The Hindu Business Line : To hear A. R. Rahman you may need Zoellick's permission

WE are sinners once again, and Uncle Sam knows how many of us saw The Passion of the Christ days before the movie was released, secretly playing pirated CDs. Reminding us of the `stand outside the class' reprimand of schooldays the US has put India on priority watch list along with more than a dozen other countries. At this rate, those outside may outnumber the ones inside, you may think, because intellectual property is expanding

exponentially and protection is not able to catch up. Angry Indian grandmas may protest that their recipes are being counterfeited in Bush's own country, but if big MNCs were to know about such whimpering, they would soon patent almost anything from idlis to kulfis.

There is no free lunch, economists would reiterate, but what about culture, asks Lawrence Lessig in Free Culture, published by The Penguin Press (www.penguin.com) . "A free culture is not a culture without property, just as a free market is not a market in which everything is free," explains Lessig in his preface. "The opposite of a free culture is a `permission culture' — a culture in which creators get to create only with the permission of the powerful, or of creators from the past." He argues for a balance, rather than swing to extremes, because even a free market can be perverted if its property becomes feudal. Don't forget that Edwin Howard Armstrong, inventor of FM radio, committed suicide when RCA and other big companies were aligned against him "to stifle the effect of technological change".

Historically, it was commercial culture that was regulated while the non-commercial one wasn't. So, you paid for your coke while rotis could be made at home without paying any royalty. Internet is the new `culprit', because it has erased the "rough divide between the free and the controlled". Thus, in the context of p2p (peer-to-peer) file sharing and Napster controversy, Lessig writes: "For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before." As a consequence, "we are less and less a free culture, more and more a permission culture," in a world that would have Bumbles on one side and meek Oliver Twists on the other.

Before summoning `the executioners' to deal with pirates, Lessig pleads for a re-look at the concept of piracy: "Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value. Whenever I take something of value from someone else, I should have their permission. The taking of something of value from someone else without permission is wrong. It is a form of piracy."

It is this perspective, points out the author, that led a composers' rights organisation, ASCAP, to sue the Girl Scouts for "failing to pay for the songs that girls sang around Girl Scout campfires."

Is there not a danger that we may be protecting the instrument of intellectual property, even at the cost of preserving society's culture that it has to subserve? "Just at the time digital technology could unleash an extraordinary range of commercial and non-commercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties," decries Lessig.

There is plenty of value out there that `property' doesn't capture, points out the author, citing how creators of all times have been "building upon the creativity that went before and that surrounds them now". Interestingly, "every society has left a certain bit of its culture free for the taking." Is that freedom getting endangered now?

Chapter four, titled `Pirates', begins thus: "If `piracy' means using the creative property of others without their permission — if `if value, then right' is true — then the history of the content industry is a history of piracy. Every important sector of `big media' today — film, records, radio, and cable TV — was born of a kind of piracy so defined."

Much like pots calling kettles black, "the consistent story is how last generation's pirates join this generation's country club - until now."

The very last point in the book should cheer accountants: "Fire lots of lawyers". But Lessig himself is a lawyer, so why? "Our profession has become too attuned to the client," laments the author.

"And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law." He has no cane to spare for economists too, for they have underestimated the transaction costs of legal system. "They assume it works the way their elementary school civics class taught them it works." But, sadly, "the legal system doesn't work. Or, more accurately, it doesn't work for anyone except those with the most resources."

A book for our lawmakers and the rest too, for they are the affected ones.

Economics@TheHindu.co.in

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To hear A. R. Rahman you may need Zoellick's permission