Abandoning Copyright: A Blessing for Artists, Art, and Society 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," 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 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 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@central.hku.nl