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

(15) International Herald Tribune, 10/11 February 1996

(16) World Intellectual Property Organization of the United Nations.

(17) Interview with Bonnie Richardson, MPAA, 2 December 1994

2. less developed countries

The TRIPs agreement and the other worldwide free trade and investment agreements mark a clear historical demarcation in the global control of information and impose, according to John Frow, a definition of intellectual property rights directly disadvantageous to Third World countries (Frow, 1996: 89).

Cees Hamelink adds this to his remark: 'The GATT rules have been fixed to suit the most powerful trading parties. In the issue area of intellectual property protection the conventional type of multilateral cooperation was unsatisfactory to most players. Developing countries and IPR industries wanted a different arrangement. This evolved under the auspices of the GATT and was incorporated into the Uruguay Trade Round accord. The new tradebased practice that now emerges is likely to mainly benefit the corporate IPR traders (1994: 266).'

Noam Chomsky reminds on intellectual property rights 'that American companies stand to gain $61 billion a year from the Third World if U.S. protectionist demands are satisfied at GATT (as they are in NAFTA), at a cost to the South that will dwarf the current huge flow of debt service from South to North (Chomsky, 1993: 3).' A substantial part from what the South should pay to the North for using intellectual rights concerns rights on cultural "products", as the arts have been called in the business world.
There are three fields which should be distinguished. First, there are the economic consequences. Second, the question should be raised which contributions to culture should be rewarded. Third, the western concept of intellectual rights is a foreign notion in many parts of the world.

The economic consequences for Third World countries of the new worldwide regime for intellectual property rights on culture must be considered from two perspectives. First, transnational cultural industries try to find as much outlets as possible for the cultural products from which they are the rightholders. Mostly this will be music, films, soaps etcetera made in the western world. In order to reach this purpose they will push away works of art which have a local origin. Krister Malm and Roger Wallis experienced this on Trinidad. 'The view generally expressed by musicians and others in our 1987-8 interviews was that the share of local music in the media was as low as 15-20 per cent except during the carnival season (1992: 78).'

One of the reasons why this could occur was the simple fact that satellites destined for the United States do not distinguish between the territory of the U.S. and the Caribbean islands! By this technical spillover local entrepreneurs could tap into domestic US satellites; after a while US copyright owners found this could be a source of extra revenue. Krister Malm and Roger Wallis heard from many Caribbean policymakers and media operators that they did view this development with considerable apprehension and anxiety. The question rose: 'How to protect one's own intellectual property without having to pay out too much scarce foreign exchange for cultural products coming from outside into the country?'

The comparison was made with mango trees. "If you plant a mango tree in your garden by the fence and some of the branches hang over into my garden, then the mangoes on those are mine." Compared to satellites: "If anyone puts signals into our airspace, then it's our property - we didn't ask for them" (Malm 1992: 57,199,200). This argument turned out not to be an effective one because of the threat with trade sanctions by the U.S.; the United States offered also trade advantages in the framework of the Caribbean Basin Initiative for countries who make their policies conform to the intellectual property regimes and other regulations as desired by the big neighbour (Putten, 1995).

Probably the percentage of 15 to 20 per cent local music will now, ten years after the research by Krister Malm and Roger Wallis, still be lower. It is clear that much more research should be done in order to get more grip on the takeover of cultural life in the non-western countries by the big cultural industries, supposed this takes place on such a scale that one may speak of take-over. Surely there will be big differences between countries and for the different forms of art like music, film, television entertainment, dance, theatre, visual arts and literature. Brasil for example has its own flourishing industry of telenovela's. There one of the problems is the monopolistic situation of TV Globo (Amaral, 1994; Burton, 1986; Kucinski, 1994; Mattelart, 1987; Mazziotti, 1996; Schneier-Madanes, 1995; Vink, 1988). For multinational cultural industries the African countries are nearly not interesting, for the time being (Bender, 1994: 485).

The second economic consequence for Third World countries will be the fact that the transnational industries need thousands of hours of music, films, and theatrical entertainment and miles of images and texts. With the liberalization of the telecommunication situation all over the world there are coming more and more outlets which must be filled with "content". This means that cultural industries will try to buy everywhere in the world rights on music, images, and so on. Also on this issue not enough knowledge is available. Where do those developments find their peaks? In what proportions? How are those processes taking place? What are the consequences for artistic life locally?

