The difficult balance of intellectual property


Lobbyists press back the release dates of creative output to the commons with the argument that intellectual output needs to be incentivised.  The extension of copyrights, while producing windfall gains for the holders of copyrights on material produced long ago, does little for the artists of that material.

Intellectual property law must strike a difficult balance.  There is public benefit from the widest possible access to and use of creative output.  There is also a public interest in ensuring that artists and their publishers have incentives to produce new work.

There are few certainties in judging the effects of such policies, but there are some. John Lennon will never sing another song.  James Joyce will never publish another novel (thank goodness), and Picasso will never pick up his brush again.  No financial incentives can now affect the quality or quantity of their work.

Yet the US Congress and the European Commission have been much exercised in increasing the rights of the dead, or those whose creative years are long behind them.  The Sonny Bono Copyright Act of 1998 extended the term of American copyright in written material and was quickly followed in Europe.  Thanks to the efforts of Mr Bono and my doctors, copyright in my prize essay for excellence in Scottish literature will probably endure into the twenty-second century.  More recent pressure to extend copyright terms has focussed on sound recordings.  While this plan has been rejected several times, pressure from interest groups is relentless.

Of course, the lobbyists are not really representing the great poetry circle in the sky.  The principal beneficiaries of these measures are organisations that are very much alive, even if some are struggling to remain so:  organisations like EMI/Citigroup, which controls most British popular music recordings of the 1960s, and the Disney Corporation, whose exclusive rights to Walt’s characters were about to expire when Sonny Bono came to the rescue.  The focus of current attention, however, is art.

Droit de suite gives an artist who has sold his work the right to share the proceeds of any subsequent sale, an idea which seems odd when applied to cars, or clothes, or even books.  It is unjust that van Gogh received so little financial reward or public recognition in his short lifetime, but we cannot make it up to him now.

Still, the resale right was adopted in France, then Germany; the European Union was subsequently persuaded to take the idea on board.  The winning argument was that since France had foolishly implemented this policy unilaterally, French auctioneers would suffer a competitive disadvantage unless everyone else adopted it as well.  They do:  Paris is a world centre for painters, for art museums, but not for art sales.  Britain,  by some distance Europe’s largest art market, managed to secure a derogation for ten years in respect of the work of artists who are no longer alive.  But these years are about to run out.

The argument that France would suffer by unilateral action does, of course, apply equally to the European Union as a whole.  The initial directive required the Commission to negotiate similar agreements globally and to report on the effects of its policy within ten years of  implementation.  No report has appeared and no such agreements have been made – or are likely to be, since there is no flicker of interest in droit de suite in the US, Switzerland or China.

It we want to support new creative endeavour, it is easy to think of more effective measures.  It was my vanity, the spur of the prize, and the encouragement of Mr Steel that prompted me to write that Scottish essay in 1959, not the prospect of rewards to my distant heirs.  A similar mix of motives leads me to write this article.  Public support of artists should focus on recognition, immediate financial recompense, and a supportive political and cultural environment.

It is time to distinguish sharply between the public interest in stimulating new creative work and the private interest in squeezing more profit from work that was created long ago.   We do not encourage originality by conferring windfall gains on the Disney Corporation, EMI, Citigroup, and the Picasso estate.  Little understanding of either culture or economics is required to recognise that new ideas in art, music and literature will come from the living, not the dead.

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