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

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 future?

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 clown.

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.

Just, recently, 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.

This example 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.

Nevertheless, 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 good.

Enterprises, 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, etcetera.

The condition 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 get funded.

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 otherwise.

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.

Nevertheless 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)