Desire to Own

Property Issue around Creative Industries

Language editing: Aileen Derieg

Branka Ćurčić

Today, one of the things that creative industries are based upon is the “exploitation” of Intellectual Property (IP), with the declared aim of “achieving its full economic potential.” At its origins – the web site of the British government's Department of Culture, Media and Sports – this statement is followed by a definition of the creative industries stating: We define the creative industries as those industries which have their origin in individual creativity, skill and talent and which have a potential for wealth and job creation through the generation and exploitation of Intellectual Property.

 
Concept of Property Throughout History

Concepts of property through history have been diverse. Some thinkers regarded the right to property as the fundamental premise for being truly a person: “The rationale of property is to be found not in the satisfaction of needs but in the supersession of the pure subjectivity of personality” (Hegel). This concept is more about “owning yourself” than what is usually regarded as property. In a similar vein, John Locke considered that man is “master of himself, and proprietor of his own person, and the actions or labor of it.”[1] According to Isabell Lorey, “at the beginning of the modern era, property acquired a supposed 'anthropological meaning' for both the bourgeois man, and a prerequisite for his formal freedom as a citizen, as well as for the worker, who owns his own labor power and must sell it, freely, as wage labor.”[2] Property over his/her own labor and body further opens a much more complex discussion regarding historical reasons and processes which have led to self-governmentality and, ultimately, to self-precarization.

According to Karl Marx, property or “property relations” are fundamental social relations in which the relations between people are expressed in the relations between people and things. Thus the existence of property alienates people from social relations and puts them into relations with objects. The ownership of property constitutes a social relation so that ownership affects the lives of other people. So, for example, a laborer in capitalism is the owner of their own capacity to work, but when they sell it on a day to day basis, it becomes the property of a capitalist who obtains the right to use it, and the right to profit[3] from it. To own the means of production[4] is the most important social relation, since it gives to the class owning the means of production, exclusive control over the labor process, and thereby the power they have over all laborers.[5] Therefore, according to this concept, property has been closely linked to the processes of the division of labor and the unequal distribution of its products.

Today we see the convergence of social and economic relations, where social relations turn into economic relations and economic relations into social ones. Capitalist production is identified with the body, with society, with life, and becomes an affective economy in which communication generates value (and surplus of value!), so that its role becomes crucial.[6]

With a variation on Proudhon's exclamation “Property is theft!”, McKenzie Wark twists it into “theft is property!”, continuing that “property is abstract theft, a theft of nature itself.”[7] According to Wark, property is not a natural right, it is the result of a history. To make something into property has two meanings: first, to exclude, to take something out of the continuum, mark it and enclose it, to represent it as something final; second, to make something into property means to enclose it by means of its own representation as an excluded, final object in relation to the subject that owns it. The “evolution” of property through history could be presented thus: land is the first format of property accompanied by the privatization of the land, a land enclosure. Capital is the second format of property accompanied by the privatization of production resources and material. Information became a commodity, a new format of property accompanied by privatization, an enclosure of the means of the production, accumulation and distribution of information. Wark believes that each of these privatizations results in the specific class relationships led by class interests (class here appears as an exaggerated definition): pastoralists-peasants, capitalists-workers and vectorialists-hackers. All of these “classes” are fighting for the ability to extract as much surplus value as possible from productivity as a whole for their own benefit.

 
Privatization

As seen here, the process of privatization relates in many instances to the issue of property. It would be interesting to examine bonds created between the creative industries and property issue in different contexts – of West and of East, Post-communist Europe, and especially in terms of their mutual relationship. Together with economic and political transitions in former communist countries, cultural production also moved “from real socialism to post-modern capitalism”,[8] where the struggle for distribution, appropriation and property rights is taking place together with the production of new “capitalist souls”[9] – nouvelle private owners. According to Boris Groys, in communist times the abolition of private property meant a radical break with the (bourgeois) past, leading towards artistic and political freedom. He continues that the re-introduction of private property thus represents a prerequisite for putting an end to the communist experiment. In the communist countries, cultural production was instrumentalized by bureaucratic and not by economic interests. Most of the socialist governments have viewed copyright and Intellectual Property regulations as a support mechanism for artists instead of a legal right. The reality of the copyright systems in the Eastern European communist states was deeply entangled with censorship and state control of culture. It was a centralized, state stimulated creativity based on party interests, strictly controlled in order to protect pure ideological interests.

