Joost Smiers and Marieke van Schijndel
In 1982, Jack Valenti, the then chairman of the Motion Picture Association of America, declared that ‘creative property owners must be accorded the same rights and protection resident in all other property owners in the nation’ (Lessig 2004: 117). Until then, the general opinion was that intellectual property was a more limited right, which could not be compared with others. He added to his statement the demand that copyright should give someone the exclusive ownership of, say, a film or a melody, in perpetuity… minus one day.
In perpetuity minus one day? Was he joking? Well, maybe a bit, but his statement was certainly provocative, particularly for that time. A lot has changed in a quarter of a century. We have evidently become accustomed to the privatisation of knowledge and creativity that is actually our joint property. Let’s present a number of arguments as to why that accustomisation is no good thing.
Some arguments are rooted in the basic principles of copyright itself. The essential aspect is therefore that it is a right of ownership. There is nothing wrong with ownership in itself, as long as it is imbedded in and limited by interests of a social, socio-economic, macroeconomic, ecological and cultural nature. From a cultural perspective, one might wonder whether it is appropriate or necessary to drape an individual ownership around what artists create. This ownership claim privatises an essential part of our human communication. This is harmful to democracy.
Would it be going too far to describe copyright as a form of censorship? Maybe not. First of all, let’s bear in mind that every artistic work builds to no mean extent on what others have created in the distant or less distant past. Artists draw from a well-nigh endless public domain. So isn’t it rather strange that should we grant an ownership title for the entire work due to the addition, no matter how much we might admire it? The ensuing right has far-reaching consequences. After all, no one except the owner is allowed to use or change the work at his or her own discretion. A not inconsiderable proportion of the material with which we, as people, can communicate with one another is therefore under lock and key.
Why is this a problem of the first order? Artistic creations are the expression of many different emotions, such as pleasure and sorrow. We live surrounded by music, films, all kinds of image material and theatrical representations. Being such strong forms of expression, what we see, hear and read leaves traces in our consciousness. It is this sensitive area – which is so influential in our lives and the way we live together – that is copyrighted. As said, this is a property right. The owner of an artistic expression is the only one who can decide how the work can and may function. It may not be altered by anyone other than the owner. It may not, in other words, be contradicted or disagreed within the work itself. Neither may we place it in contexts we consider more appropriate. There is no question of dialogue. We are more or less gagged. Communication becomes terribly one-way and dominated by a single party, namely the owner. He/she is the only one who can and may lend his or her artistic material significance. Other artists and we, as citizens, are not allowed to lay a finger on it afterwards. We are only permitted to consume – both figuratively and literally – and hold our own opinions on the work. This is not enough for a democratic society.
Rosemary Coombe therefore stresses that ‘what is quintessentially human is the capacity to make meaning, challenge meaning, and transform meaning.’ This brings her to a fundamental observation. ‘If this is true, then we strip ourselves of our humanity through overzealous application and continuous expansion of intellectual property protections. Dialogue involves reciprocity in communication: the ability to respond to a sign with signs. What meaning does dialogue have when we are bombarded with messages to which we cannot respond, signs and images whose significations cannot be challenged and connotations we cannot contest?’ (1998: 84, 5).
Copyright incorporates a formal element that explicitly excludes the non-owner from changing or adapting the creation in any way. These are the moral rights artists derive from their work. The guiding principle behind this moral right is the idea that they produce something entirely unique, original and authentic. It is not then only reasonable that they should be able to demand that they are the only ones to guide the work in its further life, that only they can decide how it is performed, whether it can be changed and in what setting it may prosper? Shouldn’t the integrity of the work be protected?
The question that immediately springs to mind is whether it is self-evident for the creator to have the exclusive, monopolistic ownership of his or her or her work in order to gain respect. In most cultures, ownership has never been a condition for appreciating a work. In many cases, it is even seen as a great compliment to have one’s work copied or imitated. So there must be a reason why originality and exclusivity have become so interrelated in Western culture over the past few centuries. It could have something to do with the development of the idea of the individual, which was a big change in the way people saw themselves. That individual felt more detached from social contexts than before. What that individual produced was therefore his or her or her very own performance, particularly if that work was the highest expression of human ability. Art and artists therefore assumed almost mythical proportions.
In that light, it is understandable that the idea of moral rights evolved. But is it justified? We don’t think so. We have already mentioned how harmful the inviolability of artistic works is for democratic communication. Moreover, the reality is that each work should be seen in a progressive development of what many artists and their audiences create, perform and respond to, which also contributes to the work. Giving an individual artist exclusive control of his or her work is therefore going a bit far.
If we decide that moral rights are unjustifiable, then we are still left with numerous unanswered questions. The most fundamental is whether artists should have to stand by and watch their work being adapted or changed without having any say in it. In fact, there is no choice. That will be an extreme culture shock for some people, of course. Although it will not be felt as such in most cultures where copyright and therefore also moral rights have never taken root. Incidentally, we have no reason to suppose that throngs of people will be grabbing hold of artistic works and treating them inappropriately. And then there is the public debate on what adaptations are acceptable and which damage the integrity of the work.
