Abstract
This article investigates the conditions under which intellectual property rights are created in prison as well as the possibilities inmates are given to exercise these rights. The article adopts a predominantly Swedish perspective, while it also refers to illustrative examples of cases of creative works created behind bars in US prisons. The two penitentiary systems differ considerably, but there are some interesting conclusions to be drawn from the US experience and some unexpected similarities that may be noted in the way copyright protected works made in prison are treated. The article discusses, in its first part, the evolution of the penitentiary system in Sweden and the regulation of penal work and leisure times activities. The copyright system is briefly presented with a focus on the way copyright operates when the author is an inmate. Furthermore, the article provides illustrations of prison programmes that have resulted in the creation of copyright-protected works in the US, and how the US legal system has dealt with the question of copyright ownership of works created by inmates. Turning back to Sweden, the article reflects on the two writing programmes that have recently led to book publications authored by inmates, as well as on the fate of the ‘made in prison’ branded products. The article investigates yet another project, the Krimtech project that concerns other forms of inmate input to intellectual property, namely, the collection of data. The Foucauldian theory provides a theoretical umbrella under which the discrepancies between the copyright-law principle of equality of authors, and the actual practical implementation as well as the impact prison regulation has in this respect is discussed and analysed.
Letters from Birmingham Jail by Martin Luther King, Don Quixote by Miguel de Cervantes, Conversation with Myself by Nelson Mandela and Justine by the Marquis de Sade are merely a few illustrative examples of seminal literary works that were written behind bars. Several of these literary works were acts of resistance and constitute important political and ideological manifestos. 1
While these are examples of well-known authors and famous works, the copyright of which is not questioned, there is a much longer list of unknown authors and artwork created behind bars that never reach the public eye, or if they do, they are not recognised, protected, or managed as other copyright-protected works. Most works created in prison do not receive as much attention, financial remuneration or fame. It seems that very little of such artwork is actually sold, while the literary texts are rarely published. 2 Even when they are exploited in some way, they are presented as part of a prison programme, an art project or a writing programme, in which the individual author ‘disappears’ for the benefit of some form of collective representation of the artistic or literary work in question.
This underrepresentation of works made in prison in the protection and management of copyright protected works becomes somewhat of an oxymoron. Firstly, it is very common for incarcerated people to proceed with literary and artistic works during their leisure time, to write books or shorter texts. Such activities are often enhanced and encouraged by the penitentiary.
At the same time, copyright legislation as such is not in any way discriminatory of the works created behind bars. Copyright does not focus on the capacity of the author, but on the originality of work as such. 3 This in turn means that even an author behind bars will be granted the exclusive right to publish, copy, show and make use of the work. Any third-party use that is proceeded without the authorisation of the copyright holder is a copyright infringement.
The actual nature of copyright as a property right, in particular its intangible character, is of central importance in this respect. It means in principle that the right to a book written in prison is not a property right on the actual material paper copy, but in fact the right to reproduce the book or to make an adaptation. This means that commercial transactions can take place without any noteworthy practical hinderances while the author is behind bars. 4
This article makes two main claims: first of all, that copyright (and intellectual property in general) applies to works created behind bars in the exact same way as to other works. However, despite this, both the context into which these rights may be created as well as the conditions under which such rights may be exercised are severely hindered when the author is an inmate. Furthermore, there is an interesting correlation between creative activities taking place during inmates’ leisure time and activities that are included under the framework of structured penal work. When the creative activity is part of penal work, it is remunerated by an hourly salary of 13 SEK (1 euro), while the economic right to the works may be (eventually) considered to be transferred to the employer as part of an employment relation. 5
The way intellectual property rights are treated when their authors are behind bars aligns with Foucault's starting point in Discipline and Punish, claiming that the regulation of the everyday life and of the rights of prisoners is the result of a struggle for domination that is ‘never-ending’. 6 Thus, authors behind bars are to be given neither the same creative space nor the same power over their work as authors outside, because that would in fact be contrary to the basic function of prison, to discipline and shape the inmate.
