[Commons-Law] IMAGINING A WORLD WITHOUT COPYRIGHT

[Jeebesh Bagchi]

Dear Jeebesh, I still remember our discussions more than a year ago in 
Amsterdam, also about copyright. I send you attached a new step in my 
analysis: /Imagining a World without Copyright/. I hope that you may 
enjoy it. A much shorter version of this text will be published next 
year in England. If you think that there might be other interested 
people, feel free to distribute the text to them. Best wishes, joost

Prof. dr. Joost Smiers
HKU/Utrecht School of the Arts
P.O.Box 1520
3500 BM Utrecht
the Netherlands
tel. 00 31 30 2332256
e-mail: joost.smiers at central.hku.nl



IMAGINING A WORLD WITHOUT COPYRIGHT
The market and temporary protection a better alternative for artists and 
the public domain
An essay

Marieke van Schijndel & Joost Smiers

Hard to imagine

Some serious cracks are surfacing in the system of copyright, as we have 
known it in the Western world for a couple of centuries. The system is 
substantially more beneficial for cultural conglomerates than for the 
average artist; a situation that cannot last. Furthermore, it seems 
inescapable that digitisation is undermining the foundations of the 
copyright system. It must be acknowledged that several authors have 
recently presented analyses of the untenability of the contemporary 
system of copyright. Yet, most of their observations only allude to – 
but do not address – what we deem the most fundamental question of all: 
if copyright is inherently unjust, what could come in their place to 
guarantee artists – creative and performing – a fair compensation for 
their labours, and how can we prevent knowledge and creativity from 
being privatised (Bettig 1996; Bollier 2003: 119-134; Boyle 1996; Coombe 
1998; Drahos 2002, 2002a; Frith 2004; Lessig 2002, 2004; Litman 2001; 
Perelman 2002; Vaidhyanathan 2003). It is time to move beyond merely 
criticizing copyright. The pressing question is: which alternative can 
we offer artists and other cultural entrepreneurs in rich as well as 
poor countries that benefits them, and that brings the increasing 
privatisation of creativity and expertise to a halt? Our goal in this 
essay is to develop such an alternative, and to move beyond any notion 
centred on private intellectual property rights.

This text is an essay. We cannot erase the product of centuries of 
Western thought on intellectual property rights with a single stroke of 
the pen. It is hard to imagine for Western man that a world without 
copyright could still yield films, theatre productions, novels, music 
pieces, paintings, and multimedia spectacles; even though people born 
and living in non-Western cultures find this a lot less hard to believe 
(Boyle 1996: xiv)! In this essay we therefore present a 
thought-experiment. We begin by making a few observations, followed by a 
proposition, an alternative. Once we have arrived there, it becomes 
fruitful to put our ideas to the test. How would our alternative provide 
an income for artists, their patrons, and producers in various artistic 
industries and in various positions? It must be clear that we aspire 
only to sketch the contours of an approach that will require further 
development and study. Without any doubt, the analysis we present for 
copyright is transferable to other systems of intellectual property 
rights, such as patents and trademarks. These systems influence, as 
well, the creation, production, distribution and promotion of works of 
art of different ilk.


Some observations

A first observation must be that the present Western copyright system 
pays little attention to the average artist, especially those in 
non-Western societies. The system disproportionately benefits a few 
famous artists and especially a few major enterprises, but it has little 
to offer for most creators and performers (Boyle, 1996:xiii; Drahos 
2002: 15; Kretschmer 1999; Kretschmer and Kawohl 2004: 44, Vaidhyanathan 
2003: 5). The copyright system does enable a handful of cultural 
enterprises to dominate the market, and to withdraw substantive 
diversity from the public eye (Bettig 1996: 34-42, 103; Boyle 1996: 
121-5; Coombe 1998: 144; Drahos 2002:ix-x, 74-84; Litman 2001: 14; 
McChesney 1999). Copyright has thus become a mechanism for a few 
cultural conglomerates to control the broad terrain of cultural 
communication. Something that has been derailed to such a large extent, 
and that hurts the interests of most artists and the public domain, can 
no longer be cut back to normal proportions.

For most artists, the profits deriving from copyright do not form much 
of an incentive to create and perform artistic work, simply because they 
hardly receive the proceeds. This has been the case in the past, it 
still is the case in the present, and it holds for almost every culture. 
>From an historical perspective, we may note that the concept of private 
intellectual property rights has traditionally been absent from most 
cultures. Yet, there have always been artists who created and performed 
works (Bettig 1996: 25, 44, 171; Boyle 1996: 38-39). The incentive 
argument – artists stop their labours if they stop receiving copyright 
payments – therefore does not hold: ‘Copyright today is less about 
incentives or compensation than it is about control.’ (Litman 2001: 80) 
‘Firms in the creative industries are able to ‘free-ride’ on the 
willingness of artists to create and the structure of the artists’ 
labour markets, characterised by short term working practices and 
oversupply, make it hard for artists to appropriate awards.’ (Towse 
2003: 10) One may add to this observation that ‘value of copyright 
royalty rates is decided in the market place and it is therefore 
artists’ bargaining power with firms in the creative industries 
determines copyright earnings. Artists’ bargaining power is, however, 
considerably weakened by the persistence of excess supply of creative 
workers to the creative industries… As with artists’ earnings from other 
art sources, the individuals distribution of copyright earnings is 
highly skewed with a few top stars earning considerable sums but the 
medium or ‘typical’ author earning only small amounts from their various 
rights.’ (Towse 2003: 11)

For non-Western countries, the Western intellectual property rights 
system is nothing but a straight-out disaster. Their knowledge and 
creativity is obfuscated from them, and they have to pay dearly to 
receive the fruits of these sacrifices in return. This even explains the 
unfavourable debt position of these countries to some extent (Boyle 
1996: 34, 125-130, 141-142; Chomsky in Smiers 2003: 77; Coombe 1998: 
208-247; Correa 2000; Grosheide 2002; von Lewinski 2004; Mitsui 1993; 
Perelman 2002: 5-7; Rifkin 2000: 229-232, 248-253; Shiva 1997, 2001).

Let’s face the reality that digitisation is axing the roots of the 
copyright system (Alderman 2001; Lessig 2002; Litman 2001: 89-100, 
112-116,151-170; Motavalli 2002; Rifkin 2000: 218-229; Schiller 2000; 
Vaidyanathan 2003: 149-184). By abolishing copyright, the process of 
creative adaptation will once again enjoy every imaginable opportunity. 
This is all the more interesting in the digital age. After all, digital 
sampling enables the production of creative works, much like those have 
always been produced. How? Indeed, by finding inspiration, themes, or 
certain forms of expression in works previously produced, long ago or 
yesterday. Digitisation enables this lending and borrowing of 
inspiration, and is helpful as well from another perspective. In the 
world of copyright there has always existed a bizarre distinction 
between an idea and the expression: however, in the digital age a work 
is no longer fixed and separating idea from expression is no longer 
possible. The artificial distinction and the endless discussions about 
it have become superfluous.