It is not unthinkable that an artist might see his or her or her work pop up in a context that only evokes revulsion: that can never have been the intention. The work is being used for an objective that he/she passionately rejects or loathes, for example. But what can you do now that, in our opinion, copyright is no longer viable? There are a number of instruments in the legal toolkit that we feel are even more appropriate for meeting the artist’s legitimate demand not to be dragged through the dirt. Here, we are referring to defamation of character and, in particular, wrongful and unlawful acts.
An artist who considers that the way work has been treated is wrongful can consult the courts. They have to be convinced. There is no automatism involved any longer, we admit, but that does have its advantages. Law is dispensed to measure and jurisprudence will certainly develop around such nasty situations. The other advantage, naturally, is that all artistic work remains freely available for changing, adapting and placing in diverse contexts. For remixing, in other words. That is a major achievement, which, due to the abolition of moral rights, will remain unaffected.
Nevertheless, we are still weighing up the issue, particularly in respect of a situation where there is no question of a wrongful and unlawful act, but where the artist considers it essential for his or her work to be brought to life the way he/she intended. If moral rights are abolished, then no-one really has to take any notice. But why not show respect for that work and its creator. That is a major value in social intercourse between people. Why not observe it? It’s quite possible. An artist who makes sweeping adaptations to the work of another, giving it his or her own interpretation, is entitled to do so, but should then state that the adaptation is a new work based on the work of the original author or composer, for example. This makes it clear that the initial creator had a different presentation of the work in mind. It is also culturally crucial to know this, so we can trace the genealogy of the work, as it were. What footsteps has it left in the sand of our culture?
We would like to prevent any misunderstandings; naturally we are totally against work being stolen. X must not be able to stick his or her name on a film, book or piece of music that was clearly created by Y. That is pure theft, fraud, misrepresentation; however you would like to put it. Once this comes out – and that will happen sooner or later – the fraud will be called to answer to the courts and, where appropriate, fined. You don’t need a copyright system for that.
With most types of works of art, particular if they are digitalised, the change does not erase the traces of the original work. You can still see, hear or read them. Things are different with paintings. If you paint over the picture, for example, or slash at it with a knife, then it will never be the same again. A good restorer might be able to save something, but it’s uncertain. If someone nevertheless feels that the painting should look different from the way it does now, then he/she only has one option: to paint it again the way it should look. Culturally, that can be interesting, while the work that caused offence in the first place is still visible. Debate as to the difference between one and the other can then begin. After all, isn’t that one of the major values of a democratic society?
One of the arguments often used to defend the copyright system is that it generates income for artists. Without copyright, we would never have all those exciting films or the music and novels we are so fond of. There would no longer be any incentive for creating those works. The industry, in particular, likes to use this argument. But artists and many of their organisations also have the notion that they would end up in dire straits if the source that guarantees their income were to disappear.
But is that actually so? There is sufficient reason to assume that the link between income and copyright is largely irrelevant for many artists. We do have to admit that a small group of star artists and the industry itself do very well out of it. For the majority, it is insignificant as a source of income (see, for example, Boyle 1996: xiii; Drahos 2002: 15; Kretschmer 1999; Vaidhyanathan 2003: 5). Economic research has shown that, of rights-related income, roughly ten percent goes to ninety percent of the artists and, vice versa, ninety percent goes to ten percent. Martin Kretschmer and Friedemann Kawohl have ‘indications that such winner-takes-all markets are prevalent in most cultural industries’ (2004: 44). Michael Perelman, in his research, states that ‘virtually all of the proceeds that the corporate sector passes on to the creative workers goes to a tiny fraction of them’(2002:37). Even the official British Gowers report on intellectual property rights in the cultural sectors is forced to concede that ‘on average creators receive a very low percent-age of royalties from recordings’ (2006: 51).
The report is not convinced that the incentive argument holds water. There are a large number of bands creating music without any hope of receiving anything like an income from royalties. That is even the case in England, even though, along with the US, that is where the majority of income collected from rights in other countries ends up. In most of the world, little is retained domestically in the way of royalties, so they constitute no significant source of income for artists living and working there. For Ruth Towse, talking of the music sector, the conclusion is inevitable, that ‘copyright generates more rhetoric than money for the majority of composers and performers in the music industry’ (2004: 64). Superstars receive astronomical royalties, the rest a pittance (2004: 14, 5).
The attempts to make copyright enforceable in every corner of the world are being thwarted in countries where, until recently, this instrument was hardly known, not only due to unwillingness or impotence on the part of governments (Deere 2009). A perhaps even more major spoke in the wheel is piracy. This is committed on a grand, industrial scale or with entirely different intentions by someone at home who is frankly and freely exchanging music, for example, with someone else on the other side of the planet. How should we judge this?
One of the implications of the globalisation over the past few decades is that it has generated us a great deal of trade that transgresses the bounds of legality. This includes music and film piracy. There is also the traffic in women, children and human organs, illegal arms trading, black money, corruption and tax paradises, illegal workers, drugs and therefore also piracy of intellectual property. The philosophy of the neoliberal reforms of the 1980s and 1990s was aimed at creating open economies with as few obstacles as possible for trade and transport. The regulating, controlling weight of the state had to be reduced as far as possible.
