<nettime> Joost Smiers: Abandoning Copyright: A Blessing for Artists, Art, and Society [u]

["Geert Lovink [c]" <geert {AT} xs4all.nl>]

(posted to nettime with the permission of the author. /geert)

From: joost.smiers {AT} planet.nl

Abandoning Copyright: A Blessing for Artists, Art, and Society
By Joost Smiers
de Volkskrant, 26 November 2005

http://www.culturelink.org/news/members/2005/members2005-011.html
(English translation of original article published in Dutch)

Several weeks ago, Carlos Guiterrez, the US Secretary of Commerce, 
announced a series of initiatives to stamp out the rampant piracy of, 
among other things, music. Damages resulting from counterfeiting and 
piracy is estimated to amount to 250 billion dollars annually, in the 
United States alone. In a press release, he stated, "The protection of 
intellectual property is vital to our economic growth and global 
competitiveness and it has major consequences in our ongoing effort to 
promote security and stability around the world,"

Now I must admit that it never occurred to me that copyright could 
contribute to global security and stability. This is quite an 
intriguing message ? and from a US Secretary, at that! Another aspect 
addressed by Carlos Guiterrez is, however, more obvious. Copyright has 
increasingly become an instrument for securing huge investments. In the 
past decade, it has become one of the major driving forces of western 
economy, and US economy in particular. This development, however, has a 
major downside: companies owning massive amounts of copyrighted works 
can, at their whim, ban weaker cultural activities ? not only from the 
marketplace, but also from the general audience's attention. This is 
happening under our very eyes. It is nigh impossible to ignore the 
blockbuster movies, bestselling books and top-chart records presented 
to us by these cultural molochs, who, incidentally, own almost every 
imaginable right to these works. As a result, the most people are 
completely unaware of all those other, less commercialized activities 
taking place in music, literature, cinema, theater and other arts. This 
is a tremendous loss to society, because our democratic world can only 
truly thrive on a large diversity of freely expressed and discussed 
cultural expressions.

The common perception is that copyright first and foremost protects the 
well-being and interests of artists. However, history shows that the 
first political act somewhat resembling our modern copyright laws 
already had quite a different objective than safeguarding the artist's 
income. The first initiative for protecting the intellectual property 
of artistic expression was made by Queen Anne in England, who, in 1557, 
granted the Stationer's guild a monopoly on printing and publishing 
books; a monopoly which conveniently banned all competition from 
printers in other parts, such as other counties, or rival Scotland. In 
fact, the term "copyright" says it all: it is the exclusive right to 
copy any particular work; nowhere in early copyright was any mention 
made of the author or artist who produced the work. Queen Anne had her 
reasons for installing this copyright. She was not overly fond of the 
concept of "the free word", and granting the Stationer's guild the 
exclusive right to publishing books gave her full control over which 
books could be published and which were banned from the market. After 
all, those who can grant rights, can deny them as well.

This act by Queen Anne is the specter by which copyright is haunted up 
to this day, and perhaps even more than ever before. Ever smaller 
numbers of increasingly large and powerful entities own the exclusive 
rights to ever more works in the fields of literature, cinema, music 
and graphic arts. For example Bill Gates, widely known as the founder 
of Microsoft, also owns a rather less known company by the name of 
Corbis, which collects vast amounts of images from all over the world; 
together with Getty, Corbis is developing into an oligopolist in the 
field of photographs and reproductions of paintings ? in other words: 
an entity which has a large amount of control over the market, just as 
the Stationer's guild had in the sixteenth century. The oligopolist has 
control over which artistic works we may use for which purposes, and 
under which conditions, in much the same way Queen Anne had control 
over printed works.

In most cultures around the world, this state of affairs was, and is, 
highly undesirable, even unthinkable. Artists have always used and 
built upon other artists' work to create new works of art. It is hard 
to imagine indeed that the works of Shakespeare, Bach, and countless 
others cultural heavyweights could have come into existence without 
this principle of freely building on the work of predecessors. Yet what 
do we see happening now? Take, for example, documentary makers, who 
nowadays face almost insurmountable obstacles, as their work almost 
inevitably contains fragments of copyrighted pictorial or musical 
content, the use of which requires both consent from the copyright 
owner and a fee to be paid. The latter is almost always beyond the 
documentary maker's means, and the former gives Bill Gates, or any 
other copyright owner, full rights to allow the use of "his" artistic 
content only in a way he deems appropriate. Now where in this scheme of 
things are our human rights? Human rights should guarantee freedom of 
communication, and a free exchange of ideas and cultural expressions is 
what greatly helped build our modern society. This human cultural 
development will, however, grind to a halt when a mere handful of 
persons or companies can call themselves "owners" of the majority of 
pictures and melodies our society has brought forth. This puts them in 
a position where they alone can dictate whether we can make use of a 
substantial part of our collective human cultural achievement, and on 
which terms and conditions. The consequences are detrimental: we are 
being made speechless; our cultural memory is taken from us and locked 
away; the development and spread of our cultural identity is stunted, 
and our imagination is laid in chains by law.