Although this article adopts a predominantly Swedish perspective, it also refers to illustrative examples of cases of creative works created behind bars in US prisons. The two penitentiary systems differ considerably, but there are some interesting conclusions to be drawn from the rich US experience and some unexpected similarities that may be noted in the way copyright protected works made in prison are treated. The article discusses, in its first part, the evolution of the penitentiary system in Sweden as well as the regulation of penal work and leisure times activities. The copyright system is briefly presented with a focus on the way copyright operates behind bars. Furthermore, the article provides illustrations of prison programmes that have resulted in the creation of copyright-protected works in the US and how the US legal system has dealt with the question of copyright ownership of works created by inmates. Turning back to Sweden, the article reflects on the two writing programmes that have recently led to book publications authored by inmates, as well as on the fate of the ‘made in prison’ branded products. The article investigates yet another project, the Krimtech project that concerns other forms of inmate input to intellectual property, namely, the collection of data. The Foucauldian theory provides a theoretical umbrella under which the discrepancies between the copyright-law principle of equality of authors, and the actual practical implementation as well as the impact prison regulation has in this respect is discussed and analysed.
The regulation of life and work behind bars
The ideological basis of the penitentiary in Sweden is built upon two separate and diverging ideologies: 7 the philanthropic thinking relating to prison as a place to save and convert sinners, and the rational-utilitarian ideology under which prison is a place that forms law-abiding citizens that work hard and contribute to society. During the last hundred years, there has been a certain conflict between these ideological approaches. However, one could still claim that the Swedish penitentiary system is to a large extent based on the belief that people can be changed, and that learning to live a ‘normal’ life with work and everyday chores is possible even if you have previously, and for many years, lived the life of a criminal. This fundamental belief constituted a decisive starting point for the organisation of, and the value allocated to, prison work. 8
The evolution of the Swedish penitentiary and the role of prison work
Imprisonment in Sweden has historically not constituted a sanction per se. Incarceration has predominantly constituted a means of physical control of those awaiting trial or the execution of other penalties, such as the death penalty.
In the first half of the 19th century, imprisonment became a penalty per se and, as a result, the number of prisoners in the Swedish penitentiary quadrupled. Prisoners had to live in overpopulated old fortresses, workhouses and under conditions characterised by unrest and violence. The appalling living conditions in Swedish prisons became the subject matter of heated political debates concerning the need to reform the penal system. Finally, in 1840 the Swedish Parliament decided to allocate special funds for the construction of new modern prisons. This became the start of a programme that eventually resulted in 45 new and nearly identical regional penitentiary institutions. At a later stage, five new prisons were added that included a great number of cells that were intended for prisoners in solitary confinement. 9
During the post-World War I period in Sweden, the use of prisoners as a work force for factories and other production facilities constituted a closely integrated perspective to the task of reforming and treating inmates. 10
The integration of work into the prison's everyday life played a central role in the modern prison architecture, the two major prisons of Hall and Kumla being characteristic examples. Prison work developed and became part of the prisoner rehabilitation programmes, programmes intended to contribute to their reintroduction to post-prison life. Apart from engagements in factories, public works and external production facilities, prison work has involved internal prison assignments, such as laundry, cleaning and cooking.
In the post-war period, it was mainly state and private owned companies as well as governmental authorities that commissioned works of inmates. During the post-World War II period, the need for infrastructure and materials for use by governmental authorities was extraordinary. Prisoners constituted an attractive work force since they were both cheap and directly available. During the first post-World War II decade, prisoners manufactured large quantities of bookshelves, filing cabinets, desks, chairs, folders, binders and records. 11
In the 1970s, prison work faced numerous challenges, including general changes in the labour market and, more specifically, the ‘prison struggle’ that had been initiated during the late 1960s. Prisoners in the workshops formed unions and struggled for market-based salaries and better working conditions. The gradual professionalisation of prison production required a stronger focus on the working environment, occupational safety, and market wages. 12 Following a correctional reform of 1974, the competitive advantage of prison labour's low wages was lost. Ironically, the efforts to improve prison working conditions reduced the actual demand for prisoners’ work and limited opportunities for the penitentiary to offer meaningful occupation to the prisoners.
During the 1980s, the local prison administrations reported constant problems due to the deterioration of the market for prison labour, as outlined above. Even as the central authority – the Prison and Probation Service – demanded better profitability and more customers, the demand for the prisoners’ labour fell. 13 One problem that also loomed large in this decade was low productivity, which came, at least in part, from recurrent work refusal (referred to ‘passivity in the workshops’). These concerns were not unheard of; on the contrary, they have characterised production throughout the history of the modern prison: even in the 1920s and 1930s, the reports of the then Royal Prison and Probation Authority expressed concerns with regards to lack of discipline and work ethic. 14 Another issue that contributed to the increased costs of prison work was the high cost of supervision and security.
