The History of Marcel Duchamp - Essay Example

Intellectual Property A Discussion of Whether Copyright Law Hinders Creativity Name of Student: Student No: Date: Name of Supervisor: Introduction Marcel Duchamp drew a moustache on an image of Mona Lisa that was postcard sized in 1919. It caused outrage in many quarters, while other people were amused. The question arose whether the act was a piece of art or else was it sacrilege or both. In contemporary society, many people create digital pictures and sounds on the template of existing material and disseminate the product online. Whether this could be called art is a matter of indifference to many. In 1917, Duchamp procured a urinal that was produced by the J L Mott Ironworks in New York. He signed it R. Mutt and availed it to an art gallery. Although the original signed urinal was lost, there were later sold real copies for the price of 1.5 million dollars. The postcard drawing of the Monalisa might have simply been a rendition of Duchamp's own likeness and this means it was not a copy but an original and therefore not part of the parody. There is no record anywhere of anyone suing Duchamp for copyright infringement or design rights1. In 2007 the Chinese government was faced with the prospect of formulating a sensible policy on intellectual property. Some of the questions it had to contend with were the permissibility of parody and spoof which might be mistaken by the uninitiated for the original. The questions of the moral or commercial acceptability of this situation were brought into question2. One of the most critical challenges in contemporary society is disputes on intellectual property between developing and developed countries. One of the issues that arise is the global intellectual property infrastructures as well as intellectual property policies which are said to protect the wealthy rather than the disadvantaged in society3. In the back drop of this, studies on intellectual property laws need not only assess whether both developing and developed countries are utilising IP laws in a way that meets the demands of developed countries and also be improved in order to cater to the needs of developing countries. The speedy dissemination of information as well as technologies to do with communication most especially the internet is bringing about transformation in contemporary society as well as economy. This is a threat to some long standing creative enterprises such as newspapers and causing extreme disruption to others such as the music recording industry4. Others have derived some benefit from the situation, most notably American distribution and devices companies such as Amazon, Apple, Google or Facebook5. The Internet is coming up to its thirty years of existence yet the ICT revolution is not complete6. The Boston Consulting Group is of the opinion that the G-20 group of countries will have an Internet economy worth 4.2 trillion dollars by the year 20167. Universal digitisation is claimed to be worth an extra £63 billion to the GDP of the UK in 20118. McKinsey reports that economic growth in G-8 countries was ten per cent derived from the internet over the 15 years preceding the year 20099. The completion of the Digital Single Market in Europe was critical economically in recent times as was that of the single EU market which represented the prosperity of Europe for a generation10. The growth of internet enabled smart phones which operate at super speeds as well as development of innovation in broadband means that there is circumvention of slower connections connected with fibre in the ground and precipitating inception of products that are competitive. Mobile phones constitute the gateway to the internet in emerging markets as opposed to computers. There is a diminishing minority which however remains significant within Europe and North America who suffer from digital exclusion which means they have irregular access to the internet. This constitutes about 20% of the population11. There are several disadvantages to the Internet such as compromised privacy, the risk of breaching cyber security, illegal sharing of files and uncensored access to unedifying content. However, the majority of governments have concluded that a policy design is required to promote the positive effects of the Internet on creativity and economic growth while taking care of the risks. This paper will attempt to participate in the discussion in an attempt to find the line between the current copyright law and whether it constitutes a threat to continuous creativity and the public access to knowledge, both in developed and developing countries. It will begin with an examination of the various copyright laws as they are outlined in various countries, both developing and developed. It will then look at how these laws are applied and how their utilisation affects the creative process in order to reach a conclusion on whether the laws are detrimental to creativity or not. Historical Context The main manner in which regulation of the creation, distribution and utilisation of knowledge is done is through intellectual property rights. These rights have been globalised and the scope of intellectual property protection expanded which means that those international institutions that deal with issues to do with intellectual property such as the WTO and WIPO have grown in importance. In the nineteen sixties and seventies, developing countries tried to improve the main international conventions which were to do with intellectual property for instance the Berne Convention for the Protection of Literary and Artistic Works (1886) which seeks to protect copyright as well as the Paris Convention on the Protection of Industrial Property (1883). This was done with the aim of increasing the responsiveness of these instruments to the socioeconomic needs of developing countries as pertains to availability of educational material, technology and scientific knowledge12. However these attempts at reforms did not have the desired effect and they increasingly have become irrelevant to the needs of these countries. When the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) from the WTO concluded in 1994, many of the concerns held by developing countries were brought to the fore, since it signified a crucial development in the process of bolstering the intellectual property rights globally. New rules were internationalised by TRIPS which is key to the better distribution of knowledge for instance extending patent protection for pharmaceuticals as well as copyright protection of computer software13. There were also minimum