Reproductive Technologies: Flesh, Paint, Text – Laura J. Murray


What is reproduction? Easy question. It’s ‘The Kiss’ or ‘The Scream’ on a dorm room wall. It’s a pile of photocopies or a hard drive full of downloaded songs. It’s Coach bags for twenty bucks cash spread out on the sidewalk. It’s the embarrassing photo instantly embedded in millions of cellphones. It’s madly splitting bacteria buzzing around like little bumper cars in TV stock footage. It’s Octomom, Mormons, and lesbian moms with turkey basters.

In other words, reproduction tends to be thought of as copying and proliferation: oh my God, there are more of them! And as such it has become the focus of massive economic and social anxiety.

But reproduction often isn’t replication. It often isn’t straightforward, and it often isn’t one to one.

Although my focus here will be copyright, I want to look at human reproduction first. What gets copied? Not the mother: a fat flamboyant tuba player might bring into the world a silent boney boy who finds happiness in a Tim Horton’s uniform. Not the father: an angry dark-haired stamp collector might have a blithe and buxom tightrope-walker for a daughter. Even back in the day when people emerged out of the ribs or head of one source, it wasn’t duplication: Adam’s companion was, notoriously, different from him. Ever since that bright idea, the necessity of two sets of chromosomes means that even before social influences or other mysteries of circumstance come into play, there is no one original to reproduce. Still, we tend to look for the copy: ‘the same laugh’ or the ‘identical nose.’ If replication of a person is impossible beyond such isolated traits, it remains an ideal, or sometimes a nightmare. ‘He’s just like his father.’ ‘I’m becoming my mother.’

In those instances, of course, we’re often speaking of reproduction of character, not appearance. That connects to a sense in which human reproduction may work a little better as a term. Think of the Busy Busy World of Richard Scarry, in which nuclear families of chubby clothed animals reproduce social and economic roles from generation to generation. In fifty years, we sense, the constellation of farmers, typists, and lumbermill operators will be the same—each one functionally equivalent to his or her predecessor. They’ll probably be wearing the same Peter Pan collars and Tyrolean hats, too. This isn’t copying of individuals, but it’s reproduction as Althusser sees it: the reproduction of the conditions of production.

This scenario turns out to be something of a fantasy too. Instead of running the local grocery store or ferry, Huckle and his friends probably went to the city and became middle managers or actors. They may not even have had kids. Their counterparts in less affluent countries ran out of arable land and became factory workers. Busytown is by now either a megalopolis, or a moribund village. We seem to continue to reproduce capitalism, but the specific community and ‘family’ spaces and values that Althusser thought essential to it are refracting into multitudes of variations. In terms of culture and population alike, reproduction as proliferation has changed the very texture of life. Where there were a thousand, now there are a million; where there were a million, now there are a billion. The world is not the same. No individual may be the copy of another, but we’re all resource-guzzling homo sapiens and there are more of us now than ever.

There’s yet another sense of human reproduction we might entertain, and it’s the first one in the Oxford English Dictionary: “the action or process of forming, creating or bringing into existence again.” Making a human, again. What repeats in this sense of the term is the labour, the input—not the result. A fertilized egg is not a baby, and certainly not an adult. Getting a being to drinking age takes months of carrying, then labour and delivery, and then years more of feeding, caring, guiding. Making another human is… quite a production.

Thus a term presented in health class as scientific and neutral turns out to be slippery, ideological, perplexing. The moment of origin turns out to be only one of many sites of reproduction which is, insofar as it happens at all, a protracted process with many agents. New reproductive technologies aren’t at the root of the complexity, but they do intensify it. Now that conception and childbearing have become separable events, the contribution of surrogate mothers and adoptive parents to the maturation of a child is hotly debated in kitchens and courtrooms. The old debates over birth control and abortion are still with us (what do we do about accidental reproduction?), but we’re getting embroiled in new questions too (what do we do about managed reproduction?). Does parenthood arise from DNA, from gestation, or from nurture? If there are several people involved, are they all parents? Should government regulate or pay for fertility treatment for those unable to conceive without it, and under what conditions? Is there anything wrong with cloning, and if so, what? In making reproduction possible for some who could not do it before, new technologies also make reproduction, in all the senses sketched above, into a policy and philosophical quagmire of unprecedented proportions.

