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<nettime> Schijndel & Smiers: IMAGINING A WORLD WITHOUT COPYRIGHT (Modif
Geert Lovink on Sat, 5 Mar 2005 12:54:30 +0100 (CET)


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<nettime> Schijndel & Smiers: IMAGINING A WORLD WITHOUT COPYRIGHT (Modified by Geert Lovink)



(posted to nettime with the permission of the authors. this proposal tries 
to get rid of lawyers altogether, including lessig. the bad thing about 
creative commons: it's still a legal document and thus feeds the 
evergrowing hegemony of the global law apparatus. /geert)

IMAGINING A WORLD WITHOUT COPYRIGHT

The market and temporary protection a better alternative for artists
and the public domain

An essay  by Marieke van Schijndel & Joost Smiers

Hard to imagine

Some serious cracks are surfacing in the system of copyright, as we have 
known it in the Western world for a couple of centuries. The system is 
substantially more beneficial for cultural conglomerates than for the 
average artist; a situation that cannot last. Furthermore, it seems 
inescapable that digitisation is undermining the foundations of the 
copyright system. It must be acknowledged that several authors have 
recently presented analyses of the untenability of the contemporary system 
of copyright. Yet, most of their observations only allude to -- but do 
not address -- what we deem the most fundamental question of all: if 
copyright is inherently unjust, what could come in their place to
guarantee artists -- creative and performing -- a fair compensation for their labours, and how can we prevent knowledge and creativity from 
being privatised (Bettig 1996; Bollier 2003: 119-134; Boyle 1996; Coombe 
1998; Drahos 2002, 2002a; Frith 2004; Lessig 2002, 2004; Litman 2001; 
Perelman 2002; Vaidhyanathan 2003). It is time to move beyond merely 
criticizing copyright. The pressing question is: which alternative can we 
offer artists and other cultural entrepreneurs in rich as well as poor 
countries that benefits them, and that brings the increasing privatisation 
of creativity and expertise to a halt? Our goal in this essay is to 
develop such an alternative, and to move beyond any notion centred on 
privateintellectual propertyrights.

This text is an essay. We cannot erase the product of centuries of Western 
thought on intellectual property rights with a single stroke of the pen. 
It is hard to imagine for Western man that a world without copyright could 
still yield films, theatre productions, novels, music pieces, paintings, 
and multimedia spectacles; even though people born and living in 
non-Western cultures find this a lot less hard to believe (Boyle 1996: 
xiv)! In this essay we therefore present a thought-experiment. We begin by 
making a few observations, followed by a proposition, an alternative. Once 
we have arrived there, it becomes fruitful to put our ideas to the test. 
How would our alternative provide an income for artists, their patrons, 
and producers in various artistic industries and in various positions? It 
must be clear that we aspire only to sketch the contours of an approach 
that will require further development and study. Without any doubt, the 
analysis we present for copyright is transferable to other systems of 
intellectual property rights, such as patents and trademarks. These 
systems influence, as well, the creation, production, distribution and 
promotion of works of art of different ilk.

Some observations

A first observation must be that the present Western copyright system pays 
little attention to the average artist, especially those in non-Western 
societies. The system disproportionately benefits a few famous artists and 
especially a few major enterprises, but it has little to offer for most 
creators and performers (Boyle, 1996:xiii; Drahos 2002: 15; Kretschmer 
1999; Kretschmer and Kawohl 2004: 44, Vaidhyanathan 2003: 5). The 
copyright system does enable a handful of cultural enterprises to dominate 
the market, and to withdraw substantive diversity from the public eye 
(Bettig 1996: 34-42, 103; Boyle 1996: 121-5; Coombe 1998: 144; Drahos 
2002:ix-x, 74-84; Litman 2001: 14; McChesney 1999). Copyright has thus 
become a mechanism for a few cultural conglomerates to control the broad 
terrain of cultural communication. Something that has been derailed to 
such a large extent, and that hurts the interests of most artists and the 
public domain, can no longer be cut back to normal proportions.

For most artists, the profits deriving from copyright do not form much 
of an incentive to create and perform artistic work, simply because they 
hardly receive the proceeds. This has been the case in the past, it still 
is the case in the present, and it holds for almost every culture. =46rom 
an historical perspective, we may note that the concept of private 
intellectual property rights has traditionally been absent from most 
cultures. Yet, there have always been artists who created and performed 
works (Bettig 1996: 25, 44, 171; Boyle 1996: 38-39). The incentive 
argument -- artists stop their labours if they stop receiving copyright 
payments -- therefore does not hold: 'Copyright today is less about 
incentives or compensation than it is about control.' (Litman 2001: 80) 
'Firms in the creative industries are able to 'free-ride' on the 
willingness of artists to create and the structure of the artists' 
labour markets, characterised by short term working practices and 
oversupply, make it hard for artists to appropriate awards.' (Towse 
2003: 10) One may add to this observation that 'value of copyright 
royalty rates is decided in the market place and it is therefore 
artists' bargaining power with firms in the creative industries 
determines copyright earnings. Artists' bargaining power is, however, 
considerably weakened by the persistence of excess supply of creative 
workers to the creative industries=85 As with artists' earnings from 
other art sources, the individuals distribution of copyright earnings is 
highly skewed with a few top stars earning considerable sums but the 
medium or 'typical' author earning only small amounts from their 
various rights.' (Towse 2003: 11)

For non-Western countries, the Western intellectual property rights system 
is nothing but a straight-out disaster. Their knowledge and creativity is 
obfuscated from them, and they have to pay dearly to receive the fruits of 
these sacrifices in return. This even explains the unfavourable debt 
position of these countries to some extent (Boyle 1996: 34, 125-130, 
141-142; Chomsky in Smiers 2003: 77; Coombe 1998: 208-247; Correa 2000; 
Grosheide 2002; von Lewinski 2004; Mitsui 1993; Perelman 2002: 5-7; Rifkin 
2000: 229-232, 248-253; Shiva 1997, 2001). Let's face the reality that 
digitisationis axing the roots of the copyright system (Alderman 2001; 
Lessig 2002; Litman 2001: 89-100, 112-116,151-170; Motavalli 2002; Rifkin 
2000: 218-229; Schiller 2000; Vaidyanathan 2003: 149-184). By abolishing 
copyright, the process of creative adaptation will once again enjoy every 
imaginable opportunity.

