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[Fsfe-france] IHT: Imagine a world without copyright

From: Laurent GUERBY
Subject: [Fsfe-france] IHT: Imagine a world without copyright
Date: Sun, 09 Oct 2005 00:40:27 +0200

Via la liste ipr.


Imagine a world without copyright
By Joost Smiers and Marieke van Schijndel 
International Herald Tribune

AMSTERDAM Copyright was once a means to guarantee artists a decent
income. Aside from the question as to whether it ever actually
functioned as such - most artists never made a penny from the copyright
system - we have to admit that copyright serves an altogether different
purpose in the contemporary world. It now is the tool that conglomerates
in the music, publishing, imaging and movie industries use to control
their markets.
These industries decide whether the materials they have laid their hands
on may be used by others - and, if they allow it, under what conditions
and for what price. European and American legislation extends them that
privilege for a window of no less than 70 years after the passing of the
original author. The consequences? The privatization of an
ever-increasing share of our cultural expressions, because this is
precisely what copyright does. Our democratic right to freedom of
cultural and artistic exchange is slowly but surely being taken away
from us.
It is also unacceptable that we have to consume cultural creations in
exactly the way they are dished out to us, and that we may change
neither title nor detail. We thus have every reason to ponder about a
viable alternative to copyright.
At the same time, a fascinating development is taking place before our
very eyes. Millions of people exchanging music and movies over the
Internet refuse to accept any longer that a mega-sized company can
actually own, for example, millions of melodies. Digitalization is
gnawing away at the very foundations of the copyright system.
What might an alternative idea of copyright look like? To arrive at that
alternative, we first have to acknowledge that artists are
entrepreneurs. They take the initiative to craft a given work and offer
it to a market. Others can also take that initiative, for example a
producer or patron who in turn employs artists. All of these artistic
initiators have one thing in common: They take entrepreneurial risks.
What copyrights do is precisely to limit those risks. The cultural
entrepreneur receives the right to erect a protective barrier around his
or her work, notably a monopoly to exploit the work for a seemingly
endless period of time. That protection also covers anything that
resembles the work in one way or the other. That is bizarre.
We must keep in mind, of course, that every artistic work - whether it
is a soap opera, a composition by Luciano Berio, or a movie starring
Arnold Schwarzenegger - derives the better part of its substance from
the work of others, from the public domain. Originality is a relative
concept; in no other culture around the globe, except for the
contemporary Western one, can a person call himself the owner of a
melody, an image, a word. It is therefore an exaggeration to
gratuitously allow such work the far-reaching protections, ownership
title and risk-exclusion that copyright has to offer.
One might ask whether such a protective layer is really necessary for
the evolving process of artistic creation. Our proposal, which will
entail three steps, will demonstrate that this is not the case.
What then, do we think, can replace copyright? In the first place, a
work will have to take its chances on the market on its own, without the
luxurious protection offered by copyrights. After all, the first to
market has a time and attention advantage.
What is interesting about this approach is that this proposal strikes a
fatal blow to a few cultural monopolists who, aided by copyright, use
their stars, blockbusters and bestsellers to monopolize the market and
siphon off attention from every other artistic work produced by artists.
That is problematic in our society in which we have a great need for
that pluriformity of artistic expression.
How do we think this fatal blow could work? If the protective layer that
copyright has to offer no longer exists, we can freely exploit all
existing artistic expressions and adapt them according to our own
insights. This creates an unpleasant situation for cultural monopolists,
as it deprives them of the incentive to pursue their outrageous
investments in movies, books, T-shirts and any other merchandise
associated with a single cultural product. Why would they continue
making these investments if they can no longer control the products
stemming from them and exploit them unhindered?
The domination of the cultural market would then be taken from the hands
of the cultural monopolists, and cultural and economic competition
between many artists would once again be allowed to take its course.
This would offer new perspectives for many artists. They would no longer
be driven from the public eye and many of them would, for the first
time, be able to make a living off their work. After all, they would no
longer have to challenge - and bow down to - the market dominance of
cultural giants. The market would be normalized.
Certain artistic expression, however, demands sizeable initial
investments. This is the second situation for which we must find a
solution. Think about movies or novels. We propose that the risk bearer
- the artist, the producer or the patron - receive for works of this
kind a one-year usufruct, or right to profit from the works.
This would allow the entrepreneur to recoup his or her investments. It
would still be an individual decision whether or not to make the large
investments, for example, needed to make a movie, but no one would be
granted rights to exploit that work for more than a year. When that
period expired, anyone could do with the work as he or she pleased.
The third situation for which we must conceive a solution is when a
certain artistic creation is not likely to flourish in a competitive
market, not even with a one-year usufruct. It may be the case that the
public still has to develop a taste for it, but that we still find, from
the perspective of cultural diversity, that such a work must be allowed
to exist. For this situation it would be necessary to install a generous
range of subsidies and other stimulating measures, because as a
community we should be willing to carry the burden of offering all kinds
of artistic expressions a fair chance.
Cultural monopolists desperately want us to believe that without
copyright we would have no artistic creations and therefore no
entertainment. That is nonsense. We would have more, and more diverse
A world without copyright is easy to imagine. The level playing field of
cultural production - a market accessible for everyone - would once
again be restored. A world without copyright would offer the guarantee
of a good income to many artists, and would protect the public domain of
knowledge and creativity. And members of the public would get what they
are entitled to: a surprisingly rich and varied menu of artistic
(Joost Smiers, the author of ''Arts Under Pressure: Promoting Cultural
Diversity in the Age of Globalization,'' is a professor of political
science of the arts at the Utrecht School of the Arts, the Netherlands.
Marieke van Schijndel is a policy adviser and publicist; this article
reflects her personal opinions.)

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