NEWS
26/07/2017
Herr Zulehner of Silicon Valley
AN ESSAY by Wojciech Orliński
While it’s not true that “everything happened already,” as Ben Akiva allegedly said, plenty of things currently trumpeted as sensational, unprecedented innovations have indeed existed before, including a common European market – and in fairly recent times, at that.
I’m not talking about the Middle Ages or antiquity, I mean the first capitalist globalization with our continent right in the epicenter. This process started in the second half of the 19th century and thrived until the cataclysmic 1914. Europe’s earlier levels of freedom to trade and travel were lost forever in that cataclysm. Now we boast about the Schengen treaty, which merely substitutes random checks for mandatory passport control (and we still need to carry identity documents in case of a check).
Meanwhile, back in the 19th century numerous countries unilaterally abolished passport and border controls, widely considered obsolete in the age of trains and steamers. The only European countries with mandatory border control in 1900 were Russia, Bulgaria, Romania, and Turkey.
Growing market homogeneity was both a blessing and a challenge to artists. A century earlier their biggest worry had been the fact that Europe, a collection of hundreds of duchies and Free Cities (Italy and Germany weren’t unified yet!), was a pirate’s paradise. In 1803, Beethoven mournfully pleaded with his admirers to not purchase his scores pirated by one Mr Zulehner of Mainz. Writing open letters was the only way Beethoven could get back at Zulehner – the pirate was protected by the formal independence of Mainz, which had enjoyed Free City status since the Middle Ages.
This shows that the issues content creators are facing today haven’t changed much since 150 years ago. At least in our times the unification of Europe gives us a better chance to fight piracy, since copyright protection in Vienna, Mainz, and Warsaw is more or less the same.
150 years ago creators were facing similar problems to what modern artists deal with – in 1803, Beethoven mournfully appealed to his admirers to not buy his scores from a pirate, “one Mr Zulehner of Mainz”.
Did the authors demand a single market for artistic works in the 1800s? No, they didn’t. On the contrary: the Association Littéraire et Artistique Internationale, or ALAI, an international association of artists and writers founded in Paris in 1878, brought about the acceptance of the Berne Convention in 1886. Most web users know of it from the occasionally recurring viral Facebook status: “Pursuant to the Berner Convention…”. While the message is bunk, like all initiatives of its ilk, there is one thing it gets right: the Berne Convention crafted the framework of modern laws regulating authors’ rights, one that remains in force to this day.
According to one of the elements of this framework, every country’s territory is a separate area of rights protection. A contract from France does not extend to Belgium; an Austrian license doesn’t cover Germany; and so on. This way is better for authors – and they’ve known it for two centuries now.
One of the founding members of ALAI was Victor Hugo, one of the first authors to attain something akin to worldwide stardom. The hype around the release of Les Miserables in 1862 resembled present-day bestseller launch parties. Translators were sworn to secrecy; local publishers had to contend with Hugo’s tough demands.
Why did Hugo want separate French-language editions for Belgium (launched on March 30th) and France (launched on April 3rd)? Since he could dictate his own conditions, why didn’t he just throw a global launch party in one city, publishing the book in dozens of languages at once? By then Europe was already globalized enough that he could have easily found German or Portuguese translators and editors in London or Brussels. The advent of steam rail would’ve made shipping easy even then.
The answer is obvious to veteran authors. It’s better to have a publisher in Lisbon than to prepare a Portuguese translation and try to sell it there yourself, even if it means adding on another markup. Local publishers are more familiar with the market; they know whether it’s better to launch in March or in April, what cover editions sell better, what forms of marketing are more effective – book signings (and where to hold them) or interviews in newspapers (which ones), and so on…
And that’s why authors didn’t strive to unify the cultural market 150 years ago. They fought – victoriously – for legislation that would unify copyright laws while respecting the sovereignty of national markets. Did something change since then? Well, not from the authors’ point of view.
However, internet corporations, which operate thanks to the privileges granted them 20 years ago, have grown excessively powerful. Netflix, Youtube, Spotify, Apple, or Amazon have more clout today than oldschool publishers. Unlike the authors themselves, corporations gain nothing by supporting such middlemen as Portuguese or Polish publishers. They aim to cut them out – and so far they’ve been horrifyingly successful.
Sure, it makes the customers happy – didn’t we all yearn for the day when Poland would stop being a second-class market for Apple or Amazon? But our joy will be short-lived.
No one’s glad to see “Sorry, this content is not available in your country” or similar disclaimers. But what they usually mean is “Nobody paid the author for this copyright region”.
We don’t like seeing “Sorry, this content is not available in your country”. But what it usually means is “Nobody paid the author”.
