Repertoire and artistic property

Authors' rights in the creative economy. Towards a legal framework

Ellen Loots
Erasmus Universiteit Rotterdam

In the so-called creative economy, innovation and creativity are considered important sources of post-industrial growth, and human capital assets and knowledge its crucial ingredients. That is why numerous developed and developing economies recognize the intellectual property regime as a pillar for growth policy.¹ At the same time, the ‘digital revolution’ urges policy-makers and academics to rethink the form and function of authors’ rights.² Production and consumption of cultural goods have become largely intertwined, and many among us are simultaneously users and creators of potentially copyright protected works. The swift developments in digitization at a global scale can be a double-edged sword. On the one hand, the current era is characterized by an intense proliferation of diverse creative content and democratic opportunities for distribution. On the other hand, creative works have become ‘fragile’, as they are easily subject to piracy, imitation and other violations of authors’ rights. The aim of this text is to deepen the understanding of moral rights and copyright and some of the complexity of the legal regimes today, in relation to the dynamics of the creative industries. Hence, only by recognizing and making explicit how creative industries operate, the protection of authors can be improved.

Why is the optimization of authors’ rights systems so complex?

Despite the central roles authors’ rights systems have been credited in cultural consumption, in the protection of creators, and even in the growth of the economy, they are far from picture-perfect. It seems that the problems that a well-functioning present-day authors’ rights system needs to address are constantly shifting, due to the perpetual motion with which creative content and its protection are confronted. Several reasons why the optimization of authors’ rights systems is such a conundrum can come to mind.

First, authors’ rights deal with the governance of valuable resources. The governing of authors’ rights reflects a ‘complex judicial reality, because it tries to synthesise the claims of the different actors of the process of creation and reception of works, namely the author, the public, and the exploiter’.³ An appropriate authors’ rights system needs to balance these diverging interests in such a way that it maximizes what economists refer to as ‘social welfare’. It may not come as a surprise then, that next to policymakers, also legal experts, economists and industry insiders are involved in continuously optimizing authors’ rights policies.

A second explanation for the complexity of an authors’ rights system and the diffculties that its optimization incur, relates to its path-dependency and long and strong traditions that differ fundamentally across jurisdictions. In continental Europe, the tradition of authors’ rights is deeply embedded within humanist principles and Enlightment ideas, often traced to Immanuel Kant, who defended the rights of an artist not because he had created objects for which a compensation was due, but because these creations embodied or extended his personality.⁴ Also, the removal of the sovereign’s control over artistic production was a major motivation for the coming-into-being of a legal framework for authors’ rights, particularly in France where today still ‘le droit moral’ is resilient. In the United Kingdom, copyright had other purposes. During the industrial revolution, the Statute of Anne (enacted in 1710) was meant to break the booksellers’ monopoly and to encourage the education of civilians.⁵ Even today these fundamentally distinct conceptual baselines of authors’ rights leave an imprint in the systems of Civil Law and Common Law countries. In the former, the law generally articulates the ‘moral rights’ doctrine as serving the ‘personality’ of the author and protects his nonpecuniary interests.⁶ In contrast, in the U.S. and United Kingdom copyright inscribes in a tradition of intellectual property protection and thus serves the economic interests of copyright holders but also the social good.⁷ These national and cultural differences form clear obstacles when it comes to developing supranational regulations. For example, the resistance of the U.S. to moral rights was one of the reasons why for over a century it did not join the 1886 Berne Convention for the Protection of Literary and Artistic Works, despite its international importance and widespread acceptance.⁸ But also within European Union borders, the harmonization campaign over the copyright legislations of Member States experiences difficulties as a consequence of discrepancies among national laws.⁹

A third obstacle to rights’ optimization relates to the swift developments of production, distribution and consumption methods in the creative industries at large. One of the sources of these changes relates to digitization, which clearly holds implications for the distribution of content, for access and the prevention of unauthorized use, and for the trading infrastructure for licenses (i.c. collecting societies).¹⁰ But next to technological innovations, the creative industries have also undergone structural changes that inflict the relationships between creators, intermediates and consumers. In the remainder, we expose how such changes may call for adjustments of authors’ legal protection schemes and we refer to two recent—not uncontroversial— academic contributions that challenge the current conceptions of moral rights and copyright, respectively.