In an attempt to increase the popularity of products produced in prison and to create a closer link to end consumers, the Swedish Prison and Probation Service launched a new trademark to be branded on prison-produced work, ‘Made in Jail’. Made in Jail products are marketed and sold under the official e-shop Krimprod.se. Although the e-shop continues to sell products of penal work, today there is much less focus on the trademark as such. In general, the branding strategy has not had the expected outcomes, and products of penal work are sold not as branded products, but much more as low-cost products competing with low-cost products of other origin.
Prison system in Sweden
Prisons in Sweden are divided into three security levels, the lowest level of security being that of open prisons. 15 The level of security awarded to each prison is calculated on the basis of different parameters, such as, for instance, the capacity to prevent escapes, battle breakouts, and handle violent inmates. It is primarily for the court to determine the placement of a specific inmate. This evaluation is done applying the proportionality principle, meaning that an inmate should not be incarcerated in a higher security prison than necessary. 16
Open prison facilities have no direct escape barriers and usually hold non-violent inmates convicted of less serious crimes. Open prisons may also host inmates who have been transferred from higher security prisons to serve the last period of their sentence in order to provide an environment that will help them prepare for reintegration into society. Inmates serving their sentence at a low security open prison are usually allowed to leave the facility during the day to find employment, enroll in classes, or participate in treatment programmes. 17
In any of the Swedish prisons, correctional officers are personally responsible for four to ten prisoners. Their role is much broader than that of mere supervision, extending to counselling and assisting their reintroduction to society.
Most prisoners in a high security facility will work an average of six hours a day, five times a week. 18 All working inmates are paid 13 SEK hourly (1 euro). 19 Depending on the inmate, they may also take classes and participate in treatment programmes a couple of times a week. During the inmates’ stay, they also have the right to leisure time activities, which may include visits from family members or friends, exercising, craft-making, and participation in social training, cooking classes or other types of group projects. Depending on the profile of the specific inmate, the personal objects and electronics allowed in a room may differ. One of the most secure prisons in Sweden is Kumla, which hosts the most dangerous offenders. In this specific prison, inmates have to apply for permission for every object or electronic device they wish to bring inside the prison. 20
The Swedish Prison and Probation Service underlines the central role of ‘normalisation’ 21 and inmates living in a healthy environment while being incarcerated. In order to contribute to this process of normalisation, inmates wear ordinary clothes. 22
The whole system is based on the main goal of not further punishing the offenders, since being deprived of one's freedom is considered punishment enough. 23 The objective is to find the underlying reason as to why the offender committed the crime in the first place and then provide them with the help necessary to adapt back into society. 24
Depending on what help the inmate needs, there are several different programmes and treatments offered, such as educational programmes, job training, life skills classes, substance abuse treatment programmes, mental healthcare, family support services, and housing assistance. 25
The protection of literary and artistic works behind bars
Copyright: The work, the exclusive right, and the author
Copyright is the intellectual property right that protects literary and artistic works. Although it is a territorial right, copyright legislation is subject to an historic international harmonisation, 26 while is also the subject matter of several EU Regulations 27 and Directives. 28
For a literary or artistic work to be protected, it must meet an originality requirement. 29 More specifically, the work must be the expression of the author's own intellectual creation. There are no formal requirements for the protection to be applicable; the exclusive right arises as soon as the work is created. Copyright may also protect the work in its different creative stages. The term of protection applies from the day of the artistic or literary creation and for a period of 70 years after the death of the author. Copyright is awarded to the author(s) of the work, and in case of joint copyright, the term of protection is based on the date of death of the last of the authors. 30
Authors are granted an exclusive right with two sides: an economic right and a moral right. 31 The economic right to a copyright protected work is always initially awarded to the person, artist or author who created the work, but may be later on transferred to a third party. The holder of the economic right to a work is the one who decides if and how the work may be used, copied and disseminated, and it can be either a legal or a physical person. For example, the holder decides whether a song may be used in a commercial context, or whether a short story can be published in a collection. The economic right may also be transferred to the employer of the author under certain circumstances. Swedish law applies the so-called ‘rule of thumb’ principle, a principle developed in Swedish case law which entails that the economic right to a copyright-protected work may be transferred to the employer if the author has been employed in order to perform this creative activity. Most often, the right to a work created under employment conditions is regulated in collective agreements or in individual employment contracts. 32
Moral rights, on the other hand, are non-transferrable and give the author the right to be named as the author but also the right to require a respectful use of the protected work. 33
The status of the author, in this case an inmate, is not relevant for the application of copyright law; the only limitation applicable for copyright protection to be in force is that the author has to be a human being.
