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Abandoning Copyright: A Blessing for Artists, Art, and
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By Joost Smiers
de Volkskrant, 26 November 2005
(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,"
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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, 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
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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 other 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
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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.
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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; email: joost.smiers@central.hku.nl
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