Faced with the recent onslaught of new ventriloquist voices, who want to discuss copyright and question its legitimacy in the 21st century , (see copyright in Chile: a debate seeking solution, Samuel Toro). And in the face of the imminent passage of the bill, discussing the initiative of the Honourable Chamber of Deputies, to promote the amendment of Articles 36, 37, and article 71 F (2) of Law 17.336, through the Project called the Balmes Law, in honor of our great national artist, José Balmes, I want to replicate with foundations – as artist and president of the creaIMAGEN council – the scope in law of this draft law , where existing rights affecting only visual arts works, their creators, intermediaries and users are modified.
I also want to credit the constitutional discussion, which is already beginning, why these rights mistakenly tend to be confused with other intellectual property rights. Particularly with those that affect other areas of economic work in the country, and very different from copyright, artists and creators. Moreover, it is wrong to think that these rights go against the community at large, because they are confused with patents, trademarks, computer programs and industry. Nothing further from direct creation, over which artists detain their copyright. Therefore, we must quickly avoid the confusion generated by the author of the aforementioned column with intellectual property, explained above, and copyright, which corresponds to Anglo-Saxon regulations, very different from the conception of law in our country.
In principle, and in the face of the programmatic ignorance of certain right-wing intellectual pseudos who come to denote in the media, the role of copyright societies, created at the behest of the artists themselves to defend their rights, I want to clarify the loss of concepts that these same rights detain, since ‘a long-standing debate for many centuries’ , as the author of this unfortunate twilight refers.
First of all, this debate actually dates back to a long date, where the dawn of law and civilization already considered them. Leaving behind the culture of Greco-Roman law, and the papacy, it was only three centuries ago that, in the England of the time, the first law was issued to favor the authors, albeit only for twenty years, to make those rights enforceable. And can you imagine who the authors’ counterpart were at the time? No more or less than the thriving publishing industry, publishers: newspapers, books, brochures, pasquins etc. They were the ones who reprinted the publications of writers, philosophers, journalists and scientists without receiving remuneration according to the work carried out and while the publishers collected penguin profits.
Much later in 1886, the Berne Convention – which now subscribes to more than 180 countries and which has been updated and ratified to this day – shares in international treaties the principles of copyright in the international community, as enshrined in the charter of human rights of the United Nations , 1948.
The discussion is undoubtedly very fruitful, because from ignorance rights that are not only part of human rights are questioned, but is also based on rights gained by authors and creators, after long struggles and debates that today are not only unquestionable, if not ethically unproachable. This intention to ignore copyright is what political and cultural operators are looking for as if they also intended to ignore human rights or expression rights. In other words, a legal basis is questioned from the arbitrariness and absolute disrecognise of the livelihood it has, as some political operator once over there said, “I, in principle, do not pay copyright.” This certainly leads to a lack of seriousness in initiating any debate.
That is why I find speculation about the validity of these rights very weak for the sake of deprivation of culture, false access to culture and ‘limitation of knowledge’, as the author falsely cites, who sees an accessibility problem in relation to new technologies and copyright. An example to the contrary is the Ondamedia.cl portal, as there are many more.
It also quotes this author, the concentration of ‘benefits’, in an industry pyramid system, ‘creative industries’, ‘orange economy’, key words of neoliberalism to usufructuate the culture and content of authors and creators. Well, I dare explain that our copyright society not only delivers resources individually, but also collectively and collects rights that artists individually cannot do, because of the high costs of what an individual operation means and because of the inaccessibility to be able to collect those rights in Chile and abroad. On the other hand, it is part that an author earns or resudes more than others, is part of a structural system that does not relate to copyright, but to the very conditions of the market. This is an issue inherent in free or unpaid licensing, poor public policies and constitutional rights, not copyright as the author mistakenly attributes them.
On the other hand, the call to free culture, and the liberation of the authorial rights and content of some artists, not only puts in the hands of the most extreme neoliberalism these contents, but also in unscrupulous hands that usufructacton them. Then, on the one hand, we find the creators before the discourse of the neoliberal right that proclaims a free, liberal and free culture, J. Rowan (2016). And faced with the speech of the new Chilean left that also raises the same thing G. Jackson and P. Espinoza (2019). The question is consequently: who have asked artists for their own rights?
It is also regrettable that, in Chile, visual artists who do not exercise their profession free of their profession should be held in the academy as sustenment, and are often left out of this discussion, because they do not live the constraints of their peers and less are aware of copyright.
Faced with the accelerated precarization of work that has occurred in the sector since the first government of Sebastián Piñera – that is to say for 10 years – many of these artists have benefited from the copyright payments and support that our company CREAIMAGEN, together with ACA and APECH have given to artists, especially during the pandemic. Support that has not been delivered by the State, who has only sought to scaach the payment of copyright to artists in their competition purchases, with regulations manipulating the rights of artists.
However, the most relevant thing that this debate poses to us today – as Samuel Toro points out – are the new technologies and the digital right of content. It is very true that the distribution of content has migrated for more than 40 years with the rise of the digital world. Moreover, the changes that are being made today to Law 17.336, only come to expand the right capacity of visual authors on their creations in the analogous world that, since a wording of capcious origin in the 1970s law, makes unendeniable some articles of this law, which today the Chamber of Deputies seeks to repair with the current project. And that contradictoryly, today the Executive, through the Ministry of Cultures arts and heritage, is also seeking to alter, with his indications to the law, so that artists remain limited in their rights. So those who attack us here are also passive accomplices to the bad policies of the state.
What the state does not want today is to have counterparts like ours that make demanding basic rights that they deny handing over to artists. In view of a new constitution, not only should citizen access to culture be thought of as a right, without first guaranteeing creators their copyright, as well as the right of expression and remuneration. Those who must also have sectoral legislation, which ensures through the State what artists cannot guarantee from the private world. And also understand that, all the open access content that is offered today in search engines and on social media platforms, have an origin and an owner, which are their authors and creators who finally pay for them. This will be the cornerstone of the new constitution that will not only favor artists who exercise their profession freely, but also others who work as wage earners.
So to say otherwise is to fly the most reactionary flags of liberalism by pretending that creators naively give up their rights, which in itself constitutes such great nonsense, such as asking creators to give up their freedom of expression or human rights. Situation that disables any humanist discourse.
We already know the cheerful accounts that take out annually the great monopolies of content, digital such as Google, Facebook and Instagram, among others, not counting service carriers or digital image reproduction device manufacturers, who profit festively from the benefits they derive through digital content traffic, whose business model is based on users but not on the providers of these creative content: from a newspaper article to a movie , or from a concert to an art exhibition, so as not to exhaust the enumerations. This very iniquity goes back to the dawn of the first aforementioned legislation of publishers, in England, called the decree of Queen Anne in 1710, when the authors were favored. Don’t you think history repeats itself? After three hundred years?
Fortunately, and I speak on behalf of the artists’ societies, and the societies that manage the rights of different creative natures in Chile and the 19 foreign image copyright companies we represent: we are not behind in 40 years around our rights, if not quite the opposite, because digital and private copying rights today are our big challenge. And that is why we aspire not only with greater concern and force to consecrate these rights in the face of a new constitution, but also to take the necessary steps to legislate as many times as necessary to defend these rights from the dark claws, neoliberal mermaid chants, progressive lefts and their ventriloquists and lobists.
Arturo Duclos, is a long-standing visual artist, President of Creaimagen, copyright society. PAV spokesman, visual arts platform and active member of the national artistic community.
The content poured into this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.