Copyright as a human right
The right to one's intellectual creations is protected as a human right. The main legal source of protection has been the Universal Declaration of Human Rights (UDHR) of 1948. 34 The UDHR recognises a set of fundamental rights, including freedom of expression, the right to a standard of living adequate for health and well-being, the right to education, the right to freely participate in cultural life and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic creations. 35
These fundamental principles, expressed for the first time in the UDHR, were further elabourated and turned into concrete legal obligations in several legal acts such as, for instance, the International Covenant on Economic, Social and Cultural Rights (ICESCR) that was adopted by the U.N. General Assembly in 1966. The ICESCR recognises the importance of securing certain material, social and cultural conditions to facilitate human progress and national development. Article 15 provides that individuals have the ‘right to the protection of the moral and material interest resulting from any scientific, literary or artistic production of which they are the author’.
As such, the rights of authors (irrespective of whether they are found outside or inside bars) are protected human rights.
Although copyright is recognised as a human right, its exercise in prison is not regulated. Thus, exercise of copyright law from behind bars is not a right regulated in prison law. The actual effects of this are not so easy to grasp and there is no contemporary debate in Sweden related to this issue.
Copyright behind bars
One important perspective with regards to copyright behind bars is, of course, whether copyright can actually arise, i.e., whether inmates are given the opportunity, the materials and tools to actually engage in creative activities that could give rise to copyright protected works.
Prisoners are, as a rule, not able to freely dispose of the time, materials or even the space that might be necessary for the production of their artistic or literary works. These necessary preconditions for the creative process are dependent on prison politics, the local prison rules, the way a certain prison operates at a specific time and the overarching security needs that it might have due to the specific inmates residing there at a certain time.
The limitations imposed on the creative process are such that they may also have a decisive impact on the distribution and exploitation of copyright-protected works created in prison.
A very interesting publication focusing on the creative processes in the US penitentiary system provided: One of the challenges of writing this book has been that many currently and formerly incarcerated artists are not in possession of their art, nor do they have documentation of their work or know how and where their art has circulated. For various reasons that all have to do with the extreme inequalities and exploitation that incarcerated people suffer, art made in prison is sent to relatives, traded with fellow prisoners, sold or ‘gifted’ to prison staff, donated to nonprofit organizations, and sometimes made for private clients. Unlike artists who work outside prison, who are able to document their creations, incarcerated artists often are unable to photograph or make copies of their work. There are people I interviewed who described their work and practices to me but had nothing to show.
36
Regulating the creative process
While a certain regulation of the ‘how’ and ‘when’ a creative activity is to take place may seem necessary and in line with the fact that it concerns the exercise of rights of incarcerated people, there are prisons in the US that have chosen to prohibit all forms of creative work: ‘[any sketch, painting, drawing, or pictorial rendering produced in whole or in part by a capital offender, unless authorized by the warden of the institution.’ 37 This provision was introduced in order to prevent people on death row from actually acquiring fame or financially profiting from their imprisonment. 38
Art or literary works that are created despite this are destroyed or suppressed, and authors may even be punished. Furthermore, it seems that when authors or their works attract public attention, or when they shift to shedding light on the shortcomings of the prison or the penitentiary system, they become subject to attempts to censure and suppress.
Swedish regulation is not as strict, and in theory it seems that the inmates have the possibility to engage in almost any activity they wish (taking, of course, into consideration restrictions due to security concerns) during their leisure time. However, this is not entirely true, since inmates must abide by very strict rules with regard to the resources they may dispose of while in prison. If the local prison does not provide the materials or the funds for the materials necessary under the framework of a certain educational or leisure time programme, the inmate is expected to cover these with their own resources. The income an inmate may use in order to cover such expenses must originate from the compensation they receive for their penal work, pension or any sick leave of other state-originating benefits.
This is, of course, the case when the creative activity takes place during the inmates’ leisure time. However, there are situations where the local prison organises creative activities as part of art or literature programmes, structured and supervised by either internal prison personnel or external consultants. In such cases, inmates are provided with the material, time and space to create or write, and with some form of guidance/education to better succeed in it. At the same time, there might be other parameters that restrict creative freedom, such as the particular focus of the programmes (thus excluding the possibility for the inmate to freely choose the subject or direction) or specific creative form of expression. At the same time, in cases where the inmates participate in such programmes, they fall under the scope of prison work (sysselssättning) and are thus also of a mandatory character and subject to the set remuneration of 13 SEK an hour. Intellectual property rights arising out of such programmes could potentially be claimed by the prison based on an argumentation of the existence of an employer-employee relationship and thus the application of the ‘rule of thumb’ principle.
