Copy Rights: The Politics of Copying and Creativity
| Published date | 01 February 2018 |
| Author | Adam Behr,John Street,Keith Negus |
| Date | 01 February 2018 |
| DOI | 10.1177/0032321717706012 |
| Subject Matter | Articles |
research-article2017
Article
Political Studies
2018, Vol. 66(1) 63 –80
Copy Rights: The Politics of
© The Author(s) 2017
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https://doi.org/10.1177/0032321717706012
DOI: 10.1177/0032321717706012
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John Street1, Keith Negus2
and Adam Behr3
Abstract
This article analyses the politics of copyright and copying. Copyright is an increasingly important
driver of the modern economy, but this does not exhaust its significance. It matters, we argue,
not just for the distribution of rewards and resources in the creative industries, but as a site
within which established political concerns – collective and individual interests and identities – are
articulated and negotiated and within which notions of ‘originality’, ‘creativity’ and ‘copying’ are
politically constituted. Set against the background of the increasing economic value attributed to
the creative industries, the impact of digitalisation on them and the European Union’s Digital Single
Market strategy, the article reveals how copyright policy and the underlying assumptions about
‘copying’ and ‘creativity’ express (often unexamined) political values and ideologies. Drawing on a
close reading of policy statements, official reports, court cases and interviews with stakeholders,
we explore the multiple political aspects of copyright, showing how copyright policy operates
to privilege particular interests and practices and to acknowledge only specific forms of creative
endeavour.
Keywords
copyright, copyright policy, originality, music, digital single market
Accepted: 16 January 2017
Our argument is that copyright and copyright policy, typically the province of intellectual
property (IP) lawyers, warrant the closer scrutiny of political scientists because copyright
affects the distribution of resources and rewards and because it manages the tension
between collective and individual rights. How these matters are resolved is important
materially and culturally for all societies, and their resolution is a consequence of political
processes and political values. But there is, we suggest, more at stake than this. Copyright
1School of Politics, Philosophy, Language and Communication Studies, University of East Anglia, Norwich, UK
2Department of Music, Goldsmiths, University of London, London, UK
3School of Arts and Cultures, Newcastle University, Newcastle upon Tyne, UK
Corresponding author:
John Street, School of Politics, Philosophy, Language and Communication Studies, University of East Anglia,
Norwich NR2 2BA, UK.
Email: j.street@uea.ac.uk
64
Political Studies 66(1)
also serves to construct ideas of ‘creativity’, ‘originality’ and ‘copying’. These are ideas
which matter profoundly to the vision of the liberal society and the individuals who con-
stitute it. As John Stuart Mill (1972/1859: 132) wrote in On Liberty, ‘It will not be denied
by anybody, that originality is a valuable element in human affairs’. In this article, we
unpack the political principles and judgements which constitute copyright and copyright
policy, revealing how they affect the distribution of resources and opportunities and also
how they construct modern understandings of originality and creativity.
According to the Department of Culture, Media and Sport (DCMS, 2015), in 2014, the
creative industries were worth £76.9 billion to the UK economy; their exports were val-
ued at £17.3 billion and they provided 1.71 million jobs. These industries – music, film,
television, video games, among others – are heavily dependent on copyright in realising
their economic worth. The music business in particular, according to Patrik Wikström
(2009: 12), is to be understood as a ‘copyright industry’. Indeed, the body which repre-
sents that industry, UK Music, describes copyright as the ‘currency of creativity’ (UK
Music, 2010) and as ‘the bedrock of the music industry’ (UK Music, 2014).
Digitalisation has heightened the importance of copyright, facilitating piracy and ille-
gal file-sharing and impacting on almost all aspects of the production, distribution and
consumption of creative content. These transformations drive the European Union’s (EU)
determination to create a Digital Single Market (DSM) and to engage in a radical over-
haul of the copyright regime (European Commission, 2015; Rosati, 2013).1 They also lie
behind national initiatives to adapt to digitalisation2 and the concomitant need to reform
copyright (Hargreaves, 2011). These reform programmes have attracted intense political
lobbying in Brussels and elsewhere by the corporate stakeholders and those suspicious of
their motives (e.g. the Open Rights Society, the Electronic Frontier Foundation and
European Digital Rights (EDRi)). The EU’s consultation on copyright attracted 9,500
replies and more than 11,000 messages (Dobusch, 2014).
