UNESCO recently launched ResiliArt, a global discussion to raise awareness of the impacts of Covid-19 on the cultural sector, as well as to support artists during and after the crisis. In the inaugural debate, Jean-Michel Jarre (UNESCO’s Goodwill Ambassador) proposed the concept of “eternal copyright” to protect and support artists and the creative industries, especially in emerging countries.
The Cultural Impact of the Covid-19 Pandemic
The current Covid-19 pandemic is changing the lives of everyone on Earth, in ways that affect us all socially, economically, culturally, educationally and environmentally.
It is not only businesses and schools that have shut down, but also many aspects of accessing culture, such as live performances, theatres, cinemas, cultural sites, museums, exhibitions and libraries. This is having serious impacts upon the livelihoods of cultural professionals, as well as the local communities that depend upon them and their works.
What is Copyright?
Copyright protection in New Zealand (for example) is provided for by the Copyright Act 1994 and the Copyright Regulations 1995.
An intellectual property right that arises automatically, copyright protects the expression of ideas known as “works” (not the ideas themselves), that have been fixed somehow (e.g. written down or otherwise recorded).
For a work to attract copyright protection, it must be original (not necessarily new), meaning it originated from the author. In other words, they didn’t copy the work from another source. Works that can receive protection are either literary, dramatic, musical, artistic, sound recordings, films, broadcasts or typographical arrangements.
Copyright gives the creator or owner exclusive rights to copy their works; issue copies to the public; perform, play, show or communicate their works to the public; make an adaptation of their works; or authorise a third party to do any of these acts. A third party doing any of these acts without permission may be infringing the copyright.
Copyright is restricted in life span, which varies according to both the type of work and the jurisdiction where the copyright is enforced. For example, in New Zealand, literary, dramatic, musical and artistic works are protected for the life of the author plus 50 years.
The Concept of Eternal Copyright
UNESCO’s ResiliArt debate is focussed on the impacts upon creative and cultural communities that the Covid-19 lockdowns around the world are having. The roles of governments, content providers and tech companies in supporting artists and other creators are being discussed.
Jean-Michel Jarre has proposed an eternal copyright, as a practical solution for governments and companies to support artists. When the current term of copyright protection for an author or owner expires, then the copyright would persist in an “eternal” form with revenue generated going into a central fund. This fund would be used to support artists and others in the creative communities around the world, with a special emphasis to support those in emerging countries.
Copyright protection is typically time-limited. This is part of the balance that copyright law tries to strike between the interests of the rightsholder and the interests of the consumer. It has parallels in other forms of intellectual property where the monopoly of the right is either time-limited (e.g. patents and designs) or conditional upon continual use (e.g. registered trade marks).
Laws protecting intellectual property rights are supported by a number of principles, including: the right to benefit from one’s own labours and efforts; it being unfair to benefit from the work of others without their consent; being incentivised to make the necessary investment to create without the risk of that investment being nullified as soon as your output enters the public domain; and the contract of temporary protection in exchange for public disclosure.
There are risks and challenges to implementing the concept of eternal copyright.
For an eternal copyright to be effectively managed, it is likely that a “central copyright owner” would be needed. They would have to decide what was licensed, when, to whom, and for what fees. Payments would have to be managed, and the copyrights would still have to be enforced against potential infringement. The whole process could be costly, and there is a risk that the financial rewards could easily be swallowed up in administration rather than going to the intended recipients.
Much of the revenue from copyright-protected works comes from licensing, and the economic value of many works often expires long before the corresponding copyright protection. Should a work turn out to be one of those that retains significant value over time, then the “central copyright owner” may face challenges from the estate of the original author for a share in the ongoing benefits.
One principle of intellectual property is that knowledge and information eventually enter the public domain for all to freely use, develop and gain inspiration from. That which does not enter the public domain cannot be freely used without some agreement. There is a risk that new artists and creators may choose simply not to engage with certain works because of the costs of licensing and the potential risks of infringement proceedings. This would appear to be contrary to reasonable reward for investment and creation, balanced against the contribution to human knowledge, culture and society. Ironically, creativity may be stifled by an eternal copyright.
Perhaps an additional time-limited copyright term beyond that of the author / owner would be an alternative. Operating in the same spirit, and with the same purpose, it could also generate a global fund to support artists around the world. However, works would eventually enter the public domain in order to continue to support creativity.
Financial support for artists could also be improved by stronger enforcement of their existing rights under copyright law, as well as assistance in contract negotiations to ensure a more fair and equitable reward for their creativity.
It is clear that the cultural aspects of our lives need our support now more than ever, and that the Covid-19 pandemic provides an opportunity to take a new direction.
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