The battle over intellectual property
The proposed international treaty ACTA (Anti-Counterfeiting Trade Agreement) provoked much resistance in 2012 – both online and on the streets. Participant states intended to establish global standards for the protection of intellectual property and sharp penalties for copyright infringement. Critics feared that the treaty would seriously encroach on the private sphere and impinge on fundamental civil liberties. Even though the European Parliament, thanks to the protests, rejected the agreement with a huge majority, the controversy over copyright in the digital sphere has not gone away. On the contrary: at the beginning of October 2012, it became known that the proposed CETA treaty between Europe and Canada included penalties for copyright infringement similar to those in ACTA. With this news, the debate over copyright entered the next round. To date, there is no solution in sight that would satisfy the different interest groups – end users, publishers and creators. This is a debate to which the concept of intellectual property and the right of creators is central.
However, controversy surrounding copyright law did not begin with the Internet becoming widely available. This particular form of law has been highly contested ever since the emergence of intellectual property at the end of the eighteenth century. The nature of the debate was heavily influenced by advances made in the development of media and communications. In the context of which, the central question remained: how easy is it, from a technical point of view, for end users to reproduce and distribute music, pictures or text of a high quality?
In this respect, the most recent information and communications technology has brought about major change. The digitalization of creative and intellectual works now enables, for example, a musical work to be copied without any loss of quality. Given the worldwide network of computers and the relative affordability of data storage devices, anyone's content can be reproduced and passed on as often as required. Such practice is widespread. The German music industry association (BVMI) publishes annually figures concerning "illegal downloads" and calculates the associated loss in revenue. A consultancy company in the information and communications service sector estimates that the creative industries in the European Union will, by 2015, have made (retail) revenue losses amounting to 240 billion euros, which may mean the loss of 1.2 million jobs within the same period. It could be argued that these figures are calculated with certain interests in mind and that not every unauthorized download of a song can be equated with a loss in revenue. Nonetheless, the practical implications are clear: creatives and publishers have lost control over the circulation of their works.
Consumers play a central role in the controversy. Once out of the bottle, they don't want the genie recaptured. Their resistance to efforts aimed at containing any unexpected opening up is diverse, loud and Internet savvy. Although "end users" cannot be deemed a single, homogenous group, they constitute a movement that resists the wholesale transferral of the concept of intellectual property, as codified in law, from the analogue to the digital sphere. With the advent of free software, the movement's protagonists can be perceived as the pioneers in the battle for so called "free knowledge in the age of information". Accordingly, open source, open content, free culture, copyleft, creative commons, open access – all these are part of the vocabulary of protecting an open online infrastructure.
Copyright reforms and the battle over the private copyThe way in which this battle is played out can be illustrated by contributions to a debate in 2002 over the "private copy". Paragraph 53 of the German copyright law defines a "private copy" as a permitted, single instance of copying a work for private use. The law was passed in 1965 on the grounds that while copying was becoming easier due to the constant development of technologies, control of copying that extended all the way into citizens' living rooms was not possible. Creators were therefore to receive compensation in the form of a one-off payment drawn from funds collected by the Central Office for Private Reproduction and Copying Rights (ZPÜ) and transferred to the so-called collecting societies.
A decade ago, the citizens' action group "Rescue the Private Copy" started a campaign against the ban on circumventing technical copy protection. Consumer initiatives criticized copy protection for impinging on the legal right to a private copy. They also considered it to damage Germany's standing as a place of knowledge production and limit the participation of all in cultural life. The federal government argued that there is no right to a private copy: a private copy was merely permitted. Further, in the Internet age the interests of creators and publishers must be protected. The result was a law passed on 10 September 2003 concerning the regulation of copyright law in the information society. The circumvention of copy protection measures was prohibited.
However, the private copy conflict did not end there. A second law concerning the regulation of copyright law in the information society came into power on 1 January 2008. The paragraph concerning the private copy was modified to the effect that private copies were not permissible in so far as copies were produced unlawfully or in a form that was made publicly accessible. The amendment was aimed at file sharing networks and minimizing uncontrolled file sharing, in a way that raised awareness of the injustice of unauthorized copying of data. Under consideration in the discussion currently underway of a third modification of the same paragraph is limiting the private copy to copies taken only from the original and the banning of the production of a private copy by third parties.