If these disclaimers are to disappear – and that’s the goal of the calls to stop geoblocking online content – then someone has to purchase the rights for new territories. We could charge the cybercorporations for it (e.g. legally require them to purchase the missing rights), charge the taxpayers (through state compensation for authors), or charge the creators themselves by stripping them of their rights, brutally ripping authors’ rights away like Bolsheviks in a frenzy of expropriation.
Unfortunately, going by what’s been going on so far, the third solution seems most likely to happen. Internet corporations are sitting on mountains of cash, storing their money on the Bahamas or Cayman Islands to keep it from the taxman. They can afford an army of lobbyists that will make the first solution impossible. And since tax-paying businesses (like taxi corps) are being pushed out of the market by ones that don’t pay taxes (like Uber), the second solution just isn’t realistic.
We’re left with the third scenario: commandeering the creators’ rights without paying. Of course it won’t be called that – privileges granted to cybercorporations have all sorts of Orwellian names, like the EU-USA agreement that legalizes breaches of our privacy by American businesses: “privacy shield”.
A new ruling in the name of “content portability” lets copyright territory move with the consumer. If you subscribed to Netflix in Poland, you’ll be able to use it while on holiday in Croatia. The reasoning is similar to the axing of roaming charges in the EU – we should be able to use our cell phones at the same rates everywhere.
In my opinion that’s a fundamentally inaccurate analogy. Mobile operators are licensed by the state; a local operator could be taken over by a global player, but it can’t just disappear because someone has to physically look after cables and transmitters.
That’s not the case with cultural goods. Artists are increasingly frequently abandoned by the state, doomed to pursue commercial projects or private sponsors. They have no equivalent of concessions, licences, or frequency allocation like in telecommunications.
Plus, local publishers can disappear, unlike local telecoms operators. The point of keeping companies like ShowMax, Publio, or Ipla in business is exactly the same as back in Victor Hugo’s times: the local publisher or broadcaster is more familiar with the national market and offers (and orders!) more local content.
In the case of audiovisual content this point extends to companies that exist thanks to co-production. “Rights in a given territory” are a standard element of compensation packages. If we unify the audiovisual market according to the third scenario – by taking some rights away from authors – only the Silicon Valley giants will remain standing in the end. ”That’s cool, I don’t need the others,” a consumer might say. Yes, consumers won’t notice the consequences in the short term – but creators will. The end of co-production automatically means the end of production. The strongest cultures (French, German, Spanish) might survive, but all peripheral ones will be doomed. Netflix isn’t going to make Polish TV shows.
The success of CD Projekt, the maker of The Witcher, the best-known Polish game, would be impossible to replicate today when games are bought from global retailers
If ShowMax disappears, the business justification for making shows like the Polish political series “Ucho prezesa” (The Chairman’s Ear) will disappear with it. YouTube views alone won’t cover production costs. “Polish culture would be fine – look, Platige Image is makingThe Witcher for Netflix right now!,” you could say. This, however, proves exactly the opposite point: Platige Image would not exist without co-production, at least not as a global player. Witcher wouldn’t be a globally recognizable brand if it wasn’t for the success of the game.
And the game would not have been a success if CD Projekt hadn’t spent the first umpteen years of its existence amassing capital and experience as the Polish representative of Western companies, and later the producer of Polish translations of foreign games. Today, when games are purchased through global platforms like Steam or App Store, this feat would be impossible to replicate. Platige Image and CD Projekt are two examples of that beautiful Polish success story in the vein of the American dream: from two buddies building a startup in their garage to global potentates. But their road to success required treating “authors’ rights for the Polish market” as a separate entity, one different from “global rights”.
If companies like these don’t exist in Ukraine, it’s not for the lack of garages and buddies. The actual cause is the lack of any real value of “authors’ rights for the Ukrainian market”.
That’s the direction Poland is going to take if American corporations obtain a monopoly on culture and “rights for Poland” become irrelevant. The consumers will feel it too.
The final shape of the legislation is still unknown, but retaining protections for national markets is in the best interests of anyone who likes watching TV shows, playing games, or going to the movies. Woe betide us if instead of the unified European culture of Hugo’s dreams we’ll end up with Beethoven’s fragmented world where medieval privileges grant impunity to a pirate from Mainz.
Unfortunately, the privileges currently bestowed on the Silicon Valley by the European Union strongly resemble these olden days. It’s time to start taking privileges away instead of granting new ones – let’s unify the market and charge the cybercorporations, not the authors!
—Wojciech Orliński (translated by Dariusz Kołaczkowski)