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I am going to stray from my usual subject matter this week because an important issue has come up that is dear to my heart. As I understand it a well known American jewellery producer has recently taken one of his designers to court accusing him of stealing his copyrighted designs, the jewellery producer in return has been accused of copyrighting traditional Balinese designs as his own.
My story starts 40 years ago when one of England's most respected traditional singers, Martin Carthy, recorded an old traditional song called “Scarborough Fair”. Even now I remember that recording clearly. Several years later American singer Paul Simon recorded the same song and called it “Scarborough Fair Canticle” and claimed copyright. The song was a great hit and Martin Carthy sued. In spite of the basic words, tune and guitar accompaniment being very similar to Martin's earlier recording Paul Simon, in the American courts and no doubt hiring the best lawyers, won the case. So it came about that one of England's best known traditional songs has been copyrighted by an American singer songwriter. This copyright can be handed on to Paul Simon's heirs and even owned by any individual or corporation that might wish to buy it.
All my life I have been involved in traditional arts. For many years I directed a major traditional festival and later CEO of the EFDSS, the body that is responsible for safeguarding the collections and interests of English traditional culture. In these roles I was involved in, and came to understand, the copyright industry.
Copyright is totally controlled by copyright agencies. Their role is to register copyrighted material in the name of its owner, collect royalties from people who use that material and then distribute the income (minus their agency fee) to the owners of the material.
Copyright agencies, like customs and quarantine agencies, have far reaching powers but, unlike customs agencies, they are not government bodies, they are private organisations owned by their members. They have the law on their side. For example in Britain if a hair dresser is playing music in their salon and hasn't paid their copyright license, the copyright agency has the power to close the salon down.
When you get inside the copyright agencies and you see how they work, how their systems operate and the powers they have it is rather frightening. They make up their own rules as they go along and accurate identification and, because of the scale of the task they undertake, fair distribution of royalties is not a strong point. They are also able to employ the very best of copyright lawyers available.
Let us go back to the basic philosophy on which copyright law is based. Any person who creates something has a right to have their ownership of their work acknowledged and remunerated if other people get benefit from it. This is an important right and quite rightly should be protected.
However there is a second equally important right that is often conveniently forgotten (in fact some would say has been systematically eroded). This is the people's right to access and enjoy traditional material or any material that has gone into the public domain. Generally speaking 70 years after the creator has died material automatically reverts to public domain and is free of copyright. Much classical music falls into this category.
This vast body of publicly owned material is very important to people around the world. After all the fundamental identity of people is based in their traditional cultures, their belief systems, their social rules, religion, traditional clothing, food and, very importantly, their arts. No where in the world is this more evident than in Bali with its rich heritage of costume, ceremony, music, song and dance, carving, painting and architecture.
The idea that such tradition could be copyrighted, that a Balinese person would have to pay a royalty to an individual or organisation for the right to use traditional designs that have evolved and been handed down over generations, is an abhorrent notion.
Let us go back and look at the example of traditional music to see how this has become a possibility.
Traditional music has been a thorn in the side of copyright agencies for years. They decided to “muddy the waters” and came up with the idea that while someone cannot copyright traditional material itself they can copyright “their arrangement” of traditional material. An arrangement can be a simple as changing the odd note or adding some simple accompaniment. Such variations naturally occur in traditional music anyway.
In the case of music copyright the agencies keep computer databases of vast amounts of registered material. The “arrangement” goes into the database and of course there is no record of the original traditional material – it belongs to everyone – no one owns it – it is not registered. In the absence of any other record in the system the “arrangement” becomes the official record along with the name of the arranger. Any royalties that come in for a traditional piece end up going to the only record in the system ie. the “arrangement”.
Progressively the right of free access to traditional material has been eroded. It used to be that any traditional or public domain music played in a concert was royalty free – not anymore. Copyright of arrangements caused all sorts of difficulties in determining what was and what wasn't copyright material. Eventually the copyright agency in Britain changed the rules so that these days if you organise a concert you have to pay royalties on everything including the traditional or public domain music.
This has had major ramifications and has, for example, meant that copyright agencies can and do go into little country pubs and prevent traditional musicians from playing the music they learned from their fathers and grandfathers and have played in those pubs for generations.
