Imagine a World Without Copyright
By Joost Smiers and Marieke van Schijndel
International Herald Tribune, Saturday, 8 October 2005
Copyright was once a means to guarantee artists a decent income. Aside from the question as to whether it ever actually functioned as such - most artists never made a penny from the copyright system - we have to admit that copyright serves an altogether different purpose in the contemporary world. It now is the tool that conglomerates in the music, publishing, imaging and movie industries use to control their markets.
These industries decide whether the materials they have laid their hands on may be used by others - and, if they allow it, under what conditions and for what price. European and American legislation extends them that privilege for a window of no less than 70 years after the passing of the original author. The consequences? The privatization of an ever-increasing share of our cultural expressions, because this is precisely what copyright does. Our democratic right to freedom of cultural and artistic exchange is slowly but surely being taken away from us.
It is also unacceptable that we have to consume cultural creations in exactly the way they are dished out to us, and that we may change neither title nor detail. We thus have every reason to ponder about a viable alternative to copyright.
At the same time, a fascinating development is taking place before our very eyes. Millions of people exchanging music and movies over the Internet refuse to accept any longer that a mega-sized company can actually own, for example, millions of melodies. Digitalization is gnawing away at the very foundations of the copyright system.
What might an alternative idea of copyright look like? To arrive at that alternative, we first have to acknowledge that artists are entrepreneurs. They take the initiative to craft a given work and offer it to a market. Others can also take that initiative, for example a producer or patron who in turn employs artists. All of these artistic initiators have one thing in common: They take entrepreneurial risks.
What copyrights do is precisely to limit those risks. The cultural entrepreneur receives the right to erect a protective barrier around his or her work, notably a monopoly to exploit the work for a seemingly endless period of time. That protection also covers anything that resembles the work in one way or the other. That is bizarre.
We must keep in mind, of course, that every artistic work - whether it is a soap opera, a composition by Luciano Berio, or a movie starring Arnold Schwarzenegger - derives the better part of its substance from the work of others, from the public domain. Originality is a relative concept; in no other culture around the globe, except for the contemporary Western one, can a person call himself the owner of a melody, an image, a word. It is therefore an exaggeration to gratuitously allow such work the far-reaching protections, ownership title and risk-exclusion that copyright has to offer.
One might ask whether such a protective layer is really necessary for the evolving process of artistic creation. Our proposal, which will entail three steps, will demonstrate that this is not the case.
What then, do we think, can replace copyright? In the first place, a work will have to take its chances on the market on its own, without the luxurious protection offered by copyrights. After all, the first to market has a time and attention advantage.
What is interesting about this approach is that this proposal strikes a fatal blow to a few cultural monopolists who, aided by copyright, use their stars, blockbusters and bestsellers to monopolize the market and siphon off attention from every other artistic work produced by artists. That is problematic in our society in which we have a great need for that pluriformity of artistic expression.
How do we think this fatal blow could work? If the protective layer that copyright has to offer no longer exists, we can freely exploit all existing artistic expressions and adapt them according to our own insights. This creates an unpleasant situation for cultural monopolists, as it deprives them of the incentive to pursue their outrageous investments in movies, books, T-shirts and any other merchandise associated with a single cultural product. Why would they continue making these investments if they can no longer control the products stemming from them and exploit them unhindered?
The domination of the cultural market would then be taken from the hands of the cultural monopolists, and cultural and economic competition between many artists would once again be allowed to take its course.
This would offer new perspectives for many artists. They would no longer be driven from the public eye and many of them would, for the first time, be able to make a living off their work. After all, they would no longer have to challenge - and bow down to - the market dominance of cultural giants. The market would be normalized.
Certain artistic expression, however, demands sizeable initial investments. This is the second situation for which we must find a solution. Think about movies or novels. We propose that the risk bearer - the artist, the producer or the patron - receive for works of this kind a one-year usufruct, or right to profit from the works.
This would allow the entrepreneur to recoup his or her investments. It would still be an individual decision whether or not to make the large investments, for example, needed to make a movie, but no one would be granted rights to exploit that work for more than a year. When that period expired, anyone could do with the work as he or she pleased.
The third situation for which we must conceive a solution is when a certain artistic creation is not likely to flourish in a competitive market, not even with a one-year usufruct. It may be the case that the public still has to develop a taste for it, but that we still find, from the perspective of cultural diversity, that such a work must be allowed to exist. For this situation it would be necessary to install a generous range of subsidies and other stimulating measures, because as a community we should be willing to carry the burden of offering all kinds of artistic expressions a fair chance.
Cultural monopolists desperately want us to believe that without copyright we would have no artistic creations and therefore no entertainment. That is nonsense. We would have more, and more diverse ones.
A world without copyright is easy to imagine. The level playing field of cultural production - a market accessible for everyone - would once again be restored. A world without copyright would offer the guarantee of a good income to many artists, and would protect the public domain of knowledge and creativity. And members of the public would get what they are entitled to: a surprisingly rich and varied menu of artistic alternatives.
Contact: Prof. dr. Joost Smiers, HKU/Utrecht School of the Arts, P.O.Box 1520, 3500 BM Utrecht, The Netherlands; tel.: 00 31 30 2332256; e-mail: firstname.lastname@example.org