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A kiss for the whole world

Intellectual property: a serious challenge to the public domain. By Thierry Chervel

Newspapers across the board are once again sounding the call to defend "intellectual property". In contrast to when the print vs. blog debate was raging, these articles are being met with almost no resistance online – at least not in a journalistic context, because, naturally, the articles in the newspapers are themselves reactions to the successful anti-Acta protest.

Let's take a look at where "intellectual property" has come under attack. Most obvious is the recent Handelsblatt article by CDU representative Ansgar Heveling, who proclaimed the victory of the real world over the internet with veritable triumph. In response, Heveling was met with the kind of shit storm typical of the internet, which showed that most net activists function according to the usual left-right schema. Heveling is CDU, so it is generally assumed that he represents the inability of the "right" to adapt to new realities.

But the situation surrounding this debate is more grave. The question of pro or contra the net or "intellectual property" is not being decided according to political parties but social criteria. It is important to understand that the lines drawn in the internet debate cut across all political orientations. There are internet opponents among old-school eco-leftists, liberals, and conservatives alike.

Whoever earns good money through the newspaper business will understandably defend their livelihood. In an editorial for the Süddeutsche Zeitung the left-leaning Heribert Prantl complains about the "lack of understanding for the fact that intellectual property is real property, which has its own value and must be protected". Clemens Wergin, who considers himself a liberal but nevertheless feels the need to define for himself the proper meaning of freedom, takes a similar stance in die Welt: A "false understanding of freedom on the internet would throw us back into the cultural Dark Ages." This also goes for institutions respected by conservatives, such as the Frankfurter Allgemeine Zeitung, which is generally quite pleased that the internet does not have to be taken as seriously as originally feared: "The internet did not bring about a deliberative democracy. The desire for new forms of social participation and representation remain unfulfilled. Neither do blogs represent socially effective discursive forums, nor are political decisions made via 'liquid democracy,'" writes Stefan Schulz in the arts section. So the situation is only as half as bad as originally expected, and the usual suspects remain at the helm?

At any rate, they are repeating the idea of "intellectual property" like a catechism. It is true that this term is legally conceived as analogous to material property. However, such representatives of a supposedly free press should not fail to explain how skewed, distorting - and even dangerous - this analogy truly is.

Can products of the intellect truly be considered property?

Ownership entails having the power of disposal over something, and therefore also the right to destroy it. I can destroy a chair that I own by chopping it up and throwing it in the fire.

But not even the creator of a work may exert this kind of violence or assert such a right, at least not once a work has been published. Once a work has been presented to the world, the world owns it. Thomas Mann cannot go to the National Library and demand that "The Magic Mountain" be handed over so he can rework the ending. In contrast to what Prantl claims, not even the creator has "real ownership" of his or her work. A work is a transfer of ownership: this kiss for the whole world.

What an author does possess and definitely should possess is an exclusive right to the use of his or her work for a certain period of time. This does not prevent intellectual property from being common property in an emphatic sense, which anyone can freely engage with. In other words, the media should commit themselves to the free circulation of ideas, not to their sequestering by copyright holders.

The newspapers certainly do not practice what they preach. Springer publishers, in whose paper Clemens Wergin took a stance against a "false understanding of freedom" on the internet, has recently been losing one court case after the other, because it is trying to limit the freedom of its freelancers to the greatest extent possible. Naturally without compensating them appropriately. Freelance journalists and newspapers have been fighting for years about the definition of "adequate remuneration." According to Freischreiber, even the unions have conceded to professional rates below those of cleaning staff.

In Freischreiber one travel writer describes how the Stuttgart newspaper, which owns the Süddeutsche Zeitung, interprets the rules for payment for its Sunday insert Sonntag Aktuell:

"They pay the established rate for 'news and reports', mind you, but not for reportage. This means that Sonntag Aktuell could at some point - as long as it informs us and obtains our permission, - use our articles to produce the travel section of the Hamburger Abendblatt. And the Tagesspiegel in Berlin. And the Westdeutsche Allgemeine Zeitung. And going by the payment guidelines, they would not have to pay us a single cent extra for this."

So much to the real value of "intellectual property" in the newspapers.

Credulous politicians such as Ansgar Heveling, who is by the way a member of the Parliamentary Finding Commission "Internet and Digital Society", don't have to know this of course.

