Egypt, Antiquities and Copyright

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Mickey Mouse Copyright Laws
Mickey Mouse Copyright Laws. Based on a photo (cc) Liber.

One of the advant­ages of being slow in writ­ing is that you can look at what every­one else is say­ing about some­thing. Often people will have thought about the same prob­lem and already anti­cip­ated prob­lems in your own line of thought, so you can avoid mak­ing a fool of your­self. Other times it’s a sur­prise, and this is one of those times. News from the BBC is that Egypt is ‘to copy­right antiquit­ies’.

Egypt’s MPs are expec­ted to pass a law requir­ing roy­al­ties be paid whenever cop­ies are made of museum pieces or ancient monu­ments such as the pyr­am­ids and this law will apply around the world.

To a greater or lesser extent other blog­gers think they can’t do this and they can’t enforce it. In con­trast I think they can and they can. This isn’t just my very basic under­stand­ing of law. It’s also the fact that museums in the West have been doing this, more or less, for years. Below is where I make a fool of myself.

I’ll start with the simplest prob­lem. Can Egypt copy­right antiquit­ies which are thou­sands of years old? Carl Feagans at A Hot Cup of Joe, quite sens­ibly argues that there’s a time limit or else there should be. Unfortunately Carl is hindered by com­mon sense and intel­li­gence, neither of which have any place in law. There’s a fam­ous quote from the Earl of Pembroke in 1648: “a Parliament can do any­thing but make a man a woman and a woman a man.” Some mod­ern legal schol­ars dis­agree and say that leg­ally Parliament can do that too. Seeing as copy­right is purely legal, there’s no trouble for the Egyptian gov­ern­ment enfor­cing this law within their bor­ders. This isn’t a prob­lem if you plan to stay out­with Egypt. This would be a prob­lem for people like Egyptologists though. It might also be a prob­lem for mul­tina­tion­als with interests in Egypt. If Time Warner refused to obey the law out­side Egypt, what hap­pens to their assets inside the coun­try? It’s the kind of mess that will keep law­yers hap­pily employed for years. I sus­pect that sig­nat­or­ies to the Berne Convention will baulk at the idea of palaeo-copyrights, but it might not be neces­sary to copy­right the antiquit­ies themselves.

Gabriel Bodard sur­prised me at the Ancient World Bloggers Group, because I’ve seen him talk and he’s far more digital savvy than me, but he seems to have missed this. As a thought exper­i­ment he pro­poses to cre­ate a “full-scale rep­lica” of the Great Pyramid of Giza in Second Life, just to see who’d like to test that par­tic­u­lar com­bin­a­tion of legal reper­cus­sions. But what pre­cisely would he rep­lic­ate? The reason that the very clever people at the Stoa are worth listen­ing to is that we prob­ably can’t pre­dict what the out­come of a digit­ised his­tory or archae­ology will be. There’s vari­ous reas­ons for this, we’re only just explor­ing con­cepts like mash-ups. Accessibility remains an issue. Another prob­lem is that the vast major­ity of mater­ial has yet to be digit­ised. I don’t know if the Great Pyramid has been accur­ately modeled in 3D by mod­ern elec­tronic sur­vey tech­niques and scan­ning yet. If it has then that rep­res­ent­a­tion of the pyr­amid is cer­tainly pro­tec­ted by copy­right. It’s a safe bet that any­one access­ing Egypt’s archives, stores and sites will do so under the pro­viso that copy­right is handed over to the state. All the new vir­tual arte­facts wait­ing to be be cre­ated in the arte­fact stores of Egypt will be pro­tec­ted. When they’re rendered using a 3D printer there’ll be a roy­alty. It won’t be the arte­facts that make the money from roy­al­ties, but their rep­res­ent­a­tions. What Gabriel Bodard would be rep­lic­at­ing for instance would not be the pyr­amid, but plans of the pyr­amid, and those plans in the future will be prop­erty of the Egyptian gov­ern­ment. If you don’t want to sub­mit to this then you’ll be wel­come to sur­vey the all the Old Kingdom pyr­am­ids out­side of Egypt instead.