The fronts in the copyright conflictOne of the main reasons for the intensity of the battle over copyright is to be found in the different interests involved. As such, far more interests are affected than might at first glance appear to be the case.
Creators find themselves fighting on two fronts. Firstly, they face the end users of their creative and intellectual works, from whom they wish to receive appropriate payment and respect for their achievement. Then there are the contracts with publishers, which concern both the publication and marketing of their works. On the whole, creators articulate their interests in one of two ways: via societies such as the German Authors' Society, the Society of German Scriptwriters or the Federal Society of Visual Artists; or via unions. In recent years, disputes over payments for creative and intellectual works emerged once again, between societies of creatives, unions and publishers. Of course, new questions arise in the context of worldwide, digital networks. For example: what sort of involvement can authors expect to have in the second, online exploitation of a text originally sold in a hardcopy format?
The second important interest group is that of the publishers. They typically hail from the music, film and text industries and are interested in the strengthening of copyright law as it applies to the Internet. Against this background, they support the strict tracing of copyright infringement on the Internet, the extension of the term of copyrights and the abolition of the private copy. The concrete demands of exploiters of rights depends on industry sector. All share an interest in the profitable exploitation of creative and intellectual works.
The exploitation of creative and intellectual worksThe publishers also consider themselves to have several adversaries. There are both the creators, who demand more remuneration, and the end users of digital media, who wish to be free of surveillance and regulation when using the Internet.
The collecting societies play a special role in the copyright conflict. They administer the rights of creators on a quasi-fiduciary basis. Collecting societies receive funds from various sources for the purposes of distributing them in accordance with a complex scheme to their rightful recipients. In respect of which, it is not only the manufacturers of copy and storage devices that must contribute previously negotiated levies, but also theaters and clubs. With regard to public libraries in Germany, the Federal Government and the federal states must do the same. There are currently around a dozen collecting societies in Germany, the largest of which is GEMA. This collecting society administers on behalf of composers, song writers, librettists and music publishers the rights of use where copyright is concerned. Other collecting societies include VG Wort, which is responsible for authors, journalists and book publishers and VG Bild-Kunst, which represents visual artists, photographers and graphic designers.
The biggest conflict is probably that with the appliance industry, which constitutes a further stakeholder in the debate. According to a business report released by VG Wort, the dues for appliances – such as photocopiers, multifunctional appliances, printers and scanners – with copy functions amounted to almost 70 million Euros in 2011. Of course, the appliance industry, represented by the Federal Association for Information Technology, Telecommunications and New Media (BITKOM), aims to keep these levies as low as possible.
Internet service providers (ISPs) such as Telekom or Alice are also affected by the copyright conflict. The question arises as to whether they can or should be made liable for the content that their customers access or make available via the Internet. There are several things at stake here: the extent to which ISPs have to monitor this content; whether to block end users from using the Internet after a third and final warning, and whether a warning notice should appear, prior to carrying out a download, that draws end users' attention to the fact that they may be about make an unauthorized download of material protected by copyright.
"Intellectual property" and capitalist productionIn the midst of this more or less impenetrable conflict of interests, it is above all the net activists who are campaigning for an end to the use of the term "intellectual property". They argue that there is no such thing as intellectual property, since creative and intellectual works can in no real sense be considered property, in the same way that an object can be. Rather, ideas, knowledge and creative works abound limitlessly in the Internet age and, for this reason alone, they may not become the subject of an artificial scarcity. With the use of the concept of intellectual property, one plays into the hands of the publishers who put these "fighting words" to work in their lobbying practices.
Which ever terms one chooses to use, intangible goods such as creative and intellectual works sustain the prevailing private property regime just as much as material goods. One of the core attributes of this regime is the absolute power of control over property. As stated in paragraph 903 of the Bürgerliches Gesetzbuch, the civil code of Germany: "The owner of a thing may, so far as the law or the rights of another do not oppose, manage the thing as she or he likes and exclude any interference by others".
