Rights

Rights

Being able to own “rights” to something is a fundamental concept of living beings: ants own the “right” to suck aphids, but they are “obliged” to feed them, if they want to continue sucking them. A dog pisses at all trees and poles in the area he happens to be to mark his “possession”. A hunting tribe considers as its own the area in which the tribe hunts and used to enforce this right by killing every intruder. William the Conqueror considered the land of England as his, because he had defeated the Saxons who already owned the right to it, because they had grabbed it from somebody else before. It was not until 1866 that landowners in all the United States lost the right to own slaves and make them work in the cotton fields. 

Progress of society introduced several other forms of ownership. One that is of particular interest here is the right of somebody to be recognised as the author of a piece of artistic work. This is an old right, as can be seen from the use made by Martial, a Latin poet of the first century AD, of the word “plagiarius” (whose original meaning was “abductor”), to indicate a person who presented somebody else’s literary work as his. As we have said before, it should not appear strange that such a sophisticated concept could develop, while the apparently simpler and practical concept, such as rewarding the author of a manuscript with his rightful revenues when others made a copy of it, was unknown. 

Printing technology, and the consequent appearance of the printer/publisher entrepreneur, brought to light this issue, because the habit of making copies of literary works was not immediately affected by the invention of printing. Simply, what was done before by amateurs – copying manuscripts because “I need a copy for my own needs” and, by the way, “while I do this I spread culture” and “I am sure, the author would be happy if he knew that I like his work so much that I make a copy of it” – could be done with the tools offered by the new technology, admittedly with some economic rewards for those engaged in the process. 

Some entrepreneurs – most notably the Dutch printers – started doing exactly that, reprinting and selling books printed by others. The financially sensitive Britons reacted strongly and the first copyright law, known as the Queen Anne’s Act of 1709, was issued. The law starts with the grand design

to stimulate the flow of knowledge “for the encouragement of the learned Men to compose and write useful books”. 

but does not hide the real motivation, viz. that some printers and publishers

have of late frequently taken the liberty of printing, reprinting and republishing books without the consent of Authors or Proprietors of such Books. 

In the Anglo-Saxon world, this Act started a process that led to securing the position of printers/publishers in the value chain because the copyright law aims to protect entrepreneurs’ economic investments. The author, who has been so smart as to make a contract with the publisher, is also protected, the more so the smarter he has been in negotiating a good contract with the publisher. 

At the instigation of legislation enacted during the French Revolution, continental Europe has seen instead the prevalence of “droit d’auteur” (author’s rights). This protects the rights of an author to be remunerated for his intellectual investment and confers  two types of rights to the author: moral rights, that give him the legal right to have his name, his qualification as an author and his work’s integrity respected and economic rights to exploit his work. The former rights correspond to those that Martial implied were affected by a “plagiarius” and the latter rights correspond to those granted by the Queen Anne’s Act, but applied to another player in the value chain. 

As was recalled before, artists are not necessarily good managers of their intellectual productions. The consequence has been that, in most countries, Authors and Composers Societies have been established to protect authors’ rights. Next to authors’ rights there are the so-called “neighbouring rights”, which refer to the rights of performers. For similar reasons, Performers Societies have also been established in most countries. 

The concept of rights associated to a literary work has gradually extended to artistic works “fixated” or imprinted on other carriers. Rights to the works fixated on the different media obey to a multiplicity of rules and conventions that depend on the way different communities in different countries have come to manage their technology-enabled businesses. For instance, in a sound recording bought by a consumer, rights belong to the composers of the music; the authors of the lyrics; the musicians for their performance; the designer of the record cover or sleeve; the author of the text on the sleeve; the photographer or artist if the sleeve contains a picture and, of course, the recording company, who may own some or all of the other rights. In a movie, the complexity of rights may even be greater, because of the generally much larger budgets involved in movie production that force the originators of the idea to share the risks with other individuals and the large number of people involved – usually quite special characters (not that people in the sound recording business are not). 

Behind the words “Proprietors of such Books” of the Queen Anne’s Act there is an implied understanding that, with the purchase of a carrier that has a literary or artistic work fixated on it, the buyer acquires rights to the atoms of the physical carrier but does not “own” the literary or artistic work whose “Proprietor” retains rights to when he, directly or indirectly, sells the book to a buyer. Of course, the publisher no longer has rights to the atoms making up the book, as for any other transaction involving physical objects. The specifics of these rights vary widely depending on the period of time considered, the type of carrier, the type of content and the country.

With the start of radio broadcasting in the early 1920s, millions of listeners could receive audio works in no time and music was one of the first forms of artistic works to be broadcasted by the so-called “radio heads”. With the start of television broadcasting some 30 years later, viewers could even receive audio-visual works. Physical carriers – mostly papers and vinyl discs at that time – so unwieldy because they needed physical delivery, ceased to be the only way to deliver literary and artistic works to end users. 

The new immaterial delivery system had every reason to be recommended, but for the absence of an immediate solution to the problem of remunerating rights holders. The new communication medium acted both as “killer” and “creator” of paying customers. “Killer” because some customers ended up no longer buying a work because they had already consumed it via the broadcast channel and “creator” because some others would be motivated to buy a work just because they had been made aware of something they had not known about, and they liked it. 

Most countries took the approach that this medium, often retained firmly in the hands of the state, was a tool to promote the well being of the masses, while some others, in the dark 1920s, ’30s and part of the ’40s, extended this view even more thoroughly to effectively control those masses. Parts of the license fees that most countries apply to this “public service” were used to pay for the right to broadcast literary and artistic works. For the countries that took the road of “commercial radio service”, broadcasters paid rights holders using the revenues from posting advertisements on their networks, but arrangements were also made so that content would be broadcast, thereby filling air space, as promotion. This, however, is by no means a complete representation of the network of agreements, some freely entered into, some brokered by governments and some mandated by law, of course all different from country to country, that has been built around this business over many decades. 

With the price of domestic recording appliances – first audio and then also video – quickly reaching levels affordable by the general consumer, anybody could make extended private libraries of audio and audio-visual works that had been received via the broadcast channel. Here, too, the problem already encountered with the appearance of broadcasting arose: what is the incentive for a consumer to buy a record or a videocassette, when a copy can be obtained for free by recording it from over the air? Without going into a debate, suffice it to mention that the ability to make copies of audio and video cassettes of broadcast works did provide consumers with the means to avoid buying the originals on disc or tape from a shop but did also create a completely new channel to deliver audio and video works for a consumption that was more personalised than was possible with broadcasting.

In general it is fair to say that these new devices have found a more-than-decent place in the audio-visual business landscape by creating new outlets for the consumption of works. This is so true that the business of distributing content via Compact Cassette and VHS (and later CD, DVD and Blue-Ray) have become such important components of the music and video markets that in some cases their value exceeds other traditional distribution channels.

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