Copyright C.P.U. (page 6)

The Future

So what of the future?  Whether it is UFOs, the X-Files, Star Wars or Star Trek, science fiction has emerged as the main source of the new myths and fairy tales of our post-modern world.  ‘Sci-fi’ literature can be classified as forecasting either ‘utopian’ or ‘anti-utopian’ futures. Using these two classes, two alternative futures for copyright and intellectual property in general can be cast.

Perhaps the most powerful and chilling anti-utopian future to emerge since George Orwell’s 1984 was penned by William Gibson in a series of novels beginning, ironically, in 1984 with Neuromancer.  It was in this first novel that the terms ‘cyberspace’ and ‘virtual reality’ were coined (Gibson 1984) almost a decade before the Internet and the World-Wide Web became a popular reality.  Followed by Count Zero, Mona Lisa Overdrive and Virtual Light, Gibson created a whole new genre of science fiction alternatively called ‘cybergothic’ or ‘cyberpunk’.

In Gibson's vision of the future, the mind's eye fills with swirling multimedia, merging and mutating into a consensual hallucination called cyberspace.  This ‘virtual reality’ rushes forward to Users fueled by techno-greed for bits and bytes. Hackers and ‘console cowboys’ fight with global corporations for the high ground in a continuous war for encrypted information.  And in this war individuality and privacy erode before the ceaseless search for power and profit by a techno-corporate elite who knows which buttons to push while the rest of humanity cannot even program a VCR.

Copyright protection in cyberspace, that today includes encryption technology, evolves into what Gibson calls ‘ICE’, i.e. intrusion counter-measures electronic. This, he projects, will include ‘black ice’ using electronic feedback that may prove fatal to hackers. Protection of intellectual property in Gibson’s future also includes ‘cerebral bombs’ implanted in the brains of corporate executives and timed to go off if an executive ‘defects’ to another corporation. 

Gibson’s world of the near future is one in which copyright, copyright protection and intellectual property rights in general runs wild.  The corporate sector uses both increasingly restrictive laws as well as technological means to tightly control access to the expression of ideas fixed in material form.

While admittedly extreme, Gibson’s vision of the future is a logical extension of trends in copyright law and technology current in the Present.  Extension of the term, the scope and the coverage of Anglo-American copyright are fueled by corporate Proprietors pursuit of profit.  Little consideration has been given to the rights of Creators and Users.

By contrast, a ‘utopian’ alternative future for copyright can be cast using the ancient myth of ‘the Trojan horse’. When the United States acceded to the Berne Copyright Convention in 1989 it did so mainly to benefit its corporate copyright Proprietors by extending the term of copyright protection for existing works to the life of the author plus 75 years.  Thus Disney can protect Mickey Mouse for an additional 25 years.  This extension may, in the long run, parallel the short run gains of the Stationers’ Company through the extension granted by the Statute of Queen Anne in 1710.  The Berne Convention has entered the gates of the American copyright citadel and may prove to be a Trojan horse for Creators.

The Berne Convention contains the full range of Creator’s economic and moral rights allowed under the Civil Code.  As noted above, certain token moves had to be made by the U.S. for its accession to be accepted by the Berne Union, e.g. the Visual Artist Protection Act. As the American creative community becomes more familiar with the Berne Convention it is possible that pressure will build for adoption of more of the Civil Code rights recognized by the Convention.  First and for most these include generic rights of paternity and integrity.  Second, the Berne Convention recognizes ‘rights of following sales’ or ‘droit de suite’ in French.  At the state level, the right of following sales has already been granted to visual artists who are resident in California.  A young artist sells low but as his or her career matures earlier works increase in value.  While collectors benefit from the re-sale of these early works, the artist gets nothing.  The right of following sale insures a percentage of all subsequent sales go back to the artist.

Another right recognized by the Berne Convention is the ‘public lending right’ currently recognized by more than 19 countries around the world including Canada.  Canadian public lending rights (PLRs) are granted for books written by Canadian authors and held in Canadian libraries. PLRs assume the public benefits from libraries but authors suffer lost sales. Therefore, market failure exists justifying a public policy response. PLRs compensate authors from a special federal fund. Payment is capped so no one author receives too much. Payment is restricted to Canadians and goes directly to the creator and cannot be transferred to Proprietors.

Assuming the Trojan horse that is the Berne Convention does alter the landscape of American copyright the next step towards enhancing the financial viability of the creative life would be adoption of the current policy of the Republic of Ireland (Eire) that exempts copyright income earned by resident creators from income tax.  The exemption applies only to individuals, not to corporations.  The result has been an influx of creative talent who pay sales and other taxes offsetting the tax expenditure to the public treasury.  In addition, such talent enriches the cultural as well as economic life of the country.

If the Berne Convention proves to be a true Trojan horse, then American creators will finally be able to enter the Garden again but this time eat of the fruit of a tree that fulfills the promise of the Myth of the Creator:

…  intellectual property is, after all, the only absolute possession in the world...  The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property… (Chaffe 1945).

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