As a second point concerning the intellectual rights in the cultural field the question should be raised which contributions to culture should be rewarded. James Boyle describes a contradiction which usually does not get enough attention. 'The author concept stands as a gate through which one must pass in order to acquire intellectual property rights. At the moment, this is a gate that tends disproportionately to favor the developed countries' contributions to world science and culture. Curare, batik, myths, and the dance "lambada" flow out of developing countries, unprotected by intellectual property rights, while Prozac, Levis, Grisham, and the movie Lambada! flow in - protected by a suite of intellectual property laws, which in turn are backed by the threat of trade sanctions (1996: 124-8).'

Transformation of ideas and raw materials and the exploitation of markets are rewarded with intellectual rights; but raw materials and also music and images as raw materials reach to the zero level concerning intellectual rights. Jutta Ströter-Bender gives an example in the field of design. 'For western designers the whole universe of decorations and images of artists from the Third World constitute an inexhaustible reservoir by which they serve themselves shameless and for sure without adequate payment to the source of their "inspiration" (1995: 45).' It is obvious that more research should be done to get a clearer picture of the harm being done to cultures of Third World countries.

Later in this article we will deal with the discussion on the granting of collective rights to works which have not been created by individual authors which drags on already a couple of decades. How complicated and at the same time how frightening this issue may turn out to be shows the example presented by the Indian theatre director Rustom Bharucha. 'One of the unfortunate developments of cultural tourism has been the influx of fabricated rituals within the cultures of those rituals. It is bad enough of a ritual from India, for example, is travestied in the West, but it is worse when this ritual loses its significance in India itself. The practitioners of many traditional dances and rituals in India no longer perform for the gods; they perform for tourists, research scholars and "experts". In payment for their performance, the actors no longer receive prasad or the blessings of gods - they get money and, at times, nothing at all. After all, there is no "copyright" on traditional performance. So many of them have been videotaped without any acknowledgement or payment to the performers involved (1993: 37).'

This brings us to the third issue concerning the position of Third World countries regarding intellectual rights, and specifically rights on music, theatre, audiovisual creations, texts, images, and so on. The western concept of intellectual rights is a foreign notion in many parts of the world. This is the reality. Roland Barthes explained this already in The Death of the Author: '. . . in ethnographic societies the responsibility for a narrative is never assumed by a person, but by a mediator, shaman or relator whose "performance" - the mastery of the narrative code - may possibly be admired but never his "genius". The author is a modern figure, a product of our society insofar as, emerging from the Middle Ages with English empiricism, French rationalism and the personal faith of the Reformation, it discovered the prestige of the individual, of, as it is more nobly put, the "human person" (Newton 1988: 155).'

This modern reality produces nowadays, however, a confusing set of contradictions. Ronald Bettig reminds that traditionally 'Asian authors and artists have viewed the copying of their works as an honor (1996: 213-219).' The western concept of individual authors rights or copyrights undermines extremely valuable cultural patterns. How this works out and which kinds of resistance are being developed should be studied more in detail concerning the different regions in the world and the varied settings of the cultural life of societies.

Japan had to change its copyright legislation because it did not give long enough profit to western rightholders. 'Current Japanese copyright law does not protect foreign recordings made before 1971, meaning that Western record companies, by their estimates, are losing millions of dollars a year in royalties from copying of tunes that are still highly popular.' The headline of the article on this matter in the International Herald Tribune was: 'U.S. Takes Music-Piracy Charge Against Japan to WTO (15).' A cultural difference, a different opinion about how long rights should hold, has been interpreted as "piracy." One may wonder why Japan did conform at the end to the American demands. Specially interesting is what the arguments for and against have been in Japan itself.

One may doubt whether legislation against piracy may work in countries in which individual intellectual rights are a foreign notion; this is the observation of Richard Barnet and John Cavanagh. 'But such laws work only as well as local culture permits. In many parts of the world the tradition is that music belongs to the community, and edict to treat a song as a piece of property is greeted by ordinary people with puzzlement and anger (1994: 142).'