 
To the “Developing” Countries

The latest European Union enlargement process, which took place in 2004, also expressed a certain economic interest of “old” Europe in the acceding countries of Central and Eastern Europe. Since then, those ten “new” EU countries, together with candidate countries to a certain extent, are experiencing a process of regulation, “normalization” and accommodation to common European values. At first glance, Intellectual Property and copyright regulations represent just a marginal part of this normalization, but lately it appears that those regulations are playing a more and more important role within this process.

First-world countries and transnational bodies express quite a lot of economic interest in the third-world countries – they are practicing global commodification without any real interest in cultural matters and subjectivities in those countries. According to M. Wark, developing countries are usually forced to privatise their shares in communications, education and culture, and to employ more and more strict legal forms of Intellectual Property protections in order to secure the highest possible accumulation of surplus value. It is one part of a new strategy of “market stabilization”[10] that has been employed when nation-state based activities were no longer able to achieve this. The choices that have been put in front of the developing countries are not really choices: after they lose their sovereignty, these countries become resources for the global production of means, whereby as much profit as possible is extracted from this process. These countries are giving up their ability to socialize part of that value as a precondition for joining the new global system.[11] These “choices” sometimes seem to be part of the “normalization” process, and they very often appear to be the result of a purely economic interest in many cases. “Market stabilization” in the developing countries is a process that is usually well traded, in the sense that the interests of those who are stabilizing are, first of all, well respected. In some cases, however, this kind of “trade” is accompanied by what could be regarded as “blackmail”, or at least a more explicit way of justifying a certain country's exclusion from the “new global system”. According to Cindy Cohn, one of the legal directors of Electronic Frontier Foundation, in the case of United States' trade position and its relation to the developing countries, this could go so far that developing countries could be forced to apply some laws that would not benefit them at all. In C. Cohn's view, this strategy is never direct and transparent, but it could be summarized thus: unless you pass this law and unless you sign this agreement, we're not going to trade agriculture with you or we're not going to trade textiles with you![12]

 
IP Law Enforcement in Eastern Europe

More recently there has been a trend toward flexibility in the legal part of the implementation of Intellectual Property law. The implementation of and respect for IP laws is a very important issue when it comes to the creative industries, and this is orchestrated from many different levels: global (mostly meaning the USA), EU, local and regional levels. In this sense, it has almost become a habit to blame the US administration for giving generous support to the IP industry, but in fact it has had substantial help from Japan and the EU since the 1980s. Still, the EU has an advantage in certain cases, such as in the case of the enforcement of copyright laws for computer software since 1991. Since then, we have heard about many things: one of them at the European level is "The Intellectual Property Rights Enforcement Directive". “Its basic schema is to collect the hardest investigative mechanisms from the different countries in Europe and integrate them and then impose that standard on every EU jurisdiction. This arsenal includes, for example, a British legal instrument allowing raids on private or commercial premises, the seizure of documentation and materials on the pretext that they are evidence which may be destroyed. This means that the copyright industry can come to your door with the police to raid your place. Another element is called the 'Minerva Order' that allows the copyright owner to freeze bank accounts of people that they allege to be copyright infringers.”[13]

The issue is quite complex: enforcement pressure emanates both from the EU and the US and from international organizations. Enforcing IP laws involves and, in a certain way, connects: political leaders, intelligence services, trade representative bodies, customs authorities, police, and international IP protection organizations, which are forming a kind of axis, which very rigorously upholds IP laws and, ultimately, also creative industries' interests at global, regional and local levels. All of this is done by monitoring and controlling the implementation of IP laws at national levels. The EU and the US administration are putting substantial pressure especially on Eastern European countries, specifically because piracy is known to have been an important basis of production in these countries in the last decade. The music and audio-visual industries target the pirate economy at the level of production (optical disk manufacturing plants), import/export (thus the pressure on customs authorities) and street level activity (markets, internet cafes, etc).[14]