This is all the more interesting in the digital age. After all, digital 
sampling enables the production of creative works, much like those have 
always been produced. How? Indeed, by finding inspiration, themes, or 
certain forms of expression in works previously produced, long ago or 
yesterday. Digitisation enables this lending and borrowing of inspiration, 
and is helpful as well from another perspective. In the world of copyright 
there has always existed a bizarre distinction between an idea and the 
expression: however, in the digital age a work is no longer fixed and 
separating idea from expression is no longer possible. The artificial 
distinction and the endless discussions about it have become superfluous.

Another observation, linked to what creative sampling makes possible, is 
that the philosophical basis of the present system of copyright is founded 
on a misunderstanding, notably that of the sheer boundless originality of 
the artist, regardless of whether he or she is a creator or a performer. 
But let us keep a keen eye on reality. One always builds on the labours of 
predecessors and contemporaries. Subsequent artists add something to the 
existing corpus of work, nothing more and nothing less. We may highly 
respect and admire those additions, but it would be incorrect to provide a 
creative or performing artist, or his or her producers, with an exclusive, 
monopolistic claim to something that has largely sprung from knowledge and 
creativity in the public domain, and that is indebted in important 
respects to the labours of predecessors (Barthes 1968; Boyle 1996: 42; 
53-59).

Of course, we are well aware that an artist receives a copyright for the 
additionhe or she makes to what can be found in the public domain of 
knowledge and creativity. Again, this addition can be very impressive (or 
banal). But it is quite a stretch to extend him or her an exclusive, 
monopolistic property right for that addition, guaranteed until 70 years 
after his or her death, and which can on top of that be transferred to an 
individual or corporation that had nothing to do with the creative process 
in the first place. The credibility of the system really starts to fall 
apart when we realize that the author and his or her rightful claimants 
can forbid almost anything that resembles the copying of their work 
(Coombe 1998: 92-98).

The development of the public domain of creativity and knowledge deserves 
a reappraisal. Besides, subsequent artists must be enabled to delve into 
that domain in order to find a supply of artistic materials that they can 
build on. That road will be closed when artistic materials from the 
present and past fall into private hands, something that is occurring to 
an increasing extent under the present system of copyright. This 
privatisation of our past and present cultural heritage is devastating for 
the further development of our cultural life (Locke in Boyle 1996: 9). In 
fact, an author-centred regime can actually slow down scientific 
progress, diminishthe opportunities for creativity, and curtailthe 
availability of new products (Boyle 1996: 119; also see: Perelman 2002: 
7-9).

For cultural conglomerates, which control the bulk of the property rights 
worldwide, the possibility to forbid reproduction is exceptionally 
interesting: it enables them to dominate broad areas of artistic 
expression in which no contradiction, no counter-melody, no counter-image, 
in short no dialogic practice is tolerated (Coombe 1998: 42, 46). Yet, we 
have to realize that culture is not embedded in abstract concepts that 
we internalise, but in the materiality of signs and texts over which we 
struggle and the imprint of those struggles in consciousness. This ongoing 
negotiation and struggle over meaning is the essence of dialogic practice. 
Many interpretations of intellectual property laws squash dialogue by 
affirming the power of corporate actors to monologically control meaning 
by appealing to an abstract concept of property. Laws of intellectual 
property privilege monologic forms against dialogic practice and create 
significant power differentials between social actors engaged in hegemonic 
struggle (Coombe 1998: 86). It is prerequisite for any democratic 
society that a surplus of opinionating and emotion-evoking claims can be 
contradicted (Bettig 1996: 103-106). The broad copyright as we know and 
have it virtually renders that difficult and sometimes impossible.

Alternatives?

After this summation of the fundamental shortcomings of the copyright 
system, it may not come as a surprise that we feel the need to investigate 
alternative ways to protect the public domain of knowledge and creativity, 
and to assure many artists and other cultural entrepreneurs a fair income 
for their labours. As stated, this type of investigation only happens too 
sporadically. Recently a few scholars and policymakers have presented 
alternatives to the system. But their proposals have many disadvantages 
and they therefore do not constipate a real alternative to the copyright 
regime.

The most far-reaching reorientations have been systems like the General 
Public License and the Creative Commons (Bollier 2003: 27-30; 99-118; 
Boyle 1996: 132-133; Lessig 2002 and 2004: 282-6). The idea behind this 
approach is that A's work must be available for use by others, without 
them being obstructed by prevailing copyright. In turn, the other cannot 
appropriate the work. Why not? The Creative Commons entails that A 
supplies some kind of public license for his or her work: go ahead, do 
with the work as you please, as long as you do not bring the work under a 
regime of private ownership. The work is thus subjected to a form of
  empty copyright. This hollow copyright constitutes the most 
extreme option the author has under the Creative Commons regime. More 
often, however, the author opts for the choice some rights reserved, 
for example that the usage of a work is restricted to not for profit 
activities. It is an uncertain form of contract law that will keep lawyers 
busy. The sympathetic aspect of Creative Commons-like constructions is 
that it becomes possible, to a certain extent, to withdraw oneself from 
the copyright jungle. It is of course always laudable to start a new world 
order on an island, and there is no scepticism in this statement. We hope 
that more and more artists will renounce the system of copyright that 
disadvantages them so badly, and begin hollowing it out by embracing the 
idea of a Creative Commons. Without any doubt this systems is helpful for 
museums and archives that wish to spread their stocks of cultural heritage 
to the public but also like to avoid it becoming copyrighted or used 
inappropriately by others.