Contrary to what one might expect, the seemingly endless possibilities 
of copying and sampling using modern digital technologies have so far 
only aggravated the situation. Publicly offering even a mere second's 
worth of copyrighted work will almost certainly attract attention from 
lawyers on behalf of the "owners" of said material. Sound artists, who 
used to freely sample work from others to build new musical creations, 
are now treated as pirates and criminals. Whole copyright enforcement 
industries have emerged, scouting the digital universe day and night 
for even the smallest snippet of copyrighted work used by others ? and 
those found out, often stand to lose literally everything they have.

Copyright has yet another intrinsic fault which makes it difficult to 
maintain in a democratic society. Copyright nowadays revolves almost 
exclusively around so-called intellectual property. This is a problem, 
since the traditional notion of property is largely irreconcilable with 
intangible concepts such as knowledge and creativity; a tune, an idea 
or an invention will not lose any of its value or usefulness when it is 
shared among any number of people. In contrast, a single physical 
object, such as a chair, quickly becomes less useful when more people 
want access to it; in this latter case, the term "property" has a clear 
meaning and purpose. Unfortunately, in the past decades the legal 
definition of property has been extended way beyond any physical 
constraints. These days, almost anything can be someone's property, 
such as fragrances and colors; even the makeup of the proteins in our 
blood and the genes in our body cells are being claimed as the 
exclusive property of one company or another, which can subsequently 
bar anyone else from using it. It is therefore high time to reconsider 
the current concept of property.

With regard to artistic works, it is quite conceivable that no single 
person should have the right to claim exclusive ownership over, say, a 
particular tune. We all know that almost every work of art, and every 
invention, is based upon the work of predecessors. Now this doesn't 
mean we should have less respect for artists creating new works of art 
based on the work of others, and we're obliged to contribute to 
artists' well-being and income in our society. Yet rewarding their 
every single achievement, or reproduction or even interpretation 
thereof, with a monopoly lasting many decades, is too much, because it 
leaves nothing for other artists to build on. In fact, even criticizing 
the artist's work can become rather hazardous, as it "damages" his 
"property". Unpleasant as this sounds, things get even worse when we 
consider that the vast majority of copyrighted works is owned by a 
relatively small group of large conglomerates. These mega-industries 
create, invent or produce nothing at all, yet demand that artists sign 
over all rights to their works to them, just for the privilege of 
having their works distributed.

>From this point of view, there is ample reason to send our current 
system of copyright to the scrapheap. Artists will of course feel 
threatened by such a bold move. After all, without copyright, they will 
lose all means of existence, now won't they? Well, not necessarily. 
Let's first look at some numbers. Research by economists shows that 
only 10 percent of artists collect 90 percent of copyright proceeds, 
and that the remaining 90 percent of artists must share the remaining 
10 percent of proceeds. In other words: for the vast majority of 
artists, copyright has only marginal financial advantages. Then there's 
another peculiar fact: most artists have entered into some sort of 
covenant with the cultural industry ? as if these two groups have even 
remotely similar interests! For example GEMA, the German copyright 
organization, sends approximately 70 percent of copyright proceeds 
abroad, mostly to the US, where several of the world's biggest cultural 
conglomerates reside. In this process, the average artist is nowhere to 
be seen.

What is called for, is a way to ensure that artists can make a fair 
income from their work, without the risk of being pushed out of the 
market and the larger audience's attention by the cultural industry's 
marketing power. This may sound rather idealistic, and perhaps somewhat 
unrealistic, but society's need for cultural diversity should not be 
underestimated.
The interesting thing is that it is quite feasible for artists to 
thrive without copyright. After all, copyright is simply a protective 
layer of armor around a work of art ? and the question is whether the 
benefits of this protection outweigh its drawbacks. Artists, and their 
agents and producers are entrepreneurs. What then justifies the fact 
that their work receives vastly more protection ? i.e. long-term 
monopolistic control over their work ? than the work of other 
entrepreneurs? Why can't they simply offer their work on the free 
market, and try to attract buyers?

