Copyright, Creators and Society’s Need for Autonomous Art – The Blessing and Curse of Monetary Incentives

R. Giblin/K. Weatherall (eds.), What if We Could Reimagine Copyright?, Canberra: ANU Press, 2017, 25-72.

49 Pages Posted: 11 Nov 2014 Last revised: 20 Jan 2017

See all articles by Martin Senftleben

Martin Senftleben

Institute for Information Law (IViR), University of Amsterdam; University of Amsterdam

Date Written: November 11, 2014

Abstract

The present copyright system is intended to provide an incentive for authors to invest more time and effort in the creation of literary and artistic works (utilitarian argument), recognize the acquisition of a property right as a result of creative labour (natural law argument) and enhance authors’ freedom of expression by offering a source of income that is independent of patronage and sponsorship (free expression argument). These arguments may be combined with considerations of industry policy, such as the growth of the creative and telecommunication industries, and the creation of jobs in these industries. The basis of all these lines of reasoning, however, is the individual creator. Without the constant efforts of creators, there would be no new literature and art to fuel the publication and dissemination machinery of the industry. A focus on the position of the individual creator also ensures the acceptance of copyright law in society. It adds social legitimacy. Who would be against remunerating authors for the time and effort spent on the creation of a new work?

Given the core rationale to encourage and reward creators, the question arises whether the present copyright system is sufficiently aligned with creators’ interests. To lay theoretical groundwork for this inquiry, Pierre Bourdieu’s sociological analysis of the field of literary and artistic production will be taken as a starting point. This sociological analysis yields important insights into the interests of different groups of creators. On this basis, the various arguments for copyright protection will be revisited before embarking on a critical analysis of the present copyright system in the light of the particular contribution of autonomous art to the improvement of social and political conditions. Focusing on society’s particular need for autonomous art, the concept of authors’ rights and the mechanisms for remunerating authors will be challenged. The analysis will finally trace the conceptual contours of a copyright system seeking to offer sufficient support for autonomous art and artists.

Keywords: copyright, consumptive use, transformative use, fair remuneration, copyright contract law, bestseller clause, quotation, parody, remix, appropriation art, collage art, systems theory, Pierre Bourdieu, incentive, reward, freedom of expression, avant-garde

Suggested Citation

Senftleben, Martin, Copyright, Creators and Society’s Need for Autonomous Art – The Blessing and Curse of Monetary Incentives (November 11, 2014). R. Giblin/K. Weatherall (eds.), What if We Could Reimagine Copyright?, Canberra: ANU Press, 2017, 25-72., Available at SSRN: https://ssrn.com/abstract=2522855 or http://dx.doi.org/10.2139/ssrn.2522855

Martin Senftleben (Contact Author)

Institute for Information Law (IViR), University of Amsterdam ( email )

Rokin 84
Amsterdam, 1012 KX
Netherlands

University of Amsterdam ( email )

Roetersstraat 11
Amsterdam, NE 1018 WB
Netherlands

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