As long as the system of copyright is still in place, the Creative 
Commons appears to be a useful solution that may even serve as an 
exemplar. But there are some strings attached. The Creative Commons does 
not paint a clear picture of how a diverse set of artists from all over 
the world, as well as their producers and patrons, might generate an 
income. But we have to prepare an answer to that question. Most artists 
will not dare to put the existing copyright regime to rest until they have 
been offered a clear view of a better alternative -- even though the 
present regime only has smoke and mirrors to offer. That is easily 
understandable. A second drawback of Creative Commons-like approaches is 
that they do not fundamentally question and challenge the copyright 
system. The Creative Commons License suggests that the author wants to 
exercise some form of control, nonetheless. Another quite essential 
objection to the Creative Commons-like approaches is that they involve 
only those artists who are willing to adhere to this philosophy. Cultural 
conglomerates, which have the ownership of big chunks of our cultural 
heritage from past and present, however, will not. This downgrades and 
limits the sympathetic idea of the Creative Commons. Not free of 
contradictions is the fact that one of the most outspoken advocates of 
Creative Commons, Lawrence Lessig, is a strong adapt of the idea that 
knowledge and creativity can be owned as individual property (Lessig 2004: 
XIV, XVI, 10, 28, 83). Isn't the title of his 2004 book Free Culturea 
bit misleading? Below we will argue that there is much to say against this 
private property claim on knowledge and creativity.

A second alternative for copyright is connected to different forms of art 
created and produced in a collective manner (regardless whether it 
concerns more traditional or contemporary works) as is the case in most 
non-Western countries. In those societies the individual approach of the 
Western copyright system does not fit the more collective character of 
creation and performance. If one stays within the paradigm of the private 
ownership of knowledge and creativity, it is obvious that a concept like 
collectiveownership comes to mind. Is it not possible to grant so-called 
traditional societies a tool that resembles copyright, but is in fact 
collectively owned? Would this not enable them to protect their artistic 
expressions from inappropriate use and/or guarantee their artists an 
income?

The problems for effectively introducing a system of collective 
intellectual ownership rights are abundant. For instance, one may wonder 
who represents the community and is able to speak on behalf of the 
community. It is not by definition the case that everybody agrees on how 
to deal with artistic creations of the past and present. Copyright is 
about the exploitation of works, but many people in those societies may 
consider this a blasphemy, or would not like to see their works being used 
in specific contexts. The appropriation of knowledge and creativity is 
something that even pinches in the Western world, and it all the more does 
so in countries where this strange system has never existed, and where 
artists use each other works, and so on and so forth, like what was the 
case in the Western world before the introduction of the copyright system. 
There is, thus, even without considering the position of Western cultural 
conglomerates reason to understand why the polite, weak and bleak trials 
of elaborating a collective intellectual property system have failed thus 
far.

Is the tweaking of the current system a solution for the problems as we 
have described them? Several scholars, critical to the present copyright 
system, propose optimising it. Their contributions vary. Some argue for 
the reestablishment of the fair use principle, which has suffered 
enormously over the last decade, or making copyright solely applicable to 
real authors, creators and performers. Others favour a much shorter period 
of protection, for instance fourteen years. Again, others believe there is 
no real problem in the European context, because in those countries the 
collecting societies put aside a portion of the copyright earnings for 
cultural projects and their distribution scheme favours individual artists 
in comparison to the Anglo-Saxon copyright system. Unfortunately, it is 
unthinkable to bring the current system back to normal proportions, 
because it is not in the interest of the main partners of the system, the 
cultural conglomerates, to assist in this quest. On the contrary, they 
have been very eager and highly successful in extending and broadening the 
copyright system. Moreover, digitisation is greatly impacting the 
functioning of the system. At what point must a society decide that when 
almost everybody is participating in an illegal practice -- like P2P music 
or film exchange -- it can no longer be considered illegal (Litman 2001)? 
And even if the European collecting societies have a higher moral ground 
than those in the Anglo-Saxon world, even then the problem of the 
individual appropriation of knowledge and creativity, which is the basis 
of our critique of the system, continues to exist. In the next sections we 
address this issue more thoroughly.

Artists, producers and patrons: entrepreneurs

Before presenting our proposal we must observe that artists are inclined 
to sell their work on the market and -- if it all works out -- make a 
living for themselves. Artists have always been merchants and small 
shopkeepers. They live off an acquisitive audience that wants to admire, 
enjoy, and buy their produce. To that audience also belong institutional 
buyers like kings, churches, Maecenases, labour unions, banks, hospitals, 
and other societal institutions (Hauser 1972). This conclusion, as will be 
demonstrated further on in this essay, will provide us with something to 
go by while developing an alternative for copyright.

Artists, as well as their producers and patrons, thus apparently are 
entrepreneurs. This requires a risk-prone mentality, and it involves 
competition, under the condition that real competition exists indeed, as 
much as possible for many artistic expressions and their artists. The 
observation that artists, and their producers and patrons are 
entrepreneurs makes one wonder what the decisive reason is for reducing 
the entrepreneurial risks of cultural producers, because this is precisely 
what copyright does. Copyright renders a product exclusive, and provides 
the entrepreneur with a de factomonopoly. This system of institutionally 
protected gifts is seemingly bizarre in an era in which even cultural 
conglomerates themselves herald the blessings of free market competition. 
Major entrepreneurs in cultural sectors bargain for ever-stricter 
intellectual property rights in the form of extensions and expansions of 
existing copyright legislation, but this is completely at odds with the 
so-called rule of the free market! We also observe the exact same 
phenomenon in the area of patent law and other intellectual property laws 
such as trademarks, database rights, plant breeder rights and design 
rights (Drahos 2002; Perelman 2002; Rifkin 1998, 2000; Shiva 1997, 2001; 
Shulman, 1999).

