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Abstract
Writers in information and communication studies often assume the stability of objects under investigation: network nodes, databases, information. Legal writers in the intellectual property tradition often assume that cultural artefacts exist as objects prior to being governed by copyright law. Both assumptions are fallacious. This introduction conceptualizes the relationship of legal form and cultural symbol. Starting from an understanding of copyright law as part of systems of cultural production, it is argued that copyright law constructs the artefacts it seeks to regulate as objects that can be bought and sold. In doing so, the legal and aesthetic logic of cultural symbols may clash, as in the case of digital music (the central focus of this special issue).
Notes
The series of nine seminars was devised by Andy Pratt and Paul Jeffcutt (see Pratt & Jeffcutt Citation2009). The seminar that gave rise to this special issue was hosted on 16 September 2005 by the Centre for Intellectual Property Policy & Management (www.cippm.org.uk) at Bournemouth University. Early versions of all papers were presented at that event.
Initially, the perspective is almost untheoretical in that there is no prior exclusion on what could be seen as part of production systems. Thus culture producing systems may even include markets (Peterson Citation1982) or space (Pratt Citation2004; Citation2007).
According to Horkheimer and Adorno (Citation2002 1944), the standardization of production in mass markets inevitably leads to a standardization of consumption.
The International Copyright Act (Chace Act, 1891) had already removed the overt discrimination against foreign authors, but important formal obstacles remained that made it difficult for foreign authors and publishers to obtain effective protection in the US until 1909 (such as requirements that books had to be registered and manufactured in the US).
An exclusive Internet right of ‘making available to the public’ was created (Article 8 WIPO Copyright Treaty; also Arts. 10 & 14 WIPO Performances and Phonograms Treaty), backed up by a provision protecting the technology that might protect the new exclusive right: circumvention of copy-protection measures (Article 11) and tampering with rights management information (Article 12, also Arts. 18 & 19 WIPO Performances and Phonograms Treaty) would become illegal, regardless of purpose and function. There is also a general clause on the ‘enforcement of rights’ which must be such as to ‘constitute a deterrent to further infringement’ (Art. 14; also Art. 23 WIPO Performances and Phonograms Treaty). The US and Europe have used these provisions to introduce draconian criminal sanction against infringements targeting not only commercial competitors but consumers. Digital copyright under this conception may be defined as the combination of (i) exclusive rights, (ii) technological locks and (iii) consumer sanctions (Kretschmer Citation2003).
‘La plus sacrée, la plus légitime, la plus inattaquable et, si je puis parler ainsi, la plus personelle de toutes les propriétés, est l'ouvrage, fruit de la pensée d'un ecrivain.’ The report then suggests that the character of the property changes once a work is published, advancing towards a rather unromantic notion of a ‘propriété du public’. This part of the report is much less known. Primary materials on the history of copyright are available on a new online database at the Centre for Intellectual Property and Information Law, Cambridge University (www.copyrighthistory.org).
‘When composers began to view their compositions as ends in themselves, they began to individuate them accordingly. When composers began to individuate works as embodied expressions and products of their activities, they were quickly persuaded that that fact generated a right of ownership of those works to themselves. Thus, as music came to be seen as the product of a free person's labour, a change was deemed necessary in ownership rights’ (Goehr Citation1992, p. 218). For further discussion, see Kawohl and Kretschmer's paper in this issue.
Other explanations of copyright law might adopt a Marxist conception of law as the representation of the conditions of production in capitalism (Edelman 1977 1973), an orthodox economic explanation as an efficient regulatory response for the allocation of resources (Landes & Posner Citation2003), an political economy explanation of regulatory capture (Lessig Citation2004; May Citation2000) or an understanding of copyright law as part of social processes in networks of collaboration and competition (Toynbee Citation2001). The production of culture perspective does not seek any explanation of the production system itself, and may thus be compatible with any of the above approaches.
The latest version of the Berne Convention is the Paris Act 1971, as amended in 1979. The US acceded to Berne only in 1989. In 1994, the Berne Convention was integrated into the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) that is all 151 members of the World Trade Organization (as of 27 July 2007) are now bound by it. The exception is Art. 6bis, the unwaivable droit moral that was excluded at the behest of US negotiators following lobbying pressure from Hollywood. Art. 6bis specifically protects the author's right to claim authorship (paternity right), and to object to changes that would be prejudicial to his honour or reputation (integrity right), even after the transfer of all exclusive copyrights. Thus the droit moral somewhat limits the freedom of corporations to exploit works without recourse to the author.
The European Copyright term was harmonized to life plus 70 years with the 1993 Council Directive (93/98/EEC). The US Sonny Bono Copyright Extension Act (1998) extended the term by 20 years to life plus 70 years, or 95 years for ‘works for hire’ (works created under employment by corporations, for example sound recordings). In Europe, sound recordings, broadcasts and performances are only protected as neighbouring or ‘related rights’, that is for a term of 50 years from the end of year of the recording or broadcast.
Art. 9(2), introduced at the Stockholm revision conference in 1967. Note that under Berne, the three-step-test does only apply to the reproduction right. However, Art. 13 of the TRIPS Agreement (1994) and Art. 10 of the WIPO Copyright (Internet) Treaty (1996) make the test applicable to all copyright limitations and exceptions.
See further discussion in Kretschmer Citation(2005).
Only where exclusive protection was deemed to be unenforceable, as for music performances and broadcasting, photocopying by libraries, cable retransmission or in private copying, was a mechanism of licensing via collecting societies adopted in many countries. The principle of collective licensing is still ‘pay-for-play’ but at a rate that is not negotiated individually. In effect, it substitutes owner exclusivity with a right of remuneration.