The examples of such programmes presented below are illustrative of the difficulties in applying what seems to be a blurry legal framework, and the difficulties it creates for the exercise of the rights awarded by means of copyright.
Copyright allocation and management in prison art and writing programmes
Guantánamo 39 provides an interesting example of a prison art programme and its impact on copyright-protected works. Even in this very restrictive incarceration environment, there was a possibility for inmates to enrol in an art programme that allowed them to engage in creative activities. The lawyers of the participating inmates were allowed to transfer the artwork out of prison in order to finally organise an exhibition called Ode to the Sea. The exhibition received extensive public attention, revealing the living conditions of inmates. Shortly afterwards, the programme was cancelled. Furthermore, a change in prison regulations prohibited the transfer of artwork out of Guantánamo, while the prison administration informed the inmates that they would not be allowed to bring their artwork with them when they were released. According to the Pentagon, ‘items produced by detainees at Guantánamo Bay remain the property of the U.S. Government’. 40 No further legal ground for this statement was provided.
This seems very odd, taking into consideration the fact that according to copyright law, the right to the artwork is awarded to the author. The author has the legal right to transfer or license the rights, while in some cases (for instance, work for hire or employment relations) the rights may be transferred to the employer/contractor. 41 In this specific case, the right to the artworks was transferred by the inmates to the lawyers and the exercise of these rights (via the exhibition) took place outside the limits of the Guantánamo jurisdiction. The exaggerated response of the Department of Defense attracted even more interest to the work of the inmates, the art exhibition was subsequently shown in several countries, and the artwork has been sold at non-negligeable prices. Furthermore, after the call to President Biden by current and former detainees, the Department of Defense lifted the ban on detainee artwork, though without clarifying whether current detainees can send their works out of Guantánamo. The position expressed by the US Government is still that the artwork is the ‘property of the U.S. Government’. 42
Another example is the Connecticut Women's Prison Writing Group. This was a programme, led by Wally Lamb, 43 that was so successful that it led to the publication of a collection of texts written by inmates. One of the inmate authors even won a literary prize of $25,000. The writing group was a project financed and supported by the prison. However, when the state attorney was alerted to the remuneration the women had received for their texts, he filed a lawsuit against them attempting to recuperate the royalties on the basis of the Connecticut Cost of Incarceration Statute. 44 At the same time, the prison cancelled the writing programme and confiscated the hard drives that contained the authors’ works. Although the case was finally settled and the authors received the backup files of their texts, this reaction is representative of what may happen when artistic or literary expression criticises prison conditions. In the specific anthology, women presented their everyday life filled with drugs, alcohol, violence and sexual abuse. 45
In Sweden, there are two such writing projects that have resulted in the publication of a book. One recent example is the project that took place in Mariefred prison under the supervision and guidance of appointed ‘city author’ Magnus Utvik. 46 The texts were written by men between 29 and 58 years of age who have been charged with murder, armed robberies and drug crimes. All of them are serving long prison sentences. The book tells the true story of life behind bars and attempts to give the public a realistic depiction of the life of an inmate. It was published in 2020 by Strängnäs county library. The front page of the book states the first names of the authors, the name of the editor and the place where these inmates are incarcerated. It is not clear whether the inmates asked for anonymity or whether this was decided by another. What is obvious, however, is that the authors, the inmates themselves, have not been promoted in the same way as any other authors would in a similar situation. This anonymity could of course be a measure of protection taking into consideration the severity of the crimes committed. There does not seem to be any formal documentation of such a choice being made.
The Swedish Prison and Probation Service read the texts and their publication was dependent on its authorisation. The descriptions of scenes of violence, as well as other information that could cause public reaction, were removed. No contracts were negotiated or signed, and no remuneration was provided to the inmates. 47
A similar project under a similar structure was organised in the Hinseberg female prison. The writing programme was initiated in 2021 under the guidance of author Magnus Utvik, while the book was published in 2023. 48 In the same way as with the Mariefred project, the incarcerated women were invited to participate in a writing course organised by an external consultant but under the guidance and monitoring of Prison and Probation Services. The inmates’ texts describing their lives outside and behind bars, were published after acquiring the authorisation of the Prison and Probation Services. In certain cases, amendments were required before publication was possible. The book was published by Riskskådebanan, a non-profit organisation that has as its main objective to make culture and art available for all. 49
Inmates’ copyright: An employee's copyright?
As previously mentioned, the economic aspect of copyrighted works created under the framework of an employment may, under certain conditions, be transferred to the employer.