We should therefore not be surprised that black markets and illegal trading have flourished in their wake. The IMF, for example, estimates that between 700 and 1,750 billion dubious euros are circulating between banks, tax paradises and the financial markets (Le Monde, 23 May 2006). Anyone surprised by the outbreak of the worldwide financial crisis in 2008 had not been paying attention beforehand. Part of the undeclared money flitting around the world is intended for terrorist purposes. (Napoleoni 2004)
The big question is whether this large-scale evasion of the law can be stopped, including in the area of music and film piracy. Moíses Naím states quite plainly that we don’t have the resources. We have to prioritise the deployment of our tracing mechanisms and our legal and penal systems. He formulates two principles as a guideline. First of all, the economic value of illegal trading has to be drastically reduced. ‘Drive out the value from an economic activity, and its prevalence will diminish accordingly’. The second principle is to reduce the social harm (2005: 252).
When establishing the criteria for prioritising then, clearly, the illegal traffic in women, children and human organs has to be fought. These activities erode the civilisation of a society. If the state no longer has the monopoly on the use of violence and no longer controls the money flows, then at some point you no longer have a society. Moíses Naím lets there be no misunderstanding where it comes to drugs. The war there is lost and why should it be more of a problem than the overuse of other stimulants? The state should bow ‘to economic reality and go into the drug business itself. It is a bold move, not recommended for anyone seeking cordial relations with the world’s great powers. But if you feel you have nothing to lose, why not?’ (o.c.: 84). Neither is he optimistic that the fight against piracy can be won, on either an industrial or an individual scale. Not because of lack of motivation on the part of the intellection property owners, but because the illegal traders, forgers and exchangers of artistic material at an individual level are many times more motivated. Evidently then, the fight against piracy will have to be given up at the same time as the instrument of intellectual property rights.
His conclusion is therefore that the fight against trafficking in women, children and human organs, against illegal arms trading and black money has a higher priority – and is already difficult enough – than rushing around tracking down trade in drugs and illegal copying. The decriminalisation and legalisation of drugs and the free exchange of artistic material should therefore be discussable options. That considerably reduces the value for traders and the harm to society (o.c.: 252). We would like to add, perhaps superfluously, that when it comes to artistic material and knowledge, intellectual property rights detract from rather than contribute to the income of many artists and the retention of the public domain of knowledge and creativity.
There is one thing that amazes us. One may agree, or not, with our arguments for the abolishment of copyright. However, everyone who looks around in the world and observes not only what kind of changes the digitization and the internet provoke, may realize that the present system of copyright will not hold. Thus, there should be analysed what comes next, or what should come next. One of the options is that the system of copyright will disappear, in one way or another. What amazes us, is that economic and legal departments of universities leave out this option so stubbornly from their research. We thought that the task of scholars is not to be afraid of taboos, and not hindered by ideological blindness to investigate all what might happen. That copyright might end is something that might happen indeed. Thus, scholars in economic and legal departments of universities, don’t hesitate to take this option on your research agendas. In the next article we will help you already and analyse how markets will look like, according to our estimates, if we would not have copyright but also no market dominating cultural conglomerates. It’s now your turn.
Boyle 1996, James, Shamans, Software, and Spleens. Law and the Construction of the Information Society, Cambridge MA/ London (Harvard University Press)
Coombe 1998, Rosemary J, The Cultural Life of Intellectual Properties. Authorship, Appropriation, and the Law, Durham and London (Duke University Press)
Deere 2009, Carolyn, The Implementation Game. The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries, Oxford (Oxford U.P.)
Drahos 2002, Peter, with John Braithwaite, Information Feudalism. Who Owns the Knowledge Economy?, London (Earthscan)
Frith 2004, Simon, and Lee Marshal (ed.), Music and Copyright. Second Edition, Edinburgh (Edinburgh U.P.)
Gowers 2006, Andrew, Gowers Review of Intellectual Property, London (HM Treasury)
Lessig 2004, Lawrence, Free Culture. How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, New York (The Penguin Press)
Naím 2005, Moíses, Illicit. How smugglers, traffickers, and copycats are hijacking the global economy, New York (Doubleday)
Napoleoni 2004, Loretta, Terror Inc. Tracing the Money Behind Global Terrorism, London (Penguin)
Perelman 2002, Michael, Steal This Idea. Intellectual Property Rights and the Corporate Confiscation of Creativity, New York (Palgrave)
Smiers 2009, Joost, and Marieke van Schijndel, La fine del copyright. Come creare un mercato culturale aperto a tutti, Viterbo (Stampa alternativa)
Towse 2004, Ruth, Copyright and Economics, in: Frith and Marshall (2004): 54-69
Vaidhyanathan 2001, Siva, Copyrights and Copywrongs. The Rise of Intellectual Property and How It Threatens Creativity, New York and London (New York University Press)
On the authors
Dr. Joost Smiers is professor (em.) of political science at the Utrecht School of the Arts. He lives in Amsterdam. Marieke van Schijndel is the director of the Museum Catharijne Convent in Utrecht. She lives in Utrecht.