so, what to do?
So, what to
do? What to do when we share the conviction that knowledge and creativity
should not be the private property of some individual rightholders,
and certainly not on the huge scale which we may expect in the near
Let us try to
permit ourselves the intellectual courage and flexibility of mind
that we could think of getting rid of the intellectual property
system as it has been constructed in the Western world during the
last couple of centuries. How would another situation, based on
different premises, look like? Exactly what we are missing now could
happen: The results of our cultural and scientific developments
of past and present would come back again in the public domain,
where it should be. When it would belong again to the common good,
the creations of the past and the present may be used for the development
of the contemporary artistic and scientific life. And this will
provide the building blocks for the future of culture and science,
on the condition that nothing of the mind and the spirit of human
beings has been privatised.
Let us try to
make this more concrete for the world of the artistic cultures,
the subject of this article. The basic principles which I try to
develop for this field obviously can be transferred to the field
of patents and other intellectual properties, but obviously this
is not within the reach of this article (Shiva 1995, 1997).
The field of
the artistic cultures, for which I will try to formulate another
approach than the copyright system offers, is a broad one. How should
it be defined? The arts are specific forms of communication. Always,
in every society we find artistic ways to express and communicate
that are distinguished from the daily forms of communication, or
those used in journalism, health care, business, or education. The
arts, thus defined as a neutral concept, constitute a specific category
in every culture, in every society.
Specific to the arts are the aesthetic aspects that feed our observation
and appreciation. Their content and the meaning of artistic communication
is more focused, dense, or slow than is usual in other forms of
communication. And the arts reach the public by passing specific
tracks that colour the meaning of the artistic work by the ambiance
they offer: prestigious places for exhibitions or venues for concerts,
television screens, or the magic circle on a square created by a
The arts are
specific forms of communication; among them we may find rock concerts
and cantatas by J.S. Bach, plays by Becket, Mondrian paintings and
comics, porno shows, all sorts of films and soap operas, and the
artistic aspects of Internet. But using a neutral concept to define
the arts does not mean that artistic expression is either judged,
or supported on a neutral basis. Using a neutral concept does not
mean that the character of the daily artistic fare does not matter.
Living surrounded by impressive, exciting or moving works of art
leaves nobody untouched. The consumption of large quantities of
artistic entertainment effect individuals minds and sentiments.
Therefore, what will be proposed as an alternative for the current
copyright or authors right system will include also all what comes
from the cultural industries.
from several corners in the world people have started to think about
an alternative for the present system of intellectual property rights.
For example, artists may bypass copyrightholders and other intermediaries
by selling their work on the Internet, or by offering it there for
free. This may make their work widely known and create a market
for their real works of art or for their life performances. Some
of them do already so.
This is a viable
alternative for the oligopolistic marketplace as long as the new
communication media have still enough space for a public domain
in which such kind of small transactions can take place. Then a
rich diversity of artistic creations and performances may be distributed
to interested audiences worldwide, which are probably relatively
small but all over the world together big enough to give many artists
a living. The more the virtual domain becomes commercial however,
the more the big cultural industries will forge a focused attention
span for only a small number of their artists on the Internet. This
may lead to the same situation as we deplore at this moment: Only
a limited number of artists will be pushed while the artistic diversity
has a hard time to get a relevant distribution.
of a complicated contradiction which may arise, and many others
of such an ilk, have as a consequence that it will not yet be possible
to present already a completely elaborated system how to deal on
a more social and humane way with the concept of property concerning
works of music, drama, theatre, opera, dance, literary texts, visual
arts, design and other kind of images, and films and videos, and
all the mixed forms.
it may be possible to develop some premises, and for the present
moment more should not be done. It took more than a century to refine
the intellectual property system we have now; it would be too demanding
to expect, that it is possible to construct a radical different
system in detail in a couple of months!
Until now in
the field of intellectual properties the distinction has been made
between the right to use or to exploit a work, and at the other
side, the moral right of the creator or the rightholder. This moral
right includes the maintenance of the integrity of the work. It
is essential to deal with both separately.
Wen the assumption
is that it is crucial that works of art will be part of the public
domain, this would have as a consequence that the use of the work
within the public domain would be free of charge. How to define
the field of the public domain? One should think of a broad field
in which the cultural life, education, and communication takes place.
The condition would be that with those works no big profits will
be made, nor by the direct neither by the indirect use. This means
that small enterprises which have modest turnovers and which make
profits, which are just enough to pay the salaries of some people,
will be included in the field of the public domain. In other words,
the use of artistic works from past or present will be free of charge
for all those who work in this broadly defined field of the public
domain and who sustain thereby the further development of the common
which make profits by the use of artistic works on a substantial
level, should be taxed for this use. The whole system of all the
different copyrights or authors or neighbouring rights, etcetera,
will be abolished, because the private appropriation of the intellectual
and creative commons will be ended. Instead of this, substantially
profit making enterprises, which are using artistic works in one
way or another (for sure, this will be all big and mediumsized enterprises),
will be taxed for this use, at the same way the other taxes they
are paying. The tax will be a percentage of their annual turnover
(Nayer 1991). In the Manifesto of the Free Software Foundation Richard
Stalllman thinks in a comparable direction for the funding of the
further development of software, a Software Tax, once the copyrights
on software will be abolished. 'Suppose everyone who buys a computer
has to pay x percent of the price as a software tax (Stallman 1993).'