Another observation, linked to what creative sampling makes possible, is 
that the philosophical basis of the present system of copyright is 
founded on a misunderstanding, notably that of the sheer boundless 
originality of the artist, regardless of whether he or she is a creator 
or a performer. But let us keep a keen eye on reality. One always builds 
on the labours of predecessors and contemporaries. Subsequent artists 
add something to the existing corpus of work, nothing more and nothing 
less. We may highly respect and admire those additions, but it would be 
incorrect to provide a creative or performing artist, or his or her 
producers, with an exclusive, monopolistic claim to something that has 
largely sprung from knowledge and creativity in the public domain, and 
that is indebted in important respects to the labours of predecessors 
(Barthes 1968; Boyle 1996: 42; 53-59).

Of course, we are well aware that an artist receives a copyright for the 
addition he or she makes to what can be found in the public domain of 
knowledge and creativity. Again, this addition can be very impressive 
(or banal). But it is quite a stretch to extend him or her an exclusive, 
monopolistic property right for that addition, guaranteed until 70 years 
after his or her death, and which can on top of that be transferred to 
an individual or corporation that had nothing to do with the creative 
process in the first place. The credibility of the system really starts 
to fall apart when we realize that the author and his or her rightful 
claimants can forbid almost anything that resembles the copying of 
“their” work (Coombe 1998: 92-98).

The development of the public domain of creativity and knowledge 
deserves a reappraisal. Besides, subsequent artists must be enabled to 
delve into that domain in order to find a supply of artistic materials 
that they can build on. That road will be closed when artistic materials 
from the present and past fall into private hands, something that is 
occurring to an increasing extent under the present system of copyright. 
This privatisation of our past and present cultural heritage is 
devastating for the further development of our cultural life (Locke in 
Boyle 1996: 9). In fact, an “author-centred regime can actually slow 
down scientific progress, diminish the opportunities for creativity, and 
curtail the availability of new products” (Boyle 1996: 119; also see: 
Perelman 2002: 7-9).

For cultural conglomerates, which control the bulk of the property 
rights worldwide, the possibility to forbid reproduction is 
exceptionally interesting: it enables them to dominate broad areas of 
artistic expression in which no contradiction, no counter-melody, no 
counter-image, in short no dialogic practice is tolerated (Coombe 1998: 
42, 46). Yet, we have to realize that “culture is not embedded in 
abstract concepts that we internalise, but in the materiality of signs 
and texts over which we struggle and the imprint of those struggles in 
consciousness. This ongoing negotiation and struggle over meaning is the 
essence of dialogic practice. Many interpretations of intellectual 
property laws squash dialogue by affirming the power of corporate actors 
to monologically control meaning by appealing to an abstract concept of 
property. Laws of intellectual property privilege monologic forms 
against dialogic practice and create significant power differentials 
between social actors engaged in hegemonic struggle” (Coombe 1998: 86). 
It is prerequisite for any democratic society that a surplus of 
opinionating and emotion-evoking claims can be contradicted (Bettig 
1996: 103-106). The broad copyright as we know and have it virtually 
renders that difficult and sometimes impossible.


Alternatives?

After this summation of the fundamental shortcomings of the copyright 
system, it may not come as a surprise that we feel the need to 
investigate alternative ways to protect the public domain of knowledge 
and creativity, and to assure many artists and other cultural 
entrepreneurs a fair income for their labours. As stated, this type of 
investigation only happens too sporadically. Recently a few scholars and 
policymakers have presented alternatives to the system. But their 
proposals have many disadvantages and they therefore do not constipate a 
real alternative to the copyright regime.

The most far-reaching reorientations have been systems like the General 
Public License and the Creative Commons (Bollier 2003: 27-30; 99-118; 
Boyle 1996: 132-133; Lessig 2002 and 2004: 282-6). The idea behind this 
approach is that A’s work must be available for use by others, without 
them being obstructed by prevailing copyright. In turn, the other cannot 
appropriate the work. Why not? The Creative Commons entails that A 
supplies some kind of public license for his or her work: go ahead, do 
with the work as you please, as long as you do not bring the work under 
a regime of private ownership. The work is thus subjected to a form of 
“empty” copyright. This “hollow” copyright constitutes the most extreme 
option the author has under the Creative Commons regime. More often, 
however, the author opts for the choice “some rights reserved”, for 
example that the usage of a work is restricted to not for profit 
activities. It is an uncertain form of contract law that will keep 
lawyers busy. The sympathetic aspect of Creative Commons-like 
constructions is that it becomes possible, to a certain extent, to 
withdraw oneself from the copyright jungle. It is of course always 
laudable to start a new world order on an island, and there is no 
scepticism in this statement. We hope that more and more artists will 
renounce the system of copyright that disadvantages them so badly, and 
begin hollowing it out by embracing the idea of a Creative Commons. 
Without any doubt this systems is helpful for museums and archives that 
wish to spread their stocks of cultural heritage to the public but also 
like to avoid it becoming copyrighted or used inappropriately by others.

As long as the system of copyright is still in place, the Creative 
Commons appears to be a useful solution that may even serve as an 
exemplar. But there are some strings attached. The Creative Commons does 
not paint a clear picture of how a diverse set of artists from all over 
the world, as well as their producers and patrons, might generate an 
income. But we have to prepare an answer to that question. Most artists 
will not dare to put the existing copyright regime to rest until they 
have been offered a clear view of a better alternative – even though the 
present regime only has smoke and mirrors to offer. That is easily 
understandable. A second drawback of Creative Commons-like approaches is 
that they do not fundamentally question and challenge the copyright 
system. The Creative Commons License suggests that the author wants to 
exercise some form of control, nonetheless. Another quite essential 
objection to the Creative Commons-like approaches is that they involve 
only those artists who are willing to adhere to this philosophy. 
Cultural conglomerates, which have the ownership of big chunks of our 
cultural heritage from past and present, however, will not. This 
downgrades and limits the sympathetic idea of the Creative Commons. Not 
free of contradictions is the fact that one of the most outspoken 
advocates of Creative Commons, Lawrence Lessig, is a strong adapt of the 
idea that knowledge and creativity can be owned as individual property 
(Lessig 2004: XIV, XVI, 10, 28, 83). Isn’t the title of his 2004 book 
Free Culture a bit misleading? Below we will argue that there is much to 
say against this private property claim on knowledge and creativity.

