Does copyright matter to creators?

Copyright has increasingly been subjected to public debate. Two weeks before the last UK general election, in May 2015, the Green Party, unwittingly, brought copyright to the attention of certain members of the electorate. The Green Party is a left-leaning, Green, political party with one MP in the House of commons (out of 650 MPs) and 3.8% share of the vote. On 22 April 2015, scrutiny began over one of the points in the party’s policy. This scrutiny appeared to have started on social media through discussions amongst illustrators and writers – many of whom self- identified as green party supporters or at least sympathised with their policies.

The party’s policy at the centre of the discussion was to “introduce generally shorter copyright terms, with a usual maximum of 14 years”. On 23 April 2015, several newspapers picked up on the social media debate and reported that authors and illustrators were shocked and alarmed with the Green Party’s policy: it would be an “appalling injustice” if this shorter copyright term were to come to effect. There was some confusion, as to what the Green party meant by the policy – did they mean a shorter term of 14 years after publishing or, the longer interpretation ie 14 years after the death of the author, the latter many authors appeared to be less dissatisfied with. After some to and fro, Caroline Lucas, their only MP, admitted that the party had ‘got it wrong’ and had agreed to review its policy on copyright.

The traditional news media coverage ended and this was seen as a resolution of sorts. But what is interesting is that – actually the battle about legitimacy of the authors’ beliefs about the importance of copyright duration in their writing lives continued.  Through online ethnography, it emerged that the discussion amongst authors and illustrators continued on social media even after the traditional news media coverage died. In these discussions, the duration of copyright protection simply became a launch pad for a debate on the role of copyright. There were attacks on creators that suggested they should do some ‘work’ to earn a living, or that copyright is only a means for publishing houses to make money, some suggested that writers don’t earn much as they had seen it reported in newspapers and jumped to the conclusion that as such copyright is irrelevant for them. There were misunderstandings and misgivings about how copyright functions, and also much trolling! These social media discussions served to highlight the bewilderment and frustration of many creators as to the general lack of understanding today about the role of copyright in creative worlds and, how authors make a living. Some creators even saw this as hostile public perception about artists having any rights or having a choice about how they make a living.

Some may consider these frustrations of authors rather surprising, since the “creative industries” have been accused of aggressively justifying the role and importance of copyright in the digital era. But what this story suggests is that voices and perspectives of individual creators on how they exploit copyright, or not exploit copyright, and how they navigate the current economic and technological realities to make a living, have not have been adequately understood. And this incident is just example that highlights the importance of capturing and reflecting the perspectives and interests of the individual creator in debates about copyright today.

In the ‘Individual Creators’ project, which is investigating the interaction between copyright and the everyday life of creative practitioners, I have been examining the following research questions and focussing on the creators’ perspectives:

  • What is the role of copyright in the day to day practice of creative practitioners, and how is it changing? Are their views changing in relation to it and why?
  • What is the actual as well as perceived value of copyright from the creators’ point of view?
  • How are meanings and beliefs regarding copyright being shaped and how do such meanings, beliefs, and experiences regarding copyright ultimately shape the various contours of creators’ practices?

In recent months, I have shared the story above, as well as, early findings from the interview and observation data collected in the project, at a number of recent events:

  • ‘Copyright and Individual Creators: Preliminary Findings from an Empirical Study’ presented at Law and Society Association Annual Meeting, Seattle, USA, 2015
  •  ‘Life on other Worlds: Creators and Copyright’ presented at GikII, Berlin, 2015
  • ‘Creators and copyright: Voices from the field’ presented at Friction and Fiction: IP, Copyright and Digital Futures, Victoria & Albert Museum, London, 2015
  • ‘It feels like I am always hustling, constantly hustling!: Creators, copyright and business models’ presented at the Global Congress on Intellectual Property & The Public Interest, New Delhi, 2015

Slides from one such presentation can be found here.

A Moral Minefield

In addition to economic rights the creators of copyright works also have moral rights in regards to their creations. The strength of protection accorded to these rights however varies widely across jurisdictions which leads to the question: How strong should moral rights be?


The birthplace of moral rights. Image released to the public domain by Lokal_Profil

While the first copyright statutes were added to the books in the eighteenth century, with the British Statute of Anne, it wasn’t until almost a century later – in nineteenth century France – that the concept of moral rights for authors began to gain recognition. In general terms these moral rights aimed to protect creators and their relationship to their works by providing for rights such as paternity (the right to be attributed as the author of a work) and integrity (the right to prevent derogatory treatment of a work). Their justification was based upon the idea that an authors creations reflect to some degree the personality and reputation of their creator. There should therefore be protection for the works in order to prevent their use in a manner which would be prejudicial to their author.

