The local level
The public domain and cultural heritage
Without being romantic, we may observe that in many parts of the world artistic creations, past and present, belong to the commons. Individuals may envy each other's creations, or, at the other end of the scale, someone may be considered a better artist and respected accordingly. However, the work of predecessors and contemporaries is always available for rewriting and reinterpretation. Creation in such societies is an ongoing process of adaptation. Artistic expression is often considered the external manifestation of inner spiritual life.
Roland Barthes declared that, in what he called ethnographic societies,
the responsibility for a narrative is never assumed by a person, but by a mediator, shaman or relator whose 'performance' - the mastery of the narrative code - may possibly be admired but never his 'genius'.2
The author is a modern figure. Of course, societies are constantly evolving and the position of artists and their work will vary accordingly. During the last decades, across the world, the relation between artists and traditional cultural life has changed in character and become less direct. Tradition has become individualised and artists turned into personalities.
Private appropriation within local communities
Increasingly, in non-Western societies, local artists appropriate an artistic idea, a melody or a cultural development originating from the collective tradition, and exploit it for their own commercial interests. This individual pretension to a 'right' begins the process of excluding others from those common cultural resources. With this transformation, the concept of copyright is quickly introduced. This phenomenon should not be a reason for amazement. The modern body of thought that supposes copyright exists for artists to earn money does not end at the borders of the Western world. One may wonder what kind of tensions this causes in local communities. In any case, once the private appropriation of cultural resources has started, accompanied by the introduction of the notion of copyright, societies are never the same again.
What has been described here in a nutshell covers huge social transformations that have been taking place all over the world for the last couple of decades, but have recently become speedier. There is a serious need for analysis of those processes in which radical changes of cultures are at stake. They appear to be automatic and self-evident developments that do not demand specific critical attention. And that is the way it goes, with copyright as the ultimate winner.
But there is no certainty that everyone is content with such transformations. We do not know much about the tensions they bring about in different parts of the non-Western world. Are there counter-movements that claim the public cultural domain should not be undermined? What are their arguments? Where do they think a new balance should be found between the commons in the cultural field and the right of artists to make a living from their work? These are the questions discussed by Copy/South, a global network (www.copysouth.org) that deals with the consequences of the Western copyright system for non-Western countries.
Local artists and local record companies
Let us consider a typical situation. A local record company produces cassettes or CDs of local artists. In a bigger country such a record company may also be more widely active in the distribution of its music or videos on a local as well as regional scale. Let us also assume that the system of copyright does not yet exist in this situation. What kinds of agreement between artists and producers can be found in different societies? Are there any agreements at all? Does it deliver an income to artists or mainly promotion that may generate performances? What are the optimal conditions that make artists, as well as producers and distributors in specific situations, content? What happens when an artist feels that he or she has been ill-treated? Would a well-regulated system of copyright give the artist a stronger position? When does the claim arise that another artist must refrain from using another's melody?
From a Western perspective one would be inclined to think that intellectual property rights would really assist artists. But there are several reasons for doubt. The state must be strong enough to provide legitimacy to royalty and rights collecting societies and support their practical operations with an effective system of sanctions. This is not the case everywhere. Moreover, in the West, there is a notion of a creator or performer who can easily be indicated and this distinction is the building block for the present copyright system. In most cultures such a distinction does not exist. A third point is that most artists in the Western world do not profit from the existence of a copyright system; only a tiny minority gets a substantial income from this rights system. Why should this be different in parts of the world where this system has only recently been introduced? Fourth, the present practice of copyright rather aggressively privatises complete fields of creativity and knowledge development. This is disadvantageous for artists' future processes of creating and performing.
Considering all those facts, one may wonder whether artists are not better off when they negotiate directly with producers and distributors and, if necessary, associate themselves in unions to make general agreements. Are there any examples of better practices that indicate how a satisfying balance can be reached between the needs of artists and the public interest, while avoiding the introduction of the copyright system that, apparently, has more disadvantages than advantages?
We seem only to have spoken so far of performing artists. But many others play a role in accomplishing works of art. For instance, in most cultures the distinction between composers and performers does not exist as rigidly as it does in the West. Rhythm and dance will also have their own creators or sources of creation. Cultural work is not conveniently arranged to include only creators and performers. Moreover, the public itself contributes actively to what might be called, at a certain moment, 'the' artistic work, but which differs from day to day.
Nor do we know much about the economic relations between the many people involved in these fluid processes of cultural creation and performance. What are their mutual payments? What is the role of intermediaries? Do they control the financial assets underpinning the whole process? What are the changes that characterise the transformation processes of the last decades? It is relevant to pose such questions whose real outcomes differ enormously between cultures. Segmentation of the different stages between idea and ultimate artistic work may occur and have serious cultural consequences. One such consequence could be that different groups of artists become economically worse off.
Tourists and ethnomusicologists
A busload of tourists arrives to occupy the space of performance that they consider exotic, or at least the dreamland conjured up by the travel agent's publicity, but without the proper context of respect. Cameras and various digital recorders register these samples of fascinating music, dance or images. Postcards are for sale, perhaps even eroticising the local culture. This phenomenon gives cause for several reflections. It is undisputable that the photographer or the person recording does more than just capture an image or a sound.