The law of absolute exclusion is not, however, by any means of a preternatural nature but rather a feature of capitalistic society. It first emerged at the beginning of the modern era. The absolute power of control played a central role with regard to the "means of production": land, buildings, machines and equipment, raw materials – all these are essential to the manufacture of goods and provision of services, along with, of course, the deployment of labour. In a society organized along capitalistic lines, access to the means of production is concentrated in the hands of relatively few. In respect of which, the goal is not to satisfy needs – this is the means – but, through the sale of goods and services, to accrue more capital than was advanced for the means of production (and labour). The return is then invested in new production processes, once more with the goal of attaining more capital than originally invested. Thus the cycle continues, immeasurably – an end in itself.
The absolute power of control over private property is indeed a prerequisite of this cycle but not a guarantee: even where private property is well secured, competition can conspire against capital. There is a far more important condition attached to the successful sale of goods: goods and services must take on the form of a commodity – that is, made available exclusively for meeting the solvent need. Should, in addition to the commodity, the same products exist free of charge, then the commodity form is precarious and its exploitation threatened. Everyone dependent on the exploitation of this specific good then stands to lose the basis of their livelihood: above all the proprietor of labour power – as badly paid as the latter may be – and the proprietor of the means of production.
Whether with regard to the sphere of the physical or of the intangible, in a society organized along capitalistic lines the law of private property rules: "artificial" scarcity is in general a necessary condition for the valorization of capital. We find instances of "artificial" scarcity in the physical sphere at least as often as in the creative and intellectual sphere – if, for example, at the entrance to a concert, public viewing or cinema, bags are inspected for drinks that people have brought with them, or, to take a more drastic example, food is destroyed in order to maintain prices while, at the same time, people starve. "Artificial" scarcity as it applies to the physical world is usually not perceived as such. Either that or the assumption prevails that materials per se are scarce.
Intellectual property: the crux of the matterDigitalization poses a challenge to the existentialist importance of artificial scarcity to capitalism – as well as to the modern concept of copyright. For a long time, the commodification of the intangible sphere limped after that of the physical within the general context of capitalist development. The modern concept of copyright was first established around the turn of the nineteenth century. To consider the creative and intellectual work as private property, the individual had first to be conceived of as a "creator" or "author" to whom the relevant work could be attributed. It also required the ability to think separately of the material medium on the one hand and the intangible content on the other, so that each could be valid, independent of the other, as an item of property. Both may appear to us today as natural, almost as supra-historical, though this is by no means the case. Rather, this mindset developed over the course of centuries. Certainly, the creative and intellectual sphere has in the interim been incorporated into the process of capitalistic exploitation and therefore, a specific legal procedure has developed too.
For, in opposition to physical goods, intangible goods are not depleted upon consumption. If I eat an apple, it disappears. If I listen to a recording of a piece of music, others – many others – can listen to it many times anew. If the immaterial – which can be copied any number of times without cost – is a commodity, then the granting of rights of use instead of an absolute transferal of property is the appropriate legal form. A further ground for juridification lies in the fact that, as a rule, the cost of creative and intellectual works does not correlate with the cost of their reproduction. It may, for example, require years to develop a software project but only a few seconds to copy it.
Open access to the means of productionIntangible goods not only fuel consumption but production too. No intellectually productive person creates anything new out of nothing – be it in the way of art or science. Throughout society there is therefore great interest in a low threshold where access to intellectual works as a requirement for further production and innovation is concerned. It is on precisely these grounds that the private and exclusive character of the concept of property as it applies to intangible goods is one again weakened, as in the case of limiting the period for which a work is protected or of exemptions.
