Adieu Auteursrecht Review

From Free Knowledge Institute

Original title: "Adieu auteursrecht, vaarwel culturele conglomeraten." (in English: Goodbye copyright, farewell cultural conglomerates)

Authors:,

1 Executive Summary
2 Summary
3 Conclusions
4 Comments

[edit] Executive Summary

Smiers and Van Schijndel first critically explore various markets where copyright is used and come to the conclusion that it would be better to abolish the system of copyright, as it does much more harm than it does good. In order to create a level playing field, they argue for the introduction of strong anti-trust legislation to avoid large players to remain or come into existence and dominate a certain market(segment). The essay is an imaginary exercise, where they explore various of the most common aspects we have come to think necessary for culture and knowledge to be produced most favourably. And they sketch an imaginary world where this can be true. We might not totally agree with it, but it provides provocative ideas for a possible free knowledge society.

[edit] Summary

They start with their observation that cultural giants control the production, distribution and marketing of many films, music, theater, musicals, literature, soap opera's, shows, plastic arts and design. These giants determine what we see, and what we don't. Copyright gives them this exclusive control. This, they argue, "undermines the freedom for everyone to communicate and each one's right to participate in the cultural life of his or her community, such as promised in the Universal Declaration of Human Rights, in favour of the unique right of some businesses and investors and their ideological and economical agendas they aim for."

They critically review the use of "intellectual property" and observe that the privatisation of knowledge and culture leads to several problems.

the originality of superstars and bestsellers is often very reduced
does an exclusive right such as copyright really stimulate authors to produce their work?
intellectual property is now globalised through the WTO-TRIPS agreement and presents several problems of its own
enforcing the IPR system has lead to the instauration of the so called "piracy" and subsequent criminalisation which casts doubts about the priorities we place for our criminal justice apparatus.
the emergence of the so called "creative industry"

Then they review alternative models that have been suggested and are worked on by others. The main alternatives that they go through are:

reforms of the copyright systems: term reduction, fair use and orphans
Peter Drahos' proposal of a global framework treaty based on human rights
Collective property
Creative Commons
the Convention for Biological Diversity in 1992
a system for public collection and fiscalisation, such as the common license (levies) proposed in the French Senate in December 2005
Digital Restrictions Management (DRM)
financing through ads, that they see as a rising model used by the industry

The goal is to establish a "cultural level playing field". They wonder how we could create a market without copyright protection. And if we do so, what would be the main goals of the newly to be designed system?

many more artists than in the current system should be able to earn a decent income derived from their work
there should be many owners of the means of production, distribution and promotion.
there should be a wide and freely available public domain of knowledge and artistic creativity
the audience shouldn't be overwhelmed by the marketing efforts for a few top-sales. It should instead be able to come in contact with a high diversity of cultural expressions and choose from that offer.

They need two parallel actions: 1) the complete abolition of the copyright system and 2) the implementation of strong anti-trust legislation. When these changes would be performed in parallel, a level playing field can be constructed that provides the framework for the above goals.

For the introduction of anti-trust legislation they mention various property regulations that should avoid situations in which one owner maintains or builds up a dominant position, such as through cross ownership (where one party controls production, distribution and marketing for example). In fact they already see some trends in the direction where copyright gets less importance in the industry's business models: the trend to use contract right and ads to secure income flows.

Of course they see threats of copycats who imitate without investing or paying anything to the original authors. There are several answers to this. The most important, that can in fact be observed in many markets: the advantage of the first-mover: the author or innovator comes to market first and has the advantage that possible imitators need time to first assess whether the work will be that successful that imitation would possibly be beneficial and second the time to copy the idea and work and get it into production and distribution. Another important factor to take into account is the reputation the original authors gain by being first. In many sectors this is is non-trivial factor. Other instruments to persuade imitators not to be free riders is the possibility of "shaming" and perform reputation damage.

Smiers and Van Schijndel foresee that in this imaginary world, bestsellers cannot exist any longer. Instead we will have a large number of wellsellers. And for those works that the market wouldn't provide incentive for to be produced, nor would authors have other motivations to produce them, but society would still need them, certain public or collective funds can be set up to subsidise its production.

[edit] Conclusions

Smiers and Van Schijndel summarise the main criticisms to copyright (and in part to patents) and courageously argue for the complete abolition of the copyright system. They argue that this should go hand in hand with the introduction of anti-trust legislation to avoid the existence of dominant parties who control important parts of market(s).

Unfortunately Smiers and Van Schijndel don't take into account the protection the copyright system offers to knowledge commons by the means of copyleft licensing. Copyleft licenses are used by contributors of many Free Software project and part of the Creative Commons licensed works (the ShareAlike option) and make use of copyright to allow all users to use and reuse the works under such license, at two conditions: 1) to attribute authorship and 2) to publish derivative works under the same copyleft license. Even if copyright would not exist, software might be freely copied, but access to the source code (of modified versions) would not be guaranteed (as is by most Free Software projects). The need for access to the source code is rising as more and more technology is used in the production of knowledge and cultural works. Imagine the editing of a movie if you don't have access to the footage.

Though their argument goes for the abolition of copyright, Smiers and Van Schijndel introduce the problems with patents. For the abolition of intellectual monopolies completely, the book Against Intellectual Monopolies, by Michele Boldrin and David Levine is recommended reading. These legal scholars have analysed the history of inventions from a critical legal perspective and review independent research in these fields. They come to the same conclusion as Smiers and Van Schijndel, to eliminate the copyright and patent systems as they currently exist.

Some people are afraid of loosing their superstars and bestsellers (see for example the reaction to an article they published in the IHT on "Imagine a world without copyright" by a group of people saying: "No copyright? No thanks", most artists, musicians and authors will agree that to make a living of copyrights is hardly possible for most and it certainly does not stimulate diversity.

Many individuals, not-for-profit organisations, small companies and entrepreneurs are fighting every day to change these systems of copyright and patent. In short we can distinguish four main strategies:

1) the complete abolition of copyright and patents

2) the strengthening of the public domain (such as shortening the copyright and patent terms, strenthening the public's right to quote, parody, bring orphan works to the public domain, ...)

3) the strengthening of the knowledge commons, build by communities of user-producers who license their contribution to the commons under a free license and can draw from each ones' contributions. Free Software is a very successful example, but also certain forms of Creative Commons and other free licensed cultural works. Copyleft (i.e. ShareAlike in Creative Commons) is the way to protect the commons from privatising modified works derived from such free knowledge commons.

4) the strengthening of anti-trust legislation to avoid domination of the marketplace by one or a few big players and instead assure a level playing field where new entrepreneurs can easily enter a particular market. Open Standards are an important technical instrument to strive for such level playing field.

Smiers and Van schijndel clearly argue for the first and fourth strategy. I think that contributes to a critical understanding of these issues, nevertheless we should not forget the other strategies. Especially building a free knowledge commons, as mentioned under point three, proves its usefulness every day, with the great number of works of art, technology, science and education that are already openly published under free licenses.

Wouter's Blog about Farewell to Copyright by Joost Smiers and Mariek van Schijndel