Imagine There Is No Copyright and No Cultural Conglomorates Too

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* Essay: Joost smiers & marieke van schiJndel imagine there is no copyright and no cultural conglomorates too. Institute of Network Cultures, 2009




"Copyright gives authors exclusive control of the use of a growing number of forms of artistic expression. Often, it is not the authors who own those rights, but gigantic cultural enterprises. They manage not only the production, but also the distribution and marketing of a large proportion of films, music, theatre, literature, soap operas, visual arts and design. That gives them far-reaching powers in deciding what we see, hear or read, in which setting and, above all, what we don’t see, hear or read.

Naturally, things could get to the stage where digitalisation will rearrange this highly controlled and over-financed landscape. We can’t be so sure of that, however. The amount of money invested in the entertainment industries is phenomenal. They operate worldwide. Culture is the ultimate excellent money-maker. There is no reason to suppose, at the moment, that the cultural giants of this world will easily give up their market domination, either in the old material domain or in the digital world.

We are now therefore looking for the alarm bell, so we can ring it. When a limited number of conglomerates control our common area of cultural communication to a substantial degree, then that undermines democracy. The freedom to communicate for everyone and everyone’s right to participate in his or her society’s cultural life, as promised in the Universal Declaration of Human Rights, can become diluted to the unique right of a few heads of companies and investors and the ideological and economic agendas to which they work.

We are not convinced that this is the sole option for the future. It is possible to create a level playing field. Copyright, in our view, presents an obstacle. At the same time, we have noticed that the bestsellers, blockbusters and stars of the big cultural enterprises are having a disadvantageous effect. They dominate the market to such an extent that there is little room for the works of the many, many other artists. They are pushed to the margin, where it is difficult for the public to discover their existence.

In the first chapter we analyse all the drawbacks to copyright that make it illogical to put any further faith in it. Naturally, we are not the only ones who are aware that it has become a problematic instrument. We therefore devote the second chapter to trends that are attempting to put copyright back on the right track. Although we are impressed by the arguments and efforts of movements attempting to find alternatives, we feel that a more radical, more fundamental approach will help us further in the 21st century. We set this out in chapter 3. We are endeavouring to create a level playing field for the many, many cultural entrepreneurs, including artists. According to our analysis, there is no longer any place on that playing field for either copyright or enterprises that dominate those cultural markets to any degree.

The expectation is:

- Without the investment protection of copyright it will no longer be profitable to make lavish investments in blockbusters, bestsellers and stars. They will therefore no longer be able to dominate the markets

- The market conditions for lavishing money on production, distribution or marketing will no longer exist. Competition law and property regulations are outstanding tools for levelling the markets.

- And our past and present heritage of cultural expression, our public domain of artistic creativity and knowledge will no longer be privatised.

The market will then be so open that many, many artists, undisturbed by the ‘greats’ of the cultural world - not being so great any more – will be able to communicate with audiences and therefore sell more easily. At the same time, those audiences will no longer be inundated with marketing and will be able to follow their own taste, making cultural choices in greater freedom. In chapter 4, we will attempt to throw light on how our proposals could work out, based on brief case studies. We are aware that we are proposing serious interventions in the market. Sometimes, the very thought of it makes us nervous. We want to divide the money flows in major segments of our national and global economies - which is what the cultural sectors are, after all - into far smaller portions of ownership. That will involve a capital restructuring of a formidable and almost unprecedented scope. The consequence of our proposals is that cultural and medial industries, in which turnovers run into the billions, will be turned upside down. We have hardly any predecessors who aimed so consistently at constructing totally new market conditions for the cultural field, or at least at laying the theoretical foundation for that construction. It is a comfort to us that Franklin D. Roosevelt was also unaware of what he was starting when he effected the New Deal, without wanting to compare ourselves with him in any way whatsoever. And yet he did it, it proved possible to fundamentally reform economic conditions.

This gives us the daring and guts to offer our analysis and proposals for discussion and further elaboration. It was a pleasant surprise to read (New York Times, 6 June 2008) what Paul Krugman, winner of the Nobel Prize for Economics 2008, said: ‘Bit by bit, everything that can be digitized will be digitized, making intellectual property ever easier to copy and ever harder to sell for more than a nominal price. And we’ll have to find business and economic models that take this reality into account.’ Devising and proposing such new business and economic models is precisely what we are doing in this book.

You can see from the summary of what each chapter deals with that this is not a book on the history of copyright or how it functions now. There are many excellent publications, to which we feel indebted, that can be consulted on these topics (such as Bently 2004, Dreier 2006, Goldstein 2001, Nimmer 1988 and 1994, Ricketson 2006 and Sherman 1994). For an introduction to the basic principles and the controversies surrounding copyright, see, for example, http://www.

