maandag 27 januari 2014

Copy Right or Copy Wrong?

I started out writing about writers and, while writing, almost wrote a book instead of a blog entry. The subject tends to become more complicated while you're at it.

Are the Anglo-Saxon descriptions Copyright Act, intellectual property rights or IP law misguiding? On the European continent similar Acts are in French called Droit d'Auteur, in Spanish Derechos de Autor and in German Urheberrecht, in Danish Loven om Ophavsret, in Dutch Auteurswet. Most of these terms translate to English as 'Authors Law' or 'Authors Rights'. So what?

Well, quite a lot in fact. Do the acts and international agreements do what they are supposed to do? And what should they do, to begin with? What and who are we protecting, from what and from whom? Is it regulating the right to copy or are we protecting the author?

This blog is all about concepts and ideas. Let us think about the creative arts. One or more persons together think up a new and exiting idea. But that is only the virtual aspect of it, an ephemeral concept. Ideas in themselves cannot be copied, somebody has to formulate the concept so as to convey the idea to other people. The spreading is not done by the reciever but by the creator! The formulation can take many shapes: in writing even if in e.g. musical or mathematical notation, in fabricating a scale model, a painting, a photograph, a (written or sung) song or a sculpture. It may even take the shape of wording: a description of the idea in a presentation.

Fabricating or shaping will often include third parties: a movie maker, a printer, play actors or some producer. So an idea has to be formulated in transferable form, by formulation, by explanation or by example. At that moment the concept is dislodged, disconnected, from the original creator, the 'author' if you will. The idea can now be transfered, copied, stored and changed in physical form. Books can be printed (=copied). Movies can be created, based on the book, and so can paintings. Songs can be performed, by many people, in many ways. Movies, pictures, songs and even text can be recreated in different modes, but so can prints on t-shirts and coffee mugs.

Now, who created the idea of the printed coffee mug? The songwriter? The movie producer? The graphic designer? The mug sales company? Where's the originality in that? A rather simple version is the author of a story. He or she can create the story all by himself or herself (Let's say He). Telling a story at the side of your childs bed is such an example, but not just any story. No, it is a story you make up at bedtime, which means it is new, original, creative. You may not even have made a manuscript, not to read from nor to save the story for the next day (or the next child).

What IP right would we want in place here? Do we want IP right in place here? As said, many people can be involved with the production and reproduction of 'the idea', the story in this case. Did we mention the producer, the printer, the mark-up and design team, the distributor, even legal representatives, sales managers, translators? The list is endless. The same is true for many creative items, such as stage plays, movies, music records.

To make things worse, these separate 'channels' may even relate to each other: the book becomes a play, the book becomes a movie, the movie becomes (again) a play, the movie becomes a tv series or the tv series leads to a movie..... Now, who created the idea of the movie? The writer? The movie producer? The sales rep? The mug sales company? Where's the originality in that? What IP right would we want in place here? Do we want IP right in place here?

So far we have focussed on the production and reproduction side of the story. That is how most laws have been set up: they protect the creator, and all of the chain after that. They are all (or at least most of these) covered by copyright or authors laws. The question we might ask is: are these all creative minds, people that could be called 'author'? Are all of them really worth protection by law? Or are they just living off the creative people, with added value to the creator no doubt, but without added value to the end consumer. In fact, as far as the consumer is concerned, the chain just adds costs.

In a time when reproduction and distribution is costly or at least not free of costs, people were needed as intermediairies, promoting books, music, movies and creators of other works of art. But while reproduction and distribution became cheaper and cheaper, due to better transport, lower print cost and the like, the end product did not drop in price. Because the man in the middle was a monopolist, he could hold on to his prices. And since all middle-men did the same they protected their own market. And he was protected by obtaining and thus owning the copyrights or author's rights, locking the creator in a firm grip.

The reader, listener, viewer in the meantime is well prepared to pay, but in line with the price of the carrier, being radio, vinyl, paper, tape and later digital disk (CD). Even though they are not prepared to pay any price, they were forced to because they had no alternative. Until the recordable cassette tape came along, and pirate radio stations. Both for radio/audio and tv/video. These movements are proof that consumers are fed up with paying excessive amounts of money to in-betweens who add nothing but copying and transport, notwithstanding claims of financial risk, subsidising young start-ups, broad range of choice.

The incumbents, the production and distribution companies, the owners of the copyrights (that's not the creators), and the governmental establishment sat back, relaxed, and pointed to existing laws. Not aware of the oncoming tsunami of technologies that would, in fact, reduce reproduction and distribution prices to rubble, to zero. This was to become a reality for many forms of the creative arts, with the exception of physical objects such as paintings and statues. It also makes it at last economical for any upstart to get funding or sell the result of their efforts, incompatible with the old model where they and their copyrights are a sellable object for the distribution companies.

Charlie McCreevy, EU Commissioner for the Internal Market of the EC/EU, states in "Creative Content in a European Digital Single Market" (20091022), "Copyright is the basis for creativity". Indeed The Right To Copy does stimulate or promote the creative industry. The copyright owners, often publishers, producers or distributors, use their legal powers to stiffen competition and prevent derivatives. Thanks to the mobile and smart phone industry we know that lawsuits can go to extreme and absurd details, based on these legal constructions. No, these laws do the opposite of what there are supposed to do. Or what politicians and public servants claim what there are supposed to do.

Creators want, no, need other creator's work to build more, better, newer, ever more exiting things. If building on existing work is prohibited by law, we end the evolution of our creative powers. I do not claim a free for all, but a model of checks and balances with the rightful remunerations and rights for the creators plus a right to compensation for services rendered for the rest of the financial value chain and, on the other hand, the right for the world to build upon earlier creative ideas and concepts.

What is a reasonable model? Pure copying, legal or not, is no model that will promote creativity for many people. And it is not to be expected that creators, writers, musicians of all breeds will want to work for free. Creators should be protected as such, but they are not by present law. And as long as people add real creativity, singers singing a song, play acting out a play, they could be protected by their part of the author's law. Or should be.

But exclude all those that do not add to the creative value chain (which is not the financial value chain): the copiers, the transporters, the managers. They should be paid for their efforts of course, but not on a copyrights law basis. Copyrights should never be transferable and only benefit the original creator. Never a business partner nor a family member.

I should not get into the nitty-gritty of the concept because this would turn into a book or a lecture.

The idea, in short, is that copyrights law, IP or author's law should protect the 'author' only and those in the creative value chain that could be considered authors as well, such as performers and co-authors. There is, in these times and ages, no need to protect copyers, managers, distributors in any other way than through regular civic business laws. That means that author's right is not alienable or transferable. They are not.

The logical conjecture leads to the conclusion that author's rights should also finish at the demise of the author, unless there are other creative rights holders to the 'product', book, music or song, movie and so on. Not just decades after the first production and even 60, 70 or even 100 years after his/her death. Why? Because it silences creative competition, leaving the world without.

Make sure the non-creative part of the financial value chain loses their copyrights by giving these back to the creator(s). They are well off organising dance and music parties, printing books, setting up stage plays and filming movies. Open up the overprotective copyright laws and make sure the creator gets it all, for some time at least. Please leave behind a better worlds for our children. It's not the competition I care about, it's the evolution.

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