The question as to whether there is, in respect of inmates’ copyright, an employer-employee relation that would dictate such a transfer of rights is a very interesting one, and at the same time, one that has not been brought up in a Swedish context. However, it has been an issue in other jurisdictions, such as Canada and the US.
In Hawley v Canada, 50 John Hawley was sentenced to ten years in prison for armed robberies. When he was released on parole, he established a very successful art studio. He started working with art projects he had initiated while serving his sentence and, in particular, while he was an inmate at the Frontenac Institution where he produced a big painting to decorate the dining room of the prison, the Mount Whymper. He later sued the federal government claiming copyright ownership of the specific artwork, something that in turn would constitute a legal right for compensation.
The Federal Court found that Hawley was an employee of the Crown. The work was created under the supervision and control of the prison authorities. He worked on his painting as part of prison ‘employment’, and thus although he was the author of the work, the rights to it had been transferred to his employer, the Crown.
A case of the U.S. Court of Appeals for the Federal Circuit concerned a copyright claim raised by inmate and former bank robber James Walton. While Walton was incarcerated in a federal penitentiary in Leavenworth, Kansas, he was tasked with creating calendars as part of his labour assignment. 51 Federal Prison Industries, Inc. distributed the calendars via the government's General Services Agency. Walton's compensation was limited to a total of $1.15 per hour. Walton sued the prison for copyright infringement, based on the fact that Federal Prison Industries, Inc. had copied his artwork without authorisation, and claimed damages worth $50,000. Both the court of first instance and the Court of Appeal concluded that copyright law prohibits lawsuits against the United States in cases where the copyrighted work was created in the ‘employment or service’ of the United States. Walton argued that his relationship with the United States Government did not constitute one of employment, nor was it covered by the term ‘service’, since even this term referred to some form of employment relation between the author and the government. The Court of Appeal reached a different conclusion, claiming that Congress intended the two terms to have different, although related, meanings. One may have a service relationship with the federal government that does not constitute an employment relationship. Without attempting to define the precise limits of service, the Court concluded that it covered Walton's relationship with the Federal Prison Industries, Inc. while he was working for it on the federal calendar as a federal prisoner. The work was performed under the direction of the US Government, supervised by government employees, and using computers provided by the United States. 52
It is interesting that while one could claim that this is a commonsense ruling, it is obvious that it stretches the limits of the scope of the provision 28 U.S.C. § 1498(b). 53 It is also interesting that the Court chose not to treat the inmate as an employee, which in some ways would most probably have been more logical, but chose instead to see the inmate as in the ‘service’ of the government. The meaning of that term in a copyright context and its legal bearing remains unclear.
The question of whether an inmate is an employee of the state during the time of their incarceration is a very interesting one. It would certainly not be what we consider mainstream employment. This employment is in fact usually forced; the leisure time of the inmates is artificially limited and framed by several regulations that fall outside the scope of labour law. When the creative activity takes place during the structured prison work time, it seems justifiable to draw the conclusion that the inmates are to be considered state employees for the purposes of the questions related to IP ownership. Swedish legislation is silent on the issue and relies on established case law principles to determine when such relationships occur and what effects these have on the transfer of economic rights.
Obviously, even with regard to activities taking place in their leisure time, inmates are dependent on the authorisation of the local prison to exercise them. Even if there is considerable flexibility as to the precise activities, inmates will be dependent on the availability of materials and space. The very scarce financial resources that inmates have at their disposal makes their dependence on the financing of the materials necessary for the creative process to take place.
Furthermore, the materials or equipment that will enter the prison will be controlled, and access might be denied in case there are security (or other) concerns with the content or their potential uses. Equally regulated is, of course, also the method through which creative works are transferred from the prison to potential art galleries, publishers, etc. When the creative works are produced outside the framework of a certain prison programme, this may constitute a further issue to consider.
While copyright legislation is neutral with regard to the status of the author, it is obvious that authors behind bars are treated in a completely different manner to authors outside. The discriminatory treatment is not based on specific provisions regulating authorship inside the penitentiary as such, but more as a side effect of prison regulations and of the general approach to what inmates should be entitled to. In cases where inmates have made claims and have gone as far as to sue the prison for infringement, it has been claimed that the works have been created under ‘employment relations’, and that thus the right to these works has transferred to the ‘employer’, the prison. This is an interesting argument, since this is the only place where the relation between inmate and prison is considered equivalent to that of employer-employee.
The right to data and Krimtech
Nowadays, access to data is key to a broad range of technological innovations, and thus of vital importance for modern intellectual property rights. At the same time, its strict regulation, in particular when related to the collection and processing of personal information of individuals, creates hindrances. The use of data collected by inmates facilitates the creation of intellectual property rights-protected subject matter, without either their authorisation or, in fact, recognition of their contribution. Projects based on data collected by inmates are becoming increasingly popular.
