14.12.2006

Copyright or human need

Communists are for the freedom of information, says Mike Macnair

On December 7, 4,500 performing musicians signed up to an advertisement in The Financial Times calling on the government to extend the copyright in sound recordings from 50 years to 95. Signatories included world poverty campaigner Bono and Simply Red front-man Mick Hucknall: Hucknall had written an opinion piece in The Guardian, in which he bizarrely claimed that "Copyright is fundamentally socialist - it is radical and redistributive, subversive even. How else would you describe a form of property that anyone can create out of nothing?" (November 23).

The background is that copyright in recordings of performances currently lasts 50 years. In contrast, authors' (and hence composers') copyright lasts for the life of the author plus 70 years. The issue is thus, precisely, the artists' copyright (in practice that of the record companies) in performances of songs not written by the performer.

In the US, the Sonny Bono Copyright Term Extension Act of 1998 retrospectively extended copyright in musical recordings to 95 years - in other words, performances whose copyright would have or had already expired were once again covered. The process has been described as "copyright creep".

The music industry had hoped that the Gowers review of intellectual property commissioned by the treasury would agree to a similar extension in this country. It did not. Indeed, Gowers goes on to recommend that - flatly contrary to what was done in the US - the government should adopt as a principle that copyright should not be retrospectively extended (see www.hm-treasury.gov.uk/media/53F/C8/pbr06_gowers_report_755.pdf, paras 4.40, 4.47).

The evidence Gowers produced to support these conclusions is striking (paras 4.26 and following). By far the lion's share of any extension would go to record companies, not to performers. In so far as performers did benefit, it would be a small elite. The broad mass would be worse off. Less music would be available to consumers. So far as copyright was extended in books, fewer books would be available, and at higher average prices. Pro-capitalist economists assess that the economically optimal life of copyright in general is much shorter than at present, one pair of authors proposing seven years and another 25.

In fact, the more it is possible for the corporations to keep making money, through copyright, by recycling old music, re-running old TV shows, etc, the less they will be willing to pay for new performances and new creative work.

None of this is in the least surprising. Copyright originated in the late Stuart period as part of the licensed stationers' (publishers) means of managing their monopoly under the state censorship regime. A few years after the 1688 revolution, the censorship and hence the monopoly was abolished. The publishers began to lobby for copyright, and obtained it, under pretence of protecting the interests of authors, in the 'Statute of Anne' in 1710.

The pretence of protecting the interests of authors then, or of performers now, is nonsense. It was possible to make a living by writing or performing long before the creation of copyright. Nor has copyright made authors, or performers, independent of patronage, as is often claimed. It is just that the patrons have changed: from aristocrats and figures high in church hierarchies, to publishers, record companies and the agents who run stables of authors, performers, etc. It has always been the case that copyright is mainly in the interests of publishers - and of a small elite of writers and performers; and it is still the case that authors, and performers, who do not make it into this elite are best advised 'not to give up the day job.'

Nor is it surprising that the proper length of 'intellectual property rights' (IPRs), like copyright, is controversial among pro-capitalist economists. Some rightwing libertarians, indeed, question whether these rights should exist at all. An 'intellectual property right' is nothing but a legal monopoly in the use of an idea. Beyond the cost of producing the idea and disseminating it, and an average rate of return on capital to cover the associated opportunity cost, royalties and licensing fees are absolute rent, like absolute rent on land. That is, a price society pays to an arbitrarily selected group of owners, for no reason other than to maintain a system of private property. The monopolistic character of the right to rent means that the rent payable can only be said to be governed by supply and demand in a very limited sense. Hence the fact that many free-market economists are suspicious of IPRs.

The musicians who signed the Financial Times advert can be accused at best of blinkered, trotters-in-the-trough greed and self-interest. It is perhaps similar to the December 3 report in The Sunday Times that MPs are pressing for a 66% pay rise to take their salaries to £100K.

In Bono's case, signing the advert is stunning hypocrisy, given his campaigning on world poverty - and in particular, access for 'third world' countries to 'western' markets. The reason is that IPRs are one of the major means by which social surplus product is siphoned out of the poor countries to pay for the lifestyles of the 'first world'.

