The Puzzle of a Muzzle: copyright, culture and censorship

I have received a very thought-provoking piece from Christophe Germann, who is looking for responses while he considers how to take this paper further. Christophe is an attorney at law in Geneva, as well as a visiting research fellow at the Law Schools of the University of Oxford and Birkbeck College, University of London.  He has recently completed a study for the European Parliament in which he further elaborates here on the topics addressed in this contribution.

If you'd like to make any pertinent suggestions or just tell Christophe what you think, please email him here or post your comments below.
"Cultural diversity against piracy:
Variable geometry for copyright duration?

The Puzzle of a muzzle

In 1996, the American civil rights activist Jessie Jackson met representatives of the Hollywood majors to complain that black artists were unduly underrepresented at the Oscars. This prize provides high marketing value both for the awarded individuals and for their films. Jackson’s protest brought media attention to what he called "institutionalized racism" within the motion picture industry. The protest stemmed from the lack of minority nominations for awards that year. Of 166 nominees, only one was non-White. Jackson denounced "cultural bias” and “cultural lockout" and announced: "We're really trying to raise consciousness... At a certain point you have to organize and fight back." He was eventually successful in bringing more diversity on screen. But the story should not end here: I believe that art and entertainment, thoughts and emotions from all over the world deserve the same access to the audience everywhere.

Hollywood's Columbia Pictures created the fake film reviewer David Manning to praise its films. Newsweek revealed this cheating in June 2001 that angered some movie goers in the United States to the point that they launched a class action lawsuit against the film studio, and they won. It was probably the most dishonest caricature of what economist Arthur De Vany labeled the “blockbuster strategy” and that he described as a marketing strategy suggesting the movie-going audience can be “herded” to the cinema: “The blockbuster strategy is based on the theory that motion picture audiences choose movies according to how heavily they are advertised, what stars are in them, and their revenues at the box office tournament.”[1]

More recently, a real film reviewer, A. O. Scott, lamented in the New York Times the invisibility of great foreign films in American theaters: “Of course, worthy films are passed over all the time, but such puzzling and capricious neglect happens so often that it can be taken as a yearly reminder of the American film establishment’s systematic marginalization and misapprehension of much of world cinema.” In a contribution of 26 January 2011 “A Golden Age of Foreign Films, Mostly Unseen” he complained about “the peculiar and growing irrelevance of world cinema in American movie culture, which the Academy Awards help to perpetuate.”

Most Americans consider freedom of speech as one of the highest values protected under their Constitution. Europeans equally dislike censorship and invoke article 10 of the European Convention on Human Rights, the equivalent of the First Amendment, stating that everyone has the right to freedom of expression that, subject to certain limitations, includes “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” A similar rule applies in all other true democracies worldwide. In various jurisdictions, notably in South Africa, citizens can enforce this right not only against the State, but also vis-à-vis private entities.

Now, is there a case against “marketing censorship”, meaning censorship not from public sources, but from private ones? - Tunisia and Egypt experienced over the last three decades strong public censorship from their kleptomaniac former presidents and their cliques. What about us in Western democracies? - Let me suggest that we are subject to censorship of a private kind.

Let me apply this idea to “entertainment” or, in a more European jargon, to “culture”, and go back to the film industry to articulate the issue and a possible solution. Let me contend that the same considerations are valid also for the book and music industries, and even for the media in general. Further, that they apply both to the analogue and the digital worlds. And let me quote Michel Foucault to add a key piece to the puzzle of muzzle: “You act on reality by acting on its representation.”

The United States lost the Vietnam War in reality. In its representation on screen, however, they seem to have won it. How many Vietnam war films could audiences in the United States and abroad watch over the last decades that were authored by Vietnamese? To what extent did this one-sided view prepare mainstream public opinion for new wars in Afghanistan and Iraq?