Krimtech is a fairly new project initiated by the Swedish Prison and Probation Service, concerning the collection of data covering different aspects of the everyday life of inmates. Using data from prisons in terms of information and statistics is not a new phenomenon. But it was not until digitisation that correctional services became a unique forum for the development of new monitoring technology. In this project, inmates become a new form of labour force, namely, test subjects and data collectors. Their actual contribution is being monitored, in that sense contributing to technological development and necessary adaptations. New concepts arise, such as that of smart prisons that are built upon digital devices that ensure security and efficiency. 54
This is without a doubt a new form of labour and a new form contribution by inmates in the evolution of technology as well as in the evolution of the penitentiary. Although the contribution is not such that per se qualifies for copyright protection, it concerns the right to data. Training data is a vital element in the evolution of AI applications, as such copyrightable subject matter.
There is still rather limited information available on the structure and the ambitions of the project. In the project website what is stated is that:
‘These challenges and many more are addressed in Krim:Tech. The focus is on developing processes for technological innovation and working methods to renew the Prison and Probation Service with smart digital technology. We work in teams and take help from each other, smart technology and the latest research. We start up, test, develop and evaluate. Together we work to develop new products and solutions that make a difference for clients and relatives.’ 55
The website is very laconic on the actual content, structure and timeline of the project, and the information included serves predominantly the purpose of attracting applications by IT experts to participate in the programme. Apart from the fact that the results of the project are expected to be for the benefit of the inmates (the ‘clients’) and their families, nothing is mentioned with regard to the inmates’ contributions to the project and how these may be recognised/reimbursed.
A Foucauldian approach to copyright behind bars
Contrary to other predominant theoretical contributions, Foucault claimed that punishment has not in fact become much more humane in the post-Enlightenment era. He is clearly a proponent of skepticism concerning progress in the penal sphere. The historical review he provides in his seminal contribution, Discipline and Punish, concludes that the changes made are more of a cosmetic nature, and introduced to cover the sophisticated apparatus of repression that incarcerates prisoners supposedly for their own good and for their future rehabilitation. The evolution of societal values does not allow for the inhumane punishments of extended agony such as that inflicted on Damiens in 1757, the detailed description of which serves as an illustrative introduction to Discipline and Punish. 56 Even if the modern penal systems in theory adopt a more humane and benevolent spirit, prisons find ways of demoralising and controlling inmates, without at the same time effectively contributing to their reintroduction to society.
According to Foucault, individualised punishment was a new means of legitimising power. The development of modern individualism in punishment did not lead to growing liberty but more to the state's domination of the individual. Foucault's starting point in Discipline and Punish is that the struggle for domination is ‘never-ending’, 57 while every human relationship is ‘based on power’. 58 With regards to penal work, Foucault is clear that this is just one means of controlling the prisoners and of attempting to turn the violent prisoner to part of a ‘prison machinery’. 59
Foucault's theory faced the criticism of other theorists such as Garland, who claimed that in Foucault's work, ‘[w]e are invited to approach the study of penal institutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulatory power’. 60 Foucault was also broadly criticised by liberals such as Badinter and Thibaud for his constant critique to the evolution of the penal system, that at the same time lacked concrete proposals for change. 61
Foucault's contribution is not limited to his theoretical framework, but includes his growing activism on issues pertaining to prison reform, in particular since his activism contradicts, at least partly, his theoretical scholarship. In his capacity as an activist, he underlines that attempting to provide more humane conditions to prisoners is not a futile endeavour. 62
Foucault's activism has played a central role in a very important period of penal history. In the 1960s and 1970s, the rehabilitative model faced mounting criticism in the West. Conservatives considered it too soft and thus ineffective, adopting the so-called ‘nothing works’ mindset and promoting a more repressive approach. On the other hand, the radical left claimed that rehabilitation is merely a way of rationalising incarceration.
Foucault was one of the founders of the Groupe d’information des prisons (GIP) that had the aim of empowering prisoners and documenting their predicament. GIP promoted the abolition of criminal records, which were considered to perpetuate the punishment, while it also envisioned other legal remedies than imprisonment.
In one of his interviews, Foucault stated: [T]here exist better prisons than in France. In Sweden, fifteen years ago, on the road from Uppsala to Stockholm, I saw an institution the equivalent of a very comfortable French school building. The problem isn’t model prison or prison abolition. Nowadays, in our system, marginalization is created by the prison. This marginalization will not disappear automatically by abolishing the prison. Society would simply institute another means.