Heveling's triumphant tone did not come from nowhere. A sense of a rollback prevails in Germany. The established media are back on dry land. The newspaper crisis has been weathered. No media company in Germany has managed to get a foothold online without being a print media outgrowth. Some of the best known bloggers - Stefan Niggermeier and Don Alphonso, for example - now even work for these media companies. Robin Meyer-Lucht is dead. Online journalistic opposition  has languished. What remains is the diffuse resistance of the net community, which continues to confound the powers-that-be in the form of the Pirate Party and anti-Acta demonstrations. However, the Pirate Party has yet to formulate any audible and intelligent positions on the future of the public sphere, although this would ideally be their remit.

More than the "intellectual property" of a few freelance journalists is at stake. The core issue is the idea of the public sphere and open culture.

The tendency towards appropriating freely circulating information is best illustrated by a brief statement by Christoph Keese, head lobbyist of Springer publishers and the German newspaper scene. In an interview with the Vienna Standard he complains that Google click-through rates to the newspapers owned by his company are too low, and he therefore comes to the truly astounding conclusion that "the traditional exchange of 'content for traffic' seems to be increasingly off balance. This gives reason to question providing free content."

What does he mean exactly? That Springer is going to withdraw from the net, so Google can no longer offer links to Springer content? The internet would probably survive that. Or should Google pay for the links? For the very reason that no one is interested in them?

Information circulates on the internet through links. Whoever cashes in here can acquire a lot of property via the intellectual. And the public is faced with the threat of having to find its way through a maze of regulations, to an even greater extent than is currently the case. Am I allowed to create this link? May I pass on what die Welt is saying? It is a crime to create a link using the full headline "Chancellor and Westerwelle agree"?  Even now a proud father who uploads a video onto Youtube of his child's birthday cake can be prosecuted for copyright infringement if the cake is decorated with Disney characters.

And even now in an endless number of cases copyright law  hinders rather than enables culture. Why are we currently seeing dramatisations of F. Scott Fitzgerald in the movies and on the stage? Because the work has entered the public domain. Brecht and Beckett have been turned into museum mummies by the managers of their estates. Gustav Mahler is another relevant example, given that his symphonies became world famous only once their copyrights expired. That was 50 years after his death. If the exploiters of such rights were to have their way, then a composer will soon have to be dead for 90 years.

Compliant politicians have already extended the intellectual property rights on sound recordings from 50 to 70 years. The newspapers did not protest. This has led to a situation in which the majority of 20th cultural production is molding on shelves. What gems sit around on the archive shelves of public broadcasters because no one knows who holds the rights to this or that scrap of music or excerpted quotation!

Lots of things simply don't get produced anymore. At you can read producer and director C. Cay Wenigk's description of the challenges a documentary filmmaker faces, who has to obtain permission for every quote: for every pop song that happens to be in the background during a conversation, for every ringtone of a mobile phone that a politician answers during an interview, for every sculpture standing in a non-public space, such as the interior courtyard of the Federal Chancellor's Office. "Other scenes that you are not permitted to use include archive material, such as segments of films or photographs for which the copyright has not been clarified or is too expensive. You can almost randomly keep adding to this list, and in the process you realise that essentially whenever you turn on a camera to depict reality - as experienced at that moment - you already have one foot in prison."

Haveling and his fellow pundits are not exactly telling the truth in claiming that "intellectual property" is an accomplishment of the French Revolution. This is a half-truth. The French Revolution was born out of the circulation of ideas against all hindrances and was not born out of such obstacles. Revolutionary ideas were smuggled back into France, where they were often banned, from the Netherlands in the form of illegal publications of works by authors from Descartes to Diderot. This "piracy" is what lent wings to the revolution. The publishers acted in their own interest - to a positive effect!

Although revolutionaries such as Thomas Jefferson did create copyright laws, they viewed them with scepticism. For these are exclusive rights that ultimately hinder the free circulation of ideas. The decision was made to ensure such a right for a certain amount of time subsequent to the publication of the work, in order to provide authors with a livelihood - 14 years, renewable once. The determining factor was the date of publication, not the author's date of death.

But today the death of the author is truly the death of the author.

Whose work can survive the protective period of 70 years, which begins with the death of the author? Only a very few classical authors, such as Thomas Mann and Franz Kafka, rake in millions for their publishers over the decades - and support a few heirs who made no contribution to the work whatsoever. For the substantial majority of authors this period of protection ultimately propels them into the depths of oblivion. They may have wished nothing more than for audiences to engage posthumously with their works, make them available to others, work with them. But now, even though it would be possible to make them accessible to the world public, they lie on national library shelves like lead bricks.