A second alternative for copyright is connected to different forms of 
art created and produced in a collective manner (regardless whether it 
concerns more traditional or contemporary works) as is the case in most 
non-Western countries. In those societies the individual approach of the 
Western copyright system does not fit the more collective character of 
creation and performance. If one stays within the paradigm of the 
private ownership of knowledge and creativity, it is obvious that a 
concept like collective ownership comes to mind. Is it not possible to 
grant so-called “traditional” societies a tool that resembles copyright, 
but is in fact collectively owned? Would this not enable them to protect 
their artistic expressions from inappropriate use and/or guarantee their 
artists an income?

The problems for effectively introducing a system of collective 
intellectual ownership rights are abundant. For instance, one may wonder 
who represents the community and is able to speak on behalf of the 
community. It is not by definition the case that everybody agrees on how 
to deal with artistic creations of the past and present. Copyright is 
about the exploitation of works, but many people in those societies may 
consider this a blasphemy, or would not like to see their works being 
used in specific contexts. The appropriation of knowledge and creativity 
is something that even pinches in the Western world, and it all the more 
does so in countries where this strange system has never existed, and 
where artists use each other works, and so on and so forth, like what 
was the case in the Western world before the introduction of the 
copyright system. There is, thus, even without considering the position 
of Western cultural conglomerates reason to understand why the polite, 
weak and bleak trials of elaborating a collective intellectual property 
system have failed thus far.

Is the tweaking of the current system a solution for the problems as we 
have described them? Several scholars, critical to the present copyright 
system, propose optimising it. Their contributions vary. Some argue for 
the reestablishment of the fair use principle, which has suffered 
enormously over the last decade, or making copyright solely applicable 
to real authors, creators and performers. Others favour a much shorter 
period of protection, for instance fourteen years. Again, others believe 
there is no real problem in the European context, because in those 
countries the collecting societies put aside a portion of the copyright 
earnings for cultural projects and their distribution scheme favours 
individual artists in comparison to the Anglo-Saxon copyright system. 
Unfortunately, it is unthinkable to bring the current system back to 
normal proportions, because it is not in the interest of the main 
partners of the system, the cultural conglomerates, to assist in this 
quest. On the contrary, they have been very eager and highly successful 
in extending and broadening the copyright system. Moreover, digitisation 
is greatly impacting the functioning of the system. At what point must a 
society decide that when almost everybody is participating in an 
“illegal” practice – like P2P music or film exchange – it can no longer 
be considered illegal (Litman 2001)? And even if the European collecting 
societies have a higher moral ground than those in the Anglo-Saxon 
world, even then the problem of the individual appropriation of 
knowledge and creativity, which is the basis of our critique of the 
system, continues to exist. In the next sections we address this issue 
more thoroughly.


Artists, producers and patrons: entrepreneurs

Before presenting our proposal we must observe that artists are inclined 
to sell their work on the market and – if it all works out – make a 
living for themselves. Artists have always been merchants and small 
shopkeepers. They live off an acquisitive audience that wants to admire, 
enjoy, and buy their produce. To that audience also belong institutional 
buyers like kings, churches, Maecenases, labour unions, banks, 
hospitals, and other societal institutions (Hauser 1972). This 
conclusion, as will be demonstrated further on in this essay, will 
provide us with something to go by while developing an alternative for 
copyright.

Artists, as well as their producers and patrons, thus apparently are 
entrepreneurs. This requires a risk-prone mentality, and it involves 
competition, under the condition that real competition exists indeed, as 
much as possible for many artistic expressions and their artists. The 
observation that artists, and their producers and patrons are 
entrepreneurs makes one wonder what the decisive reason is for reducing 
the entrepreneurial risks of cultural producers, because this is 
precisely what copyright does. Copyright renders a product exclusive, 
and provides the entrepreneur with a de facto monopoly. This system of 
institutionally protected gifts is seemingly bizarre in an era in which 
even cultural conglomerates themselves herald the blessings of free 
market competition. Major entrepreneurs in cultural sectors bargain for 
ever-stricter intellectual property rights in the form of extensions and 
expansions of existing copyright legislation, but this is completely at 
odds with the so-called rule of the free market! We also observe the 
exact same phenomenon in the area of patent law and other intellectual 
property laws such as trademarks, database rights, plant breeder rights 
and design rights (Drahos 2002; Perelman 2002; Rifkin 1998, 2000; Shiva 
1997, 2001; Shulman, 1999).

Before we try our luck by presenting a new system, we must first 
identify the locus of the impulse to create. That brings us to the 
following summation, a three-pronged road. One possibility is that a 
work is being commissioned. The second option is that the artist him- or 
herself takes the initiative to make an artistic work, possibly in 
collaboration with multiple, differentially endowed creators and 
performers. Thirdly, a producer can be a binding factor and bear the 
responsibility and risk involved in an artistic venture.

In all three cases – the initiative coming from a patron, someone who 
commissions; from one or several artists themselves; or from a producer 
– there is a person or an institution that intentionally makes itself 
responsible and accountable for creating or performing a certain 
artistic work. To be responsible and accountable not only implies 
undertaking a broad range of activities to give the artistic project 
momentum, but also to bear, amongst other things, the financial risks 
involved. The initiator then becomes an entrepreneur and bears the risk 
that unavoidably comes with entrepreneurship. In our alternative for 
copyright it is not the artist who takes centre stage, but the 
entrepreneur, regardless of whether he or she is an artist, a patron, or 
a producer.


The solution: the market and temporary protected usufruct

While recognizing the fact that artists, patrons and producers are 
cultural entrepreneurs, we find that they can be confronted with three 
types of situation, each of which grants a specific reaction or option. 
What are those three options in our proposed solution? First, cultural 
entrepreneurs experience a competitive advantage, for example by being 
the first to market a product. Ancillary forms of protection are then 
rendered unnecessary. Secondly, in some cases high risk and high 
investment are involved in the realization of certain creative works. 
Temporary protected usufruct is granted to offset market failure. Third, 
the market as of yet lacks the resilience to finance a product and there 
are many reasons making it desirable for it to flourish. Subsidies are 
than distributed. In all three cases or options the works fall 
immediately in the public domain. This is the key principle of our 
proposed solution.

Let’s take a closer look at those three options. What are the contours 
of the system that we find worth exploring? The core of the matter is 
that we distance ourselves from the present system of copyright, as was 
probably clear by now. What does that yield? As stated, the protective 
corral of property rights that is artificially erected around a creative 
work will disappear. The consequence, thus, is that the work – 
regardless of whether it involves a (new) creation or a performance – 
will have to be marketed from the moment of its announcement onwards. We 
will nuance this position further on in the essay when we discuss the 
second option. What is essential is that the entrepreneurial patron, 
artist, or producer obtains a competitive advantage by creating or 
performing a work (Picciotto 2002: 225). This renders additional 
protection unnecessary. This is the first option.

