How Does Copyright Affect Culture?

Blog   12.9.2017  Text: Nathalie Lefever

Copyright is an important part of cultural policy, but because of its technicality, the copyright system is often poorly understood, including by some who are most involved in it, such as artists. The copyright system’s importance for society as a whole and in particular for a thriving cultural background should not be underestimated.

So let’s go back to the basics: what is copyright and how does it influence culture? Copyright is an essential part of intellectual property rights that protects the rights of authors who are the creators of original works in the field of literature and the arts (including written works, musical compositions, works of visual arts and other creations of the mind). In a broader sense, copyright also includes the so-called related or neighboring rights: the rights of performers, producers of phonograms or films, and creators of databases. The right holders, or those to whom the rights have been transferred, have the exclusivity on some uses of the works defined by law, in particular copying and distribution. This enables authors to control and to obtain reward from the use of their creative works, as well as to prohibit unauthorized use of it.

Copyright is at its core a legal construct: it is an extension of the right of property to ideas once they have been expressed and become “works”. It is a legal recognition of the importance of creation, not only its economic importance, but also the importance of authorship since copyright also includes “moral rights” (such as the right to see a work attributed to its author and the right to the integrity of the work). It provides an additional motivation for artistic endeavors, a market-based reward. However, a malfunctioning copyright system or too tight copyright protection might hamper creation. Copyright protection for example should not result in a prohibition of “follow-on creation”, meaning creation based on past works. Moreover, as creativity finds new supports, technologies develop, and creation and distribution processes change, the copyright system too must evolve. A functioning copyright system needs to be based on a profound and up-to-date understanding of value creation processes as well as the roles of their actors.

Copyright also has a very important economic aspect. Its purpose is to make it possible for authors to make a living from creative activities; when enforced effectively, copyright also functions as an incentive to invest in creative activities as it secures returns from the market to reward investors’ risk-taking. The growing economic importance of copyright industries has been acknowledged in many countries. In order to foster the financial supports to and rewards from acts of creation, it is necessary to combine fine-tuned copyright protection laws with an efficient system of enforcement, general awareness of copyright rules in the population, as well as an efficient market for copyrighted products and services. In particular, facilitating the connections between creators and users is a challenge that has been met through different means, such as the services of collective management organizations.

Finally, the last aspect of copyright is not the least important: the point of view of access. Culture is a common good, and even if culture is of course much larger than the sum of copyright-protected works, every work that is left inaccessible because of restrictions created by copyright limits public access to the cultural heritage. Copyright creates an exclusion mechanism to limit the ability of individuals to exploit creative works, but in order for the ideas themselves to remain public and for the public to be able to access and enjoy culture, the scope of these restrictions has to be carefully adjusted. This can be achieved through various means, including a carefully designed scope of protectable subject matter, a limited term of protection that will allow for a strong public domain, appropriate limitations, exceptions and exemptions that allow certain uses without authorization by the right holders, as well as systems of licensing that will promote the access to cultural works for example through libraries, museums or in education.

A national copyright system is therefore a complex balance of sometimes opposed, sometimes converging interests including many actors, processes, rules and policies. Its success in achieving its goals will depend on its capacity to respond to various challenges and adapt to the evolution of cultural processes. For this purpose, the development of the copyright system needs a solid and reliable information base that is collected in an objective manner. Cupore has participated in the effort to provide this base by creating a methodology for assessing the operation of national copyright systems. Hopefully this methodological tool will support the development of copyright systems that will achieve the very delicate balance between the interests of right holders and the development of culture.