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.