Sunday night I linked up with a friend of a friend(that cat helped Jamaica write its patent policy, with some of the same concerns I get into below about copyright). Andrea a woman involved in the roots music scene (who has also been a consultant for the Rough Guide to Jamaica and related RGs). She's great – I had a good conversation with her about the prison work but also about my future dissertation work. She seemed excited about the idea of someone coming to JA to listen to people's creative processes, to try to talk back to the colonial legal structure, and to the IP structure that wasn't written with them in mind.
I don't think Jamaica is unique (or no more so than every cultural scene is unique), I think it's a more dramatic case of what's true in the US and everywhere – people's creative practice bears little resemblance to what IP law seems to assume. Considering that a lot of IP law states its purpose as fostering creativity (for example, the US Constitutional justification for copyright), it would make sense to make sure we understand more about how creativity works, and thus how best to foster it. Anyway in JA the copyright law, recently re-written, is mostly shaped by the same old assumptions that were never really designed to foster the kinds of practices most common in Jamaica. There's a colonial narrative that works pretty well here, since the laws were not changed from the British system after independence (as if their purpose was somehow neutral) although some aspects of that are true the world over - I don't think assuming laws are neutral is helpful anywhere.
But anyway, it was cool (hot and sweaty actually) to sit on a porch in the evening surrounded by musical equipment. I also spent some time hanging out in a studio and witnessing people making music and talking about music in a way that just inescapably relies on a system of borrowing, copying, tweaking, and referencing. Of course, the other side is the deeply felt injustice of artists who are still living hand to mouth, while watching folks elsewhere profit mightily. Is that because their practices don't fit with law? which should be changed? the law or the practices? Can copyright law remedy this situation anyway? I'm not sure that's what it was written for, and I'm pretty sure that is not how it has historically functioned. That's one of my long-term plans - to understand more about the relationship between particular definitions of access and exclusion rights w/r/t culture and the ability for people to flourish.
But all of this is preliminary thoughts – and just the preface to my first real street party here in Kingston – Rae Town, a party that has been running for 30 years in a neighborhood in southern Kingston. more on that to come!
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5 comments:
I think some of your confusion regarding the purpose of copyright law comes from the common misunderstandings of the relationship between creating and publishing. The process of creating or authoring a work is by nature almost always collaborative or relies on previous works. The process of publishing not so much. Publishing is the commerce side, the side that gets the work out to the people, its the side that involves risk (money, time, etc)
The law recognizes both sides of this by granting authors ownership of their work and the ability to assign reproduction rights (publishing, copying) to someone else. In theory, all the variations of the law all the way back to the Statute of Anne assign varying levels of protection to auhors and publishers ability to claim redress if a third party violates these arrangements. Of course the laws mostly focus on the publishing side since business process is more "manageable" than the creative process.
The burden of proof for "I have the right to publish this work" is far lower than "I am the original author of this work". Proving the right to publish involves having a contract or just the original copy of the work (master tape). Without a facility such as a government copyright registry, it is near impossible to prove authorship short of witnesses of good character. And since hard evidence beats hearsay every time, the outcome there should be obvious.
The best the law can do is to strike a balance between the rights of authors and the rights of publishers and without a fair judiciary it all comes to a hill of beans anyway.
I think you have identified the different ways (c) has been used pretty correctly. However, those are how the law has come to be used, which is not quite the same thing as what their purpose is. IT's a common law&economics standpoint, to look at the costs+benefits in the system, identify efficiencies and then say that was why people set the system up the way they did. It's also totally ahistorical and blind to the realities of power.
for example, the constitutional justification for US copyright "to promote the progress of science and the useful arts" - it's not clear that promoting progress has always been what has going on by allocating protections and rights the way they have been.
You are absolutely correct that the business process is more comprehensible to law - indeed the compromise (if it is one at all) has always favored the processes and practices that are more easy to assimilate into it. THis goes all the way back to focusing on fixation as the point at which rights attach - how to recognize the rights of oral traditions? Something that globalization of (c) law will have to deal with..
Certain practices and groups will always be disadvantaged. Whether those disadavantages are consistent with "the progress of science and the useful arts" is very difficult to say. The counterfactual is hard to prove.
However, I am a big believer in not conceding too much to the business process as it has currently developed - since it has always developed by depending on suffering and exploitation. What is difficult is trying to construct a framework that does not depend on those things.
And of course, the purpose of (c) law elsewhere has been different - some countries put their IP department within the ministries of education, or in the ministry for economic development, for example. Those priorities might suggest different allocation of rights.
All that is true, but it doesnt counter the fundamental difference between a creation and the copy for sale. The purpose of recording for release as opposed to for posterity inherantly weighs on the side of commerce. Given that, education is indeed the best way to balance the scales of power. Teach the people what the contract means and how they can enforce their side.
Education of the players is no solution when the playing field is not level.
No amount of education provides legal fees for your court case - it's not a matter of being uneducated that keeps artists rights out of court. It's that they can't afford to go to court!
"Teach someone to enforce their rights" is a very strange phrase. You think enforcement is lacking because people aren't educated enough to enforce them?
maybe the fact that enforcing rights involved spending a lot of money and time on lawyers and court fees has something to do with it? How does education solve that problem? What can I teach them that will allow them to conjure up a lawyer who will, for free, take on a huge corporation with an army of inhouse lawyers and lobbyists in every state and the international IP scene?
All historical evidence points against law being a neutral player that both sides can call on equally. Especially, the history of the law itself is that it was framed by one side to protect its interests.
it's like saying "sweatshop workers need more education about labor law and then they will be able to end sweatshops"
Said that for two reasons
1 education is something do-able whereas setting up a group of lawyers willing to work for nothing or cheap is not so much so
2 lots of singers I've talked to didnt know anything about what rights they had or didnt have. If you are doing contracts and they understand what they are getting out of the deal, then they have more chance to stand up for themselves.
Oh and regarding sweatshops, I think educating people about the idea of unions and workers rights has worked more than once.
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