Thus there is a constant tension between the enclosure and the openness of ideas, knowledge and cultural achievement. The tension increases dramatically with the advent of digitalization and the Internet. Radical change in media and communications technologies cannot be corrected with a simple change of law. With the proliferation of devices with a copying function, people have been handed the means of production at a stroke – which up until this point had been the exclusive property of the publishers. Countless people can, through the widespread availability of computer networks and mobile devices, now instantly reproduce and distribute those creative and intellectual works thought of as "commodities". This situation becomes acute in the case of so-called free music and free software: not only are these reproduced but, in the first instance "produced" (music composed, software developed, etc.) and then made available via the Internet. Since, in the age of electronic data distribution, end users can access the "means of production" relatively easily, they can excise the production of these specific goods from the process of the valorization of capital. Not because the things are intangible – they already were before – but because the media and communications are suddenly available to people. That is, the photocopier and the burner for creative and intellectual works, and the computer itself for products such as free software.
This departure from the prevailing private property regime has not been planned with any kind of long arm but is rather the product of an historical accident. However, the vast majority of the "rest of the world" is still organized along capitalist lines and the prevailing imperative to exploit allows no other choice but to satisfy needs by way of money. Should one sphere alone withdraw from the prevailing social model of exchanging commodities for money – upon which the commodity form is based – then, from the perspective of the capital affected, new business areas would have to be found. Creatives dependent on this sphere for (often precarious) employment would have to search for new sources of income. Indeed, as a current campaign relating to a creator initiative has it: "We do this out of love, but unfortunately the supermarket doesn't accept love, they want money."
Tectonic shifts in the valorization of capitalNew information and communications technologies have brought about a tectonic shift with regard to the exploitation of creative and intellectual works – in effect, an earthquake that has subverted traditional industries, business opportunities, distribution channels and individual ways of working in the creative sector.
This aporetic situation has been met with various strategies. The most conservative is to shut off access to the new digital modes of production again. Thus, for example, the discussion in the current round of negotiations concerning copyright law reform of banning so-called intelligent recording software, with which specific music titles can automatically be filtered out of the range on offer via webradio and recorded. This would involve making all data on the Internet identifiable in order to trace who downloads or uploads what, where and when. The most radical proposals foresee blanket surveillance of the Internet, the control of data streams and treating copyright infringement with repressive juristic measures.
In contrast to which, a "modern" approach envisions an alternative business model. Data flows would be allowed to flow freely. With regard to sources of income for the creators, various suggestions have been made. These include "social payment" – a voluntary sum for digital content. Prominent social payment systems include "flattr" and "kachingle": users click a button which enables them to transfer the amount they choose to pay for the content to the recipient's account. Users can also make donations for the realization of concepts. In this way, creators find themselves in the position to realize an idea once sufficient funds have been gathered. At the same time, more and more artists elect not to earn money from the creative and intellectual work itself but rather from humdrum inputs – such as merchandizing, elaborate brochures or other promotional products. In this context, the Internet serves only as an advertising medium to grow the creative's profile.
There again, the publishers, according to the criticisms of the "modernizers", may as well have slept through developments on the Internet. Standard paid content systems in the music sector were in fact first implemented in the music sector long after the first file sharing platforms. However, today, systems such as iTunes are constantly improving. The latest statistics show that revenues for paid-for music downloads are continually increasing. The German music industry association (BVMI) recently reported that sales of digital music have in the interim begun to compensate for the reduction in sales of music in physical formats. A growing consciousness of the injustice of otherwise obviously attractive online offers shows that the valorization of capital works in this respect, at least to some extent, in the same way as it did in the context of the analogue model.
Nonetheless, it will continue to be possible to obtain online content on an unauthorized basis, other than in commodity form. Every kind of barrier, however technically sophisticated, will still be able to be broken through and, given that the Internet is accessible globally, it will scarcely be possible to enforce a national ban on copying technologies. On this basis alone, it will not be possible to realize the conservative strategy in anything link its pure form. In the end, a number of models existing side-by-side will emerge.
Open versus closed knowledge creationAs such, digital property remains precarious. While the vastly more powerful publishers succeed to some extent in lobbying for the conservative strategy and, at the same time, promote commercial content offers, creators are still advised, as often heard, to hurl themselves into free competition and take up Internet-savvy self promotion. There are already online portals for such purposes that circumvent traditional publishers – though not necessarily associated with free content.