40 percent to make and 60 percent to sell

Disproportionately high standards of intellectual property protection are incentives to disburse excessive expenditures in advertising for contents. They are the primary means for market domination. This reality is detrimental to the creation, production and dissemination of films, books, music and other cultural expressions that do not enjoy comparable investments in attracting the public's attention. In other words, excessive copyright, trademark and trade name protection generally contribute to marginalizing and excluding contents and aesthetics that are culturally different from the economically dominant ones. They do not enjoy competitive marketing power even when they have the same or more audience appeal, and this is how the muzzle works in our very own neighborhood. A few top executives and their apparatchiks in the film, book and music industries dispose of highly concentrated power on marketing, and they abuse this power to culturally discriminate. They impose their preferences upon you and me and everybody around the world, and muzzle all the rest. They are our Ben Ali's and Hosni Mubarak's censorship apparatus.

Copyright and related intellectual property rights protect, on average, 40 million dollars of creative activities and 60 million dollars of marketing per Hollywood film if we rely on the cost figures of the major film studios' annual outputs based on the Motion Pictures Association of America's market statistics.

In the film, book, music and media industries, the dogma still prevails that the stronger copyright and trademark protection is, the better for everybody. Many artists, law and policy makers and civil society activists who are concerned about the protection and promotion of the diversity of cultural expressions have a blind eye to the intellectual property system. They only see the benefits of this system for culture and entertainment while ignoring its negative sides.

In 2007, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions entered into force. The United States stayed out of this agreement although it would substantially reinforce the First Amendment if one correctly reads its article 7. Pursuant to this core provision, the parties to the Convention shall endeavor to create in their territory an environment that encourages individuals and social groups to create, produce, disseminate, distribute and have access to their own cultural expressions, as well as to diverse cultural expressions from within their territory and from other countries of the world. Furthermore, the parties shall also endeavor to “recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.” Phrased differently, the countries shall contribute to empowering individuals and social groups to create cultural expressions such as films, books and music, and to have access to the diversity of these expressions. Very importantly, they should consider artists and others involved in the creative process as key contributors to the diversity of cultural expressions.

I submit that a reform of the copyright system inspired by this provision could lead to a better world with less cultural discrimination.

The widespread perception of the value of intellectual property protection among creators focuses on economic rights: copyright is an essential source of revenue. While this understanding is generally correct on the micro level, it neglects the fact that, on the macro level, copyright is the main instrument to secure investments for advertising of contents distributed by heavily concentrated corporations. Artists whose works do not enjoy competitive marketing are thus silenced in the prevailing system.

One of the main rationales underlying the grant of intellectual property rights is to provide incentives for creative achievements. For this reason, creators, producers, distributors and their investors advocate high standards of copyright protection. Too much protection, however, is detrimental to the interest of creators and producers who are not backed by strong distributors and investors, and to the interest of the users and society at large. This is particularly true with respect to the huge accumulation of capital fueling the production and distribution of the Hollywood majors' films. These investments, which are protected and, thus, induced by intellectual property laws, are channeled to marketing rather than creative efforts. Ultimately, they drive most of the Hollywood oligopoly’s competitors out of the market.

What about copyright and freedom of speech? - When copyright essentially serves to amplify the voices of the loudest, and silence all other voices on the market place, it has indeed a lot to do with freedom of speech. The show must go on, but let variety be its spice.

A new deal: less copyright for more marketing

Concretely, I submit that policy and law makers should re-design some core aspects of copyright and related intellectual property rights in such a way that these rights become more workable for individual creators and small and medium sized producers. This means developing new safeguards against the not so subtle forms of cultural discrimination resulting from the abuse of dominant positions in the market. This domination is essentially tributary to excessive levels of intellectual property that protect predatory advertising.

Intellectual property rights can grant cultural players an indispensable independence from public power: the states, their bureaucracies and experts. This is a lesson to be learned especially in Europe. It is equally applicable to liberal and authoritarian regimes as well as to wealthy and developing economies. I therefore reject a complete abolition of intellectual property protection proposed by certain scholars such as the Dutch political scientist of the art Joost Smiers.[2] The lesson for the United States is to constrain abuse of private power via a better intellectual property regime.

