Creators' Rights Alliance - Between a rock and a hard place - B: Why these abuses need correcting
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Creators' rights should act as incentives to creativity

Copyright is supposed to be, in part, a legal instrument for the protection of creativity, the idea being that copyright provides creators with an incentive to create, and this is good for society or the public in general.[1] The “creative industries” in the UK generate over £110 billion annually and account for over 5% of the GDP of the United Kingdom.[2] According to Jim Dowd MP, speaking on behalf of the British Government at the CRA conference in 2001, culture and creativity “are fundamental elements of a civilized society and of our national life. [Creators’] work brings vital benefits to society, giving enjoyment, raising ideas, … and broadening our horizons.”[3]

The ‘incentive’ argument supposes that the production and release to the public of books, music, art, films etc., is something particularly important and valuable to society, and that in the absence of copyright such production and release would not take place to an ‘optimal’ extent. The reason why such production would be inhibited is because such works are often very costly to produce but, once created, they can be very readily copied. The legal protection granted by copyright is intended to rectify this, so-called, ‘market failure’. It is meant to provide an ‘incentive’ to the production and release of such works – a legal means by which those who invest time and labour in producing cultural and informational goods can be confident that they will be able not only to recoup that investment, but will also be able to reap a profit proportional to the popularity of their work. Copyright provides a legal means for securing a creator’s livelihood, by ensuring he or she can reap the benefit that arises from the exploitation of works.[4]

If the legitimacy of copyright turns on the idea that it provides an incentive to individual authors to create works, then one might reasonably expect the system to ensure that authors can control the uses of their works and obtain remuneration from those uses.[5][6] But, in many cases, under existing UK law, authors are in practice unable to keep such control or obtain such remuneration: it is the exploiters who obtain the rights and control the use of works. The “entire system [is] derailed at the stroke of a pen” by the operation of the British rules on contract.

It is the existence of authors and creators that legitimizes copyright. Recent corporate practices of rights acquisition through bullying authors, raise doubts about the overall legitimacy of copyright. In the digital era, where use of rights is frequently in private (whether it be downloading songs from Napster, or scanning works into one’s PC), rights holders require the public to police and regulate their own activities – and they thus need the public to recognize the legitimacy of copyright. As the pubic becomes increasingly familiar with the fact that most rights belong to corporations, and that creators are denied control and reasonable remuneration, it will have good reason to be sceptical about the legitimacy of copyright. Ultimately, it is in all our interests – those of exploiters as well as creators – to ensure copyright operates for the benefit of creators (as well as exploiters).[7]



[1] Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright an certain related rights, Recital 10 where it was observed that 'these rights are fundamental to intellectual creation ... their protection ensures the maintenance and development of creativity in the interests of authors, cultural industries, consumers and society as a whole.’

[2] DCMS, Creative Industries Mapping Document 2001 (13 March 2001).

[3] This speech is reproduced on the DCMS website: www.culture.gov.uk

[4] Council Directive 92/100/EEC on rental right and lending right and of certain rights related to copyright in the field of intellectual property Recital 7 recognizes that “the creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work” Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright an related rights in the information society OJ L 167/10, recital 9: “Any harmonization of copyright and related rights must take as a basis a high level of protection since such rights are crucial to intellectual creation.”

[5] A. Dietz, ‘The Possible Harmonization of Copyright Law Within the European Community’ (1979) 10(4) International Review of Industrial Property and Copyright Law 395, 409.

[6] P. Gaudrat, ‘Legislation and Technology – Is the need for copyright legislation diminishing?’ (paper at EC Strasbourg Conference on Management and Legitimate Use of Copyright, (9-11 July 2000)).

[7] Anthony Murphy (Head of the Copyright Directorate), ‘Copyright at the Crossroads’ 112 The Author 166, 167 (Winter 2001) (emphasizing the importance of individual creativity as a crucial factor in achieving public support for intellectual property).

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