What we have in this first option is a first-mover advantage. The first 
person to bring a work to market can use the advantage to reap revenues. 
The entrepreneur thus has “lead-time.” What we propose is not completely 
new. In 1934 Plant stated ‘that copyright encourages moral hazard in 
publishers (firms in the creative industries) without sufficiently 
rewarding authors (creators) who supply the creative input. He believed 
that publishers should rely on the temporary monopoly of lead time to 
establish new products in the market.’ (in Towse 2003: 19) This time 
gives the first mover a lead over possible competitors, the opportunity 
to skim the market for the new cultural product, ask a good price for 
it, and thus earn a return on investment. After all, it will take 
several months before, say, the same play or music piece will see its 
opening night elsewhere or the same chair is eligible for production in 
another location. It should be understood that the work falls 
immediately in the public domain; thus can be used by others as well, 
and everybody is free to adapt this work creatively. The competitive 
advantage that most artists possess in one form or other is put at the 
very core of our new system. If such advantages are allowed and able to 
do their work, ancillary forms of protection, like copyright, will be 
unnecessary.

The counter argument, however, might be that, with an eye on 
digitisation, reality is that lead-time is only a couple of minutes or 
perhaps hours (Towse 2003: 19)! Does this mean that there are almost no 
works that can benefit from a competitive advantage? We do not believe 
so. Apart from the first-mover advantage, many artists are able to add 
value or create advantages in other ways. In order to understand this, 
we should keep in mind, that cultural production and distribution will 
reshuffle considerably after the abolishment of copyright. For instance, 
in the field of music concerts and performances will become much more 
important, also as a source of income for the artists. Live, direct 
contact with an audience generates inimitable value. Performing 
qualities are even now, in the present era, of decisive importance for 
long and lasting careers of musicians. This is what gives them a good 
reputation. Reputation creates value. Reputation has a signalling 
effect. It indicates guaranteed quality. Customers are more loyal and 
are willing to pay higher prices for cultural products from artists with 
a good reputation and it makes them aficionados (Fombrun 1996). In the 
part of this essay where we test our proposals in the different fields 
of the arts – see below – we will come back to how cultural production 
and distribution will change in a world without copyright. But let us at 
this point stress that service qualities of artistic works will become 
much more important than the individual product.

 From what we have stated before about the philosophically doubtful 
concept of the originality of the author, it is clear that we claim that 
any artistic creation or performance belongs to the public domain. It is 
derived from the commons, based on the works of predecessors and 
contemporaries, and therefore, from its moment of conception onwards it 
takes its place in the public domain. We use the concepts public domain 
and commons without distinction. However, we know that in legal 
traditions there may be differences between the two concepts. We define 
the public domain or the commons as the space in any society that 
belongs to all of us and can be used by all of us. It is a 
misunderstanding to think that the commons, or the public domain, is an 
unregulated space. Of course not: always in history and in all societies 
those common spaces have been regulated one way or another, for example 
on the conditions of its usage. In our alternative we return to the 
commons what has always belonged to it – no more and no less. We give 
back to all of us what has been privatised in the fields of creativity 
and knowledge in the Western world over the last centuries (Hemmungs 
Wirtén 2004: 133,4).

The second option takes into consideration that sometimes the 
realization of a certain work requires a rather substantial up front 
investment. Think of movie productions, for example, which can easily 
rake up several million euros in costs. Another example is writing a 
book; an author has to work on such a large project for a considerable 
period of time, but the revenues will not begin flowing until (much) 
later. It could also be that the risk of an undertaking is too great to 
be borne privately. Often high investments, high risks and uncertainty 
go hand in hand. This can lead to what economists call ‘market failure’ 
(Towse 2004: 56). This is an economic condition under which competitive 
markets have difficulty developing. State intervention is then granted. 
In these special cases, in which the process of selling is time 
consuming, or must consist of multiple transactions before an agreeable 
income has been reached, one can think of a temporary protected usufruct 
for the person taking the entrepreneurial risk. The cultural 
entrepreneur is offered temporal protection to harvest the fruits of his 
or her work. However, no private property emerges, as was the case under 
a copyright regime.

The concept of usufruct is better known in societies under civil law 
than in those that are governed by common law, like the Anglo-Saxon 
parts of the world. Characteristic for usufruct is that one does not 
have the ownership of an item; however, one is entitled to the usage of 
the fruits of the item. If the item is, say, a house, the entitlement 
could be, for instance, the usage of the house without owning it. The 
person that holds usufruct is, for example, allowed to live there for 
free or to receive the proceeds of any rental activity. In our case, the 
item might be a book; from the moment of its publication it belongs to 
the public domain and the holder of the usufruct is entitled to the 
takings and receipts of the book. Under the present system of law, 
usufruct can only emerge when it is derived from an ownership title. 
What we envision is that the creative work, as we will argue below, 
exists only in the public domain, its ownership is shared amongst all, 
and thus belongs to the commons. Whoever enjoys the temporary usufruct 
of a certain artistic work, has thus received it from the public domain. 
The usufruct keeps unimpeded the freedom of everybody to adapt works of 
art – creations and performances – in a creative manner. The technical 
details concerning the implementation of this matter still will have to 
be worked out.

De facto, the temporary usufruct implies that the costs of preparing the 
work, including the artist’s wage, are spread out over a number of 
customers. But we will have to apply strict boundaries to the timeframe 
over which this applies. Hence, we speak of a temporary usufruct. In 
terms of its scope and duration, protection will be less than under 
present copyright regimes. In our approach an artistic work, whether 
creation or performance, immediately enters the public domain from its 
moment of conception onwards, as has been stated before; or better yet 
remains in it, because it derives from it to a large extent. Only, it 
may happen that the usufruct is protected for a certain period of time, 
to make the work profitable for the creator, performer, producer, or 
patron. At present, we do think of a period not extending beyond a year. 
A lot of economic research is required to possibly refine this period of 
temporarily protected usufruct, depending on the specific artistic 
discipline. However, this term of one year is not picked randomly. ‘Of 
all the creative work produced by humans anywhere, a tiny fraction has 
continuing commercial value.’ For instance, ‘most books go out of print 
within one year.’ (Lessig 2004: 134 and 225) This market reality 
supports our proposal of a strict time frame for protection.

Of course, it might happen that even this temporary usufruct does not 
provide enough perspective on the ability to break even on certain 
artistic creations and performances. And with this we arrive at our 
final and third option: subsidies. It may happen that the market as of 
yet lacks the resilience to finance a certain type of artistic work but 
that there are various reasons making it socially desirable for this 
work to bloom and become available (for the sake of cultural diversity 
or because the public is still developing a taste for certain forms of 
expression, for example). In that case it is important that governments 
use subsidies and other facilities to enable the creation, performance, 
and diffusion of such works, for shorter or longer periods of time. In 
case of financing by the government, the work immediately becomes part 
of the public domain. After all, it appears absurd that publicly 
financed productions can become the exclusive property of a person or 
organization, as is presently the case in many countries with programs 
developed by their public broadcasting corporations.