Speaking of quagmires, we might now turn to reproduction of another kind, which seems to be causing almost as much panic and perplexity: reproduction of print, images, sound waves, and binary code. In this realm too, new technologies have at once made reproduction possible for those to whom it was previously inaccessible, and reanimated reams of questions about how and if that reproduction should be regulated. Does authorship arise from ideas, from the creative process, or from publication? If there are several people involved, are they all authors? Should government regulate or pay for the arts for those without the means to pursue them, and under what conditions? With digital technologies, where we have the possibility of perfect multiple copies, cloning seems an apt metaphor for downloading. Is there anything wrong with downloading, and if so, what? And implicated in all these questions, our starting point, what is reproduction anyway?

It is certainly not novel to note the parallels between these realms of creativity. Since ancient times, artistic and intellectual process has been imagined in terms of fertility, conception, gestation, and labour, and authors have fretted about their work wandering unchaperoned in the big bad world. Plato (or rather Socrates, in Plato’s dialogue Phaedrus) contended that the problem with writing is that it ‘doesn’t know how to address the right people, and not address the wrong. And when it is ill-treated and unfairly abused it always needs its parent to come to its help, being unable to defend or help itself.’ Since the eighteenth century, the parent-child metaphor has been used to make authors’ rights into a ‘motherhood’ issue. Or a fatherhood issue: in 1710 Daniel Defoe declared a book to be ‘the Child of [the Author’s] Inventions, the Brat of his Brain… ‘tis as much his own, as his Wife and children are his own.’ As this example shows, the metaphor may be deeply felt but it does not always sit very comfortably. If your book is your baby, why do you claim the right to sell it? If your book is your baby, are there other parents? If your book is your baby, does it really follow that you can or want to protect it and control it for ever and a day? Babies of the breathing fleshy kind don’t put up with that for long. Like all metaphors, this one is a useful thinking tool when we push past convention up against its limits or contentious dimensions.

So I want to keep the echoes between human and textual reproduction in the air as I examine a particularly difficult copyright question: namely, how do you know a reproduction if you see one? A longstanding version of this question comes up in infringement cases: if two songs are similar, evidence that the second composer has heard (or is likely to have heard) the first song is necessary to nail a finding of infringement. Similarity between the songs may after all be coincidence rather than reproduction. The need to prove ‘access’ is analogous to paternity cases in the pre-DNA-testing age. (Your honour, my client can prove that he was in Biarritz the whole month of May while Mme. X has admitted she was in Newport!)

But lately, we have moved into much more abstruse cases where the connection between the materials is undisputed, but the fact of reproduction is under question nonetheless. I’m going to discuss two Canadian Supreme Court cases: Théberge v. Galerie d’Art du Petit Champlain (2002) and Robertson v. Thomson (2006). The Théberge case was a dispute between a painter, Claude Théberge, and a gallery he had licensed to make and sell posters and postcards of his works. The gallery used a chemical process to transfer ink from posters to a canvas backing. These ‘paintings’ sold, of course, for a much higher price than the posters, and yet Théberge was only paid at the rate he had negotiated for the posters. In the Robertson case, a freelance writer sued the Globe & Mail newspaper for reproducing her articles in digital databases without payment or permission. Both cases split the Court: Théberge lost 3-4, and Robertson won 5-4. At issue in both was whether reproduction had in fact taken place, and the split decisions indicate the difficulty of determining what might appear to be a mere matter of fact.

Section 3 of the Canadian Copyright Act gives the owner of a copyright the ‘sole right’ to ‘reproduce the work or any substantial part thereof in any material form whatever.’ So in Théberge, the court had to decide if the fake canvases constituted reproduction of the posters. Justice Binnie, writing for the majority, said no:

When Raphaël’s Madonna di Foligno was lifted for preservation purposes from its original canvas in 1799 under the direction of the chemist Berthollet and fixed to a new canvas, the resulting work was considered to be no less an original Raphaël. Similarly, when the frescoes of Pompeii were restored by replacement of the underlying plaster, the result was not classified as a ‘reproduction’, even though the old plaster was a constituent physical element of the original frescoes… These examples may be more spectacular than the humble swap of substrates of a paper poster, but the principle is the same and applies equally to authorized copies as well as to the original artistic work. In neither case is there reproduction within the meaning of the Act. (para 38)

Ultimately, Binnie holds that ‘this is a case of literal physical, mechanical transfer in which no multiplication (metaphorical or otherwise) takes place’ (para 47): ergo, no reproduction.