For the most part, these authors would have been satisfied with the opt-out solutions, which Google suggested for "orphaned" works: copyright holders and their heirs would be allowed to remove such barriers at will. But this idea has been entirely forfeited. Google has meanwhile given up the idea of a public domain and demands money for its own products, such as the integration of Google Maps into a webpage.

Net activists may joke about Heveling, but they have failed to see who is really in charge. For German politicians an article in Bild, Spiegel or the FAZ is still much sexier than any Facebook page. From this perspective, the German media have good chances of divvying up the landscape as they see fit. The closer the elections, the weaker the politicians' knees.

At the same time, media companies are on the defensive. Springer has an annual turnover of 3 billion euros. Apple made a 13 billion dollar profit the last quarter! Mathias Döpfner wanted to kneel before Steve Jobs when he introduced the iPad, but from Jobs' perspective Döpfner's head was barely out of the dust at his feet. The public had yet to grasp the situation: everyone was so used to the image of Apple as the last remaining holdout against Bill Gates. Now Apple is about to become the Big Brother it dreamed about in the famous 1983 ad campaign. Even Amazon and Google are running to catch up. Amazon is registering losses. Google makes its modest billions with unsightly small ads.

And everybody loves Apple. The company panders to the instincts of culturally conservative journalists with their longings for a mirror-smooth aesthetic and also to the nerds who always want the new hot thing. But people love Apple precisely because every new device makes you dig so deep into your pockets: iPhone, Airbook, iPad - each 600 euro or more. Apple has understood the logic of luxury: the higher the profit margin, the greater the consumer love and longing.

And how elegantly the Ipad pages glide past with their approved content compared with any normal grey computer and their bursts of pop-ups, viruses and child pornography! On the iPad the world that seemed so large, so dangerous, but also so free is manageable once again. That is another reason why Döpfner wanted to genuflect before Jobs. Jobs wanted control - and he got it. And strangely enough he is not haunted by the negative criticism that Bill Gates had to endure, who at least advocated cross-platform access.

Jobs hated any kind of open system. His devices cannot be opened without being destroyed. In the circular building planned as the company HQ it will not be possible to open a single window, reports Jobs' biographer Walter Isaacson. iTunes is a counter-concept to the Internet - hermetic, controllable, sweating money.

Jobs' company makes a large portion of its obscene profit through a 30 percent commission on "intellectual property". He managed to sell the cultural industry his hatred of anything open as a solution to their problems. Everything fits together so neatly! Jobs consistently presented himself as defender of "intellectual property". He presented cultural industries with iTunes as the substitute for the platform that they themselves should have created in the interest of the artists, in order to provide internet users the opportunity to legally download content in the first place. Out of fear of the new technology that was destroying their traditional business models, the entertainment industries willingly placed themselves in the hands of the new masters of the infrastructure: Apple, Google, Amazon and Facebook. Apple and three or four others are the ones who have long been getting fat on the profits made from "intellectual property", while media lobbyists are still pointing the finger at 14-year-old Lady Gaga fans and their free-for-all mentality.

Are they criminalising users in order to potentially distract them from the hot shame of knowing that they have already lost the battle and can only seek the protective hand of government. It is certainly fatal that the media are party - and a weak party at that - to the emergent and threatening constellation. They are certainly not capable of conducting the overdue debate on the transformation of the public domain. They are too controlled by their own interests and fears. The media claim to represent the public sphere. But within the core debate about the public domain in and of itself they represent a single opinion. And according to this opinion, they alone are worthy of the greatest protection. It seems a constellation is forming in which traditional entertainment industries will merge with major infrastructure companies. Apple and Google have billions in the bank. For them, media companies are mere morsels. Media companies have removed as many rights as possible from the authors. Ultimately "intellectual property" is a commodity of the internet companies. Two groups end up being the real losers: the authors/artists, who find no way out of the labyrinth of exploiters, and the users who are now only allowed to act within the predetermined restrictions of these consortia. And so intellectual freedom has been sacrificed for the sake of "intellectual property."

Meanwhile the internet itself is at stake. This amazing, anarchic, wild, ground-breaking technology is facing the threat of reprivatisation. Already years ago Richard Stallman conceived a negative utopia in which every reader has to pay a fee for every page he or she reads. The current defenders of "intellectual property" in today's media landscape may already be the low-level employees inside the new consortia. Intellectual property? There's an app for that!


Thierry Chervel is one of the founders of

This article was originally published in on February 21, 2012.

Translation:ls - let's talk european