At all stages, content is seen as a key asset.

Chapter 5 asks whether there can be property with a 'difference'. And the answer is yes.

Here we go back into impenetrable sociological jargon -- at least in places -- which is a great pity. At the top of one of the pages I have scribbled the following note: If it was vital to know this stuff I would go in search of a simpler explanation. So be warned. However, parts of the chapter are reasonably straightforward.

What we learn from this chapter, if we can be bothered to stick with it, is that the greed of large companies knows no bounds. We already know this actually, because of Kembrew McLeod, but Wirten provides further examples. The word Olympic, for instance, together with the signs and symbols of the Olympic Games, 'belongs' to the US Olympic Committee. The Dutch ABN/Amro Bank holds the exclusive rights to the combination of the words The and Bank. And author's rights in 'techno dance' were in 1997 claimed by the Zurich-based company Techno Tanz Veranstaltungsverwertung Zurich GBR, which subsequently demanded that a Berlin disco should pay a fee for using the phrase.

Worse, while Prozac, Levis, Grisham, and Hollywood movies go into developing countries, 'cultural' items such as the customs, visual patterns, oral traditions, and ancient medical treatments of the indigenous peoples are looted because they are not equally well protected. Traditional American Indian imagery is used sell motorcycles; an image of the Wandjina spirit is used as the logo of an Australian surfboard company; and so forth. (Australia did not even grant citizenship to its Aboriginal population until 1967.) And of course, such 'borrowings' are then fully protected by their new owners.

The history of the concentration of publishing companies into an ever smaller number of companies is considered in some detail. And one side effect of this process is that the author becomes almost irrelevant: not so much an individual as the legal entity of the publishing house.

As the twentieth century progressed, intellectual property became an extremely valuable export. The companies which marketed copyrighted materials became one of the fastest growing segments of the US economy, with an annual growth rate more than twice that of the economy as a whole. But it was found, in this process, that not every nation provided laws which were sufficient to protect the interests of the large companies; and so the big boys began to lobby both nationally and internationally for more protection. And, if you've been paying attention, you know that they got it; and will continue to demand more.

It may still not be enough, at any rate to satisfy the big companies. It is estimated that in 1995, China produced $1.8 billion worth of pirated US films, books, and music; even Italy stole $515 million. The Russian mafia and the IRA are said to be among those profiting from this wickedness; and so too (oh but you've guessed) are Middle Eastern terrorists.

The final chapter of No Trespassing deals with 'two cases of upset relatives and a public domain.' Here we find that Victor Hugo becomes relevant once again, in a rather amusing way. Hugo's descendants took offence at what they considered to be the exploitation and vulgarisation of his work. But the French courts, using Hugo's own words, did not agree with them! Hugo had written extensively about the value of work being in the public domain, and, on the strength of that, the relatives' case was summarily dismissed.

The other case which is considered here is the much better known row about the publication of a parody of Gone with the Wind, entitled The Wind Done Gone. The trustee of the Margaret Mitchell estate sought damages of $10 million for the unauthorised use of copyright material. This case rattled around the American courts until the two parties eventually reached a confidential settlement. Under this arrangement, the unwelcome sequel to Margaret Mitchell's huge seller would continue to be sold as 'an unauthorised parody'.

In the US and UK, meantime, determined and successful efforts have been made to extend the term of copyright. These efforts were largely initiated by the large corporations, though the heirs and successors of those whose work is taught in universities and colleges are also major beneficiaries. The public domain is the loser, and so are readers, because they are deprived of new and fresh material which is inspired by, and draws upon, the giants of the past.

The conclusion of Eva Hemmungs Wirten's book reminds us that intellectual property rights today cover everything from DNA sequences to ebooks, from totem poles to traditional medicine, and every form and kind of artistic endeavour. The nature of the subject is such that it puts to sleep the average member of the public. (If you have struggled to the end of this review article, congratulations.) But the impact of the growth of intellectual property is far-reaching; in fact, 'it reaches down into the innermost core of the human genome.' It would be a smart idea for all of us to take a bit more interest.

If I have been critical of No Trespassing in places, let me conclude by saying that it is a considerable achievement. Let's face it, I couldn't write a book in French or German. The material assembled is deeply complex but has been well researched; and not many writers in this field can match Wirten's grasp of the subject. We live in an age when academics, desperate to add to their list of 'publications' will cobble together more or less anything; but this is a proper book, the result of several years' work; and, despite some shortcomings, it is a great credit to its hard-working author.