It’s bad news and Eric Kansa explains how bad it is at Digging Digitally. However I dis­agree with him too. He says the idea comes from Bizarro-land. Yet in the UK it’s nor­mal prac­tice to pro­tect centuries-old mater­i­als under copy­right. They don’t even need to be British in ori­gin, yet you’d hardly call the UK Bizarro-land would you?

Ok, I walked into that one. :)

Here’s how it works. I have a Greek pot from 400 BC and I want to have exclus­ive image rights. To show exactly how non­sensical it is, let’s pre­tend my grand­father stole it from a Mediterranean coun­try in 1960. In the UK copy­right is the life­time of the artist and sev­enty years. Clearly it’s out of copy­right, but that doesn’t mat­ter because I own the pot. If you want to make an image you’re wel­come to do so — if you sign away all rights to those images to me. So long as I keep my pot on dis­play in a museum where pho­to­graphy without one of my per­mits is for­bid­den I effect­ively own copy­right on that pot regard­less of its cre­ation. If you want to see this in action why not visit the Beazley Archive’s web­site and pay atten­tion to the terms and con­di­tions when you search the data­base. If they couldn’t put such lim­it­a­tions on access then most of the pots in the data­base would not be viewable.

It’s not that the Beazley Archive or the pot own­ers are being excep­tion­ally bad. It’s stand­ard prac­tice for most museums in the UK. Check out the Tate’s policy, where you can film or pho­to­graph — with a per­mit. This isn’t about mak­ing museums pan­to­mime vil­lains. Along with death and taxes another cer­tainty of life is that museums will be under­fun­ded. What should be cul­tural assets are thus rendered down to eco­nomic assets for the dur­a­tion of the copy­right term. What adds to the prob­lem is that copy­right might not be life and sev­enty years. Every time that mouse is about to enter the pub­lic domain it’s sud­denly neces­sary to extend copy­right terms. Otherwise by some freak of caus­al­ity people in 1928 will have had no incent­ive to cre­ate the mouse and Hollywood will be swal­lowed in some kind of Möbius tem­poral para­dox. You could argue Hollywood’s law­yers have been watch­ing too many dire movies, but that’s prob­ably part of the job descrip­tion. Copyright on the mouse is due to expire 2023, if I remem­ber cor­rectly, but I wouldn’t bet on it hap­pen­ing. If I were to place money on it I’d bet that there would be a renew­able copy­right sys­tem that resets pro­tec­tion every time a pro­tec­ted item is re-mastered into a new format, because that’s what we have in the UK.

I can show this hap­pens by point­ing at a flaw in my reas­on­ing. Copyright exists to pro­tect ori­ginal works. This should be a prob­lem for sites like Tate Images. They’re selling images on the under­stand­ing that they’re accur­ate repro­duc­tions of the ori­gin­als. If their pur­pose is to be repro­duc­tions of these works, then the repro­duc­tions can­not be ori­ginal works of them­selves. Can they? The Tate thinks they can. If they’re right there’s a gold­mine await­ing the per­son who can demon­strate the earli­est Beatles MP3s. Of course there’s also a huge legal bill await­ing that same per­son because the American music industry takes exactly the oppos­ite view of copyright.

The Egyptians would have a way round this para­dox if they owned the rights to the ori­ginal antiquit­ies. Which I think is where we came in.

There is a cost to this, as Eric Kansa says in his blog entry. I also think it’s fair to say that these cul­tural works have been rendered down to eco­nomic assets. I appre­ci­ate that, with con­ser­va­tion, they works will be phys­ic­ally sim­ilar when and if they cease to be copy-protected. In the mean­time the cul­ture is dimin­ished because these cen­tur­ies old works are not freely access­ible. The art may even­tu­ally re-enter the pub­lic domain, but we will never know the deriv­at­ive works that were never cre­ated dur­ing the embargo and these are forever lost. Far from pro­tect­ing and incentiv­ising cre­ativ­ity, copy­right now is a toll-booth if you think cul­ture should be par­ti­cip­ated in rather than pass­ively con­sumed.

In a world where copy­rights have ceased expir­ing, where copy­ing some­thing allows you take art out of the pub­lic domain, where even genes can be pat­en­ted, Egypt’s pro­posed pro­tec­tion of its sites and arte­facts isn’t bizarre, but simply honest.

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