We often hear in the political debate in France the argument that copyright is a French invention, inspired by the noblest principles, whereas copyright would be the quintessence of the most crude and gluttonous capitalism. What about the real world (and not in law school)?
In one of the countless questionnaires sent to candidates for the last presidential election, we find this question which, as you see, is very slightly oriented: “Q: What legal point of view of copyright do you defend: copyright – the moral and heritage rights of authors, individuals – or Copyright, a purely economic right for companies holding exploitation rights over works?”
This cartoonish way of presenting the two systems, and asserting that one is “moral” while the other would be lowly financial is very common in France. I randomly take a newspaper that hangs around and find it (Yellow and Red, April 2012) “The first [copyright] is based on a utilitarian and economic conception, putting business and the exploitation of rights at the heart of the system. The second [copyright] is based on humanism, it places the author’s person at the heart of rights. Beautiful lyrical flight, from someone who, in the rest of the article, defends the interests of the entertainment industry.
What about the theory? By simplifying quite a bit (and I apologize to my legal readers), we can say that copyright includes two rights, a moral right that is inalienable (the author cannot sell it, even if he absolutely wants it) and a heritage right that is a commodity like any other and that the author can negotiate for money. Copyright, the above-mentioned articles say, includes only heritage law. Practical consequences? Moral law guarantees the author certain rights (inalienable, as we have seen) such as the right of withdrawal that allows an author to say “finally, I don’t want to be published my book/film/music, stop everything”. And this regardless of the contract that his publisher forced him to sign taking advantage of his financial needs.
And what about? First, things have changed. Since the United States signed the Bern Convention, even they have some kind of moral right.
But above all, this false opposition, carefully staged, “nice left-wing French with their copyright against wicked American capitalists interested only in money with their copyright” does not correspond to practice. In both cases, the creator receives very little and, above all, has no effective control over his work. Certainly, in theory, the copyright system gives it privileges that it does not have with copyright. But, in practice… For example, the right to withdraw mentioned above. Can you imagine a writer going to his publisher and asking him to stop publishing the novel? Even if he did, he would have no chance of being published afterwards… In the United States as in France, everything is done only according to the balance of power. A director whose films are successful may require the “final cut” (right to respect the work), and another has no right, whether under copyright or copyright.
Worse, this artificial opposition is regularly invoked to justify the worst abuses (such as extending the term of “copyright” long after the author’s death), or as HADOPI. When someone begins with a lyrical ode to copyright, creation of the French Revolution and patati and patata, we can be sure that he will call in the process for control and repression against those who would have the audacity to share the works of the spirit.
Finally, politically, this opposition amounts to denying that France is a capitalist country, suggesting that, unlike the mythical “Anglo-Saxon world”, our system to escape the brazen laws of money. I know that some creators prefer to live by illusions but they should face reality: they are proletarians and, as such, have no rights.
Copyright against copyright opposition is therefore just the ideological smokescreen.