October 24, 2006 | Suw Charman Anderson

Future of Copyright: Roundtable 2 - Business and economic drivers

Note: Again, these notes are verbatim and so things get a bit chaotic with so many people wanting to make different points, and revisiting issues brought up earlier in the conversation. We can no longer compete as northern companies on labour costs and materials, so IP is seen as a centre of innovation. Across the board in policy circles there's a focus on creativity which runs against some of the main narratives we've had on art in the last 30 years which questions the ideas of authorship, creativity, etc. This runs against the report of a report out of the DCMS where they looked at IP competition and did an analysis of VAPP (Value-Added Per Person), assumption that there's economic value per person, that some people are very important to the economy. But they found no excess value, as creative people may not be any more productive than any other industry. Rhetoric exists, 'creative industries', 'creative economy', but do we want to think in those terms? Also, a focus on trying to inculcate creativity and respect for copyright in school children. Attempt to get Key Stage 1 school children to use the (c) symbol in their essays and to get them to respect copyright, in an attempt to reduce file sharing. If we think about creativity and copyright it's important to differentiate it from originality and innovation. Different ranges of meaning, particularly when we talk about art or business. For many people with a vested interest the argument goes that 'strong copyright is good for the economy', so is creativity based on enhancing GDP? What's good for the economy? Does that mean 'what's good for the corporate sector'? Are we trying to juxtapose the moral and individual arguments against the utilitarian, macro-economic or corporate? Are we using art as the straw man argument where artists represent labour and are opposed to anything in business. If so, that's a very inadequate way of approaching questions of copyright and art. Copyright was originated by and on behalf of individuals who wanted to defend their rights, particularly in literature. But if it was invented for the individual, the argument from activists against copyright is that it's used now against the individual. Wasn't sure if we're clear between the differences between copyright, patent, trademarks and moral rights. Is the original question implying a focus which is not necessarily relevant to the issues that artists are concerned with. So many of the issues actually cut across the law, and focusing on one is not the best approach. Are we going in the direction we want to be going in? Is strong copyright law good for culture? One of the problems of the art community is that they are not good at thinking of the economy in the same way as economists do. We fall short of separating out the ticket income of an event vs. the greater good. When we think about he way the artists/art sector does it, compared to the movie industry, say in terms of the value lost by piracy, then we see artists are at a disadvantage because artists can't talk about it in the same terms. BBC has a problem with the 'public interest' test, justifying what they are doing in terms that are richer than measurable sales. What industry says is that we are defending the rights of artists, but economists show that 90% of the income goes to 10% of the artists, and 10% of the money goes to the other 90% of the artists. But it's hard, or impossible, to get figures from the industry, from the collecting societies. We need more data about what goes to artists. DACS, wanted to administer the Artist Resale Right, Droit de Suite, where artists get money for the sales of their works from collector to collector. But DACS spends 25% of their earnings on staff salaries, regardless of how much they collect so if their income doubles so does their spendings on their staff. Enormous need for more transparency. Money collected goes to very small % of the artists - sorts of a winner takes all scenario. One data set which was released by the music industry before digitisation, about 10-15 years old, shows poor distribution of money to artists. Not only do you have to prove that you've undertaken certain types of cultural and social benefits, but also economic benefits in order to get funding. Arts Council just fired their heads of the different art forms departments. So they are going down a route where you either are working towards 'social inclusion' or 'creative industries'. That's the rationale of public funding now. Used to be almost Dickensian idea that you strengthen culture by providing arms-length funding; but we're not in this much more neo-liberal moment where culture is seen as instrumental in what it can deliver to the GDP, which is partly based on the concepts of intellectual property. So was copyright originated on behalf of and for the benefit of individuals? It's difficult to say, as copyright has a complex history, but it only makes sense to think of it with the idea of capitalism, free capitalise modes of production. So it's pretty much always been a constellation of individuals and business interests who sought copyright. This can be said that this is really all just business, and the starving author in the garret is a rhetorical structure through which businesses acquire proprietary interests. That doesn't fit with the historical data, as there are many cases where individuals are strongly pursuing their own interests, and the legitimate interests of the businesses that support them. Usually people start off with 1710 an the Statute of Anne, which was the first time there was a statute giving proprietary rights for the printing of books. It was largely promoted by the business interests - book sellers. 1735 act to protect engravings, sought by Hogarth and seven of his friends. Using the analogy of the booksellers. 1798 protection of sculptures, sought by George Garrard. 19th C, act to protect drama. 1842, extended copyright, combination of printing and authorial interests, e.g. Wordsworth. There is a debate about relationship between copyright and romantic discourse, rhetoric about the romantic literary genius. 1862, copyright protects artists who paint or draw, petitioned for by artists and the Royal Society of Arts. Lots of artists were complaining of harms to their moral interest, e.g. works being cut up or disseminated in poor copies. Were some economic interests - photography was very expensive. Commercial publishing of engravings and these publishers paying huge amounts to the artists to do so. So it has always been mixed, always the individuals and the businesses. Whether copyright is now being used against individuals is another question. Historically, copyright was used against mass producers, e.g. other publishers. Now what's prompted copyright to be used against individuals is digitisation and copying can take place in private. There is much force in a criticism of copyright that starts with authors, and rather than abandoning authorship it seems that authors can be used as a mechanism for pointing out their internal relationship to copyright, they can be used to critique copyright. Would be a nice goal to end today to come to a general agreement about the least amount of copyright we really need. Would their be a minimum requirement that would allow most of the interests to succeed. One of the reasons that the collecting societies are not transparent is because there is a discrepancy between what's paid to classical to pop artists and when the pop artists find out they will either withdraw or demand higher royalties. Large interests, the EMIs of this world, will always talk about the individual, but we realise that the interests are focused on the most profitable people. History of copyright we have heard is horizontal expansion to different types of subject matter, but