Marieke van Schijndel & Joost Smiers, "IMAGINING A WORLD WITHOUT COPYRIGHT"

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
private intellectual property rights.

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.

From 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
addition he 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 constitute 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
collective ownership 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 of 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 facto monopoly. 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 belongs to all of
us and can be used by 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 subsidies and
other facilities to 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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--

posted with permission of the authors

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 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 central.hku.nl and joost.smiers planet.nl)