Let's try to predict what would happen if copyright were abolished. One 
of the first effects would be intriguing: All of a sudden, it would be 
no longer interesting for large cultural industries to focus so heavily 
on bestselling books, blockbuster movies and superstars. If, in the 
absence of copyright and intellectual property, these works can be 
freely enjoyed and exchanged by anyone, the cultural industry giants 
lose their exclusive rights to works of art. As a result, they will 
also lose their dominating market position which keeps so many other 
artists out of sight. The market would become normalized, which would 
enable more artists to show their work, make themselves known, and make 
a fair income from what they produce. This income initially results 
from being the first in the market with a specific work. But there's 
another factor contributing to the artists' success. A more normalized 
cultural marketplace will offer more artists an opportunity to build a 
reputation, like a brand name, which can subsequently be exploited to 
sell more works at a higher price. Rapid and widespread copying of an 
artist's work, only possible in this digital age, may indeed decrease 
its market value, but will only serve to increase the artist's 
reputation. This gives more artists an opportunity to keep selling 
their works to a larger audience than the current, industry-controlled 
distribution model.

Obviously, abandoning copyright raises several important questions 
which need resolving, and three major adjustments in particular are 
called for. The first issue is that the production of an artistic work 
sometimes involves a significant investment in time and/or money. This 
would require legal protection for a short period of time, such as a 
year in the case of literature or cinema, during which the artist can 
exclusively reap the benefits from his work. This usufruct, however is 
different from current practice, as the work will automatically enter 
into the public domain after completion ? as was customary in nearly 
all cultures before our current intellectual property laws.

The question of course is, why specifically a year, and no longer? 
Experience shows that the economically viable life span of the majority 
of works is a year or less. After this period, producing and 
distributing the same work is no longer interesting for other parties 
anyhow, because lots of others could do the same, which makes the 
investment unprofitable. An obvious consequence of all this is that 
there can be no more illegal use of works of art ? at least outside the 
protection time span ? since the material in question is no longer 
owned by any one party. Piracy will mostly be a thing of the past, as 
will criminalizing and pursuing people who share and distribute works 
of art, e.g. those who share music via the Internet.

The second obvious problem is that many works of art may not yield any 
profit in a free market for some time, or at least not within the 
proposed protection time span of one year. This may happen when a 
particular work remains "undiscovered" by the major audience. Still, it 
is important for society that a large diversity of works of art is 
available for public enjoyment and discussion. Also, artists must have 
the opportunity to develop their work, even when these are not directly 
interesting to the market at large. The development of an artist's 
skills and personal style often takes a lot of time, yet it is in the 
interest of society as a whole to invest in this development. For these 
and other reasons society has an obligation to support the creation of 
these works of art by means of subsidies or other support models.

The third issue concerns the whole of the cultural market place. 
Abandoning copyright would remove one major support from under the 
dominance of our current cultural industries, but this does not 
necessarily mean that their dominance would end. Established industries 
would still hold the means to large-scale production, distribution and 
marketing of cultural goods and services in a firm grip; this is one of 
the reasons for their current success: keeping total control over 
artistic works from the source to the end consumer, and this 
distribution model is what largely determines which films, books, 
theater productions and image materials we can enjoy.

This concentration of power is undesirable in every branch of industry, 
but it is particularly detrimental in the cultural field. We could 
therefore imagine that the cultural market be subjected to a kind of 
competitive law with a strong cultural bias. This relates among other 
things to ownership of means of production and distribution of cultural 
goods. Also, legislation may be called for to force large cultural 
enterprises to (re)present all of the actual cultural diversity being 
created by both local and foreign artists. This model would make a 
world without copyright not just perfectly imaginable, but also 
profitable for very many artists, and be a veritable blessing to 
cultural democracy.

--

Joost Smiers is the author of Arts Under Pressure, Promoting Cultural 
Diversity in the Age of Globalization, and a professor of political 
science of the arts in the Art and Economics Research Group of the 
Utrecht School of Arts, in the Netherlands

Contact: Prof. dr. Joost Smiers, HKU/Utrecht School of the Arts, 
P.O.Box 1520, 3500 BM Utrecht, The Netherlands; tel.: 00 31 30 2332256; 
e-mail: joost.smiers {AT} central.hku.nl


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