The collected money should go to the further development of software.
Also in the
field of culture and the arts the collected money should be put
in a special fund. For whom this money be destined? Three kind of
receivers may be distinguished. One part of the money may be destined
for the further development of the artistic life of the concerned
society. This will be, together with subsidies and other financial
means, an important source for the financement of artistic initiatives,
institutions, festivals and the likes in the fields of film, video,
visual arts, design, music, dance, theatre, literature, photography,
should be that those initiatives, institutes, festivals, and so
on, are important for the flourishing of the artistic and cultural
life of the society. In the case substantial profits will be made
the contribution will go back to the fund which may use this money
for other initiatives, institutes, festivals, and so on. Obviously
the money should go to all different artistic purposes as they present
themselves in the given society, and not only to those who are considered
to have traditionally a "high" cultural background. The
basic idea should be a democratic one. This means that all different
voices, images, and imaginations should have the chance to present
themselves and to be financially supported in case profit making
does not (yet) belong to the possibilities.
The second part
of the collected money will go to individual artists in all the
different fields of the arts. It will give them the possibility
to receive a salary for the period of the creation or production
of a work art; let say for half a year, a year, or maybe two years.
This part of the money makes the development of artistic works possible
outside the institutional framework of cultural initiatives, institutes,
festivals, and so on. Also here the basic principle is that there
should be taken care for the development of a broad range of artistic
works in all the cultural fields. When it turns out that an artist
is doing well on the market and makes substantial profits, then
the money should go back to the fund, by which other artists may
The third part
of the money should be destined for the artistic life in non-western
countries. The reasons why should not be difficult to understand.
It may be clear that most of the profits by the use of artistic
materials will be made in Western countries, but many of the sources
of those artistic creations have a non-Western origin. This should
be recognized. Another reason is that those countries are suffering
now from enormous braindrains. It is important that artists may
have the chance to stay at home, can make a living in their own
surrounding, and may contribute to the artistic live of their societies
without being dependent always from Western producers, agents, and
What to do in
the future with the moral rights which have still at the present
moment a stronger base in the Western authors rights system than
in the Anglo-Saxon copyright approach? If we recognize that the
authors rights concept is a romantic one, and if we are aware that
the moral rights aspect freezes works of art on quite unnatural
ways, then we can afford to get rid from the importance of moral
rights as well.
It would be
a cultural enrichment if an artist would add something to the work
of a predecessor, and so on, as is the use in most non-Western cultures,
at least until recently. However, let the discussion take place
in the framework of the civil society, in the realm of the public
domain, whether adding something to a former work of art is an enrichment
indeed, or a terrible misuse. Is it not strange that we have refrained
from having such crucial debates in our Western societies?
This is the
more strange because we have transferred the competence in questions
of cultural development to the court. The judge has got a conservative
role: what is, should stay the same, seems to be the adage. And
who "owns" a cultural expression, may continue to own
it for decades. The cultural task of judges is to punish infringements:
cultural creativity considered as an infringement.
Of course, it
may happen that someone does not at all add something to a former
work of art, but is just copying it while pretending that it is
his. In a vibrant civil society in which creativity will get the
respect it deserves, such a form of plagiarism makes from such an
artist a lesser god when it has been discovered; and it will be
discovered because many people in such a society will be involved
in what is going around in the field of the artistic creation. And
when it will not be discovered, so what is the loss?
In any case,
it seems to be more and more clear that the concept of copyright
is on its return. Esther Dyson believes that content providers will
be paid for ancillary services or products, not for their works.
'Maybe Steven King will post his books on the Internet - and start
charging for readings. University professors publish works basically
for free, and make money by teaching and by giving their institutions
respectability with their names. Already some software companies
are distributing software for free and charging for support (Mann
1998; Dyson 1998).' And for the artists, arts initiatives, and cultural
projects in non-Western, who will not be able on this way to earn
their living, the tax money for the commercial use of artistic works
may be a great support.
It may be obvious
that by formulating those rudimentary basic principles only a start
has been made for how to deal in the future with human artistic
creativity. We must get used to the idea that a world without our
present copyright and authors rights systems can exist very well.
Without this property system the chance may be there, that is not
worthwhile any more to commodify cultural expressions. The culturally
more interesting artists may get again a reasonable compensation
for their work.
all those advantages (and more of them, for example for the artistic
life in the Non-western countries), it may take a while before we
have made space in our individual and collective psyche for getting
aware that science and culture should not be private property any
longer, but should come back in the realm of the public domain.
If this process will result in a shared consciousness of many people,
new basic principles about the common good concerning culture and
science can be worked out in more detailed sets of regulations.
Only then the consequences of the new approach can be imagined profoundly
on a new, open way.
Is it waste
of time to try to change the seemingly unchangeable? Intellectual
property rights are seen as one of the most profit making products
of the 21st century. Can this complete privatization of the common
good nevertheless be changed radically? I felt empowered by the
observation the British writer John Berger made a couple of years
ago. He said: 'Nobody foresaw the speed with which the Soviet-system
disintegrated and collapsed. It surprised everybody. Now everybody
is assured from the global triumph of the socalled free economics
and the new socalled economic liberalism. And perhaps it will fall
as unexpectedly.' (30)