other types of expansion include control over distribution. The vast expansion from just controlling copying has been more recent, and would it be true to still say that that expansion was a mix of individual and corporate? Can't just look at what is covered, but must look at what's called vertical expansion too. Even thought these corporations are more interested in their most successful clients, the expectations that they will make money out of small number of people means they will. What do we do about the funding of artists? The music industry will always justify that they need extension because they need more money to invest in new acts. When you look back to 17th C, the size of the businesses are far far smaller than what we have now. We have huge corporate multinational entities. Ability of large corporations to grow is based on regulation, and we have regulations to limit the threat of businesses to governmental authority. Since WWII we've had businesses crossing international borders. Perception that copyright is used against individuals because there's greater restriction on what acts can be done. Constellation of forces have expanded copyright in terms of what acts are included, e.g. what reproduction is in a digital world. Other things at work are European harmonisation, which means we've all been given everybody else's rights, and so local regimes are irrelevant and Europe has forced a set of rights on all European countries and, through treaties, through the rest of the world. These interests work happily alongside business. Does law serve to assist the GDP. Law serves the interests of the polity, and so if the interests of the polity are also the interests of the GDP then law then serves it. But law should follow the polity. It may be the wrong thing to lobby against copyright law, because you should be looking beyond that. But it's too big of a burden so say that we have to change the law and the GDP. Free software is an interesting model to look at. 90% of servers run free software, and it's obviously based on copyright but there's a ninja move that uses copyright to ensure it's openness. How might this model be used in, say, pharmaceuticals. Research which has guaranteed free results, so that developing countries can then legally manufacture generic drugs. Begs the question, is protection the best way to promote innovation? Have to be careful about believing the business's claims about what, say, extension is going to allow businesses to do. Need to be careful of the language we use because we're using their language, the exploiters, the corporation. Need to more closely examine our own relationship to copyright. Copyright is about reproduction of objects, so tends to be best when applied to a finished product. Part of what digitisation has done is throw up the question of whether people are willing to pay for the object. Free software has to make some money for the people who make it, and it does so at the moment through repackaging and turning it into a physical entity (on a CD, say). Think about artworks not as finished products but more like a process to which that free software income generation model can be applied. Two arguments, there is a fallacious argument to use past income from existing works to find new people, but also prospective income. Copyright is so long you might say that's not the case. But the prospect of making money is how this work. So saying how long copyright is doesn't affect prospective investment is not the case, because obviously it does. It's how long you will be able to exploit the work. Authorship, creativity and originality, thought of within art as being mystifying, so within art history it's no longer common, or acceptable in some circles, to think of an artist as having an original idea. What's the range of sources for that idea? The myth that Picasso stealing forms of portraiture from African culture counts as an original act. Not just within art history, but also within art practice we're aware that we're drawing on other things, we're in communication with other people. There's a mystification, this idea that the artists is the author of the works they produce, but we're always looking at co-production. There is a history of artists working in resistance to those concepts. Appropriation i.e. selecting things, montage, quotation, dialogue. Co-operation, 'Acid Brass' project, getting brass bands to play acid house music, good model of how an artist can be important in the process, but not be involved in the process of making it work (i.e. not playing the instruments or doing the transcription). Creativity within art emerges out of a secularisation of art, so instead of being inspired, which really means that God is the creator of this work, so creativity comes in when the artist has usurped God, and the artist is the God-like figure, creating something out of nothing. Metaphysical approach to cultural production. This is objectionable. When we speak about the industry we also have to talk about piracy, and should focus on commercial piracy. Spend quite a bit of money investigating pirates, prosecute them and put them in prison. It's quite a burden on our system and a worse burden on poorer countries who are forced by TRIPs to do this. With globalisation comes illegal trades. So we should think about what's actually really harmful to society - trafficking people, arms, black money, etc. Is copyright really that harmful? Can we find other ways to recompense artists. Our society spends a lot of money on pursuing copyright infringement but need to be spending that money investigating the real harms, e.g. investigating black money. Copyright holders are like children demanding more and more and more. But if you give up the copyright system you won't have pirates any more. Pirates make considerable investments in their reproduction plants, but if you can reproduce it all yourself anyway, then the pirates won't have any market. Even if there is no copyright, publishers would still have a competitive advantage because they would still be first to market with their books. We need instead to be focusing on the real harm. Ruby on Rails, allows you to write code without actually writing any code yourself, so even though the application you write may be unique, much of the code you use to write is not, it's pre-written by the people who created the Rails framework. Concept of authorship getting very tenuous. Composition. Descriptions of creativity. Rhetorical idea came from ancient theories of rhetorical, that you take various aspects of other people's speeches, and you make an inventory of these ideas, and you create an 'invention'. That got transferred to art, notions from oratory and rhetoric, and artists were admired for their ability to compose. That's to do with the individualised labour. Cognitive process, get visual information stimulus, you compose it in your head, and you bring it out in your painting or whatever. Important in the concept of authorship. Since early part of 20th C, apply structuralism to study of images and have come to a different idea of what creativity is which is based on relational issues, to do with not what goes on inside the head but what goes on in between individuals, and this is everywhere, including within the theory of the firm. Derrider the meaning of the word does not occur within the word but in their relationship with each other. Process descriptions of art, copyright has a problem with that, so we have the idea that creativity is part of a relational process that is ongoing. This is a problem for copyright because that's in notions of fixity, of invention, of a fixed point in time. Point is that ideas of originality and authorship have their roots in rhetoric. Creativity as process has it's roots in relational theory. If you change the description of the composition you also change the author and the audience. So end