Before we try our luck by presenting a new system, we must first identify 
the locus of the impulse to create. That brings us to the following 
summation, a three-pronged road. One possibility is that a work is being 
commissioned. The second option is that the artist him- or herself takes 
the initiative to make an artistic work, possibly in collaboration with 
multiple, differentially endowed creators and performers. Thirdly, a 
producer can be a binding factor and bear the responsibility and risk 
involved in an artistic venture.

In all three cases -- the initiative coming from a patron, someone who 
commissions; from one or several artists themselves; or from a producer -- 
there is a person or an institution that intentionally makes itself 
responsible and accountable for creating or performing a certain artistic 
work. To be responsible and accountable not only implies undertaking a 
broad range of activities to give the artistic project momentum, but also 
to bear, amongst other things, the financial risks involved. The initiator 
then becomes an entrepreneur and bears the risk that unavoidably comes 
with entrepreneurship. In our alternative for copyright it is not the 
artist who takes centre stage, but the entrepreneur, regardless of whether 
he or she is an artist, a patron, or a producer.

The solution: the market and temporary protected usufruct

While recognizing the fact that artists, patrons and producers are 
cultural entrepreneurs, we find that they can be confronted with three 
types of situation, each of which grants a specific reaction or option. 
What are those three options in our proposed solution? First, cultural 
entrepreneurs experience a competitive advantage, for example by being the 
first to market a product. Ancillary forms of protection are then rendered 
unnecessary.Secondly, in some cases high risk and high investment are 
involved in the realization of certain creative works. Temporary protected 
usufruct is granted to offset market failure. Third, the market as of yet 
lacks the resilience to finance a product and there are many reasons 
making it desirable for it to flourish. Subsidies are than distributed. In 
all three cases or options the works fall immediately in the public 
domain. This is the key principle of our proposed solution.

Let's take a closer look at those three options. What are the contours of 
the system that we find worth exploring? The core of the matter is that we 
distance ourselves from the present system of copyright, as was probably 
clear by now. What does that yield? As stated, the protective corral of 
property rights that is artificially erected around a creative work will 
disappear. The consequence, thus, is that the work -- regardless of 
whether it involves a (new) creation or a performance -- will have to be 
marketed from the moment of its announcement onwards. We will nuance this 
position further on in the essay when we discuss the second option. What 
is essential is that the entrepreneurial patron, artist, or producer 
obtains a competitive advantage by creating or performing a work 
(Picciotto 2002: 225). This renders additional protection unnecessary. 
This is the first option.

What we have in this first option is a first-mover advantage. The first 
person to bring a work to market can use the advantage to reap revenues. 
The entrepreneur thus has lead-time. What we propose is not completely 
new. In 1934 Plant stated 'that copyright encourages moral hazard in 
publishers (firms in the creative industries) without sufficiently 
rewarding authors (creators) who supply the creative input. He believed 
that publishers should rely on the temporary monopoly of lead time to 
establish new products in the market.' (in Towse 2003: 19) This time gives 
the first mover a lead over possible competitors, the opportunity to skim 
the market for the new cultural product, ask a good price for it, and thus 
earn a return on investment.

After all, it will take several months before, say, the same play or music 
piece will see its opening night elsewhere or the same chair is eligible 
for production in another location. It should be understood that the work 
falls immediately in the public domain; thus can be used by others as 
well, and everybody is free to adapt this work creatively. The competitive 
advantage that most artists possess in one form or other is put at the 
very core of our new system. If such advantages are allowed and able to do 
their work, ancillary forms of protection, like copyright, will be 
unnecessary.

The counter argument, however, might be that, with an eye on digitisation, 
reality is that lead-time is only a couple of minutes or perhaps hours 
(Towse 2003: 19)! Does this mean that there are almost no works that can 
benefit from a competitive advantage? We do not believe so. Apart from the 
first-mover advantage, many artists are able to add value or create 
advantages in other ways. In order to understand this, we should keep in 
mind, that cultural production and distribution will reshuffle 
considerably after the abolishment of copyright. For instance, in the 
field of music concerts and performances will become much more important, 
also as a source of income for the artists. Live, direct contact with an 
audience generates inimitable value. Performing qualities are even now, in 
the present era, of decisive importance for long and lasting careers of 
musicians. This is what gives them a good reputation. Reputation creates 
value. Reputation has a signalling effect. It indicates guaranteed 
quality. Customers are more loyal and are willing to pay higher prices for 
cultural products from artists with a good reputation and it makes them 
aficionados (Fombrun 1996). In the part of this essay where we test our 
proposals in the different fields of the arts -- see below -- we will come 
back to how cultural production and distribution will change in a world 
without copyright. But let us at this point stress that service qualities 
of artistic works will become much more important than the individual 
product.

>From what we have stated before about the philosophically doubtful concept 
of the originality of the author, it is clear that we claim that any 
artistic creation or performance belongs to the public domain.It is 
derived from the commons, based on the works of predecessors and 
contemporaries, and therefore, from its moment of conception onwards it 
takes its place in the public domain. We use the concepts public domain 
and commons without distinction. However, we know that in legal traditions 
there may be differences between the two concepts. We define the public 
domain or the commons as the space in any society that belongsto all of us 
and can be usedby all of us. It is a misunderstanding to think that the 
commons, or the public domain, is an unregulated space. Of course not: 
always in history and in all societies those common spaces have been 
regulated one way or another, for example on the conditions of its usage. 
In our alternative we return to the commons what has always belonged to it 
-- no more and no less. We give back to all of us what has been 
privatised in the fields of creativity and knowledge in the Western world 
over the last centuries (Hemmungs Wirt=E9n 2004: 133,4).

The second option takes into consideration that sometimes the realization 
of a certain work requires a rather substantial up front investment. Think 
of movie productions, for example, which can easily rake up several 
million euros in costs. Another example is writing a book; an author has 
to work on such a large project for a considerable period of time, but the 
revenues will not begin flowing until (much) later. It could also be that 
the risk of an undertaking is too great to be borne privately. Often high 
investments, high risks and uncertainty go hand in hand. This can lead to 
what economists call 'market failure' (Towse 2004: 56). This is an 
economic condition under which competitive markets have difficulty 
developing. State intervention is then granted.