But for Justice Gonthier, writing for the dissent, reproduction happens when a new material object is produced to carry and deliver the intellectual property:

The work is, so to speak, the physical outcome of the creative process. Fixation of the work in a medium is a condition sine qua non of the production of a work. Therefore, ‘producing’ a work refers to the initial materialization and ‘reproducing’ it refers to any subsequent material fixation that is modelled (in the causal sense) on its first fixation. (para 145)

Gonthier challenges Binnie’s ‘multiplication’ requirement:

It does not matter that the process which produces a new materialization eliminates another; all that matters is that a new act of fixation occurs. Therefore, what we must count in order to determine whether a work has been reproduced is not the total number of copies of the work in existence after the rematerialization, but the number of materializations that occurred over time. (para 149)

Invoking the principle of technological neutrality and the Copyright Act’s goals of allowing authors to benefit from their work, Gonthier concludes that authors ought to have the right to authorize or refuse such transformation, which amounts to a re-making of their work.

Binnie’s conclusion that the poster wasn’t copied but rather transferred is compelling. One object remained one object. When we look at it from Théberge’s point of view, however, the failure to find reproduction seems rather myopic or sneaky. Returning to the discussion of human reproduction, we might note that multiplication isn’t necessarily its result: if we reproduce ourselves one for one or two for two, there is no net increase in population. Once we die, the child takes our place, in a sense, as the fake canvas stands in the poster’s place, and is in this sense a reproduction. Gonthier’s language of materialization also matches dictionary definitions and echoes human reproduction in the ‘making, again’ sense. That conceptualization could lead to two divergent findings. One could say that if the gallery made a new thing with its own initiative and resources, without violating the contract, they ought to reap the reward—which was Binnie’s path. Or one might muse that if we grant that birth parents, or egg, sperm, or embryo donors, have to give permission in order for their progeny to be transferred to other families or placentas, surely the change of substrate for Théberge’s paintings might lie within his sphere. On this line of thought, the labour arranged by the gallery ought not to nullify Théberge’s role and rights as creator. Without him, they would have nothing. All in all, the question of reproduction doesn’t seem to me quite as open-and-shut as Binnie contends.

As a critic by trade, I’m always impressed and often moved by the inescapable end of judgely thinking: having to make a decision, within very specific constraints. Having more luxury to pursue possibilities and questions, I wonder if we could distinguish between the right to change medium, or to make works identical in appearance and purpose to the original, for commercial purposes (as in this case), and the right to make works derivative of or differently purposed than the original (as in parody or collage). Maybe we want to vest the right to mere change of medium, or identical or competing works, in the author, but leave the right to altered works to the public. Maybe ‘identicalness’ or ‘equivalence’ is the better way of framing an author’s right than reproduction. It seems to me that Binnie denies the existence of reproduction here—and he is forced to by the wording of the statute—in order to protect users’ and consumers’ rights. As he (in)famously says, ‘Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it’ (para 31). Yes, but it doesn’t seem right to me that one artist should have to be cheated in order that the rights of other artists and consumers be preserved. Can’t we come up with more nuanced categories to describe the problem? I do see some general resonance with custody/family law cases. Parenthood is a primal experience and private matter, and yet there are times when the good of the child or the society outweighs a parent’s judgment, or lack thereof. Recently, courts have had to consider all sorts of new forms of human reproduction, and allot rights and responsibility accordingly. Some of these cases have been decided with more wisdom than others, and I wouldn’t want to press the analogies too specifically, but courts are starting to acknowledge the fact of multiple parents with varying rights, whereas the Copyright Act is still stuck on one creator, one child, one set of rights.

Well, not always. In the Robertson case, the Court was dealing with a peculiarity of Canadian copyright law: two, layered, copyrights in collective works. The freelance author of a given newspaper article owns copyright in her work. She licenses the newspaper to publish it, but beyond that, she continues to hold the reproduction rights. The newspaper owns copyright in the whole ‘compilation’ or ‘collective work’ that is the newspaper. It owns, therefore, the reproduction rights to that whole—but not to all individual parts. So the question for the court was, in converting its papers into digital database form, was the Globe infringing the freelancer’s reproduction right? Was it reproducing the newspaper, or only its constituent parts? The majority held that the newspaper was not reproduced. The databases, they said, or at least the ones that allowed for searching of individual articles and never really presented a day’s issue of a paper as such, weren’t copies of the paper, but rather compendia of several different papers (the Globe is only one of the papers included in CPI.Q and Infotrack databases). The databases were new works, and as such, reproduced individual articles and infringed the freelancers’ copyright.

