Copyright, cultural diversity and censorship:
Professor Jeremy Phillips, editor of the Oxford University Press' Journal of Intellectual Property Law and Practice (JIPLP), kindly published a first draft of this paper on the JIPLP blog:
Most Americans consider freedom of speech as one of the highest values protected under their Constitution. Europeans equally dislike censorship and invoke article 10 of the European Convention on Human Rights, the equivalent of the First Amendment, stating that everyone has the right to freedom of expression that, subject to certain limitations, includes “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” A similar rule applies in all other true democracies worldwide. In various jurisdictions, notably in South Africa, citizens can enforce this right not only against the State, but also vis-à-vis private entities.
Now, is there a case against “marketing censorship”, meaning censorship not from public sources, but from private ones? - Tunisia and Egypt experienced over the last three decades strong public censorship from their kleptomaniac former presidents and their cliques. What about us in Western democracies? - Let me suggest that we are subject to censorship of a private kind.
Disproportionately high standards of intellectual property protection are incentives to disburse excessive expenditures in advertising for contents. They are the primary means for market domination. This reality is detrimental to the creation, production and dissemination of films, books, music and other cultural expressions that do not enjoy comparable investments in attracting the public's attention. In other words, excessive copyright, trademark and trade name protection generally contribute to marginalizing and excluding contents and aesthetics that are culturally different from the economically dominant ones. They do not enjoy competitive marketing power even when they have the same or more audience appeal, and this is how the muzzle works in our very own neighborhood. A few top executives and their apparatchiks in the film, book and music industries dispose of highly concentrated power on marketing, and they abuse this power to culturally discriminate. They impose their preferences upon you and me and everybody around the world, and muzzle all the rest. They are our Ben Ali's and Hosni Mubarak's censorship apparatus.
Let me quote Michel Foucault to add a key piece to the puzzle of muzzle: “You act on reality by acting on its representation.”
The United States lost the Vietnam War in reality. In its representation on screen, however, they seem to have won it. How many Vietnam war films could audiences in the United States and abroad watch over the last decades that were authored by Vietnamese? To what extent did this one-sided view prepare mainstream public opinion for new wars in Afghanistan and Iraq?
A “variable geometry in copyright duration” could solve the problem of market censorship caused by excessive intellectual property protection: the higher the marketing investments the shorter the copyright duration of protection. In other words, the works with modest advertising shall keep the full term of copyright protection (70 years after the author's death), whereas this duration shall be shorter for works enjoying high investments in their publicity. As a consequence, a great diversity of small and medium sized fishes will flourish while big sharks are kept at a safe distance.
For the full paper, please visit the JIPLP weblog and make comments.
