Director, Archival Footage Development, HBO
October 8, 1993
Rapid development of emerging media and networking technology has given rise to a panoply of optimistic and sometimes utopian visions. But at the same time, owners of intellectual properties face the future with doubt and trepidation. How will they enforce their rights of ownership and guarantee themselves a continuing income? Can property rights continue to be a foundation of our society as intangible property begins to replace nuts and bolts? And finally, how will these feverish debates and struggles actually affect members of the consuming public?
This lecture will try to help citizens and creators stake out positions for the immediate future. It will feature the confessions of a rightsholder, recall the stories of some interesting licensing transactions and seek parallels in the history of electronic media and the evolution of the American landscape.
I had no idea that I was beginning to think like an archivist, and even less idea that I was drifting into business, and a pile of films slowly began to accumulate around my platform bed. It was a hard winter in 1982-83 and I was relieved when spring came, and celebrated by renting a real office for the first time and moving all of my films there. People heard about this and suddenly began to call me, wanting access to the images contained in these films; and in time my collection -- which just looked to me like a pile of beat-up metal cans -- started to look like intellectual property.
So that was over ten years ago, and I have been building a film archives and engaging in licensing activities since then. Now everything's heating up, and those of us who have something to do with the emerging media are discovering we're part of what must be the most self-reflective and overpublicized industry ever, and I'm beginning to have that cult-like feeling again.
And I've also been waiting several years for the INCOME STREAM to kick in from the emerging media, and I'm still waiting. Most rightsholders (and most prospective users and licensees of preexisting works) are locked into DEFENSIVE POSITIONS, worried about killing the goose that might one day lay golden eggs. Some people seem to be worried about the obsolescence of the system of private property rights. And others fear growing class divisions in an increasingly stratified infoscape.
And while we all wait for hardware that's cheap, powerful and small and software that can hold the interest of the imaginary consumer, there has been plenty of time to think about safeguarding the most nebulous of all properties, images, sounds and ideas. But I have to say that while technology has leaped and bounded, licensing concepts haven't. In my opinion we're yet to see the great "paradigm shift" with regard to intellectual property -- and maybe we never will.
Now in the last few years we've seen the emergence of computers and networking systems that can make possible the creation and transmission of works in the new media. We've also started to see the first authoring software, and many of us have had access to multimedia titles or various Net functions that in themselves are really something new. So a kind of revolution has begun, but what kind of revolution is it?
I have a lot of friends in the independent and experimental media community, and some of them have become extremely enthusiastic about these new developments, and they have started to sound like visionaries do in other fields...words like "empowerment" and "access" and "electronic democracy" fall from their lips. I guess I do this too, sometimes, but I'm really uncomfortable with this kind of talk, because it sounds so much like the kind of talk that was in the air in the early years of TV broadcasting. Here is an example of what I mean: Mortimer W. Loewi (director of the DuMont Television network), 1949
"the greatest instrument for mass dissemination of information and knowledge since the days of Gutenberg...the logical, inevitable sequel to all [man's] achievements in radio and motion pictures, in printing, photography and the fine arts."Herbert S. Laufman, "Television's Impact," Radio & Television News, July 1949, p. 127.
"Television will topple the walls of misunderstanding and tolerance [sic?] -- the Tower of Babel of our time. Television will project ideas and ideals across international boundaries and be the greatest frontier-jumper of our day....This great new medium of television makes its chief appeal to the eye, which discerns truth far more quickly than the ear."
"With the combination of motion picture film and the television camera, coupled with the television receiver in the American home, John Q. America is about to receive the greatest treasury of enlightenment and education that has ever before been given to a free man."Doesn't this sound like what we're hearing about multimedia today? (And remember, TV as originally conceived wasn't even locked in to being a one-way broadcast medium...there were early conceptions of video-on-demand, videodisc, and something coming close to virtual reality).
And why didn't these predictions come true, and what will happen this time around?
I think a great deal of the problem has to do with questions of PROPERTY RIGHTS and how the lines on the virtual real estate maps of the near future will be drawn. And concern over this is what's putting us in GRIDLOCK right now.