In these special cases, in which the process of selling is time consuming, 
or must consist of multiple transactions before an agreeable income has 
been reached, one can think of a temporary protected usufructfor the 
person taking the entrepreneurial risk. The cultural entrepreneur is 
offered temporal protection to harvest the fruits of his or her work. 
However, no private property emerges, as was the case under a copyright 
regime.

The concept of usufruct is better known in societies under civil law than 
in those that are governed by common law, like the Anglo-Saxon parts of 
the world. Characteristic for usufruct is that one does not have the 
ownership of an item; however, one is entitled to the usage of the fruits 
of the item. If the item is, say, a house, the entitlement could be, for 
instance, the usage of the house without owning it. The person that holds 
usufruct is, for example, allowed to live there for free or to receive the 
proceeds of any rental activity. In our case, the item might be a book; 
from the moment of its publication it belongs to the public domain and the 
holder of the usufruct is entitled to the takings and receipts of the 
book. Under the present system of law, usufructcan only emerge when it is 
derived from an ownership title. What we envision is that the creative 
work, as we will argue below, exists only in the public domain, its 
ownership is shared amongst all, and thus belongs to the commons. Whoever 
enjoys the temporary usufruct of a certain artistic work, has thus 
received it from the public domain. The usufruct keeps unimpeded the 
freedom of everybody to adapt works of art -- creations and performances 
-- in a creative manner. The technical details concerning the 
implementation of this matter still will have to be worked out.

De facto,the temporary usufruct implies that the costs of preparing the 
work, including the artist's wage, are spread out over a number of 
customers. But we will have to apply strict boundaries to the timeframe 
over which this applies. Hence, we speak of a temporary usufruct. In terms 
of its scope and duration, protection will be less than under present 
copyright regimes. In our approach an artistic work, whether creation or 
performance, immediately enters the public domain from its moment of 
conception onwards, as has been stated before; or better yet remains in 
it, because it derives from it to a large extent. Only, it may happen that 
the usufruct is protected for a certain period of time, to make the work 
profitable for the creator, performer, producer, or patron. At present, we 
do think of a period not extending beyond a year. A lot of economic 
research is required to possibly refine this period of temporarily 
protected usufruct, depending on the specific artistic discipline. 
However, this term of one year is not picked randomly. 'Of all the 
creative work produced by humans anywhere, a tiny fraction has 
continuing commercial value.' For instance, 'most books go out of 
print within one year.' (Lessig 2004: 134 and 225) This market reality 
supports our proposal of a strict time frame for protection.

Of course, it might happen that even this temporary usufruct does not 
provide enough perspective on the ability to break even on certain 
artistic creations and performances. And with this we arrive at our final 
and third option: subsidies. It may happen that the market as of yet lacks 
the resilience to finance a certain type of artistic work but that there 
are various reasons making it socially desirable for this work to bloom 
and become available (for the sake of cultural diversity or because the 
public is still developing a taste for certain forms of expression, for 
example). In that case it is important that governments use subsidiesand 
other facilitiesto enable the creation, performance, and diffusion of such 
works, for shorter or longer periods of time. In case of financing by the 
government, the work immediately becomes part of the public domain. After 
all, it appears absurd that publicly financed productions can become the 
exclusive property of a person or organization, as is presently the case 
in many countries with programs developed by their public broadcasting 
corporations.

Commenting upon our alternative

Is what we propose not some kind of dressed-down version of the present 
copyright system? One could say that. But there are remarkable differences 
between the copyright approach and our alternative, in which we first let 
market processes take their course, perhaps followed by a form of limited 
protection. First, under the regime of intellectual property rights, a 
protective shield of copyright becomes affixed to an artistic work by 
definition, from its moment of inception onwards. This does not hold true 
for our alternative, on the contrary. The maker, producer, or patron has a 
competitive advantage in the market by being the first to offer a certain 
kind of product: let markets be markets! Second, if it is somehow 
necessary to offer a certain kind of protection, as when a work could not 
be made profitable by any other means, then that protection will remain 
incomparably less elaborate in terms of its scope and duration than the 
sheer boundless system of institutionalised gifts with which the copyright 
system presently spoils the holder of an intellectual property 
right. A period of about a year of usufruct is something quite 
different than 70 years after the death of the author, and also in the 
case of neighbouring rights the duration of the protection may be called 
generous. Under the present system of copyright, creative adaptation is at 
risk of being interpreted as a wrong and of being fined by the courts, so 
the scope and duration of the protection are immensely important. In our 
approach, creative adaptation is instead applauded and encouraged.

There is also a third reason as to why what we propose is completely 
different from copyright. Our alternative redefines ownership and property 
of creativity and knowledge. Creative works are not owned in the same way 
as, for instance, a table. A table is the property of person A, but not at 
the same time also of person B, unless they are married. But this is not 
the case with artistic creativity and knowledge. After its usage by 
someone it has not been exhausted. It is a public good. That is as we have 
argued before, why those works of the intellect and of the creative mind 
belong to the public domain. Strategically it is important to underpin 
this public character of knowledge and creativity time and time again. 
Jack Valenti, the former president of the Motion Picture Association of 
America, once unhesitatingly said: 'Creative property owners must be 
accorded the same rights and protection resident in all other property 
owners in the nation.' (in Lessig 2004: 117) This quote makes clear why 
it is necessary to make a distinction between knowledge and creativity at 
one side and the ownership of, for instance, a house at the other side. 
They are not the same and should not be treated the same.

