Changing Turn in Copyright Debate: Cultural Industry is to Move

Many theorist have already expressed their concern with the current copyright system; Simon Frith (1987), Lawrence Lessig (2002), Yochai Benkler (2005), Hal R. Varian (2005), Chris Anderson (2009) and many others. A lot of their arguments are based on cultural development and innovation. Argument from pro copyright organizations on the other hand are not about cultural development or innovation, but about economical consequences, especially about consequences for their own industry and their own company. All arguments against copyright are harming the economic interest of the cultural industry. Simultaneously the pro copyright arguments are seen as a blockage for cultural development and progress. These opposite sites are locking up the debate, creating more polarization instead of both parties coming together. A commission of Dutch parliament has opened up the debate again with a new report that has been reviewed in parliament last Thursday. Giving a higher responsibility to the culture industry in coming up with new innovative business models as an answer to the untenable copyright model.

“If there’s one thing we can predict with certainty it is that by the end of the century copying and reproducing equipment (developed relentlessly by Japanese electronic hardware firms) will be cheaper, better, and more widely owned” (Frith, 1988: p.62). The adoption of the Internet has speed up copying and reproducing with a factor even Simon Frith in 1988 could not predict. Downloading, uploading and sharing are more common on the Internet than ever before. The way the Internet itself is working has already been known problematic. Viewing files required you to download then, copying (copyright protected and unprotected material) onto your PC. These ‘problems’ with the copyright system are not new, they already emerged with the rise of Betamax or any other way of copying. The Internet exponentially expended copying, exposing the problems of the copyright system to a wider audience, making the discussion a general social debate. With this growth the defence of the system started as well. Lawsuits of the cultural industry against consumers and producers, claiming millions; digital right management, preventing you from copying CD’s, DVD’s and downloaded iTunes MP3 files. All these defence mechanisms and the billions of dollars that are being spend to defend the system, while the general public is copying content more than ever, is the most obvious proof that the copyright system is making its last stand. “We see an industry where fabulous amounts of money have been invested and lost because of copyright issues. One must be blind not to observe that copyright is in its final days” (Smiers in Lovink and Rossiter, 2007: p.191).

Instead of looking backward on what went wrong and of promoting an utopian idea of a free culture, a gift economy, I would like to take a look at a more contemporary development in Dutch politics. Because of losses in revenue the cultural industry itself started lobbying in Den Haag (home of Dutch parliament) to have more regulation. Asking parliament to make downloading of content illegal (which currently is not illegal in the Netherlands, only uploading is). Due to the legal nature of this case, Dutch parliament appointed a commission to figure out how Dutch society should deal with copyright in the near future and if it still complies with technological developments in contemporary society. A significant observation of the report is that the commission would also take a look at the social basis for this law.

For a political report, consisting of members from the socialist party, the labor party, the christian-democratic party and the liberal party, it has some interesting conclusions. Researching the development of copyright law, with al it’s adjustments like the law on home copying, loan- and rental law and the levy on blank disc and tapes, the commission concludes that the copyright law actually never finished. It was, in Internet terms, permanently beta (Auteursrechten; een rapport: p.7). Problems have been solved with ad hoc solutions, making the commission realise that the limits of maintaining the copyright model have come to an end.

The problematic with copyright is that it has shifted from a model for protection towards a complete business model, making that the entire cultural industry is now relying on these few untenable laws. This makes it that changing the copyright regime is not only a matter of cultural change alone, it’s will have huge economical consequences and with that, social consequences. A lot of people working in the cultural industry, especially those working for cultural conglomerates, will might lose their job if these companies can no longer protest their work. This makes it that political parties are not enthusiastic about touching this model. It will shift an entire society if copyright is being dropped.

That copyright is in its final stage can been seen in the recommendations of the copyright report. These recommendations will shake the foundation of copyright in Holland. The commission has the opinion that copyright is in a state of crisis, where the only answer of legislators cannot be new policy. Copyright has to be renewed (Auteursrechten; een rapport: p.35). In their recommendations the commission refers to Creative Commons has a possible new model. The Creative Commons however is a problematic model because a legal basis is missing. “This is an uncertain form of contract law that will keep lawyers busy” (Smiers in Lovink and Rossiter, 2007: p.195). The commission, representatives of the legislators, are not willing to take this step.

What the commission is calling for is a paradigm change, not social, cultural or political, but in economical. The cultural industry needs to change its business models. The commission takes BitTorrent sites as an example, stating that these websites make good money with advertisement revenue, suggesting that this model might be a decent model for the cultural industry to start out from. If it is up to the commission, then legislators can start making regulation to limit downloading as soon as these new business models are presented. An illogical conclusion after reading the commission’s observation about the way copyright is maintained and executed.

This report however is still a step towards a Dutch society without copyright law. It is now up to the cultural industry to react with new business models that can count on a solid social basis. It might even unlock the current entailed status of the copyright debate, giving both sides a reason to rethink their arguments.