Commenting upon our alternative

Is what we propose not some kind of dressed-down version of the present 
copyright system? One could say that. But there are remarkable 
differences between the copyright approach and our alternative, in which 
we first let market processes take their course, perhaps followed by a 
form of limited protection. First, under the regime of intellectual 
property rights, a protective shield of copyright becomes affixed to an 
artistic work by definition, from its moment of inception onwards. This 
does not hold true for our alternative, on the contrary. The maker, 
producer, or patron has a competitive advantage in the market by being 
the first to offer a certain kind of product: let markets be markets! 
Second, if it is somehow necessary to offer a certain kind of 
protection, as when a work could not be made profitable by any other 
means, then that protection will remain incomparably less elaborate in 
terms of its scope and duration than the sheer boundless system of 
institutionalised gifts with which the copyright system presently spoils 
the “holder of an intellectual property right.” A period of about a year 
of usufruct is something quite different than 70 years after the death 
of the author, and also in the case of neighbouring rights the duration 
of the protection may be called generous. Under the present system of 
copyright, creative adaptation is at risk of being interpreted as a 
wrong and of being fined by the courts, so the scope and duration of the 
protection are immensely important. In our approach, creative adaptation 
is instead applauded and encouraged.

There is also a third reason as to why what we propose is completely 
different from copyright. Our alternative redefines ownership and 
property of creativity and knowledge. Creative works are not owned in 
the same way as, for instance, a table. A table is the property of 
person A, but not at the same time also of person B, unless they are 
married. But this is not the case with artistic creativity and 
knowledge. After its usage by someone it has not been exhausted. It is a 
public good. That is as we have argued before, why those works of the 
intellect and of the creative mind belong to the public domain. 
Strategically it is important to underpin this public character of 
knowledge and creativity time and time again. Jack Valenti, the former 
president of the Motion Picture Association of America, once 
unhesitatingly said: ‘Creative property owners must be accorded the same 
rights and protection resident in all other property owners in the 
nation.’ (in Lessig 2004: 117) This quote makes clear why it is 
necessary to make a distinction between knowledge and creativity at one 
side and the ownership of, for instance, a house at the other side. They 
are not the same and should not be treated the same.


Result: a new cultural market and a level playing field

With our new system a new cultural market will emerge. The first 
observation is that with the abolition of copyright cultural 
conglomerates will lose their grip on the agglomeration of cultural 
products, with which they determine the outlook of our cultural lives to 
an ever-increasing extent. Because what will they lose? They have to 
give up control over huge chunks of the cultural markets. They lose the 
monopolistic exclusivity over broad cultural areas because everyone is 
allowed to exploit artistic materials that are not protected by 
temporary usufruct and absolutely no limitations are put on creatively 
adapting works of art. With these new conditions, the rationale is then 
lost for cultural conglomerates to make substantial investments in 
blockbusters, bestsellers, and stars. After all, by making creative 
adaptation respectable again and by undoing the present system of 
copyright, the economic incentives to produce at the present scale will 
diminish. However, it will not be forbidden for a cultural entrepreneur 
to invest millions of dollars or euros in, for instance, a film, game, 
CD or DVD. Of course not, but the investment will no longer be made 
under an endless wall of protection.

There will once again be room to manoeuvre in cultural markets for a 
variety of entrepreneurs, who are then no longer pushed out of the 
public’s attention by blockbusters, bestsellers, and stars. Those 
plentiful artists are more likely to find audiences for their creations 
and performances in a normal market that is not dominated by a few large 
players. There is not a single reason to believe that there would be no 
demand for such an enormous variety of artistic expressions. In a 
normalized market, with equal opportunities for everyone, this demand 
can be fulfilled. This increases the possibility that a varied flock of 
artists would be capable of extracting a decent living from their 
endeavours.

A second observation is about cultural adaptation and how the market 
should be regulated with respect to fraud and plagiarism. We stress the 
fact that we do not like theft. We of course do not propose that X can 
attach his or her name to Y’s book or film, suggesting to be the author 
of that work. That is plain misrepresentation or fraud. If that is found 
out, and that is bound to happen sooner or later, than the lazy 
fraudster will receive his or her fair penalty in the court of public 
opinion; we do not need a copyright system to accomplish that. It is up 
to all of us not to be afraid to publicly accuse artists of 
misrepresentation or fraud. This will only happen if we are culturally 
alert, and we have to be if we want to do without judgments of the 
courts, which have made us culturally lazy in the past! We should 
critically discuss what we consider culturally inappropriate use.

What we have suggested thus far is that it is quite feasible to have a 
flourishing cultural domain without the existence of a copyright system, 
while at the same time many artists in the Western and non-Western 
countries alike can make a reasonable income from their labours. 
However, it is evident that the completely new approach as we propose it 
does not immediately eradicate all conceivable problems. With this we 
come to our third observation. If cultural enterprises can no longer 
control the market with copyright in hand, they must resort to a second 
protective mechanism, which they will then attempt to apply with even 
greater force than is presently the case. That is the far-reaching 
control over distribution and promotion of cultural expression they 
possess and wield.

This too must be limited with metes and bounds. After all, from a 
democratic perspective it is impermissible that a limited number of 
cultural giants is able to determine the contents of artistic and 
cultural communications, using traditional as well as new media (Smiers 
2003). Democracy is not the privilege of a few cultural conglomerates. 
It is a necessity to use ownership and content regulations to organize 
the cultural market in such a way that cultural diversity gets the best 
possible chance. First of all, there should not be dominant modes of 
distribution. It cannot be the case that a single owner dominates, 
controls, or concerts the market for music, films, or books. Vertical 
integration and other forms of cross ownership must be condemned. 
Content regulations may take the form of diversity prescriptions. That 
is to say: diversity in terms of genre, musicians’ backgrounds, and 
geographical diversity, and the latter representing diversity from the 
home country, neighbouring countries, and many other parts of the world. 
Of course there will be outlets specializing in a certain genre that 
want to be known for it. These too will be subject to diversity 
prescription, albeit within that genre (Smiers 2004). This type of 
regulation does not take anything away from a free market economy. To 
the contrary, these rules, while in need of further elaboration, serve 
to create a free market, or differently put, to “normalize” the market 
and to bring about a level playing field. No one should be able to 
dominate the cultural market or to have such a strong position that 
cultural diversity will be suppressed, pushed aside, or taken away from 
the public attention. This demands some regulations: on the one hand the 
elimination of the control mechanism “copyright” and on the other hand 
the instalment of some regulations concerning ownership and content that 
protect and promote the flourishing of artistic diversity.

Let’s focus now on the main point of attention of this essay, it must be 
clear that abolishing copyright will benefit the public domain in all 
its keys, colours, movements, wits, and images! But what does it yield 
for artists and those who do organizing work for them? Let us see how 
this takes shape per discipline of the arts, and per professional 
activity within them.

