It’s hard to believe, but it’s happened again. The Royal Opera House is once more under scrutiny over copyright. This time, it’s not image use on a blog that is in question, but the entire creative input of an ROH production: from costume design to libretto and possibly even score.
Natalie Wheen has uncovered this rights grab in an article written this week for Arts Desk. There are some uncertainties in her analysis. For example, it’s not clear what is meant by an “all-rights” contract: her description suggests that the ROH is after moral rights as well as economic rights in a work, which is legally impossible. At the least there appears to be some confusion here about the dividing line between the two.
For that reason I’m not going to attempt my own second-level analysis of the legal issues here; no doubt others better placed will also have their eye on this story. However, one thing in Wheen’s article did particularly disturb me. It has to do with the ROH’s reported justification of its position, arguing that, as a heavily-funded public body, it should be free (indeed is obliged) to maximise the returns from any copyright it may hold. From Wheen’s article:
I have seen correspondence from several executives in the ROH’s Legal and Business Affairs Department justifying their demand on the assignment of all rights to the ROH. These are some key points in their argument:
- Because the ROH is heavily funded by the public purse, it isn’t right that artists should be free to exploit their copyright for their own benefit, with the ROH only having limited rights.
[A leading lawyer for the entertainment industry] could understand and have sympathy with the present need for subsidised organisations to be seen to be getting value for money, but suggested that this could be achieved with a properly balanced structure, where the artists get fair rewards.
The argument above runs: The ROH is publicly subsidised and, in the face of the government bureaucracy on which it depends for funding, presents economic, rather than artistic benefits as its strongest argument in support of that funding. What’s more, the returns from government investment in the ROH must be measured and judged by simple metrics that can then be presented to the public to garner democratic support for future funding. The simplest metrics are financial returns. Thanks to copyright law, the works of art created by the ROH have economic value. Thus, the ROH has a responsibility towards both government and the taxpayer to maximise the economic benefit from that copyright.
And here we run once again into the increasingly pernicious misunderstanding of the role of copyright. You see, copyright was never intended primarily as a means for generating income. The original Statute of Anne, on which modern copyright law is based, granted a short term (14 years for new books) during which the author had rights on any income generated. This was in order to encourage them to write further and thus increase the general store of knowledge available to the public. After 14 years, the work entered the public domain, a new category created by the statute, freeing copyrighted works from any restrictions. Before the statute, copyright had been held in perpetuity by printers and booksellers. In these two dimensions the goals of the Statute of Anne are not wealth creation, but the promotion of enlightenment through the increased creation and provision of works of literature and learning.
Moreover, we also run up against the equally pernicious view of the arts solely as an economic motor. The function of the ROH is not to provide the UK taxpayer with financial returns on their investment, it is to aid the creation and production of elaborate and sophisticated artworks. The justification for publicly funding the ROH and other artistic institutions is simply this: new art improves society. Likewise, the historical purpose of copyright: allowing writers, artists and musicians the financial means to create new works improves society. In both cases it is the works themselves that are their justification, not any financial gains that might accrue alongside.
I can see why, after decades of increasing marketization of the arts in Great Britain, and especially now at a time of hard cuts in public funding, the economic argument for the arts is so attractive. Indeed, it is remade almost every week on the comment pages of our national broadsheets as artists around the country frantically argue for what little public funding they have enjoyed up to now. But it is the same argument that leads to the disheartening stance that Wheen reports at the ROH. Art desperately needs to return to the discussion about arts funding.