Since the 1980s, the US has lobbied vigorously on the international scale for strengthened protection of IPRs. Its major achievement was the Agreement of Trade-Related Aspects of Intellectual Property Rights (usually abbreviated to TRIPS), which came into force in 1995, but US pressure to expand these rights continues and was an element in the failure of the Cancun talks earlier this year.

Underlying this US-led expansion of private monopoly rights in the use of information is the gradually increasing role in the US economy since the mid-20th century of rents derived from these rights, as opposed to sale of physical goods or direct investment in overseas production. This US shift into 'technical rents' from the 1950s was identified by Marxist economists in the late 1960s and early 1970s. The 1950s shift, and the growth of third world government debt, were intimately associated with the shift in the cold war period from direct colonialism to neo-colonialism. Since then it has accelerated. It has been estimated that the share of IPRs in US exports rose from 9.9% in 1947 to 27.4% in 1999. In general the US is massively in deficit with its trade partners; in relation to royalties and licensing fees on IPRs it was in 1995 in surplus by $20 billion (see G Dutfield Intellectual property rights, trade and biodiversity London 2002, pp10-11).

Gowers points out that UK capital has also benefited: "In 2004, the creative industries contributed 7.3% of UK gross value added, and from 1997 to 2004 they grew significantly quicker than the average rate across the whole economy."

There have been a number of 'spectacular' examples from time to time. The 1999 Seattle World Trade Organisation meeting was marked not only by anti-globalisation protests, but also by a confrontation over the high costs of anti-AIDS drugs in the third world and the big pharmaceutical corporations pressing for tougher protection for their IPRs. Though the corporations backed down on prices in order to improve their diplomatic position, the struggle over IPRs has continued at each of the abortive WTO meeting since. The case of anti-AIDS drugs was merely a tip of an extremely large iceberg.

In this context, campaigning to extend copyright is both a direct and an indirect contribution to poverty and inequality worldwide. It is a direct contribution because royalties for music, etc are part of the tribute 'third world' countries pay to 'first world' owners, sucking out foreign exchange. It is an indirect contribution because 'copyright creep' is part of a more general movement towards the exaltation of intellectual property rights: and the tribute exacted by the imperialists under cover of patents, trade marks, etc dwarfs the contribution of music royalties.

The musicians who signed the Financial Times advert have therefore joined the global crusade for the sanctity of private property, and for the privatisation of everything. In the case of copyright, it has been obvious for some years now that effective enforcement of copyright requires totalitarian policing. In Anton Piller v Manufacturing Processes (1976) the English courts reinvented in the interests of copyright owners both the 'general warrants' denounced as illegal in Entick v Carrington (1765) and the inquisitorial fishing-expeditions which were one of the main grounds of the 1641 abolition of the Court of Star Chamber.

But Anton Piller orders have not proved to be enough. Gowers recognises that. He proposes a campaign to increase public awareness that IP violations are 'crimes' (paras 5.72-5.78), increased criminal penalties and civil damages (5.79-5.81, 5.89) and voluntary cooperation with internet service providers to eliminate illegal file-sharing, backed by the threat of legislation to make the ISPs liable to the copyright holder (5.92-5.100). Car boot sales, etc should be more regulated (5.101). The Office of Fair Trading, Serious and Organised Crime Agency and local trading standards offices should cooperate more effectively and have more powers to deal with IPR violation (5.102-5.112).

Really effective enforcement of IPRs would need more than this. The internet would have to be covered by universal tapping to check that no copyright was being violated. A massive corps of inspectors would have to cover every formal and informal local market. Photocopiers would need to be controlled and tapped to check what was being copied. And so on.

There is a choice, and it is one which is becoming increasingly clear. Are you for the sanctity of private property? If so, you have to be willing to sacrifice human needs, as the case of AIDS drugs and the more general exploitation of the 'third world' through patents makes clear. And you have to be willing to sacrifice democracy and political liberty. To quote from a Tom Robinson song (which is still in copyright), "Better decide which side you're on".

Communists know which side we're on: that of human need and political democracy. The musicians supporting the FT ad are choosing the wrong side.