Moral rights

Moral rights refer to the inalienable rights held by an author or artist¹¹ that permit his control over the use and dissemination of his work, independently of any pecuniary reward. Moral rights preserve the personal and reputational value of an artwork and the artist from mistreatment, also long after the work has been completed. Underlying moral rights is the idea that the artwork and the artist are intricately connected: an artistic creation is not just a product that can be traded, but also a reflection of the author’s creativity, identity and personality.¹² Notwithstanding this fairly romantic baseline, a major purpose of moral rights is to shelter the interests of the author.¹³ Most authors, as artisans, presumably feel some attachment to their work, and harm or anguish when they see it being abused, mutilated or mocked. Also, authors may derive a reputation from the creative signature they lay in their works, which would be harmed or at least questioned if a work, due to alteration, would deviate from the personal style that is associated with them.¹⁴

A number of protections fall under the moral rights umbrella. Many jurisdictions recognize the rights of disclosure, withdrawal, attribution or paternity, and integrity. Under the right of disclosure, an author can decide at which point he wants to share his work with the public. Under the right of withdrawal, he can decide to withdraw his work, even after it has left his hands. Under the right of attribution, the author can claim that his name is connected with his work displayed or distributed. Under the right of integrity, the author can prevent alterations to his work.

Next to technological innovations, the creative industries have also undergone structural changes that inflict the relationships between creators, intermediates and consumers.

The right of integrity can be considered the more prominent and controversial. It permits the author to prohibit significant modification of his creation. An illustrative case is that of a massive mobile sculpture by Alexander Calder in Pittsburgh Airport. The airport authorities decided to solder the elements to prevent them from moving and to repaint the sculpture in green and gold, colours that would accord with their brand and interiors. Despite Calder’s objections, it took over two decades before the airport agreed to restore the object in its original condition. An author could also invoke the right of integrity to prevent an unfavourable presentation of his work, what De Chirico did when he found that his earlier paintings were overrepresented in a retrospective exhibition at the 1955 Biennale of Venice. ¹⁵

Albeit the moral rights regime is premised on the idea that creators have certain rights in the integrity of their work, according to some observers, moral rights also serve to protect the nonpecuniary interests of the public. One such source of public interest lies in that great works of art become common reference points or icons within a community’s culture. Likewise, a work of art may represent an aesthetic innovation or a social critique or ideal that is valuable to a society at large.¹⁶

Even though they are conceived of as personal civil rights and even fundamental human rights independent of an author’s economic rights, several experts claim that moral rights do have a commercial character as well, due to their ability to vindicate artists’ pecuniary interests.¹⁷ Hypothetically, each of an author’s works can be considered as a powerful advertisement for his other works, and the mutilation of one work can, by damaging the author’s reputation, lead to a decline in the value of other works. The moral rights regime, and in particular the right of integrity, can prevent the depreciation of the value of artworks that would come forth of formal alterations. By protecting authors’ reputations, moral rights indirectly serve to protect the interests of other people and institutions involved as well. For example in the visual arts, intermediates such as gallerists and museums have a strong stake in the protection of the integrity (thus financial value) of an art work, as do collectors and other owners.

Moral rights, reputation and trademark in the contemporary arts

In concurrent intermediated arts markets, is it sustainable to defend that a bundle of authors’ interests unlike any other should be protected under a distinctive rights regime? According to Xiyin Tang, an intellectual property associate and lecturer at Yale University, it is hard to retain to a special status or treatment for art objects compared with pure commodity objects because many of contemporary art today is industrially fabricated or assistant-produced.¹⁸ Drawing upon examples from the fine arts and the practices of mega-celebrity artists such as Andy Warhol, Damien Hirst, Jeff Koons and Richard Prince, Tang underscores that, ‘because works of art have become increasingly mechanized in their production, the artist’s brand, or his signature, has replaced the artist’s hand (via brushstroke, for example) as the foremost signifier of a work’s value and meaning’.¹⁹ Tang proposes to shift the conversation about moral rights in contemporary arts from one that underwrites the sentimental connection between the artist and his work to one that is fully aware of the function of an artist’s reputation in his career development. As she points out, ‘reputation is what informs our understanding of new work that might otherwise remain contextless and inexplicable, and it is also what art buyers and sellers are implicitly trading off (...)’.²⁰ Yet, so she argues, precisely because art has turned into a commodity object, a society needs moral rights to protect her authors’ economic interests. As copyright principally governs reproductions, Tang favours a separate regime for moral rights, because,

moral rights, much like trademark law (...), can instead regulate a set of distinctly economic rights—both by decreasing search costs for art buyers and the art-vie wing public, and by giving artists an incentive to create without having other actors unfairly reap the benefits of their goodwill (which, in turn, incentivizes the creation of a consistent, quality body of work).²¹

