Creativity at centre stage


Who really benefits from copyright laws? “Artists for strong copyright” seem not to understand for whose interests they are campaigning.

In common with Nana Mouskouri, Iron Maiden, Tom Jones and die Fantastischen Vier, I am a creative person, providing original material for the entertainment and edification of the citizens of the European Union. Unlike my fellow artists, who recently successfully petitioned the European Parliament under the banner of “artists for strong copyright”, I think that the draft directive they commented on will damage, not help, our interests.

Like die Fantastischen Vier and other artists, my first concern is to propagate my ideas as widely as possible. My second concern is to get credit for these ideas. My third objective is to be well paid for them. So why is it that the proposed directive has at its heart the obligation to allow a right “to prohibit direct or indirect, temporary or permanent reproduction by any means and in any form”, when prohibiting reproduction is exactly the opposite of what we creatives want to achieve? The answer is that the law of intellectual property has been hijacked by a group of producer interests which want to build commercial monopolies in books, journals, records and software on the back of their exclusive access to original talent.

Now I doubt if Iron Maiden had thought deeply about the future of the knowledge economy when their agent or publisher persuaded them to sign a petition headed “take a stand for creativity, take a stand for copyright.” They were probably told that dissemination of their work depended on a strong publishing industry. And to a degree this is right. But only to a degree, and certainly not to such a degree that the interests of creative talent and its publishers are identical.

Publishers may tell us that the distribution of the songs of Iron Maiden, or of my nearly completed and nearly unreadable monograph, depend on their ability to protect their copyright. But this is largely wrong. Iron Maiden is in the same position as Jane Austen and Charles Dickens, whose books are widely available despite the absence of copyright, because the demand for their output is large. And my monograph does not gain anything from copyright because the demand for it is small and in practice no-one is going to copy it. My problem is to find any publisher at all and if I succeed in that I can be entirely certain that no-one else will bother.

The directive attempts to protect rightsholders, rather than creative people. The production of scholarly journals emphasises the distinction. When you submit an article to an academic journal, the publisher requires you to assign the copyright, and the rightsholder takes over from the author. The main producers of academic articles are universities, and the main users of academic articles are universities. The net effect of the system is that universities pay large sums to publishers for severely restricted rights to use the material they themselves have created. Indeed under the proposed directive, the only way to avoid paying for a copy of an article you yourself have written is to write it again.

It is difficult to fathom how this system represents “a stand for creativity.” It is true that in its absence there would be fewer academic journals. But almost everyone I know in the university world thinks that would be a good thing. Robert Maxwell led the exploitation of this system. He launched dozens of journals. Some were successful. They became the leading publications in their field, and all universities had to subscribe, whatever the cost. Most failed, and continued to publish second rate material. The result has been a proliferation of journals, many of them publishing only bad articles, to the profit of no-one but the publisher. And this has reinforced the publish or perish culture, in which it is the number rather than the quality of academic publications which counts.

These anomalies and distortions could be reduced if universities retained copyright in the work of their employees, rather than allowing them to give it away to publishers. If there is to be a copyright licensing agency it would surely be more sensible if universities licensed publishers to use the material produced in universities rather than – as at present – publishers licensing universities to use the material produced in universities.

And this would be the beginning of a system genuinely aimed at fostering creativity. It is important to creative people – Iron Maiden, Jane Austen, and John Kay – that they should be able to insist that their work appears only in ways which respect the integrity of the original (the so-called moral right of authors). It is important to creative people that they should be able to disseminate their work as widely as possible and in the ways that they think best. It is important to creative people that they should be rewarded for the work they do. The right of their publisher to prevent unauthorised reproduction – which is at the heart of the copyright directive – achieves these objects incidentally at best, and often conflicts with them.

These issues really matter in a knowledge economy and an information age. We need to encourage the widest possible dissemination of new ideas and innovations and rewards those who produce them in direct relation to the originality and economic importance of these ideas and innovations. A system of intellectual property that achieves this will be based, not on a legal analysis of rights, but an economic analysis of costs and benefits. The basic principle should be open reproduction for reasonable reward. One of the first things the new European Commission should do is rethink the copyright directive from scratch. And perhaps there might even be an advantage in having a professor of economics as its President.

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