63
This statement is interesting, since an application of Foucault's own theory in Discipline and Punish would entail that Swedish prisons would solely constitute a more sophisticated means of social control in which the lower classes are purportedly incarcerated for their own good. Instead, Foucault appeared less suspicious of the motives of Swedish authorities than French authorities, as he seemed to believe that Scandinavian justice was capable of humanity.
There are several issues that are interesting for our discussion. First, imprisonment is not a straightforward form of punishment: the incarcerated is isolated from society, lives with a number of restrictions that are not limited to restrictions of transportation, and has to abide by the rules of the penitentiary. In general, the punishment extends to areas that are not initially envisioned. The case of intellectual property rights is characteristic. Although there is nothing in the punishment per se that limits the possibilities to proceed in the production of intellectual property, the direct effect of prison conditions is that these possibilities are considerably limited and dependent on local prison politics.
Foucault does not specifically consider the case of intellectual property rights. It is obvious, however, that his analysis has a direct effect on the case of works created behind bars. In Discipline and Punish he analyses the components of the total ‘reformatorium’, 64 which go well beyond the mere deprivation of freedom, namely, the isolation from the society, work as a means of changing the incarcerated, as well as the prison as a forum of individualising the actual content of the punishment (thus allowing for a certain liberty in the penitentiary as to how prison time will be structured and regulated). The components of the ‘reformatorium’ contribute to extending the nature of the punishment outside the actual imprisonment to include the deprivation of the incarcerated from some form of their moral and material property. The discipline, whose crucial role Foucault underlines in his Discipline and Punish, is characteristic; it has a contaminating effect in all parts of prison life. Incarcerated authors are not given the same possibilities to create, nor are they given the same possibilities to publish or distribute their works. Guantánamo may sound like an extreme example, but even in Swedish prisons, the prototype of humane prisons according to Foucault, prison authorities exercise close control of writing and programme content, they attend the meetings, control what the prisoners write and how they express themselves. In order to proceed to a publication or distribution of the work to the public, prison authorities have to read, control and give their final consent. At the same time, the texts published are not published under a licensing agreement as in any other case of copyright protected publication. That means in turn that the incarcerated authors lose control of their work, and their rights are not protected from future forms of exploitation, depriving them at the same time from future sources of compensation. 65
Foucault is correct - incarceration in this specific case extends way beyond the actual deprivation of liberty. Copyright protection, which is lost due to the way works created behind bars are treated, lasts for 70 years post-mortem autoris. It is beyond doubt that the incarcerated authors are deprived of a compensation that stretches for a longer period of time than the term of their incarceration, which could constitute a starting point for their reintegration in society and could also provide a source of revenue for their families. 66
Conclusion
Creative works created behind bars are protected in the same way as creative works created outside under copyright legislation. However, that does not mean that the creative space available to inmates is generous, or that the actual protection of such works is comparable to works created outside prison. On the one hand, there are practicalities that create non-negligible limitations in the leeway inmates have in order to express their creativity. Materials need to be purchased, space may be needed, and writing is much more difficult on paper than on a computer. The funds that inmates have at their disposal are very limited and are under the control of the Swedish Prison and Probation Service. Naturally, the flexibilities in acquiring materials and securing the practical preconditions for the creative activity to take place will depend on the level of security of the prison in which the inmate author is incarcerated or even on the local prison politics at the specific time. The higher the security level, the broader the restrictions and the narrower the scope for creativity. 67
Naturally, it is not only what enters the prison that is controlled, but also what leaves the prison. In the U.S. context, cases such as those of Guantánamo and the Connecticut prison are illustrations of regimes that intend to dehumanise the authors and, if possible, suppress any creative expression that constitutes a witness of the rough conditions inmates have to deal with while incarcerated. In Sweden there are no such examples, at least not known ones. However, the legal framework provides authorities with the possibility to control and even potentially stop the spreading of creative works made behind bars. The examples of the two books published under the supervision of Magnus Utvik in the Mariefred and Hinseberg prisons are characteristic of the control over the content and character of the works produced, but also of the complete lack of any appreciation of the incarcerated as fully-fledged authors from a copyright law perspective. The lack of contractual agreements preceding publication or any thought of potential compensation for the authors is indicative of the prison authorities’ approach. The conditions under which intellectual property rights are created and managed are incorporated in the general life in prison, contributing, to a large extent, to the dehumanisation of the incarcerated.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