Thus, introducing the ‘trademark’ notion in the conceptual framework of authors’ rights is not so odd and would provoke a shift of the conversation from one exclusively about authors’ intellectual and pecuniary interests to a broader focus on protecting consumers and the art market via truthful source indication, and as such serve a society’s social welfare function.

Copyright

Copyright law permits authors to reserve in the expressive works they create a continuing property right. The conventional justification for copyright law is that ‘it transforms what would otherwise be a public good (...) into a private good, and in so doing creates stronger incentives for authors to create new works’.²² Indeed, copyright law allows an author to establish a property right in all copies made, including the original. Furthermore, copyright law permits an author to exert a substantial influence on the quality of all copies made and as such to protect himself substantially against any harm he may suffer from any alteration of his work.²³

The problems that a well-functioning present-day authors’ rights system needs to address are constantly shifting, due to the perpetual motion with which creative content and its protection are confronted.

Copyright scholars generally conceive of copyright’s impact on the production of cultural goods in two ways. First, copyright law creates the conditions for more widespread access to the products of a common culture. Particularly, it enables intermediaries such as publishers, record labels, libraries, broadcasters, performing rights organizations and also contemporary variants such as search engines, to distribute cultural works for wider consumption.²⁴ It does so by supplying to authors and intermediaries incentives for cultural production. Second, as an instrument that recognizes intellectual property, copyright has since its origin been a means to guarantee the free circulation of ideas in society.²⁵ Although it is a form of state intervention, by establishing property rights where they would otherwise not exist, copyright enables the market to work efficiently.²⁶ Taken together, copyright acts as a catalyst for cultural progress, as it accelerates cultural production in properly functioning copyright markets.

According to cultural economists, the main challenge of copyright law is finding an appropriate balance between the interests of different stakeholders.²⁷ Economists would argue that an effective, rational copyright policy should trade off the interests of the rights holders against those of consumers: rights holders would seek to maximize returns, whereas consumers would benefit from maximum access to the existing stock of copyright works at minimum cost.²⁸ Furthermore, people have a right to information. Yet, there is a vital tension between copyright and the public’s right to information which is only increasing in this era of digitization where many works are easily accessible and non-excludable.²⁹ The optimal degree of copyright protection would ‘balance the benefits of encouraging the creation of new works by ensuring economic returns to the creator, and the cost of restricting public access to the work’.³⁰ In a similar vein, the law must strike a balance ‘between the protection of the author and the costs that imposes on other authors, such as search costs for novel means of expression and of obtaining permission to use the copyrighted works of others’.³¹ In this respect, copyright can have both a positive and negative impact on creativity; the former by incentivizing authors, and the latter by imposing constraints on novel creations.

Copyright, incentives and property in today's creative industries

Within the contemporary debates on copyright and intellectual property, Julie Cohen, professor in Law and Technology at Georgetown University, Washington DC, recognizes two major misconceptions of the baseline of copyright that hinder the development of an effective copyright law and policy. She urges to take a more accurate account of, first, the economic incentives that copyright provides and second, to think about property in a different way.

The swift developments in digitization at a global scale can be a double-edged sword. On the one hand, the current era is characterized by an intense proliferation of diverse creative content and democratic opportunities for distribution. On the other hand, creative works have become ‘fragile’, as they are easily subject to piracy, imitation and other violations of authors’ rights.