Now, a lot of these utopian visions presume that information will be more freely available to the consumers, scholars and students of the future. And when you sign onto Compuserve or do a gopher search on the net it really seems to look that way. But what's actually happening is that DIGITAL INFORMATION STREAMS are becoming STRATIFIED. One layer consists of public domain (PD) or publicly accessible information, like the White House news releases, Usenet news, or the supposedly PD QuickTime movies you can download from America Online, if your credit card can take the strain. The other layer consists of the premium stuff; Knowledge Index on Dialog; Nexis and Lexis; and just about everything that is planned to be offered over digital interactive cable. The contents of this layer aren't mass-market items yet, so there hasn't been a great deal of downward price pressure.
The user community, and especially the communitarian and anarchist-minded community on the Net, expresses sentiments like "copyright is dead"; "information wants to be free" and so on. The response to these sentiments on the part of the entertainment and information industries has been to CLAM UP, to strictly control or even halt the distribution of their information in digital form.
(mention hearings on extension of ) and end to PD status): re PD: "The Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
There's also another kind of STRATIFICATION in LIBRARIES -- some material will go into a pool of cheap or free info, some will carry a premium. This has already happened in public libraries, and corresponds to the distinction between what's on the shelves and what you have to pay (sometimes) to go online for. And it threatens to turn librarians into toll collectors for publishers and rightsholders. An amendment to the Copyright Act even has been proposed which would authorize the Library of Congress to study how to provide specialized services, which would include clearing copyrighted works for a fee.
[(a) Plan.--Not later than the date that is 6 months after the date of enactment of this Act, the Library of Congress, in consultation with authors and copyright owners, representatives of other libraries, information providers, and users, shall submit to the Congress a detailed plan to examine the development of a system of necessary and appropriate copyright clearances, which does not impair the exceptions to exclusive rights enjoyed by libraries and archives under title 17 of the United States Code. The plan shall include the setting, accounting for, and remittance of any royalties, for uses of protected works by the Library under the provisions of this Act pertaining to specialized products and services.]
Now, I'm not a lawyer or economist, and I'm not much of a theoretician either. So I'll talk a little about my experience in the archival footage business, which is a place where a lot of hot issues and current intellectual property concerns seem to intersect. As I talk about issues involving film and video, please substitute the words for whatever medium you own, make or are concerned with. The distinctions between different media have mostly dwindled to questions of format, technical specs, and handling.
My own company (Prelinger Archives) does business with just about every kind of media producer or publisher you could imagine. Besides the obvious (ABC, CBS, HBO, Fox, Paramount), there are ad agencies, music video producers, corporations producing videos for in-house use or public showing, print publishers beginning to work with multimedia, software and game developers, independent mediamakers and more. Every deal is a little bit different, but none is easy, and in fact the archival footage business is often fairly adversarial. (Not to mention competition with other collections.) As you probably know there is huge downward pressure on production budgets; independent producers usually get to pocket what they are able to save on expenses; and very few people understand why stock footage might cost them thousands of dollars per minute used since we already have it on the shelves.
So we, like every other licensor in the business, hear moans and groans. I feel like I've heard everything, and here are the most common things I'd like never to hear again:
Here, in a nutshell, is the intellectual property debate.
[[There are also some good questions, like:
"How do you define 'usage' when images are downloaded from a server, both for preview and for reproduction?"]]
Many of the day-to-day dilemmas we have relate to security. How to keep from being ripped off. This is a longer-term strategic concern for us and for all holders of images and sounds. It's been a big issue in the stock footage business, and I have to sadly admit that we've seen people working harder on getting free footage than on producing their show. People will lie about the markets in which their production will appear, conceal their personal or corporate identities, take footage bearing a visible time code (what is sometimes in the industry called a "violator") and reproportion it to edge out the code, or simply use it with the code, or use the materiabitious people for whom scruples aren't a prerequisite for employment.
Right now, in order to secure our material we basically have to collect our license fee in advance (Prelinger Archives is famous for its friendly COD policy) and release only that material which has been cleared and paid for. By collecting our license fee in advance, we know at least that we have been paid for this one use. The client is always required to return the master videotapes or film elements we've prepared for them, but they don't always do so, and often keep our footage on the shelf for future shows. At best, they will call us to report usage and offer to pay, but it is hard to negotiate fees after the billable event has occurred. Or they can simply take the old show they made, which belongs to them as a whole work even if it contains elements licensed from us, and lift our footage right out of the show.
So (at least in our case, and I would argue in most cases) these licensing problems are not new-media problems, and many licensing issues arose long before new media worked its way into the news.
