Copyrights: a choice of no-choice for artists and third world countries; the public domain is losing anyway, by Joost Smiers

(18) Janine Jacquet, Cornering Creativity, The Nation, 17 March 1997

3. the artists

At the Pan-African Colloquium on the Living and Working Conditions of the Artists, Brazzaville, 20-23 July 1994, the Congolese writer Jean-Baptiste Tati-Loutard 'deplored the practice of authors publishing their works at their own expense, which was ruinously costly for young writers, and the very frequent failure of African publishing houses to pay copyright (Pan-African Colloquium, 1994: 14).' One may guess that this is the situation in most Third World countries and for all the fields of the arts. Obviously there will be differences here and there. In general, artists in the non-western parts of the world may be happy if they can make a living from their work. The impression exists that this is most of the time not from copyrights or author rights. The conflicting arguments concerning unauthorized use of works of art have been discussed above.

More research is needed in order to get a clearer picture of the situation for artists concerning their rights. It is to be feared that collecting societies of the money to be paid for copyrights do not exist in most non-western countries or function only marginally. The question is also who controls them, if they exist at all. It seems to be unlikely that in the near future an adequately functioning structure of collecting societies will come into being. If this seems to be the reality, one may wonder whether ideas are developed about structurally safeguarded remuneration systems for artists which may work better.

For many artists in the western countries too copyrights or authors rights have only a symbolic meaning. Their turnover is modest. The overhead of collecting societies - even at the lowest level inevitable - takes away parts of the revenues for artists. Add this to the fact that users of copyrighted materials are getting more and more irritated about the amounts of money which should be paid and the many different kinds of rights for which they must pay, and we see a complicated picture. One may wonder whether the existing system does not demotivate restaurants to let perform live music; and it is not seldom that older, copyright free works have a better chance to reach a public than new work which is more expensive.

Is it true that the cynical conclusion must be that copyrights and authors rights are pushing away contemporary artists? It is not sure whether stronger enforcements of the copyright and authors right systems may help. The price of the payment to the artists - by an intellectual right or on another way - will be more and more decisive for the chance artists may have to make a reasonable living. All those factors which may happen and are happening already for artists are demanding a precise analysis.

This is the more necessary because also artists who are doing economically better are not sure any more of getting proper payments by copyrights or authors rights. Janine Jacquet reports in The Nation: 'The rise in value of creative expression should be good news for writers, and it is - as long as they control the rights on their own work. But this is less and less the case. . . . Book contracts have gotten "greedier and greedier", says Kay Murray, assistant director of the Authors Guild. Some writers are worried that the exploitative practices of periodicals will be adopted by publishers, especially since so many are now corporate cousins of newspapers and magazines. . . . Because everyone is convinced that the future somehow involves the digitization of information, publishers now want electronic rights. But CD-ROMs and the Internet have so far yielded little and cost plenty, so publishers don't want to pay much - or anything - for those rights. What they want, says Dan Carlinsky, vice-president of contracts of the American Society of Journalists and Authors, is "raw materials for free." . . .

Even if writers manage to negotiate fair, even lucrative, contracts for their work, they will probably be signing over more rights than ever before, and someday maybe even all rights. This means that publishing houses - now dominated by the media conglomerates - will have ever more control over how a writer's words and ideas will be used.' (18)

All together, those are directions, Shalini Venturelli claims, which 'deemphasize the rights of creative labor, from their economic rights to their moral as well as constitutionalpolitical rights (1997: 68,9).' Most of what should be said about the position of the artists in the field of intellectual rights can be understood only in this broader context, which will be the theme of the fourth theme of this article.