The Internet is fundamentally changing the way in which creative and intellectual content is produced and consumed in the cultural field. It is no longer (exclusively) the large marketers and publishers that decide who will be boosted on the market and who will, as a result, attract attention, but rather Internet communities. In this way, the cultural landscape could become more diverse, some of the intermediaries superfluous, some artists, who had not made it in the conventional way through the eye of the needle, more famous. However, new media will not sweep away the tension between "open" and "closed" knowledge production. For artificial scarcity will remain a basic requirement for commodity producing society. A single sector cannot break away on its own. In other words: the fundamental conflicts will remain. This much is known to all of the parties in the debate over intellectual property. It is therefore only right that they always speak merely of a balance of interests but not of overcoming oppositions between interests.
The enlargement of cooperative spacesThose who are interested in a free flow of information have no option other than to strengthen the rights of creators. To this end, the current imbalance of power between creators and publishers must be remedied. Publishers must be forced into negotiations over higher and, at long last, binding rates of remuneration. And the standard system of payments should be extended: in order to legalize downloads from the Internet one could, for example, introduce a general charge for broadband connections – something that is already being discussed in terms of a "cultural flat rate".
However, it is more than questionable as to whether in this way all creators will be guaranteed "equitable remuneration". Whichever shape it took, a cultural flat rate would indeed improve the income of creators. However, additional costs would affect prices and thus be passed on to "consumers". As such, access to the digital world would depend more than before on the size of one's purse.
No matter how one looks at it: capitalism is not a win-win situation. Therefore, it is about time to start posing more fundamental questions than that concerning how to make digital content available for free on the Internet.
In fact, alternatives already exist: for there are numerous self-organized, free projects on which consumers and producers cooperate – without exploitative and market forces. The extent to which the production of free software and the so-called commons could serve as a model from the perspective of society as a whole has been the subject of discussion on the portal "keimform.de" for years.
It is imperative to extend these spaces – without revolving around the question of how to make a business model out of the process. If one wants to overcome the opposing interests in the battle over intellectual property, one must think beyond the narrow focus on the digital world. This is about questions that concern society as a whole. In the end, conflicts concerning the Internet are only a mirror of society – consequently they must be fought out here too, in the material world.
-  See Andrea Jonjic, "Handelsabkommen CETA sieht ACTA-ähnliche Strafen vor", www.netzpolitik.org, 11 October 2012.
-  See TERA Consultants, "Aufbau einer digitalen Wirtschaft: Die Bedeutung der Sicherung von Arbeitsplätzen in der Kreativwirtschaft der europäischen Union", Paris 2010. http://www.musikindustrie.de/fileadmin/piclib/presse/Dokumente_zum_Download/Aufbau_einer_digitalen_Wirtschaft.pdf.
-  See the petition "privatkopie", at www.privatkopie.net.
-  See www.copylike.org or www.ja-zum-urheberrecht.de.
-  See Ilja Braun, "Und der Zukunft zugewandt?", February 2010, www.irights.info/index.php?q=node/816.
-  See Richard Stallman, "Sagten Sie 'geistiges Eigentum'? Eine verführerische Illusion," 2004, www.gnu.org/philosophy/not-ipr.
-  For more on pre-capitalistic forms of property, see Sabine Nuss, Copyright & Copyriot: Geistiges Eigentum im informationellen Kapitalismus, Münster 2006.
-  See "Das Dogma von der Nicht-Knappheit digitaler Güter", in Sabine Nuss, Copyright & Copyriot, 205-8.
-  In the music sector, for example, there are free music portals such as Yamendo or Magnatune, books and ebooks can be self-published at Lulu.com or epubli.de, albeit in an entirely traditional, proprietary manner – except that here, authors are better placed.
-  See Daniel Leisegang, "Kulturflatrate: Der neue Sozialvertrag. Die Zukunft des Urheberrechts", in Blätter für deutsche und internationale Politik 1/2011, 106-11.
Original in German
Translation by Ben Tendler
First published in Blätter für deutsche und internationale Politik 12/2012 (German version); Eurozine (English version)
Contributed by Blätter für deutsche und internationale Politik
© Sabine Nuss / Blätter für deutsche und internationale Politik