In France, what is called copyright refers to the Intellectual Property Code and concerns literary and artistic property but also industrial property. Copyright was belatedly defined in France, with the law of 11 March 1957. It allows authors to be paid when their work is reproduced or represented (heritage rights). Copyright also allows authors to control the dissemination of their work and intervene if it infringes on their work or person (moral rights). But for copyright to apply, the artistic work must meet several conditions: it must be a “work of the mind” and recognized as an original work, that is, a work bearing the personal mark of its author. With this principle, the law recognizes the author’s attachment to his work, in line with Diderot’s personalist thesis that links the ownership of an artistic property to the identity of its designer.
In the last 10 years, copyright has been revised twice (DADVSI Act in 2006 and Creation and Internet Act in 2009) to accompany developments due in particular to the rise of the Internet and its consequences on the creation, production, dissemination and consumption of cultural goods. But many voices are speaking out against copyright or even calling for its outright removal.
First, we will see the characteristics of copyright and its economic and social stakes that make the scheme defended by a majority of players in the cultural industries sector. Then we will ask why copyright is being challenged by certain personalities and associations. Finally, in the event of its removal, we will review and criticize the devices that could replace it.
In the foundations of copyright, there may be reasons for the current criticisms, but first of all let us analyse the economic and social reasons that led the governments to legislate on the issue. First, copyright was created to protect creators both morally and financially. Indeed, copyright secures the remuneration of artists. For artists, copyright is therefore the possibility of making a living from their work. Copyright is based on several commonly shared ideas in Western societies: first, all work deserves pay and the creation of an artistic work is a work. Secondly, the figure of the bohemian artist, poor but free, living with difficulty from his art, confers a certain aura to the creators who also enjoy a certain social prestige. Moreover, we can say that copyright has enabled the development of a new market: that of intangible symbolic goods.
For economists Merges and Ginsburg, copyright is therefore “a specific response to market imperfections.” Indeed, the characteristics of the cultural and information goods market make it a different market from the traditional goods market. This market is characterized by great uncertainty, high cost of production but low reproductive cost (which promotes plagiarism), non-rivalry and non-exclusiveness (which promotes the movement of cultural goods).
Moreover, the symbolic and ideal nature of cultural goods make their “consumption” different from a traditional good: they are experienced goods. The immateriality of cultural goods, even if it materializes on a medium (CD, book …) makes its commodification difficult. How can the intangible content of a cultural work be protected? It therefore seemed essential to legislate to protect creators and develop the industrialization of culture. All of these “anomalies” have been taken into account by parliament in the definition of the law, and copyright therefore allows authors and producers to control the circulation of a cultural work and to exploit it commercially. This control allows to limit access to cultural works and thus create scarcity, a source of economic wealth. Copyright therefore artificially creates rivalry and exclusionability and thus gives economic value to cultural goods.
But a “mistake” has crept in: in fact the law grants ownership to what should be only limited control over a work. For economists, this notion of ownership is therefore illegitimate because it produces monopolies. This amalgamation between unlimited ownership and temporary control is a source of criticism. For some economists, the consequences of copyright are multiple and lead to the creation of a questionable market: “emphasis on market powers and monopoly rents, destabilization of competitive play and barriers to entry becoming insurmountable for the weakest players financially, overexploitation of consecrated works and less investment in innovation, curbing adaptations and productive reuse, wilful degradation of the usefulness of cultural goods (due to measures “protection techniques in particular” , increasingly high enforcement costs borne by consumers and taxpayers.”
The economic stakes are therefore an important aspect of copyright, which is of course defended by those to whom it benefits economically. Indeed, with the removal of copyrights, it would be a whole model of creation and production that would change with “the deconstruction of the dominant positions [the great majors] and the creation of a free space for creators and amateurs”. A recurring argument is that non-compliance with copyright (e.g., illegal downloading) is a loss of revenue for the economy.
However, some economists point to the cost of implementing copyright, which is higher than its positive impact on the economy. The economy is therefore at the centre of the debates around copyright. This economic dimension has been accentuated today with the development of the management of rights portfolios and the exploitation of rights in several media. Indeed, from now on, artistic work can be offered on several media: TV, cinema, book, derivatives… This is the main argument of copyright advocates who even advocate for its strengthening. But one can make a critique of this economist’s perspective: is it not an economic instrumentalization of the law?