Some archives and libraries want to continue doing business according to the model that currently characterizes the industry, with high license fees and sales only to OEM producers (explain). We think differently. We want to vastly increase the number of billable events, and at the same time dramatically lower license fees. The reason we think this is simple: the new means of distribution that are coming into play, like the possibility of distributing digitized moving images over the Net, at once give us the capability of distributing our materials to huge audiences. So if we have "special-interest" materials like films on dating do's and don'ts or toaster-building or the construction of interstate highways, we don't have to relate to a small customer base of media producers who are able to do business with us only when they have a budget in place, but can also license footage to bands who want footage to play behind the stage on the club's screen, or to the new Toaster Museum in Seattle, or to a community group who wants to show their local planning commission why we shouldn't repeat the highway-building mistakes of the Fifties.
So the "billable event," which right now means someone requesting master-quality footage and paying anything from $300 to $50,000, might go down to perhaps $20 per film clip for a media producer to even as low as 50" for a home viewer, and each transaction might basically be the same. And I suspect that lots of archives could easily turn their businesses, which are about as wholesale or OEM as you can get, into retail businesses. Imagine being able to download from the Archive of Contemporary Music on demand, or SF State's excellent archive of Bay Area TV News, or Ted Turner's vast cartoon holdings.
The one way that licensing transactions might fundamentally change would involve tracking usage on a continuing basis. Right now, I have to do an individual deal with anyone who wants to use my material. Down the road, I envision that my material will sit on my own server and on servers all over the place, and bounce over the net like everything else. When it's used, or when it's inspected, something that resembles the return-receipt or cc: capability of netmail will let me know what was used, and maybe even return credits to my account. Ideally, this would be the greatest, because it would be a passive way of earning income.
I know all the arguments about how documents are easily stripped of their signatures, etc., etc., but I think that the financial incentives in working out such a process will be sufficient to make it happen. I think it will have something to do with encryption technology (to the extent they let us hold onto it), with public keys for read-only stuff and private keys for true downloading or high-resolution copying. I think the problems in achieving this are practical ones.
Now, despite almost everyone agreeing that demand for preexisting creative resources will increase considerably, owners of intellectual properties face the future with doubt and trepidation. How will they enforce their rights of ownership and guarantee themselves a continuing income? Can property rights continue to be a foundation of our society as intangible property begins to replace land and machines?
I want to speak for a moment about property-rights paranoia, which is maybe an inevitable consequence of a system that rests on private ownership of resources. Since the production of art, entertainment and information is not socialized, but generally undertaken by private individuals and corporations, and since not all creators or copyright owners work for hire and receive a regular paycheck, some kind of royalty system is inevitable. And with a body of identifiable work out there, the means to market it and opportunities for scofflaws to take advantage, it's a fox-and-geese situation. But are rightsholders still too anxious for their own good?
One example, with a bit of history. For at least the past hundred years, it's been common practice to secure permission to quote or reproduce copyrighted works, except when the quoter is asserting fair use. And for much of this century, anyway, common practice in some sectors has been to routinely say no. If it's Irving Berlin or J.D. Salinger, two copyright holders who are known for their negativity towards all requesters, this is chalked up to eccentricity, orneriness, reclusivity, but it's seen without question as a legitimate assertion of authors' rights. This has also been the practice of major motion picture studios and television networks, unless the requests are "qualified" in some way. The paralegals who handle film clip licensing at major studios get perhaps 200 phone calls a day, and they spend their time dealing with the most qualified requests. Right now it's inherently unprofitable, even if they charge from $2000 to $5000 to use a single feature or TV clip.
[describe process, its inherent unprofitability, etc,]
Why shouldn't we just recognize the studios' and networks' rights as authors as if they were you or me? The problem is that fair use, as a concept, doesn't apply in practice to moving image properties. This, more than anything, exposes the "neutrality" of the fair use concept, since it has to be judicially interpreted just about every time it's invoked and contested. The majors and the networks have fought the applicability of fair use to their properties, justifiably wary about establishing precedents which might tend to weaken the value of their copyrights, which were often expensive to create.
So the net effect of this concern is to block TV producers, academics and new media developers from reusing some of this century's most evocative cultural materials -- clips from classic movies, Walter Cronkite narrating early US space shoots, rock and roll performances on 1960s TV. In past years this control even forbade off-air taping for archival purposes, but in a landmark Supreme Court case Vanderbilt University's Television News Archive was granted the right to make their own copies of network evening news shows. And until the last few years, they were the only institution reliably making these copies. Even C-SPAN, a great institution in its own right, won't sell stock footage -- they will only furnish copies of their programs to educators and libraries, most likely out of a wish to maintain a public perception of objectivity and non-profit-ness about their activities, and to keep all doors open to their crews.