The combined effects of the Hollywood oligopoly's marketing power on one side and some rich democracies' covert control of contents via “selective” state aid on the other side are highly damaging to freedom of speech. The rights of artists and of the public who refuse either diktat need protection.

A “variable geometry in copyright duration” could solve this problem: the higher the marketing investments the shorter the copyright duration of protection. In other words, the works with modest advertising shall keep the full term of copyright protection (70 years after the author's death), whereas this duration shall be shorter for works enjoying high investments in their publicity. As a consequence, a great diversity of small and medium sized fishes will flourish while big sharks are kept at a safe distance.

Germany pioneered in extending the terms of protection. The rationale of this extension relied on the fact that the World Wars deprived generations of authors of the benefits of the economic rights in their works. In 1993, the European Community's copyright duration directive extended the German term of protection to all EU Member States. As a consequence, the United States followed the trend in spite of considerable resistance from its civil society. Today, obviously, the grounds underlying this extension do no longer exist for post-war generations of creators and producers in Europe and the United States – the wars have been over for quite some time!

Variable geometry shall provide strong disincentives for exorbitant investments in marketing that damage the diversity of cultural expressions; and provide commensurate incentives for reasonable investments in marketing to the great benefit of consumers. Tax measures to be adopted on the national level shall complement the system and, in particular, prevent circumvention via trademark protection or similar means.[3]
This idea could achieve a level playing field for talents and contents from all cultures by imposing a repellent against exclusionary marketing practices that muzzles creativity from diversified cultural origins. It will be instrumental for the full realization of genuine freedom of speech. It will open frontiers and remove unjustifiable obstacles to trade.
Diversity against piracy
Last but not least, this idea is also likely to reinforce the legitimacy of the copyright system and, thus, probably the most effective way to fight piracy. OECD figures indicate that international trade in counterfeit and pirated products could have amounted to up to USD 200 billion in 2005. This estimate is larger than the national GDPs of about 150 economies based on World Bank data for that year. It does not include domestically produced and consumed counterfeit and pirated products and the volume of pirated digital goods and services being distributed via the internet. If these items were added, the total magnitude of counterfeiting and piracy worldwide could well be several hundred billion dollars more per year.[4] Piracy and counterfeiting thus appears to be a serious problem for developed countries that is not likely to be solved without effective cooperation from developing countries and least developed countries. An incentive for such a cooperation could result from promoting cultural diversity in exchange of fighting piracy: Developed economies would start to effectively implement the access rights under article 7 of the UNESCO Convention for cultural goods and services from developing and least developed countries. In turn, the latter countries would gradually benefit from the international intellectual property system and, accordingly, start to enforce it in their own territories. Under this scenario, cultural diversity is promised to provide new gains for all parties".

[1]    Hollywood Economics, How extreme uncertainty shapes the film industry, London / New York 2004, p. 122.
[2]    Joost Smiers / Marieke van Schijndel, Imagine there is no copyright and no cultural conglomerates too..., Better for artists, diversity and the economy, Amsterdam 2010:

[3]    Further proposals aimed at improving access to culture and reinforcing competition on a level playing field are further developed in the long version of the study for the European Parliament on the implementation of the 2005 UNESCO Convention on cultural diversity at (see section “Main Study”, Introduction and Study Paper 2B, version of November 2010).
[4]    OECD, The economic impact of counterfeiting and piracy, Paris 2007.".

1 comment:

  1. I find your argument flawed in that Hollywood studios have their eye on short term profit - immediate theatrical gross plus immediate Home Entertainment distribution. They're thinking in terms of this year's balance sheet, not in terms of years let alone decades. Reducing the length of copyright will not reduce the amount spent on upfront marketing. On another note, I've seen many US movies and TV shows referencing defeat in Vietnam, I've yet to see one suggesting victory and have certainly never met any American who thought they didn't lose! (from a joint British/US citizen!)