Imagine a world without copyright - IHT

Published on Saturday, October 8, 2005 by the International Herald Tribune

Imagine a World Without Copyright
by Joost Smiers and Marieke van Schijndel

Amsterdam 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.

Joost Smiers, the author of ''Arts Under Pressure: Promoting Cultural
Diversity in the Age of
Globalization,'' is a professor of political science of the arts at the
Utrecht School of the Arts, the
Netherlands. Marieke van Schijndel is a policy adviser and publicist; this
article reflects her personal
opinions.