up with different paradigms. So illustrators don't have this same training, so they still have the rhetorical notions of authorship so they want to be authors. Is economics the one and only totalising discourse? Has it taken over from aesthetics? Movement from the situation where the individual artist is working on an individual work of art is being replaced by the concept of the artist as part of a wider process. Curation. We are all becoming curators of culture, bringing together different pieces of art as we see fit. Concepts of montage and assemblage are also interesting. For some artists, copyright is not relevant, but the institutions of art retain traditional views. When you are not interested in producing tradable objects, copyright is not of interested, but what are the method of remuneration? The added value you might have in showing art in these institutions, need a system that has more security. What is copyright, what are the objects that are being produced? Artists selling limited editions of DVDs, in two editions, one for private use and one with the right to show in public for galleries etc. Applies to sculpture, with casts, you have editions, and with prints. Need to ensure we don't over-complicate it. Instead of copyright have a system of trust and informal work? Appearance fees. Value of artworks. Different types of value: social, cultural, commercial. Most of copyright is about commercial value. Different collaborators value work in different ways, and have different reasons for being involved. Artists have to package their work in such a way as it has both social and financial value. But most interest is in cultural value, which can get overlooked, but can use the social and financial value to manipulate the situation so that can create a discussion of cultural value. How does copyright come into cultural value? Copyright happens when you have someone else doing what you're doing and you're not acknowledged. Economists understanding that they can't extend their economics to the rest of the planet in this post-colonial situation. But of 6 billion people on the planet, 2 billion participate in the formal money economy. What's the political leverage being used to bring these people into the market, and TRIPs is a powerful tool to apply. What is the marginal figure in the western world, the artist, is becoming an important political tool. Important in 3rd world with farming, mobile phone licences, the same laws that govern the formal economy in London are being applied without any changes to these other contexts to establish the roots whereby the rest of the world can be brought into this major economy. Big political issue to be fought. Three economies: World Banks; traditional economy and invisible economy and it's in this latter economy that a lot of cultural works; and a natural economy of natural resources. In developing countries which have signed TRIPs end up with a bizarre mismatch between the local economy (can't get the open sewers fixed) and the IP economy where they have to have patent offices etc. Are some people in denial about the kind of environment artists inhabit, where it is really all about brand and name and reputation, and so highly individualist. There is an issue that there is an intersection of rights - so the rights holder's rights to prevent copying intersects with the users right to copy. So you have to make a trade-off. These statements remind us of the reality that we're in and a resistance of that is a fantasy. But maybe that copyright sign on the Acid Brass CD is also a denial, because it's a denial of the social production of that work. Because the reorganisation of authorship of group works until there is a single author is a denial of reality. But it's possibly to be in a system and against the system at the same time. You can't accuse workers within a capitalist system of being capitalists. But name is not just about ownership of your work, it can also attaches traits associated with you to your reputation. Does brand development of the name depend on copyright? Was a time when collaboration was highly problematic in academia, for example. So at one point people had to be assessed for their degree individually, but now it is possible to work collaboratively through your degree and be assessed collaboratively. Balances. Defences and attacks with copyright. Now, is copyright so oppressive, or can we foresee that it will be so extensive that it will prevent a dialogue? Many compositions are stylistic, not original. Notion of rhetoric as that there were things that were in the public domain that you could draw on and combine which can then be copyrighted. Before copyright there were examples of copying that were problematic, because a copy of a copy of a copy is a bad copy. The objection to copying, apart from copyright. We are talking about the idea of the author as a brand. The author is a part of the structure of discourse, that you create trust in the author rather than having to reassess every work by the same person individually. Difficulty of collaboration in art schools is as much about the examination system as problems with collaboration. We are individual animals within the species, but authorship is not a fact of the individual it's a property of some individuals, so all authors are only authors by the authority of the society. The enigma of Pollock of being this great genius, is that Pollock represents a lot of other people. He's singled out of a massive cultural shift as being the person who represents him, the New York School. Individuals is a western idea and in some cultures there's a collectivity instead. Particularly in the Pollock issue, that's part of the American Dream, it's cultural about the rise of the individual to success. Not the same in Paris. But if the artist isn't the author, how do we know what an artist is? Who is it that some of us around this table are artists and some of us are not. Artists are determined by themselves, they are defined by society. There's an economy of these terms and so we're not looking at a coherent set of qualities, like 'creativity' or 'originality' or 'sets projects up'. There isn't a given stable identifiable set of traits and we would have to interrogate the culture about that. Or is it more like 'who's a plumber?'. Working with images, and training, defines an artist. It's a profession. Also happens retrospectively, e.g. the graphic artist who becomes ratified as an artists later on. Artist is institution because the institution gives the authority, and artists are implicit in this by not being able to define who they are. They are getting better returns for their own mythification, and this keeps the status quo happy. Artists should be instrumentalised to end this. Modern artist as an individual as in the tradition of individuals of kings and popes and great artists of the past. 3D printing and the democratisation of creation. Even sculpture will not be exempt from the digital age - people are already creating 3D shapes, sculptures, in Second Life and having them printed using a 3D printer into a model of their character. Division between asserting copyright and asserting authorship, and authorisation of the artist. Is this a circular process? Is copyright itself a form of authorisation of the artist? Confusion around the right to authorise reproduction, and the right to assert control of your work. When you use CC licence you still require attribution, but you don't necessarily require remuneration. Any right you have in this world interests with someone else's rights. There was a discussion of the CC list, someone had a picture of their grandparents getting off the Windrush, and they said they wanted to use the CC licence, but was worried about the image being used by things like the BNP. These rights create real transaction costs that have real effects. Should we even have a right to integrity?