There is a strong Western belief that a sanitary cordon exists between event and photo or between singer and recording. This belief subverts moral objections to infringing the personal or cultural sphere of other people. In many cultures, such a distinction between image and reality does not exist. The image is the person and the recording cannot be distinguished from the real voice. They are the same in both cases. Probably this conviction holds much truth. There is a direct link between, for example, a performer and the image. Taking a photo means taking something from someone. Who has the right to do this if the link is so close? What kind of respect does the work and the performer deserve?
Should a work be untouchable?
The question of respect does not play a significant role in the Western perspective, but has been translated into a property right, what we call nowadays the 'moral rights' aspect of copyright. The claim is that the author is completely original and should therefore be granted an ownership title on the work: nobody should have the right to change the work without the owner's permission. This is of course underpinned by a romantic concept of the processes of creation. No person ever creates solely out of nothing. There is no poem without a former poem. Every creator and performer uses the cultural heritage and adds something to it. This addition (how beautiful it may be) cannot be an argument for giving an artist an exclusive, monopolistic ownership right for decades on a creation that is in reality based on the past, even present work of many other artists before him or her.
In most non-Western societies this notion of individual ownership on a creation or a performance does not exist. Artistic creations and performances are shared in common. For this specific quality of the work, the Western concept of ownership is not appropriate, because it suggests that a strict borderline exists between who is entitled to ownership and who is excluded. The reality in most cultures is usually fluid and not concerned with rigid forms of exclusion. More important, is the recognition that an image or a recording of a work is not different from the reality from which it comes and that it is an infringement to reproduce without consent. This recognition of primary reality has a major consequence. The concept of respect is apparently more important than the concept of ownership. Taking away from someone's deepest expression is disrespectful and in this sense infringes. This is a level of culture opposed to the shallow Western concept of ownership which cannot provide a solution for situations of this kind.
Besides this philosophical reflection, there is also a material reality. If people in other cultures consent that their work be recorded or fixed in images, then they are entitled to due remuneration. This raises two questions. Who in the community is entitled, and how should a payment be effected? It would be a helpful step forward if the best practices in this regard were collected.
What has been discussed thus far relates not only to tourists but also to the profession of ethnomusicologists who collect sounds and images in different parts of the world. If they earn money from these materials, it is reasonable that the communities from which the materials originate should profit as well. There should be proper agreement on use and payment, now and in the future. As said before, Western collection agencies are not helpful in playing the role of intermediary. Agreements would require a far more direct character.
Clearly there cannot be piracy in societies where individual property in the form of copyright does not exist. Why not? Everybody in the community enjoys the self-evident right to use and adapt all works from past and present creatively. If individual ownership has no currency, then neither does stealing. Therefore, in most non-Western cultures, piracy is an unknown phenomenon, at least until recently. Cultures have been characterised by their ongoing processes of creative adaptations. Otherwise those cultures would not exist.
Degradation of local artistic life
And yet, the issue of piracy is now at the top of the agenda in many non-Western cultures. This mostly concerns the piracy of Western celebrity performers and sometimes the work of extremely popular local artists. It is also certain that such piracy makes Western cultural products immensely popular in many poorer countries. There are those who claim that it pushes aside local music from public attention and makes it less important within certain layers of the population.
Is this an unexpected form of cultural imperialism? It sounds exaggerated, but let us see what actually happens. In China, for instance, huge shipments of surplus CD returns from the five big global record companies illegally enter the market. This import, called dakos in Chinese, has two remarkable characteristics. First, the market is quickly inundated with these illegal imports, even though it seems unlikely that record companies would immediately have such bulk returns on their best-selling stars. Second, the CDs have a notch cut in the edge. The purpose of this notching is to make them unusable, but it only affects the first bit of music on the CD.
If there are surplus returns, would it not be more effective to cut them into pieces? One might think that the cultural industries have a vested interest in promoting their artists in parts of the world where people do not have the money to pay normal prices. Moreover, what is forbidden (pirated CDs in this case) is always desirable. Rumour has it that record companies themselves distribute legal CDs and so-called cheap pirated copies at the same time. Of course, not all piracy originates with big record companies. There are many entrepreneurs, and politicians too, who make big profits from piracy.
What would happen to piracy if the present copyright system were abolished, as I have proposed? There is only one possible answer. Piracy would cease to be attractive. If a work is immediately in the public domain after its publication, everybody will feel free to copy it. It is no longer an illegal activity.
Pirates take a financial and legal risk, and hope, and expect, that they occupy a more or less exclusive position in the market of illegal wares. If everybody may copy, bring an end to such exclusivity and the profit to be made from piracy. The open market drives out pirates. This might have an interesting cultural side effect. Without piracy, it might be expected that Western stars would no longer inundate local markets in non-Western countries. Besides that, there would no longer be any stars for two reasons. Without the protection of copyright there is no incentive to invest heavily in blockbuster films, bestseller books, and music celebrities. At the same time, the now existing cultural conglomerates would shrink and, as a consequence, market-dominating forces would disappear. In such fundamentally changed market structures, there would be no place for stars who brush aside cultural diversity from the living memory of citizens, and remove it from their choice.