Putting it to the test
*** Music

If the present system of copy and neighbouring rights were suspended, 
how would musicians generate an income? We have to keep in mind, of 
course, that for many of them copyright was never, or hardly ever, a 
serious source of revenues. What we propose here applies without 
restrictions to all performing artists, in all walks of musical life and 
all genres, from popular to world music, and from improvisation to 
composed materials. A bit further on in the text we will reflect on the 
situation of those creating new works.

The background assumption is that especially performing artists are well 
equipped to add value or generate a competitive advantage. Neighbouring 
rights nevertheless offer a disproportionate protection against the 
performance and interpretation of one’s own or somebody else’s work. 
Many musicians are experts in personifying their relationship with an 
audience. Direct contact with audiences generates a substantial part of 
the income of many musicians. This way they build their own, unique 
market niche. This means, for example, that many musicians go on tour to 
give concerts and thus develop a close relationship with their audience. 
Their promotion is therefore oriented towards cementing that 
relationship. Their work may be embedded in merchandising activities of 
all sorts, such as t-shirts, books, brochures, et cetera. They can also 
offer their work via the Internet to music lovers worldwide. Several 
options come to mind: one can download only after paying a small amount, 
or one can download at all times, and subsequently hope that the fan 
will pay. A real fan will be more inclined to do this than a 
coincidental passer-by.

Record sales can also be a considerable source of revenues. Many people 
do not want to download music, or they want to get hold of the specially 
designed compact disk cover with the accompanying information. By paying 
special attention to the design of the cover, or by adding a lot of 
information, value is created. Records can be sold at concerts, in 
stores of various shapes and kinds, or ordered via the Internet.

What is then to become of the record companies? In principle, musicians 
do not need record companies, at least not in the conventional meaning 
of the word. With the latest digital technology, they can make 
magnificent recordings and distribute them via the Internet or on 
compact disks. If they still feel the need to use an intermediary, they 
can commission dedicated companies to perform various kinds of services, 
like making digital recordings, and/or produce and distribute a compact 
disk, and/or market the recording worldwide in digital format. It is 
very imaginable that we will see the emergence of many new enterprises 
that offer services to artists.

A lot of music finds its way to audiences via radio and television. Must 
broadcasting corporations, public or private, pay a fee for this 
content? The first impulse is of course to answer in the affirmative. We 
still live in the matter-of-fact world of copy- and neighbouring rights. 
Yet, there is a lot to say in favour of not charging fees, while 
bringing many artists in a financially better position. How does this 
add up? When the diversity of supply blossoms, as was described above, 
the air will be filled with many different kinds of music, supplied by 
many musicians. While this is culturally exciting in and of itself, it 
also yields a lot for artists. Not by being played by radio or 
television stations, but by familiarizing many different audiences with 
their existence – because they can be heard over the radio, and seen on 
television. Those audiences will visit their concerts, book them for 
festivals and parties, and obtain works from their favourite artists 
over the Internet and pay them for it.
The new situation opens up the possibility that many artists will 
benefit from the latent demand for a diverse offering of cultural 
products, and find and develop their own audience. Those audiences 
guarantee that artists will be able to make a decent or even a good 
living. After all, they are involved with “their” artists.

*** Composers, playwrights, choreographers

Above we have primarily put performing musicians in the spotlight (and 
focused on abolishing neighbouring rights). For many kinds of music 
there is no distinction between creators and performers. Those musicians 
do both; they perform their own creations. They earn their living in the 
way described above.

Still, there are many creators in the theatrical and musical arts that 
do not perform their own compositions, plays, and choreographies. This 
holds true for numerous composers, playwrights, choreographers, and 
related others. How can we imagine them earning a good living in absence 
of the present system of copyright? It may be that one him- or herself 
takes the initiative to compose, or that a work is being commissioned. 
We touched upon that matter above, when we described the new system, but 
it is relevant to elaborate upon the principle here, now that we have 
taken on a concrete exemplar.

The core of the matter is: how can an artist abstract an income from his 
or her work? When the work is commissioned, the answer is clear. The 
patron pays, and that is all that matters to the artist. So what does 
the paying patron receive? A beautiful (or not) piece of work, and the 
opportunity to take it to the stage. What is essential is that the 
patron obtains a competitive advantage from the act of commissioning a 
work, whereas the work itself becomes part of the public domain again 
after its first performance. We deliberately say “again,” because the 
work was largely derived from the public domain in the first place. So 
everyone who wishes to do so can take the composition, choreography, or 
play into production, free of charge. It also means that no one else is 
exclusively entitled to that work, or could obtain such a title. Many 
different versions of a piece can thus simultaneously be sung or played. 
Because of this lack of exclusivity, it all comes down to performing so 
attractively for different audiences that they want to come see it. If 
that happens, the composer, choreographer, or playwright has a good 
chance of receiving another commission, and so on and so forth.

In many cases there is no commission at all, and the composer, 
playwright, or choreographer initiates the creative process 
autonomously. This happens more with composers and playwrights than with 
choreographers, who are usually more dependent on commissions and 
planned performances. By taking an initiative the creative artist takes 
the entrepreneurial risk. That sounds nice, but it is not unthinkable 
that this type of artistic enterprise represents a considerable 
investment for a one-man (or one-woman) shop or freelancer. Because it 
is important to encourage composers or playwrights to make this 
investment, it is fair to give the creative artist a temporal usufruct, 
which extends over a certain period of time. Several transactions must 
be undertaken to earn back the relatively large initial investment, for 
example a year’s cost of living. This may encompass, for example, three 
stagings or performances. The usufruct is also temporarily restricted, 
notably: to one year.

Of course, creative adaptation is again most welcome (the moral right no 
longer exists under the new regime). We make note of that because in 
some cases, as happens with musicals, for example, highly detailed 
directing concepts are a compulsory element of the sales transaction. It 
is unthinkable that this practice will persist, because commissioned 
musicals too will be absorbed by the public domain again after their 
first performance, making them available for creative adaptation. When 
the writer and/or composer have initiated the musical him- or herself, 
the work also becomes part of the public domain again quickly, notably: 
when the period of usufruct expires. The free reign of creative 
adaptation is left unimpeded even in this period.

*** Books

Most books these days still appear on paper. While pondering about how 
writers can earn an income in a world without copyright, we have to take 
into account that digitisation has also entered the world of books and 
is likely to increase. Essentially, we have described a similar 
situation above when we analyzed the case of music. The music piece, and 
in this case the book, can be downloaded in return for some form of 
compensation, or free of charge, in the hope that a payment will still 
be made. The writer either organizes all of this him- or herself, or 
hires a specialized intermediary, similar to what has been discussed in 
the case of music. This phenomenon may crumble the power of huge 
publishing houses.

