Future of Copyright Roundtable at Birkbeck

On the 19th and 20th of last month I attended a roundtable organised by the AHRC Copyright Research Network and the Public Programmes Department of Tate Modern under the grand title “Future of Copyright and the Regulation of Creative Practice”. Of the approximately 20 participants there was a fairly even mix of artists, academics and activitists. I had been tasked with providing a write-up of the first session which dealt which focused on creative concepts and ideologies. Below is the result of my efforts to distill the wide-ranging and lively debate which took place.

Roundtable Discussions on the Future of Copyright and the Regulation of Creative Practice: Session 1

The first roundtable aimed to address issues related to creative concepts and ideologies as they have interacted with copyright law, before moving on to address future scenarios for creative practice in the cultural economy. In the event the majority of time was spent on the first of these. The discussion, free flowing as it was, can be distilled around a few key questions.

1. Does copyright actually impact, positively or negatively, on most ‘artists’ in their everyday working lives?

The main point that came across here was that there could be no answer in general: any answer would have to depend on several factors specific to an artist and their work.

Firstly, it would depend on what area an artist works in, particularly whether the artist produces reproducible works (film, music etc) vs. non-reproducible (sculpture, conceptual, painting etc). In general, non-reproducible artists are less affected, both positively and negatively, by copyright than those working with reproducible works, primarily because of the different funding structure associated with different types of creative work.

Secondly, it would depend on the ‘status’ of the artist, in particular whether the artist was ‘mainstream’ or not (i.e. commercially successful vs. not). Commercially successful artists, it was agreed, were much more likely both to be using copyright and to be the impinged on by copyright (e.g. sued for infringement). This point could be seen to find indirect support in a point made by several participants who mentioned by that the estates of dead (and successful) artists often seemed to more aggressive with regard to copyright than most living artists.

It was agreed that a broad spectrum of artists were interested in moral rights, particularly integrity and attribution. All participants agreed that attribution was extremely important though substantial doubts were expressed as to whether copyright was necessary (of sufficient) to ensure attribution — there seemed to be many communities, for example that of academia, in which very strong attribution rights were enforced without any recourse to copyright.

2. What conception of authorship do we have and how does this relate to copyright?

The first issue to be addressed under this heading was the question of originality. Several participants questioned whether this was a useful concept and strongly rejected what they perceived as copyright’s enforcement of an unholy trinity of subjectivity, authorship and individualism. Many emphasized the relationship of authorship both to originality and the romantic conception of the ‘creator’.

It was agreed that the concept is fundamental to copyright law — at least in a formal sense. For if one were to do away with individual (or at least group delimitable) originality (and therefore authorship) one would need to situate creativity at the level of a society or culture — something to which it is difficult to attach a private ‘property’ right.

Attention then turned to the question of how the law determines who are authors. Examples were given of the way different cultural proclivities are manifested in copyright laws with piano works receiving special mention in Polish law and snake charmers in the Indian statutes. Film was also discussed as an example where, because of the multiplicity of participants, the question of determining ‘authorship’ (and therefore copyright) is especially fraught with difficulty (of course, as in most other areas of copyright, in reality this initial assignment is of limited importance since these rights will usually have been pre-assigned via contract to those who actually provide the capital for the production of the work).

The Spandau Ballet case was discussed as providing another example of the interaction of the authorial concept with the law. Here, the courts were forced to explicitly decide the authorship, and therefore the distribution of royalties, in the recordings under dispute. Did the production of an improvised 30 second saxophone solo on a 3 minute track convey authorship or was it simply part of a very high quality performance? The courts here, after listening to extensive expert musicological evidence, chose the second option and reserved authorship, and the associated royalties, to Gary Kemp alone.

Overall, while it is by no means clear that the law does a perfect, or even very good, job of identifying ‘creators’ and assigning authorship, it probably does as well as any other approach.

3. What is copyright about?

Specifically (none of these being exclusive):

  1. Is it about recognizing novelty and originality?
  2. Is it about remuneration and incentivization (direct or indirect)?
  3. Is is about control be that corporate or artistic?

On the first item, that is its role in recognizing novelty and originality, copyright was felt to be rather marginal. After all copyright is given both to the novelist and to the stenographer who simply copies down the words of another. In general the level of ‘originality’ needed to obtain a copyright is very low and so any recognition afforded by copyright per se must be equally meagre.

Coming to the other two items, several participants emphasized that copyright isn’t primarily about creativity but rather about commercial activity — distributing knowledge rather than creating knowledge. Clearly some copyrights are very valuable and result in substantial income to their owners. That said, some disputed the important of such income in actually ‘incentivizing’ creativity (or at least creativity that had cultural value).

As discussed above, the importance of copyright to ‘creators’ themselves varies greatly. It was also pointed out that the level of control provided via a right of integrity varied very greatly by jurisdiction. Many participants, especially artists, expressed concerned about the (over-)usage of copyright by corporations, particularly large multinationals, to control culture and to stifle creative reuse and critique. At the same time, as already noted, there was widespread interest in the ability of individual ‘creators’ to avail themselves of the right of integrity.

4. Is copyright becoming obsolete?

Those who answered ‘yes’ to this emphasized three main points. First, that because of digitzation there will be no effective way to prevent massive unauthorized usage of works with the ultimate result that copyright becomes ineffective and therefore irrelevant. Second, that ‘de-centred’, network, models of ‘creative production’ to which copyright is poorly adapted would become predominant. Thirdly, that reductions in the costs of producing, and distributing, information goods would (a) make copyright income much less important in funding creative activity (b) result in an increase in the production of works which would reduce the market power afforded by copyright therefore making copyright a less important source of income.

Against these points several arguments were put forward. The most prominent, which was supported particularly keenly by those lawyers present, was that copyright will be able adapt to both cultural and technological change as evidenced by its adaptation in the past. Scepticism was expressed regarding the view that it was impossible for unauthorised copying to be restricted — though it was agreed that imposing operable restrictions might have very large associated costs. It was also pointed out that there were many areas where digitization would not impact on the exercise of the rights afforded by copyright (or related rights). Examples include public performance as well as the use of copyrighted work by easily identifiable (and sue-able) entities such as large corporations.

Regarding changes in the mode of production (e.g. the use of ‘network’ models) it was argued that though in some cases, e.g. Wikipedia, these changes might make copyright less important (except in its role of enforcing recursive ‘copyleft’ provisions), in others it might well have the opposite effect since copyright could provide a tool with which to coordinate activity (and payment) among the many participants.

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