Result: a new cultural market and a level playing field With our new 
system a new cultural market will emerge. The first observation is that 
with the abolition of copyright cultural conglomerates will lose their 
grip on the agglomeration of cultural products, with which they determine 
the outlook of our cultural lives to an ever-increasing extent. Because 
what will they lose? They have to give up control over huge chunks of the 
cultural markets. They lose the monopolistic exclusivity over broad 
cultural areas because everyone is allowed to exploit artistic materials 
that are not protected by temporary usufruct and absolutely no limitations 
are put on creatively adapting works of art. With these new conditions, 
the rationale is then lost for cultural conglomerates to make substantial 
investments in blockbusters, bestsellers, and stars. After all, by making 
creative adaptation respectable again and by undoing the present system of 
copyright, the economic incentives to produce at the present scale will 
diminish. However, it will not be forbidden for a cultural entrepreneur to 
invest millions of dollars or euros in, for instance, a film, game, CD or 
DVD. Of course not, but the investment will no longer be made under an 
endless wall of protection.

There will once again be room to manoeuvre in cultural markets for a 
variety of entrepreneurs, who are then no longer pushed out of the 
public's attention by blockbusters, bestsellers, and stars. Those 
plentiful artists are more likely to find audiences for their creations 
and performances in a normal market that is not dominated by a few large 
players. There is not a single reason to believe that there would be no 
demand for such an enormous variety of artistic expressions. In a 
normalized market, with equal opportunities for everyone, this demand can 
be fulfilled. This increases the possibility that a varied flock of 
artists would be capable of extracting a decent living from their 
endeavours.

A second observation is about cultural adaptation and how the market 
should be regulated with respect to fraud and plagiarism. We stress the 
fact that we do not like theft. We of course do not propose that X can

attach his or her name to Y's book or film, suggesting to be the 
author of that work. That is plain misrepresentation or fraud. If that is 
found out, and that is bound to happen sooner or later, than the lazy 
fraudster will receive his or her fair penalty in the court of public 
opinion; we do not need a copyright system to accomplish that. It is up to 
all of us not to be afraid to publicly accuse artists of misrepresentation 
or fraud. This will only happen if we are culturally alert, and we have to 
be if we want to do without judgments of the courts, which have made us 
culturally lazy in the past! We should critically discuss what we consider 
culturally inappropriate use.

What we have suggested thus far is that it is quite feasible to have a 
flourishing cultural domain without the existence of a copyright system, 
while at the same time many artists in the Western and non-Western 
countries alike can make a reasonable income from their labours. However, 
it is evident that the completely new approach as we propose it does not 
immediately eradicate all conceivable problems. With this we come to our 
third observation. If cultural enterprises can no longer control the 
market with copyright in hand, they must resort to a second protective 
mechanism, which they will then attempt to apply with even greater force 
than is presently the case. That is the far-reaching control over 
distribution and promotion of cultural expression they possess and wield.

This too must be limited with metes and bounds. After all, from a 
democratic perspective it is impermissible that a limited number of 
cultural giants is able to determine the contents of artistic and cultural 
communications, using traditional as well as new media (Smiers 2003). 
Democracy is not the privilege of a few cultural conglomerates.

It is a necessity to use ownership and content regulations to organize the 
cultural market in such a way that cultural diversity gets the best 
possible chance. First of all, there should not be dominant modes of 
distribution. It cannot be the case that a single owner dominates, 
controls, or concerts the market for music, films, or books. Vertical 
integration and other forms of cross ownership must be condemned. Content 
regulations may take the form of diversity prescriptions. That is to say: 
diversity in terms of genre, musicians' backgrounds, and geographical 
diversity, and the latter representing diversity from the home country, 
neighbouring countries, and many other parts of the world. Of course there 
will be outlets specializing in a certain genre that want to be known for 
it. These too will be subject to diversity prescription, albeit within 
that genre (Smiers 2004). This type of regulation does not take anything 
away from a free market economy. To the contrary, these rules, while in 
need of further elaboration, serve to create a free market, or differently 
put, to normalize the market and to bring about a level playing 
field. No one should be able to dominate the cultural market or to have 
such a strong position that cultural diversity will be suppressed, pushed 
aside, or taken away from the public attention. This demands some 
regulations: on the one hand the elimination of the control mechanism 
copyright and on the other hand the instalment of some regulations 
concerning ownership and content that protect and promote the flourishing 
of artistic diversity.  Let's focus now on the main point of 
attention of this essay, it must be clear that abolishing copyright will 
benefit the public domain in all its keys, colours, movements, wits, and 
images! But what does it yield for artists and those who do organizing 
work for them? Let us see how this takes shape per discipline of the arts, 
and per professional activity within them.

Putting it to the test *** Music

If the present system of copy and neighbouring rights were suspended, how 
would musicians generate an income? We have to keep in mind, of course, 
that for many of them copyright was never, or hardly ever, a serious 
source of revenues. What we propose here applies without restrictions to 
all performing artists, in all walks of musical life and all genres, from 
popular to world music, and from improvisation to composed materials. A 
bit further on in the text we will reflect on the situation of those 
creating new works.

The background assumption is that especially performing artists are well 
equipped to add value or generate a competitive advantage. Neighbouring 
rights nevertheless offer a disproportionate protection against the 
performance and interpretation of one's own or somebody else's work. 
Many musicians are experts in personifying their relationship with an a 
substantial part of the income of many musicians. This way they build 
their own, unique market niche. This means, for example, that many 
musicians go on tour to give concerts and thus develop a close 
relationship with their audience. Their promotion is therefore oriented 
towards cementing that relationship. Their work may be embedded in 
merchandising activities of all sorts, such as t-shirts, books, brochures, 
et cetera. They can also offer their work via the Internet to music lovers 
worldwide. Several options come to mind: one can download only after 
paying a small amount, or one can download at all times, and subsequently 
hope that the fan will pay. A real fan will be more inclined to do this 
than a coincidental passer-by.

Record sales can also be a considerable source of revenues. Many people do 
not want to download music, or they want to get hold of the specially 
designed compact disk cover with the accompanying information. By paying 
special attention to the design of the cover, or by adding a lot of 
information, value is created. Records can be sold at concerts, in stores 
of various shapes and kinds, or ordered via the Internet.