Conventional wisdom holds that copyright creates incentives to authors, which leads to the fulfilment of the ultimate goal of copyright, namely the promotion of cultural production, or cultural progress. While this ‘(...) incentives-for-authors formulation of copyright’s purpose is so deeply ingrained in our discourse and our thought processes that it is astonishingly hard to avoid invoking it (...)’, Cohen reserves some fundamental objections against this rationale.³² Hence, it has utterly been demonstrated that copyright itself plays very little role in motivating creative work.³³ Therefore, holding on to the incentives-for-authors rationale impedes a clear assessment of copyright’s true economic and cultural functions in today’s information society. Cohen draws on the example of capital-intensive industries like the movie industry to highlight another role of copyright: ‘the purpose for copyright is to enable the provision of capital and organization so that creative work may be exploited’.³⁴ Furthermore, an inappropriate conceptualization of ‘property’ casts a shadow over the development of a well-functioning copyright regulation. Conceiving of the property of a creative work analogous to the property of land, may be an outdated mode leading to coordination problems. Instead, a contemporary copyright system could make the distinction between the authorship of and the control over information resources and as such facilitate both ‘coordination’ and ‘combination’.³⁵ Taking stock of the above, Cohen proposes to step away from the ‘incentives-for-authors’ story that generally underlies copyright issues and instead consider an ‘incentives-for-capital’ baseline, which is more tailored to how creative industries today operate. The copyright system has too long subscribed a ‘personality-centered (...) property paradigm’, while the focus should be on ‘how authorial interests ought to be recognized and protected within a post-industrial property system organized around resource coordination’.³⁶

Conclusion

Authors’ rights (comprising moral rights and copyright) are all but a recent phenomenon. Due to the traditions that many nations have in authors’ rights legislation, current systems may not be all too adapted to accord to ongoing developments in the production of cultural goods. Compared with the dynamics that typify contemporary creative production, authors’ rights systems are unwieldy, particularly when it comes to harmonizing cross-border differences. Even though ‘meaningful reforms in the governance of valuable resources will always lag well behind implementation of the initial coordination mechanism, and may be doomed to remain perpetually a work in progress’,³⁷ every now and then the tortoise still catches up with the hare. Regardless, several authors have pointed to the fundamental role that misconceptions play, leading to malfunctions of the system.

One misconception relates to the presumed discrepancy between the artistic and commercial values of artworks and the idea that the regulation of both could and should be settled entirely separately. Although legislation (for example the Berne convention) puts forward that moral rights are independent of the author’s economic rights, this characterization has limitations. Hence, moral rights, and in particular the integrity right, can serve to protect the market value of original works and the pecuniary and nonpecuniary interests of authors and other persons as well.³⁸

Furthermore, the author-centricity that underlies the protection by law may be an outdated perspective that eventually does not benefit the author too much. As Richard Caves already stipulated in 2000, many creative activities can be conceived of as ‘contracts between art and commerce’, and the involvement of manifold intermediate organizations that support the production, distribution and consumption of cultural goods should not be granted a too moderate of a role in these activities.³⁹ By trading the idea of the ‘brushstroke’ of an author by that of his ‘reputation’, which radiates to all involved in the production and dissemination of his work, a contemporary moral rights regime would not just abolish the artificial distinction between arts and commerce, but could also craft appropriate incentives for the author and others involved.⁴⁰ Similarly, a shift in copyright law from an incentives-for-authors scheme to an incentives-for-capital scheme, could better account for the peculiarities and demands of mediated markets in the creative industries ⁴¹

A third misconception that is being left relates to law’s sturdy distinctions between authors vis-à-vis users, and ideas vis-à-vis expressions. In our information society with its popular distribution platforms, both may be hard to hold on to. The creative output of authors does not originate in a vacuum, but is often a ‘remix’, developed by authors who are situated in their proper communities and cultures. According to Cohen, ‘works of mass culture so often supply the raw material for new creative efforts because that is what users see every day’.⁴² Therefore, the ideal copyright regime, ‘as a regime of rights designed with the immediate purpose of incentivizing the intermediation and privatization of culture while minimizing cultural obstruction’, should take into account the ‘cumulative creativity of situated users’ in order to minimize the adverse effects of its ‘obstructive function’.⁴³ Even though authors’ rights herald to celebrate authors— also those who are not superstars—, when it does not catch up with the turbulence in the environment, society runs the risk of sustaining a system that ‘regulates authors to the economic and political margins of the intellectual property system’.⁴⁴

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Ellen Loots

is an assistant professor in cultural economics and entrepreneurship at Erasmus University Rotterdam. Previously, she lectured at Maastricht and Groningen University and worked in the visual arts field in Belgium.

loots@eshcc.eur.nl

Footnotes