The minority, however, represented by Justice Abella, argued that the majority’s emphasis on whether the paper looked like or was arranged like a physical newspaper was incorrect:

In determining… whether a work like a newspaper, or ‘any substantial part thereof’, has been reproduced, what will be determinative is the extent to which the item said to be a reproduction contains within it, in qualitative rather than quantitative terms, a substantial part of the skill and judgment exercised by the creator of the work. (para 81)

Here, Abella is referring to the standard for ‘originality’ in Canadian law as clarified in CCH v. LSUC (2004). In that case, Justice Maclachlan isolated ‘skill and judgment’ as the required criteria for originality. We can identify a reproduction, the reasoning goes, by identifying whether skill and judgment are reproduced. Skill and judgment are manifested in the selection and editing of the content of a paper, and are therefore surely reproduced, Abella said, no matter what the searching mechanism or context of the database. It follows from this position that the Globe is reproducing itself, and not infringing on the freelancers’ copyright.

The majority essentially stated that ‘if it doesn’t look like a newspaper, it isn’t a newspaper.’ This is a common impulse in our moment of breastbeating over the impending death of the medium, and reifying definitions such as the Concise Oxford’s ‘a printed publication, typically issued daily or weekly, containing news, articles, and advertisements,’ or McMaster University Library’s ‘printed on newsprint and issued daily or weekly; contains news, editorials, commentary, advertising, general interest items’ would seem to support it. But surely newspaperness lies as much in compilation and combination as it does in print or dailiness. I agree with Abella on this. The interlocking of the freelancer’s and newspaper’s originality is very deep. Articles are solicited or accepted based on a vision of the paper’s overall ‘image’ and market; they would not likely have existed in that form had it not been for that outlet. I deeply feel the dissent’s concern about the integrity of the public record, and the risks of digital vandalism if the papers simply choose to excise freelance articles from databases, as they did following a similar U.S. case, Tasini v. New York Times (para 71-72). Nonetheless, I don’t think the dissent’s denial that individual articles were reproduced makes any sense.

As in the Théberge case, in Robertson we have a creator without access to revenue from new transformations or incarnations. And once again, the treatment of reproduction does not seem adequate. The majority’s thinking on reproduction is wrong, but the outcome seems right; surely if freelancers were paid in the first place, they ought to get a share of benefit from re-mediations of their work. The dissent had it right on the nature of reproduction of a compilation, but took a perverse position on reproduction of individual articles and thereby denied freelancers any rights in new media. But the law provides for a layering of rights: why did the judges feel they had to choose? Both the newspaper and its components are reproduced. <emboth< em=”">the newspaper and the freelancer are ‘parents.’ In denying the “both/and” possibility, this case stands as something of an emblem for a problem that runs throughout copyright, of how to acknowledge the imbrication of individual and collective creativity.</emboth<>

In 2001, Jessica Litman proposed that “reproduction is no longer an appropriate way to measure infringement.” The Théberge and Robertson cases illuminate the possibility that copying is not always infringement, and that maybe infringement is not always copying. In less idiosyncratic cases concerning downloading and piracy, ‘watermarking’ and other software can track replication of digital files, but to determine appropriate practice and accommodate fair dealing or fair use, we also need to understand cultural and social functions of circulation and reinvention. Similarly, there is ever increasing reason to observe that genetic reproduction is not sufficient, on its own, to define parenthood. DNA testing answers only one dimension of the parenthood question, and we have to use human judgment to consider the social, emotional, and philosophical dimensions. It could be said, then, that reproduction just doesn’t work as a core concept for these decisions. But I think that if we acknowledge how uncertain, protracted, and collective reproduction often is, it can be just the right thing to focus on.

Notes about the image:

It is a composite image from Creative Commons (Attribution Only) images made by searching for the keywords “flesh” “paint” and “text” in Flickr.


faith goble
Carnivale (painting and poem)

Very Early Lawerence Weiner Text Peice

my forehead skin up close

Laura J. Murray is Associate Professor and Undergraduate Chair of the English Department at Queen’s University where she teaches American literature and literary theory. She is proprietor of the website, and coauthor with Samuel E. Trosow of Canadian Copyright: A Citizen’s Guide (Between the Lines, 2007). Research projects underway focus on gender and intellectual property, economies of knowledge alternative to intellectual property, and the nineteenth-century American newspaper. Musical projects underway include The Swamp Ward Orchestra.

Comments from old site:

Submitted by Anonymous (not verified) on Thu, 07/09/2009 – 14:48.

Great article!

Makes me think of Frances Leeming’s Genetic Admiration.

Comments are closed.