I won't go into the four tests for "fair use," but they pretty much rule out for-profit or commercial undertakings. As the owner of a film archives myself, I don't really have a problem with that. But I do have one with the fact that most people couldn't really ever claim fair use to TV or film material. Even the use of movie stills which may themselves be in the public domain can often bring wrathful responses from the major studios or networks, and if you try to do the right thing and ask them first, they will always say no, and if by some chance they don't, they'll quote prohibitive license fees.
This is fine if you are doing the history of rock and roll for the BBC but no good if you're writing a book about gender roles in film noir and simply want to reproduce some still pictures, or if you're doing a video anthology for the class you teach and want to include some film clips, or if you're doing Rock Hudson's Home Movies, that film by Mark Rappaport about the relation between Hudson's film roles and own identity. I believe that what Mark did was to realize he was making his whole film out of feature clips, and simply forget to ask for permission.
Others who have gotten away with it: Marlon Riggs with Color Adjustment; Rant: If the rights belonging to all creators were respected equally and valued appropriately, high license fees would be fairer. But as long as a news organization (for instance) buys "amateur" footage of a disaster for $50 and would charge an outsider $1000 for the use of a similar clip it had produced itself, this is not equitable.
The other side of the issue for large copyright holders is that given the present system, big-ticket licensing transactions are the only profitable ones, and almost all other requests aren't cost-effective to fulfill. So what to do? Do nothing. This is ironic, because copyrights have never been worth more.
So what we see today is conservatism based on worry about the future...because we are moving into a period when access to works will be expedited incredibly, and access is the first step to reproducibility and distribution without permission, especially in the digital domain which right now (though I think not forever) permits zero-generation copying.
How will major copyright holders move beyond paranoia to a practical means of protecting their works and realizing a regular income stream from their licensing? There are several things to think about.
First, there are techno-fixes. Now, techno-fixes generate jobs for engineers, salespeople and production workers, so they can be attractive alternatives, but they'll only reinforce notions of copyright and intellectual property that already exist in the social sphere -- they won't change the way we look at and use intellectual property. But as automated generators of license fees, their attractiveness will be hard to beat.
Remember when Universal Studios sued Sony in the Betamax case, the first practical home VCRs, and lost? At that time Universal's fix for home taping, dubbing and the abuses it expected homevideo to engender was to promote the development of videodisc technology -- a read-only medium. So are CDs, and so are CD-ROMs (few households will spend $3000+ for CD recorders). At the present time digital television and most transmission protocols which could support new media are essentially read-only media as well, and can't really be backed up onto consumer videotape. Major copyright proprietors will probably try to keep things this way.
Another techno-fix is header technology. I'm excited about this, some of the time. The idea behind headers, on which some standards work is already being done, is that every piece of digital data (at least in the entertainment world) will carry identifying information plus a code identifying its owner. These headers will be piggybacked on images and sounds as they travel the net, and could serve as an address for downloading broadcast-quality material or as accounting information to be returned to the rightsholder or rightsholders.
For instance, I want footage of postwar suburban communities like Levittown. I download a compressed video copy off the net or my local interactive cable server, and read the shot headers to find where the choice shot I want originally comes from. This allows me either to return to the originating source, possibly the Prelinger Archives library, for a dataset that corresponds to the shot, or alternatively simply to lift the shot out of the program (but then I may have to pay the program producer and the cable service provider as well). Naturally, this process could be automated with relative ease, and you can be sure stock footage libraries love the idea of collecting royalties without expending a great deal of direct effort.
(Billing for access [e.g., viewing or hearing] alone, rather than reuse, isn't nearly as big of a problem, since whole libraries can be licensed from their owners for flat fees or as part of "output" deals, then put on the server, and royalties paid according to use. But it's generally only one kind of use.)
Techno-fixes often don't take sufficient notice of real-world situations, and this can be kind of a hard one. Suppose you want a clip from "Hullaballoo," the 1960s music tv show. Many interests may be represented in this specific clip. Here are the kinds of clearances you might have to obtain:
Any or all of these entities may not have a fixed price schedule, and they also may wish to be choosy about who gets to use the preexisting material. For instance, someone of the ilk of Diana Ross and her management may wish to be aware of (or control) the context within which her performances are used. Obviously use in an advertising or promotional context would usually require approvals. So an automatic system of administering clearances may never universally take hold, outside of the simpler stock and news footage areas.