It does appears that for many creators such moral rights protections are indeed important. A recent experiment conducted by a trio of American scholars, for example, found that creators would be willing to accept less money for their works rather than have them go unattributed. Also the creative commons movement, when updating their licenses in 2004, found that the majority of creators had expressly opted to require attribution from anyone subsequently using their works.

However, not all jurisdictions provide and equal level of protection for moral rights. Whilst signatories to the international Berne convention are required to establish a minimum level of moral rights protection national differences still remain starkly apparent. On the one extreme the continental European tradition – exemplified in the birthplace of the concept: France – not only holds moral rights to be perpetual, inalienable, and imprescriptible but also provides for a broader range of protections such as the right to withdraw works from circulation. On the other end of the scale the American interpretation limits protection to specific forms of visual art only (in the Visual Artists Rights Act of 1990) and even then restricts the protection to the lifetime of the creator. The UK sits somewhere in the middle, providing protection for a greater range of works than the American tradition and extending protection beyond the life of the author whilst simultaneously rejecting the idea of perpetual protection and allowing creators to waive their rights if they so wish.

Such a wide spectrum of protection highlights the international disagreement when it comes to the ideal strength of moral rights. Moving a work, for example, can violate moral rights in some jurisdictions but not others. Likewise colourising a black and white work and adding in commercial breaks  can sometimes be found problematic and other times can be held acceptable. There is no overall consensus.


Adding a splash of colour can sometimes be problematic … Available under CC BY-NC-SA 2.0 by Oneplanet Adventure

All that can be offered therefore are some points of reflection on the topic. On the one hand it can be argued that the integral connection between an artist’s works and their reputation makes the strong protection of moral rights a necessity. When works are altered their original meaning can be distorted or lost. This undermines the original intentions of the creator and potentially therefore causes damage to their reputation and legacy. Without the protection afforded by moral rights it may well be the case that some creators would never publicly release their work.

On the other hand, however, some contend that overly broad moral rights can stifle the future creativity of others and end up thus doing more harm than good. There is a clash at the core of moral rights between the rights of the original artist and the interests of society as a whole. The modification and adaptation of works, for example, can be argued to have profound artistic value. The ability to do so however conflicts with the right to integrity afforded by most moral rights regimes. If these rights continue to exist forever then future generations lose out on potentially valuable artistic contributions. Additionally the presence in several continental jurisdictions of a right to withdraw a work from circulation can see society lose items of significant cultural heritage for future generations if their creators should decide they no longer like their work. These works may already have influenced the wider cultural landscape and their loss therefore would be damaging. The rights of the author must be balanced with the wider interests of society.

Some commentators have also criticised long-lasting moral rights on the basis that the control of the work will eventually fall to heirs of the original creator – heirs who may not necessarily have any artistic understanding themselves. These heirs may therefore take decisions regarding the work on the basis of beliefs that may not necessarily match the creator’s original intentions. The wishes and opinions of the original creator will necessarily become frozen at the moment of their passing and, over time, will therefore become increasingly divorced from the contemporary context in which their work is being explored. Who is to say that the heirs to the estate will always perfectly understand what the wishes of the work’s creator would have been, had they been alive to decide for themselves?


Image available in the public domain via Wikimedia Commons

This is not merely a hypothetical problem: there have been numerous cases in which heirs have tried to limit or prevent adaptations of works long after the death of their author. The estates of playwrights such as Samuel Beckett, Bernard-Marie Koltès, and Bertolt Bercht have demanded alterations to performances of their works or even blocked them altogether. Even when unsuccessful such efforts can be time consuming to deal with: An unsuccessful challenge to the Les Miserables sequel took seven years to conclude! Whether individuals not involved in the creation of the work should be able to so strongly affect its use is debatable.

These concerns are not confined to moral rights alone: The economic aspects of copyright likewise extend beyond a creators life and fall to the control of their heirs. However these economic rights do eventually expire whilst, at least in some jurisdictions, the moral rights can continue to exist forever. It is therefore conceivable that heirs several hundred years removed from the original creator may limit the uses of their works. The further from the passing of the creator the rights survive the greater the likelihood that the sensibilities of the creator and their heirs will drift apart.

Given these concerns is it really a good idea for moral rights to last forever? This, it appears, will continue to be a question for debate for some time to come.