Next, the book on paper. We must take into account that author and 
publisher enjoy a competitive advantage. They are the first to take a 
specific book to the market, which gives them a certain period of time 
to rebalance expenditures and revenues. Writing a novel does however 
come with relatively large initial investments, which cannot be recouped 
with the first imprinting alone. Selling a hundred copies in the first 
few weeks will not adequately compensate the author for his or her 
labours. A certain amount of copies thus has to be sold, and this will 
take a certain stretch of time. The most obvious criterion for temporary 
protected usufruct is to offer the person taking the entrepreneurial 
risk, author or publisher, a certain period to bring the book to 
financial maturity. As was the case on previous occasions, our thoughts 
go out to a period of one year.

It happens to be an interesting fact that authors reap ancillary 
benefits, next to their primary income from book sales, from 
contributions to newspapers and magazines, from literary readings, and 
from other public appearances. In this respect they are quite comparable 
to performing musicians. The difference, however, is that these 
activities have a little less in common with their primary activities 
than what happens to be the case with musicians. That is why we opted 
for a different regime.

*** Film

In principle, we propose, must filmmakers too profit from the 
competitive advantage they enjoy when bringing their product to market 
first. Reality is different, of course. Even a low-budget movie costs at 
least a million euros or dollars. The average movie is incapable of 
recouping the money invested in it on the basis of first-mover 
advantages alone. On top of that, it happens to be very easy to copy a 
movie, which makes it very difficult to make this type of product 
profitable. This makes it evident that a temporarily protected usufruct 
should be introduced in the domain of film.

The most important source of revenues is therefore the temporarily 
protected usufruct of the film producer. The film producer too must do 
with a usufruct that last only a year. It should be possible to recoup 
the costs of a film within that year. He or she can use that year to 
offer the film via all imaginable media, including digitally via the 
Internet.

But it is also well imaginable that governments endow filmmakers with 
subsidies. It may occur that the market is insufficiently developed to 
support a large diversity of, say, European films. Cultural-political 
arguments may also support measures like tax reliefs. Finally the 
government can contribute to the creation of efficient networks for the 
distribution of a variety of films. Experience teaches us that 
distribution is more difficult than production. An individual producer 
is bound to be incapable of developing an effective distribution network 
for a variety of films. There is a role here for governments to support 
the realization of such networks and to contribute to them in their 
initial phases.

*** Design disciplines and visual arts

In the area of visual culture, the question relevant for determining 
whether the creators of a work of art will be able to extract a decent 
living from their labours is as follows: is the work a unique piece or 
is it a replica? Many visual artists make unique works and figure out 
for themselves how they will go about doing so. Their main source of 
income is the sale of this unique work. The orthodox copyright system is 
less relevant here, and the same holds true for the new system sketched 
above.

Apart from that, subsidy instruments will remain relevant for protecting 
artists from the whims of the market; they provide the foundation for a 
process of continuous, emergent creation. Nevertheless, artists will 
have to be stimulated and trained to commit various audiences to 
themselves, thus providing their income. There is no room for derivative 
rights. Creative adaptation too must be applauded. This may imply that 
similar looking pieces will enter the market, just like what has always 
been the case in all cultures.

Where a work has been commissioned or ordered, the situation is also 
clear. The work, regardless of whether it involves a design or painting, 
is created and delivered against the agreed-upon price. It should be 
clear that creative adaptation is allowed to take its course here too. 
It can obviously not be the case that, say, an architect is allowed to 
claim: this realized building is my design and no one is allowed to 
change it without my permission, or – at the opposite end of the 
spectrum – no one is allowed to imitate it. The reality is, in this 
case, that the architect has been paid for his or her endeavours. After 
that the building will once again become part of the public domain, and 
may be altered or imitated if so desired.

Especially the products of the design professions are easily replicable 
and imitable. But the maker, or the buyer of the work, enjoys a 
competitive advantage. He or she is the first to market the product 
manufactured according to a certain design. Let markets be markets; 
additional forms of protection are unnecessary.


Discussion and conclusion

Admittedly, it may take a while to get used to letting go of the system 
of copyright. It urges us to make a mental and an economic transition, 
but this is worth the trouble in every conceivable way. Many practical 
matters still need to be solved with respect to the usufruct model. 
Should a temporary protected usufruct be granted automatically or should 
we implement a licensing system? Following some of our test cases, it 
seems logical to automatically grant some types of artistic product (for 
example films and books) usufruct. But what are the drawbacks of this 
approach and should the duration of protection for all fields of the 
arts be the same? Other questions that come to mind are: is there still 
a role to play for the collecting societies and what is the effect of 
the one-year usufruct on the product life cycle of artistic products?

In this essay we have presented a thought-experiment. We urge everybody 
to participate in our quest. Who should, for instance, be our strategic 
partners in our journey into a world without copyright? What is at stake 
is to once again begin respecting the public domain of creativity and 
knowledge. Our main concern is providing the makers of artistic work 
with a decent income and sufficient possibilities to bring their work, 
in all its diversity, under the attention of many audiences without 
being pushed from the market by a few oversized cultural conglomerates. 
The system of copyright has existed for over a century in Western 
societies. It has been long enough. It is not equipped to withstand the 
digitisation that has once again supplied artists with a magnitude of 
entrepreneurial freedom. Profit from it!


References

Alderman 2001, John, Sonic Boom. Napster, P2P and the Battle for the 
Future of Music, London (Fouth Estate)

Barthes 1968, Roland, La mort de l'auteur, Manteia, no. 5, 4e trimestre 
1968. Published as well in: Roland Barthes, Oeuvres complètes, Tome II, 
1966-1973, Paris 1994 (Editions du Seuil): 491-495

Bettig 1996, Ronald V., Copyrighting Culture. The Political Economy of 
Intellectual Property, Boulder (Westview Press)

Bollier 2003, David, Silent Theft. The Private Plunder of Our Common 
Wealth, New York and London (Routledge)

Boyle 1996, James, Shamans, Software, and Spleens. Law and the 
Construction of the Information Society, Cambridge MA/ London (Harvard 
University Press)

Coombe 1998, Rosemary J, The Cultural Life of Intellectual Properties. 
Authorship, Appropriation, and the Law, Durham and London (Duke 
University Press)

Correa 2000, Carlos M., Intellectual Property Rights, the WTO and 
Developing Countries. The TRIPS Agreement and Policy Options, London/ 
Penang (Zed Books/ Third World Network)

Daoudi 1996, Bouziane, et Hadj Miliani, L'aventure du raï. Musique et 
société, Paris (Éditions du Seuil)

Drahos 2002, Peter, with John Braithwaite, Information Feudalism. Who 
Owns the Knowledge Economy?, London (Earthscan)

Drahos 2002a, Peter, and Ruth Mayne, Global Intellectual Property 
Rights. Knowledge, Access and Development, Basingstoke (Hampshire) and 
New York (Palgrave Macmillan and Oxfam)

Edelman 2004, Bernard, Le sacre de l’auteur, Paris (Seuil)

Fombrun 1996, C.J., Corporate reputation: How Companies realise Value 
from the Corporate Brand¸ Boston MA (Harvard Business School Press)

Frith 1993, Simon (ed.), Music and Copyright, Edinburgh (Edinburgh U.P.)