Comments (3)

  1. Mark Perkins:
    Oct 28, 2006 at 07:05 PM

    The view that publishers/ book sellers were initially in favor of the Statute of Anne is very wrong, it was the in the century that followed that they started to (ab)use it.

    "Usually people start off with 1710 an the Statute of Anne, which was the first time there was a statute giving proprietary rights for the printing of books. It was largely promoted by the business interests - book sellers."

    While people usually start with the Statute of Anne, this is fundamentally wrong. This history of IP rights goes back to Royal Patents (both in UK and Continental Europe) for printing books, which then expanded to include state control of what was published. In the UK this evolved into a Royal Patent for the Stationers Company which was a state granted monopoly to a private company (nothing to do with authors). Both in the UK and post revolutionary France copyright law was introduced to oppose this centralised monopoly and state censorship.

  2. Suw:
    Nov 07, 2006 at 03:26 PM

    As I said, these were verbatim notes, so very much 'as seen'. Or more acurately, 'as heard'. As for attribution, that's very difficult with a room of 20 people all talking pretty fast, taking turns, and interrupting each other. It was a very lively discussion and taking notes was very hard.

    In an ideal world, I would have edited them all up into a nice report, but sadly time was and is at a premium.

    You seem to be assuming that a 'computer nerd' made the point about authorship, but in actual fact the strongest critics of the concept of authorship came from artists.

  3. P Miller:
    Nov 07, 2006 at 03:08 PM

    It's hard to make any sense of this garbled braindump. A little time editing it and attributing comments would have been well spent.

    There’s a mystification, this idea that the artists is the author of the works they produce, but we’re always looking at co-production.

    How convenient!

    When computer nerds adopt the rhetoric of lit.nerds (eg, structuralism), all it demonstrates is how they fail to value creativity.