This heightened attention on copyright is reflected in electoral agendas. In the 2015
UK General Election, the Conservative Party (2015: 42) and the Liberal Democrats
(2015: 37) both referred to copyright in their manifestos.3 The Green Party called for ‘a
comprehensive Digital Bill of Rights’, with the intention of reducing the role of the mar-
ket in cultural production and consumption (Green Party, 2015: 61). And while the Pirate
Party, formed specifically to reform copyright, may no longer be the force in Europe that
it once was (Cammaerts, 2015; Fredriksson, 2014), its sole representative in the European
Parliament, Julia Reda, is the official rapporteur for the EU’s copyright consultation exer-
cise (Reda, 2015).
Despite its increasing political salience, copyright has tended to be overlooked by
disciplines other than law.4 In particular, political studies has been slow to acknowledge
its significance, although it is important to note the contribution of work by Jeremy
Waldron (1993) on the political theory of copyright, Ronald Bettig (1996) on the political
economy of IP, Jessica Litman (2006) on the making of US copyright policy, and Debora
Halbert (2014) and Blayne Haggart (2014) on the global politics of the international
copyright regime. This article is a further sortie into this field. We explore the political
ideas which both inform copyright policy and constitute the underlying practices of copy-
ing and creativity. We concentrate on the music industry and we analyse how political
values and assumptions underpin existing copyright regimes, and we examine how politi-
cal judgements inform ideas of a ‘work’ which may be ‘a copy’ or an ‘original’ and attrib-
ute responsibility to an ‘author’. In making our case, we draw on policy documents, legal
cases and interviews with key actors in the music industry. We show how copyright policy
Street et al.
65
arbitrates between the claims of individuals and those of society, and how it assigns
responsibility and agency. In these respects, it is political in the sense adopted by David
Runciman (2014: 6): ‘the collective choices which bind groups of people to live in a par-
ticular way’. But it also acts politically in defining ‘originality’ and ‘creativity’ and in
determining integrity and cultural value in forms of communication.
Background: Copyright and Digitalisation
Copyright policy is designed to reward and incentivise creators and to enable society to
benefit from the results of their innovation and creativity in the public domain. It does this
by identifying the rights of creators and intermediaries to benefit from their contribu-
tions.5 And in recognising and regulating these rights, it establishes what may be claimed
as an original work and what a copy, where copying may refer to either the reproduction
of a work for commercial purposes or the plagiarising of artistic expression.
Both forms of copying have been affected by digitalisation. Arguably, the music indus-
try has felt these effects most sharply (Negus, 2015). The recording of music in digital
form (as opposed to analogue) has meant that it becomes possible for copies to be made
with no loss of quality; it has also meant that music can be ‘shared’ much more rapidly
than was possible with analogue media such as cassette tapes (and even with copied digi-
tal CDs). Within the legitimate market, digitalisation has made possible Internet radio and
streaming services which introduce new possibilities and problems for the licensing of
music and for rights collection. Digitalisation has also extended the creative possibilities
available to artists, making the sampling of music a great deal easier and more sophisti-
cated, expanding what it is possible to deliver in a live performance and facilitating new
forms of collaboration and integration within, and between, cultural forms and media
platforms (Vermallis and Herzog, 2015).
As with any such technological change, there is a danger of exaggerating the extent of
its effects. Illegal copying was an issue before digitalisation and before the Internet;
hence, the music industry’s campaign for blank tape levies in the 1980s (Knopper, 2009).
Sampling was possible with analogue tape and a razor blade. And there have always been
those who contend that copyright is the problem for, rather than the solution to, enhancing
creativity (Boldrin and Levine, 2008; Lessig, 2005; McLeod and DiCola, 2011). But even
if digitalisation merely exacerbates the problems of copying, there remains the question...
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