There have been many meetings and declarations about IP law regulations adopted in the last few years at global and European Union levels. One interesting action took place just before the EU enlargement in 2004. Alan Toner has said that the copyright industry has claimed that some Eastern European countries have an economic interest in copyright infringement – there is a fairly significant unauthorized CD and DVD production in Bulgaria and Poland – and these countries do not have the will to enforce IP laws that will be damaging to them economically. They were rushing the directive through, so that it would be finished by the accession time. Eastern European states had no opportunity to participate in its design or drafting. “The directive covers the enforcement within the EU, whereas a new regulation is operative from the 1st of July. It has reproduced the regime at the borders of the expanded EU and gives customs authorities greater powers to seize goods and basically act on their own initiative.”[15] Other recently held meetings were "The Eastern Europe and Central Asia Regional Congress on Combating Counterfeiting and Piracy" in Bucharest and the "Subgroup on Intellectual Property Theft within the Southern European Cooperative Initiative", which is dedicated to the creation of regional organizations designed to foster cross-border cooperation and continuity in fighting piracy. The very last one, "European Union Copyright Directive", realized this autumn, is intended to undertake a revision of IP law implementation in European Union countries, and also to be an evaluation review of the Directive, i.e. an evaluation of whether or not has it achieved its policy objectives.

Among all of these regulations of Intellectual Property and cultural production, one could ask what is actually the position of cultural producers. It is very clear that the implementation of IP laws is of great benefit for the entertainment industry, which is assisted by mechanisms for monitoring possible infringements of its rights. This monitoring process usually means employing many resources, which are generally not available to individual creators. In the general picture, cultural producers have always been used as an alibi, as the usual neo-liberal rhetoric is that those laws are here to protect them. According to George N. Dafermos, the object of IP law today is the regulation of immaterial labor and the control of the production process. He continues that “the imaginary of Intellectual Property law, first and foremost, is designed to control people through control of the production process, regardless of whether this production takes place within the factory or outside it.”[16]

 
Taking over the Western European Mode

Back to Eastern Europe where “the marketplace had long ago been eliminated and the primacy of politics was pervasive. Thus for the east the marketplace represented utopia.”[17] That could be the reason why cultural producers placed their faith in a marketplace of a Western character and maybe why this specific cultural production is unquestionably and uncritically taking over models of market-based production from the West. Also, there is a practice of applying PPP (public-private-partnership) funding strategies, which has often been employed in the EU, where new cultural institutions are created through a partnership between public and private spheres. This was the case, for example, with a recent urban development in Budapest – the cultural complex of the Ludwig Museum, the National Theater and the Philharmonic, called Palace of Arts. It is a huge project of three buildings spreading over 10.000 square metres, in which around 132 million Euro has been invested through PPP – the Hungarian Ministry for Cultural Heritage, including the Hungarian government and private sector's investments. It is clearly stressed that this cultural complex is intended to represent a significant “resource for the cultural and economic life of Hungary”, which should be in complete harmony with the “European values” themselves. It is quite similar to what has been employed and practiced in other EU countries: huge investments in building cultural complexes such as the Museum Quarter in Vienna or Forum in Barcelona, which significantly influence the commercialization of art and culture, both locally and more globally. Although Adorno and Horkheimer's essay on “The Culture Industry: Enlightenment as Mass Deception” only partly applies today, a significant observation is relevant here: “The decorative industrial management buildings and exhibition centres in authoritarian countries are much the same as anywhere else... It is alleged that because millions participate in it, certain reproduction processes are necessary that inevitably require identical needs in innumerable places to be satisfied with identical goods... Furthermore, it is claimed that standards were based in the first place on consumers' needs, and for that reason were accepted with so little resistance.”[18]