We have not aimed our work at useless categories such as cultural pessimism or optimism. Our driving force is down-to-earth realism; if copyright and the current market conditions cannot be justified, then we feel duty bound to ask ourselves what we are going to do about it. Distinguishing between the so-called high and low arts and between elite, mass and popular culture is not something that appeals to us, either. A film is a film, a book a book, a concert a concert and so forth. The heart of the matter is therefore what are the conditions for the production, distribution, marketing and reception of all this - good, bad or ugly - and, consequentially, what kind of influence do these works have on us individually and collectively? Clearly, there is a great deal of dispute: which artist is to be elevated to stardom, by whom, why and in whose interest? And who will fail to make it, or be clapped in irons for what he or she has created? Our aim in this study is to highlight the fact that real diversity and, consequently, plurality in forms of artistic expression can have a raison d’être – and that the economic conditions can be created to facilitate them. We use the word copyright to cover two concepts, in fact. The right to copy is, in principle, something different from a right established to defend the interests of artists – or authors, as they are collectively referred to in, for example, the French term, droit d’auteur. In international law and practice, however, the two concepts have become merged in the one English-language term, copyright. Any remaining nuances and differences between the two concepts are irrelevant to our book, as what we are ultimately proposing is the abolishment of copyright. When we speak of ‘work’ in the following chapters, then that refers to all types of music, films, visual arts, design, books, theatre and dance.

The neoliberal transformations of the past few decades, as described by Naomi Klein in The Shock Doctrine (2007), for example, have also had implications for cultural communication. We are becoming less and less entitled to structure and organise cultural markets in such a way that diversity of cultural forms of expression can play a meaningful role in the awareness of many, many people. This is a problem of the first order.

Cultural expressions are core elements in forming our personal and social identity. Such extremely sensitive aspects of our life should not be controlled by a small number of owners. That control is exactly what is being exercised on the content of our cultural communication by means of the possession of millions of copyrights.

Thousands and thousands of artists work in this charged zone – the field of artistic creations and performances – producing a vast quantity and diversity of forms of artistic expression, day in, day out. This is the good news, which we should not forget. The sad reality, nevertheless, is that, due to market domination by the major cultural enterprises and their products, the existing invisible cultural diversity is almost being wiped from the public arena and the common awareness.

The public domain, in which cultural expressions can be contradicted, has to be re-established.

This requires more than an extensive criticism of the cultural status quo. What we are therefore proposing in this book is a strategy of change. We feel it is feasible to forge cultural markets in such a way that the ownership of the production resources and distribution passes into the hands of many, many individuals. In that case, no one, is our reasoning, will be able to control the content or use of forms of cultural expression to any major degree through the ownership of exclusive, monopolistic property rights. By creating feasible cultural markets for an abundance of artistic expressions, we are giving the power of disposal of our cultural life back to ourselves, as private individuals. Cultural markets have to be imbedded in the wider arena of our social, political and cultural relationships.

Due to the financial crisis that set in in 2008, the idea is again up for debate that markets could and should be regulated in such a way that not only financial forces benefit, but that many other interests are also considered. Helpful here is that the legal toolkit already contains the tool of competition, or anti-trust, policy, which can ensure that there are no dominant market parties. We will come back to this tool in the third chapter.

The main topic of this book, however, is copyright. Why? It is surrounded by a great deal of emotion and is charged with the assumption that copyright is the expression of our civilisation: we take good care of our artists and guarantee them respect for their work. Just why copyright fails to meet those expectations will therefore take some explaining. That the market can be organised otherwise by implementing competition or anti-trust law requires less explanation and the tools are already in place. The only thing is that it will be a hell of a job to achieve that fundamental restructuring of cultural markets. On the other hand, copyright is already on the slippery slope. One might wonder why we conducted this research, swimming against the tide of neoliberalism. Our first reason is cultural, social and political. The public domain of artistic creativity and knowledge has to be saved and many artists, their producers and their patrons have to be able to communicate with many varying audiences to enable them to sell their work with a certain amount of ease.

The second reason why we do not feel that we are placing ourselves outside reality with our analysis and proposals is history. History teaches us that power structures and market constellations change constantly. Why should that not happen to the subject we are concerned with in this study? The third reason for our analysis is that we derive a certain optimism from what the financial and economic crisis that broke out in 2008 may bring about. It was the year in which the failure of neoliberalism became horribly visible. If there was one thing that became evident then it was that markets – even cultural markets – require total reorganisation, with a far wider range of social, ecological, cultural and socio and macro-economic interests in mind.

Our final motive is simple: it has to be done. It is our academic duty that drives us. Clearly, the old paradigm of copyright is eroding. Our academic challenge is therefore to find a mechanism to replace copyright and the associated domination of cultural markets. Which system is then better equipped to serve the interests of large numbers of artists and of our public domain of creativity and knowledge? Such a tremendous task invites colleagues from all over the world to assist in finding the best way to allow us to progress further in the 21st century. There is a lot to be done, including elaborating on the models we propose in chapter four. Hopefully, such research can be conducted with slightly more ample resources than we had available to us. After all, what we are talking about is entirely restructuring the cultural market segments in our society into which billions of dollars or euros are poured worldwide."