But the BIG problem that would then arise is, Who owns what part of each work? And what interests have to be arbitrated in making intellectual property freely available? Can licensing be compulsory as exists now in music? The number of controlling interests in a "piece of content" increases with the complexity of the content and with the expense of originally making that content.
We're still talking about how to move beyond paranoia and into sensible resource exploitation.
There have been a number of proposals having to do with clearinghouses. Many of you know how clearinghouses work for journal and periodical articles or in the music industry. In essence, these organizations (which can be for-profit or non-profit) collect royalties and channel them back to their members. Clearinghouses like ASCAP and BMI also function as collective bargaining organizations, negotiating rates for usage in certain situations.
I think we'll see an expansion of the role of clearinghouses in some areas, but it seems like the status quo will prevail in situations like the one I just mentioned. The diverse interests represented in a given unit of content will fight hard to maintain their control over usage.
The idea of an automated clearinghouse reading headers, collecting and distributing money, is a fascinating one, kind of the ultimate 900-number fantasy. Whether or not it works will have to do with the nature of the business plan they show to prospective participants. Butif they sign up the top 20 copyright holders, or the 20 who generate the most licensing activity, they'll be a shoo-in.
Clearinghouses might simply function to make material available for viewing or preview. This may be one aspect of Continuum's business plan, simply to build a huge database and then refer those requesting reuse permission to the copyright holders. And this is certainly an OK business, especially if the referring organization gets a piece of the action.
One fix may not be technical at all. I'm of the opinion that this could be a substantial business and that rightsholders should consider approaching it in an organized, businesslike way. To a certain extent it's possible to pre-clear intellectual property and make it available for reuse in predictable situations at predictable prices, with allowance for a wide range of budgets and thus for a wide customer base. This makes transactions more efficient and predictable.
This could be like the CLIP MEDIA model, which has started to happen in photography, clip art, and production music (explain).
But what if nothing really changes and property holders continue to occupy a position of fear and trepidation, assisted by new technology?
Much of the concern about public access to intellectual property resources at popular prices is related to the idea that readers should become authors and couch-potatoes should become videomakers -- that in general the gap between producers and consumers of culture should narrow. I'm completely into this idea, and that is one of the reasons why, with Voyager, we've put a bunch of our best footage on Laserdisc and videotape for any and all to experiment with (although we don't explicitly permit this, we know people will do it anyway). On my way out to California I stopped to see the people who make the Video Toaster, a box that permits people to do broadcast-quality video editing and effects at low cost, and they said the same thing in another way...that J.Q. Consumer isn't stupid, but simply busy.
I feel this way myself, but will this gap really narrow? The history of personal media vs. mass media suggests the opposite. Radio hams have never been allowed to engage in broadcasting. It took until literally the last twenty years for the telephone, which is practically universal, to be considered a medium for mass announcements and now delivery of entertainment and information. Home movies first became practical in 1923 with the development of 16mm safety (nonflammable) film. A scholar named Patty Zimmerman has done some interesting work on this, and she finds that it took only a few years for amateur moviemaking to become just as marginalized as shooting snapshots had been since the last century, and after that, it ceased to have potential as a serious communications medium. (And, I have to say, as marginalized as homevideo is now.) For every single clip like George Holliday's clip of Rodney G. King being assaulted that gets on the air, there's dozens of America's funniest home videos that we see. And Holliday had to fight tooth and nail to be paid what he should have been for the use of his clip, and never got enough.
It's said that the devaluation of personal expression vs. mass media offerings is based on "what the public wants," and I'm sure this is true, because if the public wanted to see more homevideo or StarSearch-type performers, enterprising producers would make as much programming as the market would bear. And I think any change in public taste that would tend to favor personal and community-based media over what we have now would depend on broad social changes completely outside the world of culture and entertainment. But the other reason for this devaluation has to do with the necessity of maintaining the value of big-ticket intellectual property. The profitability of many media organizations, who spend all too much money to make programming, recorded music or to pay high salaries for star actors and authors, depends upon the continuance of royalty streams into perpetuity. And no matter how public tastes seem to change, there will always be the Disney version.