What is then to become of the record companies? In principle, musicians do 
not need record companies, at least not in the conventional meaning of the 
word. With the latest digital technology, they can make magnificent 
recordings and distribute them via the Internet or on compact disks. If 
they still feel the need to use an intermediary, they can commission 
dedicated companies to perform various kinds of services, like making 
digital recordings, and/or produce and distribute a compact disk, and/or 
market the recording worldwide in digital format. It is very imaginable 
that we will see the emergence of many new enterprises that offer services 
to artists.

A lot of music finds its way to audiences via radio and television. Must 
broadcasting corporations, public or private, pay a fee for this content? 
The first impulse is of course to answer in the affirmative. We still live 
in the matter-of-fact world of copy- and neighbouring rights. Yet, there 
is a lot to say in favour of not charging fees, while bringing many 
artists in a financially better position. How does this add up? When the 
diversity of supply blossoms, as was described above, the air will be 
filled with many different kinds of music, supplied by many musicians. 
While this is culturally exciting in and of itself, it also yields a lot 
for artists. Not by being played by radio or television stations, but by 
familiarizing many different audiences with their existence -- because 
they can be heard over the radio, and seen on television. Those audiences 
will visit their concerts, book them for festivals and parties, and obtain 
works from their favourite artists over the Internet and pay them for it.

The new situation opens up the possibility that many artists will benefit 
from the latent demand for a diverse offering of cultural products, and 
find and develop their own audience. Those audiences guarantee that 
artists will be able to make a decent or even a good living. After all, 
they are involved with their artists.

*** Composers, playwrights, choreographers

Above we have primarily put performing musicians in the spotlight (and 
focused on abolishing neighbouring rights). For many kinds of music there 
is no distinction between creators and performers. Those musicians do 
both; they perform their own creations. They earn their living in the way 
described above.

Still, there are many creators in the theatrical and musical arts that do 
not perform their own compositions, plays, and choreographies. This holds 
true for numerous composers, playwrights, choreographers, and related 
others. How can we imagine them earning a good living in absence of the 
present system of copyright? It may be that one him- or herself takes the 
initiative to compose, or that a work is being commissioned. We touched 
upon that matter above, when we described the new system, but it is 
relevant to elaborate upon the principle here, now that we have taken on a 
concrete exemplar.

The core of the matter is: how can an artist abstract an income from his 
or her work? When the work is commissioned, the answer is clear. The 
patron pays, and that is all that matters to the artist. So what does the 
paying patron receive? A beautiful (or not) piece of work, and the 
opportunity to take it to the stage. What is essential is that the patron 
obtains a competitive advantage from the act of commissioning a

work, whereas the work itself becomes part of the public domain again 
after its first performance. We deliberately say again, because 
the work was largely derived from the public domain in the first place. So 
everyone who wishes to do so can take the composition, choreography, or 
play into production, free of charge. It also means that no one else is 
exclusively entitled to that work, or could obtain such a title. Many 
different versions of a piece can thus simultaneously be sung or played. 
Because of this lack of exclusivity, it all comes down to performing so 
attractively for different audiences that they want to come see it. If 
that happens, the composer, choreographer, or playwright has a good chance 
of receiving another commission, and so on and so forth.

In many cases there is no commission at all, and the composer, playwright, 
or choreographer initiates the creative process autonomously. This happens 
more with composers and playwrights than with choreographers, who are 
usually more dependent on commissions and planned performances. By taking 
an initiative the creative artist takes the entrepreneurial risk. That 
sounds nice, but it is not unthinkable that this type of artistic 
enterprise represents a considerable investment for a one-man (or 
one-woman) shop or freelancer. Because it is important to encourage 
composers or playwrights to make this investment, it is fair to give the 
creative artist a temporal usufruct, which extends over a certain period 
of time. Several transactions must be undertaken to earn back the 
relatively large initial investment, for example a year's cost of 
living. This may encompass, for example, three stagings or performances. 
The usufruct is also temporarily restricted, notably: to one year.

Of course, creative adaptation is again most welcome (the moral right no 
longer exists under the new regime). We make note of that because in some 
cases, as happens with musicals, for example, highly detailed directing 
concepts are a compulsory element of the sales transaction. It is 
unthinkable that this practice will persist, because commissioned musicals 
too will be absorbed by the public domain again after their first 
performance, making them available for creative adaptation. When the 
writer and/or composer have initiated the musical him- or herself, the 
work also becomes part of the public domain again quickly, notably: when 
the period of usufruct expires. The free reign of creative adaptation is 
left unimpeded even in this period.

*** Books

Most books these days still appear on paper. While pondering about how 
writers can earn an income in a world without copyright, we have to take 
into account that digitisation has also entered the world of books and is 
likely to increase. Essentially, we have described a similar situation 
above when we analyzed the case of music. The music piece, and in this 
case the book, can be downloaded in return for some form of compensation, 
or free of charge, in the hope that a payment will still be made. The 
writer either organizes all of this him- or herself, or hires a 
specialized intermediary, similar to what has been discussed in the case 
of music. This phenomenon may crumble the power of huge publishing houses.

Next, the book on paper. We must take into account that author and 
publisher enjoy a competitive advantage. They are the first to take a 
specific book to the market, which gives them a certain period of time to 
rebalance expenditures and revenues. Writing a novel does however come 
with relatively large initial investments, which cannot be recouped with 
the first imprinting alone. Selling a hundred copies in the first few 
weeks will not adequately compensate the author for his or her labours. A 
certain amount of copies thus has to be sold, and this will take a certain 
stretch of time. The most obvious criterion for temporary protected 
usufruct is to offer the person taking the entrepreneurial risk, author or 
publisher, a certain period to bring the book to financial maturity. As 
was the case on previous occasions, our thoughts go out to a period of one 
year.

It happens to be an interesting fact that authors reap ancillary benefits, 
next to their primary income from book sales, from contributions to 
newspapers and magazines, from literary readings, and from other public 
appearances. In this respect they are quite comparable to performing 
musicians. The difference, however, is that these activities have a little 
less in common with their primary activities than what happens to be the 
case with musicians. That is why we opted for a different regime.

