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Update copyright law for pre-industrial era, says law professor

Behold, the Noble Savage?

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It's only natural

Professor Suthersanen implies that the "traditional artist" is doing a very special kind of art, because it's made "in response to their environment and their interaction with nature and their history". Once again, does this mean we here in Europe we don't make art in response to our environment and history? Perhaps she could inform a rapper, dubstep DJ or modern composers - and tell them this is where they've gone wrong.

But that's probably not what she means. The gratuitous reference to nature is intended to signal to us that pre-industrial cultures have a special relationship with nature, and that this is superior to ours. She leaves very little room for any other interpretation, since the proposal is backed by the moral force of the ancient traditional cultures.

The noble-savage-in-harmony-with-nature is not a new idea. It is as deeply patronising, and implicitly racist, as it ever was - and historically has been put forward to back some disgraceful policies. My own musical journeys in very poor countries have found that the artists are a bit fed up with being ripped off - and want to participate in, and get their just reward from, our system.

Some even move to the West to allow them to participate. They value economic independence too. Maybe they realise, in a way that law professors can't, that you can get continuity of folk tradition within a modern system. It's how copyright works, generally, quite well.

Modern academia has become so detached from reality, it's allowed several prejudices to pile up. One is the contempt for individual creativity: structuralists go to great length to suggest there's no such thing as authorship, and that we're merely vessels for other people's ideas. Legal scholars appear to have inherited this prejudice.

A parallel contempt is shown for individual rights - for one flows from the other. If there's no such thing as originality or authorship, then there's no need to reward it. If there's no author, there's nobody to pay.

The property landgrab envisaged in the BIS-funded Orphans project breezily puts the interests of the exploiters (big business or cultural institutions) ahead of the rights of the creators. It does so because it equates authorship with oppression. And like the Kulaks who resisted collectivisation, they're being selfish by resisting "the common good".

You have to be wearing your upside-down goggles to think that's fair.

Professor Suthersanen couldn't be reached for comment. The academic who studies traditional expression, Dr Daphne Zografos at the University of Reading, told us she hadn't seen the Orphans Project questionnaire - and there was little overlap between traditional cultural expressions and orphan works other than that in each case, a user of the material requires authorisation. Curiouser and curiouser. ®

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