standards established in order to enforce intellectual property rights which were placed within the WTO dispute resolution mechanisms. These mechanisms could be employed in case of noncompliance which differs from the situation with WIPO in which there was a dearth of existing intellectual property agreements14. Knowledge may have always been important to the fabric of human society but in contemporary times there has been a shift in the prominence of knowledge as well known economists and social theorists attempt to prove that it has come to a new significance. They also seek to pinpoint when this alleged transformation occurred and what the meaning is15. Looked at from an economic viewpoint, knowledge is important due to its technological potential and how it affects growth and productivity. Capitalism was said to rely on technological dynamism according to Karl Marx and Joseph Schumpeter16. However, the role that knowledge plays remained unacknowledged in the neoclassical paradigm until Robert Solow did a study in the 1950s. Solow proposed a relationship between economic growth and knowledge stating that the larger proportions of benefits accrued in early twentieth century productivity in America is due to technical change as opposed to labour or capital. This was known as residual17. This residual proposed by Solow came to be known as a plethora of gains in knowledge which include the innovative machines of the time such as tractors to management techniques such as Fordism which streamlined processes to run more efficiently18. Conventional economists soon began to claim that not only was knowledge important but crucial as well for economic growth. They proposed that the most developed economies in the world were becoming more knowledge-intensive. The manner in which the economy of the United States changed in the nineteen sixties was noted by Fritz Machlup and he noted that it was marked by a rise in the proportion of knowledge-producing labour represented in the labour market19. At the beginning of the twentieth century for instance, 33% of the labour force in the US was engaged in the service industry. Eighty years later, this had increased to 70%20. This trend was not confined to the US but was common to all developed nations in which agricultural and to a smaller extent industrial work were steadily being replaced by jobs in information technology, education, finance and culture21. There was a shift in the most productive element of the economy from industrial to information-processing which included such sectors as marketing, software, biotechnology and financial services22. Intellectual Property Framework Academic research carried out on the intellectual property issues that China is known for concentrates on the piracy problems. It has been reported with pride by Chinese media outlets that China has made great strides towards achieving WTO standards as well as the requirements of TRIPs. The delay occasioned by intellectual property issues to accession to the WTO upsets even ordinary citizens23. According to the Report of the Commission on Intellectual Property Rights(UK,2002) we are still a long way from achieving the goal of utilising intellectual property laws to assist global reduction in poverty, fight disease, improve maternal and child care and promote access to education as well as contribute to the sustainable development of developing nations24. Current intellectual property regimes have several deficiencies. According to Graham Dutfield and Uma Suthersanen, a common problem is 'overprotection' of intellectual property owners25. It seems as though the balance is done and has been replaced by a feeding frenzy according to Lawrence Lessig who is an academic lawyer26. This results in an interest imbalance between developing and developed countries. This is worsened by the fact that the TRIPs Agreement was formulated with the interests of the U.S. Economy in mind as well as other developed countries to a lesser extent27. The question then becomes whether the TRIPs Agreements and policies on intellectual property in the developed nations can benefit developing countries. There is an economic argument that should developing countries generate intellectual property protection that is more robust, they could garner a greater connection to globalisation processes28. This poses a challenge because there is no critical examination of current international intellectual property regimes in the premise that if the developing countries comply they will be admitted into the global market. It does this without querying whether developing countries are able to afford the sort of intellectual property protection required to satisfy developed countries and whether this bargain is worth the return of access to the global market that is controlled by developed countries29. What the main issue is that the IP standards of protection that are appropriate for developed countries may be financially unfeasible for developing countries30. The contemporary creative sector is reliant upon digital technologies at its core31. Search engines, social networks as well as other digital platforms assist in the generation of new products and services with the help of highly creative talent which includes users32. There are also several 'digitally native' organisations that are intimately embedded into the creative industries value chains which indicate that their real home is the creative sector33. Since these digital creative activities are included in the framework of creative economy there is a question raised on why the existing DCMS definitions are preoccupied only with businesses that create and make use of intellectual property. Intellectual property is at the core of value addition in the creative sector but key elements of the creative sectors utilise business models which do not directly rely on intellectual property exploitation for instance, online advertising34. Industries such as fashion design and advertising have illustrated that they thrive on competitive strategies even before the advent of the digital revolution. These strategies include first mover advantage in which there is a less obvious role played by intellectual property35. Conclusion As has been observed from the report, there is an imbalance in the applicability of intellectual property rights when it comes to comparison between developing and developed countries. The IP agreements that are utilised in the market were made with developed countries in mind and therefore present something of a disadvantage to other nations. 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