Now, we have a more pluralistic set of alternatives available on computer networks, but it remains to be seen whether people will flock to options that don't carry famous brand names. Or whether this poses real competition for interactive cable and games that consume the senses.
Every time I talk about rights issues someone always raises their hand and asks "How long do copyrights last," or some nitty-gritty question that brings me down to earth. So in order to make this lecture more useful to you I thought I'd end with a few personal rants directed towards the resolution of concrete positions in which you may find yourselves.
To users of content (reusers), publishers, multimedia developers: Think creatively. There is lots of preexisting content out there. Much of it is public domain or inexpensive. Imagine building your project, whatever kind it is, around what is accessible and affordable rather around the obvious. Take a stand against the star system. Don't scrimp and save to clear a Madonna clip if you have the chance to use another personality who may need the exposure more. Establish relationships with content providers whose business may be at a level similar to yours.
To samplers, independents, experimenters: Sample away. Be aggressive. Claim territory for fair use. Establish a public sphere of intellectual property, or an area of intellectual property that's out of the realm of private ownership. It's like any negotiation, where you ask for more than you really need, so you can live with what you actually win. This means things like fighting attempts to privatize information that's been gathered at public expense; maintaining self-regulating networks; elaborating ways of establishing the exchange value of information that may not involve dollars and cents; supporting public networks, public libraries, etc. It also means strengthening the doctrine of fair use to encompass all kinds of personal and public expression that don't threaten the rights of copyright holders, and maybe a few kinds that do.
To owners of content: take a gamble. Intellectual property doesn't get "used up". Do you think Stairway to Heaven or Yesterday is any less valuable for being played thousands of times a day? What about the top-selling shot in the Time-Life Picture Collection, the 3-D movie audience with glasses on? The peculiar attraction to this picture is such that people license it, steal it, recreate it, allude to it, even make movies that are influenced by its premise...that John Goodman movie that recently came out last year. In my own realm, stock footage has become the business of supplying clichˇs...we license many futuristic vehicles and Fifties teens for each serious, thoughtful clip we sell.
Also, think about stratifying your libraries into the easy-and-cheap-to-obtain stuff and the more expensive, premium collections. Give people something to work with, and they will come back for specialized or obscure imagery.
And, finally, to the consumer. I'm not sure that new media is a foreground issue for most people yet, aside from the potential dangers it poses to the survival of public life. I read yesterday about the IEEE public opinion poll on new communications and entertainment technology, where only 15% thought that their "personal and business communications" would be changed greatly by new tech, and just 7% of their "entertainment and leisure time" activities would change much. Did a few familiar stock prices dive yesterday?
But consumers do stand to benefit by greater access to intellectual property and a richer public domain in one very important way. Of all the potentialities offered by the emerging media, I think one of the most promising is helping people come to terms with history. The dominant culture in this country has essentially replaced history and historical consciousness with a sweet nostalgic feeling, which is a self-renewing spectacle. And when history reaches large audiences, it's usually in severely edited form. New media at its best contextualizes primary sources and invests them with urgency. If citizens were encouraged to review and reassess original historical documents -- pictures, writing, newsfilms, and ephemera -- with the same kind of alert, critical attention they devote to TV sports, we'd be seeing very different headlines in the newspaper.
As far as the other benefits and dangers of the emerging media, I'll leave them to the visionaries.
Finally, can property rights continue to be a foundation of our society as intangible property begins to replace land and machines?
Although there are disturbing parallels to the history of land use (and misuse) in this country, intellectual property doesn't have to be conserved like land. It's not a nonrenewable resource that we have to 'hold in trust' for future generations.
Maybe there are parallels to be drawn between the ownership and control of intellectual property and the history of land use in this country. A system of recording and protecting titles to real property is one of the prerequisites of a market economy, and a copyright system, which records and protects claims to intellectual property, is now one as well. (This has been a trade issue between the United States and many developing countries -- we have pressured them to enact copyright and trademark legislation in order to protect American intellectual property). In the U.S., the web of land titles legitimized the many acts of land theft from indigenous peoples, and perpetuated private control over this land.
Now we cannot go back in time and declare all intellectual property to be common property. But there is such a thing as public property, and possibly even eminent domain, when the public interest permits the government to convert private to public property for the perceived public good.
But privatization is in the air, and I guess I would have to say that if we should push for anything right now, it would be to fight for a strong public domain and for the most inclusive definition possible of fair use.