Krister Malm and Roger Wallis refer to their government spokesman in Jamaica who could see no simple means of redressing the problem. "There are many difficulties. What is a folk song? What is the correct arrangement, and who owns it? It's difficult to put the WIPO (16) Tunis Model Law into practice."' And they conclude: 'Any functioning music copyright legislation for works which are protected by the terms of, say, the Berne or the Universal copyright conventions, presupposes the existence of functioning registers of works and copyright holders. This is a major problem in any country with a large amount of musical creative activity where copyright is not institutionalized (1992: 59).' And, one may wonder, should it be?

Later on in this article we will be confronted extensively with this question in general terms. But for now it is important to see how vivid cultural practices may get frozen when copyright will get more important than the stream of ongoing creativity, which is actually a universal human phenomenon. A good example - which is true also for most traditional and popular music cultures such as calypso, samba, rap, and so on - is the Algerian Raï music. Bouziane Daoudi and Hadj Miliani emphasize 'that the same theme may know as many variations as there are performers.' The base is shared knowledge which refers less to a repertoire of existing "texts" but more to a whole of social signs (el mérioula, el mehna, el minoun, e z'har, etc.).'

It is difficult to recognize the true author - in the western sense of authors rights. The raï has no author. Until last years, which brought the entrance in the western market system, the singers "borrowed" songs or refrains from each other. The public added spontaneously words to a song. In the practice of the singers, the chebs and the chabete, theft, pillage, plagiarism of texts does not exist. It is a form of music which depends from the circumstances, from period, place, or public.' Bouziane Daoudi and Hadj Miliani describe the raï as 'a continuum of a strongly perturbated social imagination (1996: 126-129).'

The western copyright conception is starting to destroy this continuum by eliminating those social and cultural processes in many societies. The songs will be frozen and will be the property of rightholders who are mainly or only interested in profits, not in any form of local social and cultural life. This is a pity because the raï music and comparable forms of music in non-western societies are - or should we say, were - essential components of the social and cultural life. Who is taking this away will make a given society a poorer resort of human life. To mention this does not refer to any romantic vision about natural states of well being of primitive societies. There exist no primitive societies in the world, and certainly no societies which are on the sunny side only. Any society is full of conflicts and contradictions which may be reflected in the arts in other ways than may happen in the normal daily life. It is a loss for any society when this cannot happen anymore or not sufficiently.

The real distinction is between societies where the arts play a vital role in social and cultural life and those societies where the arts are more or less coming from outside the daily huzzle and buzzle and are presented as products to consume. On this subject - the transition from situations where the development of the arts essentially belonged to the social and cultural life to situations where intellectual property rights are the driving force behind cultural production and distribution - more research should be done.

Should we thus forget about concepts like intellectual property rigths and piracy? At this moment this question seems to be less easy to answer than usually will be done in the western world. At a conference on the cultural industries in the Eastern European countries in transition, Moscow, June 1993, the Finnish researcher Vesa Kurkela presented a paper Piracy as innovation in post-communist popular music. The cultural meaning of unauthorized copying revised. He started his presentation with the common idea we, in the western world, all have in mind concerning intellectual property rights. 'As everybody may know, unauthorized copying is a bad thing in all music business. It can be claimed with good reason that piracy also prevents the development of the local record industry. It is no wonder that there are various activities carried out by multinational music industry and national copyright organizations to fight against it. . . . There are, however, at least two different forms of unauthorized copying and, accordingly, two different meanings of the term piracy. The first is the most common - it refers to business making of which the multinationals are mostly afraid: unauthorized copying and distribution of global megahits to wide audiences. The second meaning however has been often forgotten. With the aid of cheap analogue cassette technology many local music makers especially in poor countries can produce and circulate their own music and even give birth to new interesting popular genres.'

