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

< 4. the common cultural good and the future of the arts

(29) Actually, at the beginning the authors right system had three pillars: the exploitation right; the moral right; and the idea that it would promote cultural developement.


What started modestly as a remuneration for artists and other creators and inventors turns out to be one of the biggest sources of commercial value in the 21st century (29). Copyrights, authors rights, and other forms of intellectual property rights are expanding enormously. It is time to reconsider the whole concept of intellectual rights and to bring it back to more normal proportions; or, to abolish it?

Even if it is nearly impossible to imagine what may be the consequences, this last option should also be under debate. Only then it might be possible to discover anew what kind of safeguards are needed for the construction of new knowledge and creativity and for the persons who are fabricating this, the persons we call artists and inventors.

The individualistic approach of creations and new knowledge is based on a romantic author concept. The reality, however, is that creations and new knowledge come into existence only by the use of the already existing cultural heritage from past and present. The reality is also, that future discoveries and works of art need a broad public domain to draw ideas, insights, inspiration from. The threatened fair use exception must be turned around and must get a positive doctrinal elaboration in any case. The reconsideration of the romantic author concept should have as a consequence that all different kinds of copyrights, provided that they should exist at all, must be limited considerably.

We must be aware that the private appropriation of culture and science takes place under neoliberal, capitalist, and oligopolistic conditions. It enlarges the gap between haves and havenots in the world, and this happens in fields which are decisive for social, cultural and economic development in the 21st century: knowledge and creativity. There should added to this that the arts are decisive for the development of the own cultural identity which is a human right as well. Democracy can develop only if debate and exchange of ideas, sentiments and feelings is possible on all levels of human expression. This is exactly what the arts are doing, whether it is in the form of entertainment, as the tonal, verbal, dramatic or visual package of the new media, or expressed by and in the more traditional art forms.

What to do with copyrights, authors rights, patents, and industrial rights? As said, the reconstruction of the whole concept will be an unavoidable challenge, a start from scratch is needed. For the present moment this is a task too difficult for a single person; it should be a communal effort. There should be explored which is the best way artistic creators and performers can make a living. Should the concept of moral rights be such an absolute right as proclaimed, let alone that it is not easily applicable anymore in digital environments? Probably society would be better of when people would be encouraged to develop further on existing ideas, forms, tonalities, and so on. What is against a good imitation? Consequently too, the whole concept of plagiarism will be seen from a different perspective, while audiences may not appreciate a work when the artist does not add something to what has been created before.

The claim that all should be original is not a realistic one, and culturally not productive. After all the borrowing from the same architectural style in Paris at the end of last century made this enormous urban surface much more interesting than all (post)modernistic architectural creations in the whole world together where the pretention of originality hinders architects to lean on an existing style as was usual in history. The idea that an architect can get the copyright on the design of a building is an absurd one. Nobody is so original that this claim may be justified and it sits in the way of future architectural developments.

Will there be less inventions and creations when intellectual rights would be more modest or would not exist at all, and the remuneration would take place in other ways? Probably there will come into being other creations and the development of other kinds of knowledge. Seriously there should be studied what may be the advantages and disadvantages of this. In any case at the positive side may be mentioned, that the monopolistic control on what may be created, invented, distributed, and used should be abolished.

Any change must take into consideration, that the non-western countries will get their fair share in creative and scientific developments which is not the case now. Plurality of expressions, as a democratic and human right, should be the guiding line in reforming the system of intellectual property rights; that is the contrary of the present tendency. Only when diversity of artistic creation and distribution will get priority, and will not be hindered by market dominance caused by monopolistic copyrights, many artists all over the world may make a reasonable living from their work. That is not difficult to understand: they will not be pushed away by the cultural events produced by a handful of cultural industries who are penetrating nowadays all screens and other outlets all over the world. So the need for artists to have strictly circumscribed copyrights - as a defence against exploitation - will be less urgent.

A way out of the nearly complete exploitation of human creativity and knowledge is needed. Obviously the arguments deserve more research, more clarification, more discussion, more input from other thinkers. The debate cannot take place without discussing the neoliberalistic practices, the global deregulation, and the free trade agreements like TRIPs.

In the field of the arts and culture there is an additional problem which should be taken in mind. A considerable number of people starts to understand that freedom in the economic field should be balanced by protection. John Frow quotes Garrett Hardin saying: "Freedom in a commons brings ruin to all." (Frow, 1996: 99,100) That is the case as well concerning the environment. It goes slowly, but also Shell, for example, did get the message that an enterprise too has a public responsibility. The oppisition against the dumping of the Brant Spar in the ocean started with organized movements, to name one: Greenpeace, supported by many people all over the world who influenced Shell.

But who should educate the cultural industries and the monopolistic rightholders that they should break up in favour of diversity, democracy and the human right of freedom of expression and communication? Where is the organized movement in the cultural field comparable to Greenpeace? At the end people can see that a forest is dead or can understand that the hole in the ozon layer is threatening life on earth.

It is much more difficult to explain that the entertainment which people like very much - one may wonder why -, may be a problem concerning the content but perhaps still more concerning the fact that it is in the hands of only a few monopolistic companies who control amusement all over the world, and who start to get grip on all other artistic expressions.

This could have been the end of this article. However, this would have been unsatisfying because a major problem would have stayed undiscussed. The fact is that artists and third world countries find themselves in the dilemma of a choice of no choice. Let's start with the non-western countries. As we have seen, TRIPs will give them not much advantage. The contrary may be the case. At the other side, not participating in the global system of exploitation of intellectual property rights means that they may expect heavy trade and other sanctions. They are not in the position to formulate other ways of dealing with knowledge and creativity. They must obey and at the same time they will nearly for sure lose enormous amounts of money, considerable parts of their cultural heritage, and the ability the build up their own knowledge infrastructures. Much more research should be done how this dilemma has been and still is discussed in the non-western countries concerning the arts, being culture and specifically the arts the purpose of our search.

The sanction artists may feel is from an other character when they don't participate in the present oligopolistic intellectual property system. They will meet full scale exploitation and misuse of their work, and will be completely unable to make a living from their creativity and their performances. But at the end the concentration of right holders and the digitalisation will bring them in a rather dependent position, in which even rather famous artists will not be sure that they will get a fair share, not to speak about just the normal artists, despite the optimistic sounds which come from Unesco and from the collecting societies. It is not sure whether a coalition with the few big right holders in the world is in their interest. However, not to travel along with them may be killing as well. Also in this field much more research is needed.

Indeed, artists and third world countries find themselves in a dilemma of a choice of no choice. For the maintenance of the public domain and the common good, however, TRIPs and the global exploitation attitude concerning creativity and knowledge one may claim: the privatization of culture and science is a loss for any society.

    > so, what to do?


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