*** Film

In principle, we propose, must filmmakers too profit from the competitive 
advantage they enjoy when bringing their product to market first. Reality 
is different, of course. Even a low-budget movie costs at least a million 
euros or dollars. The average movie is incapable of recouping the money 
invested in it on the basis of first-mover advantages alone. On top of 
that, it happens to be very easy to copy a movie, which makes it very 
difficult to make this type of product profitable. This makes it evident 
that a temporarily protected usufruct should be introduced in the domain 
of film.

The most important source of revenues is therefore the temporarily 
protected usufruct of the film producer. The film producer too must do 
with a usufruct that last only a year. It should be possible to recoup the 
costs of a film within that year. He or she can use that year to offer the 
film via all imaginable media, including digitally via the Internet.

But it is also well imaginable that governments endow filmmakers with 
subsidies. It may occur that the market is insufficiently developed to 
support a large diversity of, say, European films. Cultural-political 
arguments may also support measures like tax reliefs. Finally the 
government can contribute to the creation of efficient networks for the 
distribution of a variety of films. Experience teaches us that 
distribution is more difficult than production. An individual producer is 
bound to be incapable of developing an effective distribution network for 
a variety of films. There is a role here for governments to support the 
realization of such networks and to contribute to them in their initial 
phases.

*** Design disciplines and visual arts

In the area of visual culture, the question relevant for determining 
whether the creators of a work of art will be able to extract a decent 
living from their labours is as follows: is the work a unique piece or is 
it a replica? Many visual artists make unique works and figure out for 
themselves how they will go about doing so. Their main source of income is 
the sale of this unique work. The orthodox copyright system is less 
relevant here, and the same holds true for the new system sketched above.

Apart from that, subsidy instruments will remain relevant for protecting 
artists from the whims of the market; they provide the foundation for a 
process of continuous, emergent creation. Nevertheless, artists will have 
to be stimulated and trained to commit various audiences to themselves, 
thus providing their income. There is no room for derivative rights. 
Creative adaptation too must be applauded. This may imply that similar 
looking pieces will enter the market, just like what has always been the 
case in all cultures.

Where a work has been commissioned or ordered, the situation is also 
clear. The work, regardless of whether it involves a design or painting, 
is created and delivered against the agreed-upon price. It should be clear 
that creative adaptation is allowed to take its course here too. It can 
obviously not be the case that, say, an architect is allowed to claim: 
this realized building is my design and no one is allowed to change it 
without my permission, or -- at the opposite end of the spectrum -- no 
one is allowed to imitate it. The reality is, in this case, that the 
architect has been paid for his or her endeavours. After that the building 
will once again become part of the public domain, and may be altered or 
imitated if so desired.

Especially the products of the design professions are easily replicable 
and imitable. But the maker, or the buyer of the work, enjoys a 
competitive advantage. He or she is the first to market the product 
manufactured according to a certain design. Let markets be markets; 
additional forms of protection are unnecessary.

Discussion and conclusion

Admittedly, it may take a while to get used to letting go of the system of 
copyright. It urges us to make a mental and an economic transition, but 
this is worth the trouble in every conceivable way. Many practical matters 
still need to be solved with respect to the usufruct model. Should a 
temporary protected usufruct be granted automatically or should we 
implement a licensing system? Following some of our test cases, it seems 
logical to automatically grant some types of artistic product (for example 
films and books) usufruct. But what are the drawbacks of this approach and 
should the duration of protection for all fields of the arts be the same? 
Other questions that come to mind are: is there still a role to play for 
the collecting societies and what is the effect of the one-year usufruct 
on the product life cycle of artistic products?

In this essay we have presented a thought-experiment. We urge everybody to 
participate in our quest. Who should, for instance, be our strategic 
partners in our journey into a world without copyright? What is at stake 
is to once again begin respecting the public domain of creativity and 
knowledge. Our main concern is providing the makers of artistic work with 
a decent income and sufficient possibilities to bring their work, in all 
its diversity, under the attention of many audiences without being pushed 
from the market by a few oversized cultural conglomerates. The system of 
copyright has existed for over a century in Western societies. It has been 
long enough. It is not equipped to withstand the digitisation that has 
once again supplied artists with a magnitude of entrepreneurial freedom. 
Profit from it!

--

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--
about the authors

Marieke van Schijndel is policy advisor and has worked for various 
cultural organisations in the Netherlands. Last year she received her 
Master of Business Administration from the John Molson School of Business 
(Canada) and she currently works for the Mondriaan Foundation, an 
organisation that provides financial support to projects and activities in 
the field of art, design and heritage. This essay is written =E0 titre 
personnel. (m_vanschijndel {AT} hotmail.com)

Joost Smiers is professor of political science of the arts at the Utrecht 
School of the Arts, the Netherlands. He is author of Arts Under Pressure. 
Promoting Cultural Diversity in the Age Globalization(London 2003, Zed 
Books); and of Artistic Expression in a Corporate World. Do We Need 
Monopolistic Control?(Utrecht 2004, Utrecht School of the Arts). 
(joost.smiers {AT} central.hku.nl and joost.smiers {AT} planet.nl)

]The authors wish to thank the following friends and colleagues for their 
kind and critical comments to earlier drafts of this article: Maarten 
Asscher, Lee Davis, Christophe Germann, Willem Grosheide, Giep Hagoort, 
Eva Hemmungs Wirt=E9n, Pursey Heugens, Raj Isar, Lina Khamis, Jaap 
Klazema, Gerd Leonhard, Helle Porsdam, Alan Story, Ruth Towse, David 
Vaver, Catarina Vaz Pinto , Roger Wallis, Lior Zemer, as well as the 
Research Group Arts & Economics at the Utrecht School of the (the 
Netherlands), the Copy/South Research Network and the AHRB on New 
Directions in Copyright Law (London).




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