Frith 2004, Simon, and Lee Marshal (ed.), Music and Copyright. Second 
Edition, Edinburgh (Edinburgh U.P.)

Grandstrand 2003, Ove (ed.), Economics, Law and Intellectual Property, 
Amsterdam (Kluwer Academic Publicers)

Grosheide 2002, Willem, and Jan Brinkhof (ed.), Articles on the Legal 
Protection of Cultural Expressions and Indigenous Knowledge, Antwerp 
(Intersentia)

Hauser 1972, Sozialgeschichte der Kunst und Literatur, München (C.H. Beck)

Hemmungs Wirtén 2004, Eva, No Trespassing. Authorship, Intellectual 
Property Rights, and the Boundaries of Globalization, Toronto 
(University of Toronto Press)

Kretschmer 1999, Martin, Intellectual Property in Music: A Historical 
Analysis of Rethoric and Institutional Practices, special issue Cultural 
Industry (ed. P. Jeffcutt), Studies in Cultures, Organizations and 
Societies, 6: 197-223

Kretschmer and Kawohl 2004, Martin and Friedemann, The History and 
Philosophy of Copyright, in: Frith and Marschall (2004): 21-53

Lessig 2002, Lawrence, The Future of Ideas. The Fate of the Commons in a 
Connected World, New York (Vintage)

Lessig 2004, Lawrence, Free Culture. How Big Media Uses Technology and 
the Law to Lock Down Culture and Control Creativity, New York (The 
Penguin Press)

Lewinski 2002, Silke von, Indigenous Heritage and Intellectual Property. 
Genetic Resources, Traditional Knowledge and Folklore, The Hague (Kluwer 
Law International)

Litman 2001, Jessica, Digital Copyright, Amherst (New York/ Prometeus Books)

Macmillan 2002, Fiona, Copyright and Corporate Power, in Towse 2002: 99-118

McChesney 1999, Robert W., Rich Media, Poor Democracy. Communication 
Politics in Dubious Times, Urbana and Chicago (University of Illinois Press)

Mitsui 1993, Tôru, Copyright and Music in Japan. A Forced Grafting and 
its Consequences, in Frith 1993: 125-145

Motavalli 2002, John, Bamboozled at the Revolution. How Big Media Lost 
Billions in the Battle for the Internet, New York (Viking)

Perelman 2002, Michael, Steal This Idea. Intellectual Property Rights 
and the Corporate Confiscation of Creativity, New York (Palgrave)

Picciotto 2002, Sol, Defending the Public Interest in TRIPS and the WTO, 
in Drahos 2002a: 224-243

Rifkin 1998, Jeremy, The Biotech Century. Harnessing the Gene and 
Remaking the World, New York (Jeremy P. Tarcher/ Putnam)

Rifkin 2000, Jeremy, The Age of Access. The New Culture of 
Hypercapitalism, Where All of Life is a Paid-for Experience, New York 
(Jeremy P. Tarcher/ Putnam)

Schiller 2000, Dan, Digital Capitalism. Networking the Global Market 
System, Cambridge (MA)/ London (The MIT Press)

Shiva 1997, Vandana, Biopiracy. The Plunder of Nature and Knowledge, 
Boston MA (South End Press)

Shiva 2001, Vandana, Protect or Plunder? Understanding Intellectual 
Property Rights, London (Zed Books)

Shulman 1999, Seth, Owning the Future, New York (Houghton Mifflin Company)

Smiers 2001, Joost, La propriété intellectuelle, c'est le vol ! Pladoyer 
pour l'abolition des droits d'auteur, In Le Monde Diplomatique, 
septembre 2001.

Smiers 2002, Joost, The abolition of copyrights: better for artists, 
Third World countries and the public domain, in Towse 2002: 119 – 139

Smiers 2003, Joost, Arts Under Pressure. Promoting Cultural Diversity in 
the Age of Globalisation, London (Zed Books)

Smiers 2004, Joost, Artistic Expression in a Corporate World. Do We Need 
Monopolistic Control?, Utrecht (HKU/ Utrecht School of the Arts)

Towse 2002, Ruth (ed.), Copyright in the Cultural Industries, Cheltenham 
(Edward Elgar)

Towse 2003, Ruth, Copyright and Cultural Policy for the Creative 
Industries, in: Grandstrand 2002: 1-10

Towse 2004, Ruth, Copyright and Economics, in: Firth and Marshall 
(2004): 54-69

Vaidhyanathan 2003, Siva, Copyrights and Copywrongs. The Rise of 
Intellectual Property and How It Threatens Creativity, New York and 
London (New York University Press)


about the authors

Marieke van Schijndel is policy advisor and has worked for various 
cultural organisations in the Netherlands. Last year she received her 
Master of Business Administration from the John Molson School of 
Business (Canada) and she currently works for the Mondriaan Foundation, 
an organisation that provides financial support to projects and 
activities in the field of art, design and heritage. This essay is 
written à titre personnel. ( HYPERLINK 
"mailto:m_vanschijndel at hotmail.com" m_vanschijndel at hotmail.com)

Joost Smiers is professor of political science of the arts at the 
Utrecht School of the Arts, the Netherlands. He is author of Arts Under 
Pressure. Promoting Cultural Diversity in the Age Globalization (London 
2003, Zed Books); and of Artistic Expression in a Corporate World. Do We 
Need Monopolistic Control? (Utrecht 2004, Utrecht School of the Arts). ( 
HYPERLINK "mailto:joost.smiers at central.hku.nl" 
joost.smiers at central.hku.nl and HYPERLINK 
"mailto:joost.smiers at planet.nl" joost.smiers at planet.nl)




The authors wish to thank the following friends and colleagues for their 
kind and critical comments to earlier drafts of this article: Maarten 
Asscher, Lee Davis, Christophe Germann, Willem Grosheide, Giep Hagoort, 
Eva Hemmungs Wirtén, Pursey Heugens, Raj Isar, Lina Khamis, Jaap 
Klazema, Gerd Leonhard, Helle Porsdam, Alan Story, Ruth Towse, David 
Vaver, Catarina Vaz Pinto , Roger Wallis, Lior Zemer, as well as the 
Research Group Arts & Economics at the Utrecht School of the Arts (the 
Netherlands), the Copy/South Research Network and the AHRB Network on 
New Directions in Copyright Law (London).

.