Unfortunately ordinary people tend to be the losers in all this. Firstly you cannot copyright your material without being a member of the copyright agency. Membership fees are high and so poor people or those who do not produce a lot of material are usually not members and so are not able to copyright their work or receive royalties.
In addition because the number of individual performances of every song or piece of music is so vast and simply cannot be monitored the copyright agencies use “sampling” to determine the number of plays of individual pieces which in turn determines the amount and recipients of the royalties collected. Small artists get nothing simply because they don't come up in the samples. The big players like Paul McCartney and Michael Jackson who have been collecting copyrights for years tend to get the lions share.
Music is all very well but in America use of copyright is considerably more far reaching.
In his books “Confessions of an Economic Hitman” and “The Secret History of the American Empire” author John Perkins suggests that America has been working for decades to a well devised strategy of building a world economic empire. By using two strategies of firstly regime change (including assassination) in order to install co-operative leaders and secondly the creation of huge debt to make countries vulnerable, large American corporations have been able to establish themselves in foreign countries and plunder valuable resources such as oil and gold.
It all sounds rather like conspiracy theory but much of what John Perkins says rings suspiciously true.
Mr Perkins doesn't mention copyright, or the closely related field of patents, but it is a much lesser recognised but still very powerful strategy for economic exploitation. An example of this is in the huge but highly profitable biotech industry. America has been identifying and copyrighting genomes. I am not sure how you can copyright a genome but with the world's best lawyers on their side they are able to make up the rules as they go along. Perhaps soon we will have to pay a royalty on having arms and legs.
The financial ramifications of copyright and patents can be huge.
In 1994 an American, Larry Proctor, bought a bag of multicoloured beans in a market in Mexico. He selectively bred yellow ones so they were all the same colour then he patented them calling them the Enola bean. The patent covered any of this type of bean that fell within a particular colour range. Suddenly the multicoloured beans that had been produced by poor Mexican farmers for generations and sold in American were declared illegal because some fell within the patented colour range. Exports were stopped and this resulted in great hardship to the farmers. After years of argument the US patent office eventually saw sense and the patent was cancelled in 2005.
A large American corporation, Monsanto, has gained a world reputation for making huge profits out of a combination of questionable business practices and GM (genetically modified) crops such as soya, cotton and maize. They tweak the genetic makeup of an existing variety, patent it, and then aggressively push it into world markets and very often poor countries. One strategy they use is to persuade people to do GM “trials” which results in the release of the modified gene into the environment where pollen blown by the wind can contaminate other crops. The company then come along, test a neighbouring farmer's crop and sue the farmer for illegal use of patented product. With huge wealth behind them and the best lawyers they tend to win these cases and the poor hardworking farmers lose everything.
An investigation by the U.S. Securities and Exchange Commission revealed that over US$700,000 in bribes was paid by Monsanto to at least 140 Indonesian government officials and their family members between 1997 and 2002, financed through the improper accounting of Monsanto's pesticides sales in Indonesia. The bribes were to allow Monsanto to sell GM cotton in Indonesia.
Such unethical business practices in the biotech industry for the sake of making huge profits may explain why the Indonesian government has not wanted bird flu samples to be sent to America.
In the case of patent battles regarding basic necessities of life such as food crops there has been a strong motivation to fight back against the activities of royalty hunters. Unfortunately in the field of traditional culture there has been very little resistance and the use of “variations” to claim copyright continues largely unchallenged.
Coming back to the original case I know little about the detail but we need to watch this very carefully. If the jewellery producer has copyrighted his own contemporary designs then his rights should be fully protected so that he can reap the rewards for his work. At the same time any traditional designs must be fully protected so that the Balinese have free and unrestricted use of them.
If, however, there are designs involved that are “variations” of traditional designs we have a worrying situation that could be the thin end of a very thick wedge. This is the murky area where what is and what isn't copyrightable can be very difficult to asses.
With no established structure to protect traditional rights and with many clever lawyers who have a vested interest in developing the copyright industry we may suddenly wake up one day to find that the Balinese people must first pay their copyright license to an international corporation before they can hold their upacara. What a sad day that would be.
Phil Wilson
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