 
Individual Producers and Licenses Covering Their Own Work

Cultural producers own only a small part of the Intellectual Property of their work, and again and again they find themselves in a position where their rights have been derogated. They are faced with diminished rights over property (or what meanwhile has the status of property). In the incredibly harsh conditions of work described above, there is a belief that there are still different positions from which to act and to obstruct power structures, and also to influence a change of the very definition of property representation, instead of uncritically taking over existing property based models. The point is that cultural producers should be in position to make a difference. On the other hand, they are actually interested in ownership of the property of information. Every small profit that a cultural producer derives from a privatization of information is obstructed by the constant accumulation of tools of production, which are in the hands of proprietors. According to M. Wark, the privatisation of information is not in the interest of cultural producers. For a short period, some forms of property could secure a certain temporary autonomy for them, but not in the long run. This kind of “temporary autonomy” has influenced the appearance of many different “open and 'free' licenses”, which actually have respect for IP laws and they are based on a “tin” regime of Intellectual Property. Cultural producers are questioning the scale of property, but not property itself. It is not really an obstruction of the law or a “system of domination”. There are many producers who have faith in the legal framework and public policies of Intellectual Property as a neutral arbiter that could lead to some order, which should be of interest for all of them at once. This is clearly a semi-reformist position. “But it becomes clear that both law and public policies have been coopted by proprietary interests, which are a mockery of the constructive good will of those who are fighting for open licenses.”[19]

In contrast to the developed countries of Western Europe, the connection between IP regulations and cultural production with the direct aim of profit accumulation is not so visible in the countries of Eastern Europe such as Serbia. Although it may appear that these processes do not exist, they are just not so obvious, since IP laws are new and only partially implemented (depending on the circumstances and the interests they protect), and the institutions that are supposed to implement them are only in their infancy. Moving from IP regulations as an occasional reward in the past to the current situation of shifting them to the side, it seems that the period of piracy has brought more significant economic benefits to these countries than IP regulations do today.

There have been, for example, many initiatives to localize the Creative Commons (CC) license in Eastern Europe and adapt it to local legal systems. The question is, what happens if the law that CC is being adapted to is not frequently put into practice? What it stands for, perhaps, is a desire to attain the system that would enable culture producers to finally own their work, not really outside of IP regulations but alongside them; not really outside of piracy itself and the bureaucratized/economized market, even if the category of ownership here could present an opportunity to accumulate her/his own private symbolic capital, if not real capital. In her essay “Governmentality and Self-Precarization” Isabell Lorey elaborates, in a much broader sense, the position of the culture producers and their belief that they themselves can arrange their working conditions “relatively freely and autonomously”. Although her essay deals with a specific field more closely related to self-chosen and self-determined working and living conditions, she openly argues that many alternative living and working styles “have become increasingly more economically utilizable in recent years because they favor the flexibility that labor market demands”[20]. She also maintains that the practices of social movements in the last few decades were not only fighting against normalization, but were also a part of the transformation toward a neoliberal form of governmentality. Further, she argues that “the following is concerned not with the questions, 'When did I really decide freely?' or 'When do I act autonomously?' but it's concerned instead with the ways in which ideas of autonomy and freedom are constitutively connected with hegemonic modes of subjectivation in Western capitalist societies.”[21]

In the very specific conditions of creating and working described here, restricted by draconian rules on the one hand and by a kind of self-regulation and self-control on the other, the real question is what would be a realistic space for acting, creating and living for these cultural producers today. Concluding with Brian Holmes' description of their position, what he called “the flexible personality”, which “represents a contemporary form of governmentality, an internalized and culturalized pattern of 'soft' coercion, which nonetheless can be directly correlated to the hard data of labor conditions, bureaucratic and police practices, border regimes and military interventions”,[22] it is important to stress that this position “is not a destiny.”[23] There is a call saying that it is worth experimenting with different forms of critical knowledge, political autonomy and democratic dissent.