During the communist period musical innovation could take place by unauthorized copying and continues to happen this way. Moreover, it 'is important to note the very function of unauthorized copies here: the cassettes are not primarily produced for making money. The main purpose is promotion. With the aid of pirates local dance bands and artists can get more fame among local audiences and, accordingly, more gigs and other public appearances.' (Kurkela, 1993)

Two questions which will be raised later in this article find already partially an answer in the observation by Vesa Kurkela. First, by unauthorized copying musicians become known, are getting performances and thus may earn their money. Otherwise only one or two famous artists would get richer and only the copyrighted music would be spread, which has been produced by strong cultural industries. The basic condition is of course that there is enough demand for life music. Second, the argument goes many times that copyright is necessary to stimulate artists (and other inventors) to create. However, the contrary may happen, so called unauthorized copying may produce a vivid cultural climate in which innovation is a selfevident result. One may even imagine that such an open cultural climate may enhance a greater freedom of communication.

It is interesting to note that western advocates for strong copyright laws and practices always present the argument that it is in the self interest of non western countries to fight piracy. Bonnie Richardson, spokeswoman of the Motion Picture Association of America: 'It is not just an issue of other countries having to protect American intellectual property, it is also fundamentally of interest to local legitimate videostores, local legitimate cinemas, local producers of songs and films. There is a community of local interests too that are hurt badly by piracy.' (17) The observations by Vesa Kurkela and Krister Malm and Roger Wallis may make clear that it is more complicated than that.

Moreover, the pressure on poorer countries to fight piracy, anyway this may be defined, brings them in the situation that they have to spend many resources for the enforcement of intellectual property rights instead of the enforcement of other laws which are perhaps more important for the development of their economic, social and cultural life (Cohen Jehoram, 1996: 44).

It may not amaze that it was not selfevident for Third World countries that the intellectual commons of their societies would be brought under an international treaty by which they would be hindered to develop their own policies in this sensitive field. Friedl Weiss gives this overview of the struggle between North and South: 'Although there is considerable antecedent and multilateral treaty practice on industrial and intellectual property rights (IIPRs), the subject matter, as is well known, became a matter for multilateral negotiations in the Uruguay Round only upon the insistence of industrially advanced countries (IACs), especially the United States. Developing countries (DCs) were at first extremely reluctant to enter into such negotiations as there were scarcely any common ground between them and IACs, in economic philosophy, objectives or regulatory tradition. Leading DCs, for instance, considered it inappropriate to establish within the framework of the GATT any new rules and disciplines pertaining to standards and principles concerning the availability, scope and use of intellectual property rights.'

What happened? 'Consequently, they emphatically rejected any idea of integrating the TRIPS Agreement into the GATT itself which, they claimed, played only a peripheral role in this area precisely because substantive issues of IPRs are not germane to international trade. On the other hand, DCs were content with the integration of substantive standards of the major IPR treaties into the TRIPS Agreement. In the end the deadlock in IPR negotiations was overcome through a combination of allowing DCs and LDCs more transitional time for achieving higher standards of IPR protection and of concessions in other areas, notably textiles and apparel trade (Cohen Jehoram, 1996: 8,9).'

More research is important in order to know what the precise considerations were, and still are, of Third World countries concerning the intellectual rights in the cultural fields. In The Challenge to the South, a report written under the chairmanship of the former president of Tanzania, Julius Nyerere, bitter words have been spoken about TRIPs. 'The objective clearly is to install a system that would oblige developing countries to restructure their national laws so as to accomodate the needs and interests of the North. This initiative seeks to expand the scope of the system governing intellectual property rights, extend the lifetime of the granted privileges, widen the geographical area where these privileges can be exercised, and ease restrictions on the use of granted rights (1990: 254,5).'

Our Creative Diversity, the Report of Unesco's and United Nations' World Commission on Culture and Development suggests that a better balance should be found. 'The GATT accord, trough its Trade Related Intellectual Property (TRIPs) agreement, has caused a subtle reorientation of copyright away from the author towards a tradeoriented perspective. One challenge will be to maintain the balance between interests of countries exporting copyright and those of countries that import it, especially in the developing world. Defending the legitimate interests of the latter, while difficult, should be pursued through the establishment of adequate protection.' (Pérez de Cuéllar, 1996: 244)

According to the Commission not only the intellectual rights of Third World countries should get a more adequate protection, also the position of the real authors - creators or performers - deserves more attention. This will be the subject of the next part of this article. After all, the tradeoriented perspective of TRIPs is changing their position.