Original URL: http://www.theregister.co.uk/2011/02/17/orphan_works_revives_noble_savage/

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

Behold, the Noble Savage?

By Andrew Orlowski

Posted in Law, 17th February 2011 13:07 GMT

UK copyright law needs an overhaul to bring it into line with pre-industrial cultures, says a top legal academic. It may strike you as the Most Imaginative Use of Politically-Correct Rhetoric you've ever heard, but the joke is ultimately on you: the project has won funding from the Department of Business.

The study, Who Owns The Orphans?, is led by Professor in International Intellectual Property Law Uma Suthersanen. She's a veteran of a dozen advisory panels on copyright law, and Solicitor to the Supreme Court of Singapore. Here, she floats this idea:

"Indigenous and ethnic groups not only cultivate and preserve traditional knowledge but also create traditional but contemporary art by constantly recreating, reinterpreting and adapting earlier forms of expressions, in response to their environment and their interaction with nature and their history."

She notes that Western ideas of creators' rights respect the individual creator. The response is to seize ownership of copyrighted works collectively, for the common good - and the question she poses is not if, but how.

Professor Suthersanen

"When a work is designated as 'orphaned', it suffers a relative loss of 'parental control', and such a work might be taken 'into care' by the government, collecting societies, or other organisation," Suthersanen elaborates, making it sound like the social services as explained by Blue Peter to a seven-year-old.

The project has raised the ire of photographers - professional and amateur - who argue that most of the photos floating around on the web are "orphans", in that the metadata or other identifying information is missing. We'll come to this fightback in a follow-up article, pausing here only to note that photographers have no trade group - a BPI or MPAA - or a powerful member-owned collection society to fight their corner.

Back to Suthersanen, then. What does she mean?

In touch with nature. But not royalties

A questionnaire gives some clue to her thinking. It's a collection of ideas, some of which are old, and some of which are more recent. She is comparing a folk tradition with the evolution of a sophisticated set of Western social and legal ideas. The pre-industrial sharer has it right, and we have it wrong, she implies.

There are important differences. The Western tradition that's evolved over a couple of hundred years allows the creator to be rewarded with real money - which is very useful for paying the rent or groceries in a modern society. Creators can participate in the economy. People with original ideas, or who come up with novel forms of expression are given a chance, (but not a guarantee) of economic independence.

Removing this independence makes the creator dependent on corporate patronage or other funding. Suthersanen herself has this sorted, we can't help but notice: BIS funding for this project was funnelled through the Arts Council's Research unit.

Independence may not be a concern to academics who have spent their lives funded by the state - but not everybody shares such good fortune, or even thinks good art comes out of the other end of such an arrangement. Both corporate and state funders would be restored to their former role as cultural gatekeepers.

Secondly, Suthersanen sets up something of a false dichotomy. The Western economic framework for copyright is also very flexible. Contemporary culture, particularly pop music, makes great use of "recreating, reinterpreting and adapting earlier forms of expression"; yet it does so by retaining the right to be rewarded if somebody profits from your originality. Nor has our own folk tradition suffered within this framework - Western folk art now reaches further than ever before.

"The most sacred, the most unassailable and the most personal of possessions is the fruit of a writer's thought," the French Revolutionaries wrote. Who Owns The Orphans? disagrees. The questionnaire defines "creators" not as the people who come up with the original idea - but who uses somebody else's original idea. But venerating so-called primitive customs over our own does more than simply value continuity over authorship, it establishes a false choice.

The justification for the range of changes proposed is also very peculiar, and suggests a fistful of contemporary intellectual prejudices.

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. ®