The droits morals are very different in nature from the commercial monopolies in that they cannot be sold or transferred. This sets them sharply apart from the justification that convinced the British Parliament to re-enact the copyright monopoly in 1709.
It is also noteworthy how often these four aspects are deliberately confused to defend the most controversial and damaging of the monopolies, the commercial monopoly on fixations (and later duplication). You will often hear people from the copyright industry defending the monopoly by asking “would you want somebody else to take your work and claim it was theirs?”. However, this is the quite uncontroversial third part, the droit moral of attribution and credit, which cannot honestly be used to defend any of the two commercial monopolies.
The United States didn’t like moral rights, by the way, so they stayed outside of the Berne Convention until they could use it for leverage against Toyota a hundred years later. We’ll return to that later.
1930s: Hijacked By The Record Industry
During most of the 20th century, a battle of prominence raged between performing musicians and the record industry. For most of the century, musicians were regarded as the important party in law and in common sense. However, the record industry would rather see music under corporate control. Active intervention by the selfdeclaredly fascist regime in Italy tipped the scales in this direction.
Copyright in the 20th century was not characterized by books, but by music. The 1930s saw two major developments that affected musicians: the Great Depression, which caused many musicians to lose their jobs, and movies with sound, which caused most of the rest of musicians to lose their jobs.
In this environment, two initiatives were taken in parallel. Musicians’ unions tried to guarantee income and sustenance to the people who were now jobless. Unions all over the West were concerned about the spread of “mechanized music”: any music that isn’t performed live and therefore didn’t need performing musicians. They wanted some power over the speaker technology, and the question was raised through the International Labour Organization (a predecessor to the UN agency with the same name).
At the same time, the record industry tried to exert the exact same power over speakers, radio and musicians. However, the entire political and business world at that time regarded them as a service contractor to the musicians. They could go about running their business if they were service-minded enough, or go bankrupt trying, and weren’t worth diddlysquat more than that to anyone. Anyone, with just one exception:
Fascist Italy.
(This word, fascist, is loaded with emotion today. Italy’s regime at this time were self-declared fascists. We are using the word to describe them exactly as they described themselves.)
In 1933, the phonographic industry was invited to Rome by the Confederazione Generale Fascista dell’Industria Italiana and under protection of the same. At this conference, held on November 10-14, an international federation of the phonographic industry was formed. It would later be better known under its acronym, IFPI. It was agreed that IFPI would try to work within the Berne Convention to establish producers’ rights similar to those of the musicians and artists (which were always sold to publishers).
IFPI continued to meet in countries which welcomed their corporatist agenda, so they met in Italy the next year too, in Stresa. 1935 and onwards proved a bit turbulent for the world at large, but Italy still enacted corporatist rights of the record industry in 1937.
Negotiations for a copyright-like monopoly, attached to Berne and therefore international, was still too tempting for the record industry to resist. So after the war, IFPI reconvened in para-fascist Portugal in 1950. Italy wasn’t suitable anymore, and the conference readied a draft text that would give them copyright-identical monopolies, so-called “neighboring rights”, for producing and printing creative works such as music. This monopoly would be practically identical to the commercial copyright monopoly for fixations of a creative work.
The neighboring rights were ratified by BIRPI (today WIPO) in 1961 in the so-called Rome Convention, giving the record industry copyright-identical monopolies. At the same time, ILO’s attempt to give musicians similar rights had flopped, waned, and failed.
Since 1961, the record industry has feverishly defended copyright, despite the fact that it doesn’t enjoy any copyright monopoly, only the copyright-identical monopoly known as “neighboring rights”.
One needs to remember two things at this point:
First, the record industry is confusing all these monopolies on purpose. It keeps defending “its copyright”, which it doesn’t have, and talks nostalgically about how this copyright monopoly was created in great wisdom during the dawn of the Enlightenment [insert sunset and kittens here], referring to the Statute of Anne in 1709, which wasn’t the first copyright anyway. In reality, the neighboringrights monopolies were created in Europe as late as 1961. These monopolies have been controversial and questioned from day one in 1961, and were certainly not the product of any Enlightenment wisdom.
Second, we were but a hair’s breadth from still regarding record labels as service bureaus for musicians, had ILO not failed, instead of the stranglehold on musicians that they have been for the past decades. This would have been the case if it had not been for two intervening fascist governments – fascist in the literal sense of the word – supporting the record industry in corporatizing society and becoming the copyright industry.
1980s: Hijacked Again – By Pfizer
Toyota struck at the heart of the American soul in the 1970s, and all her politicians started carrying mental “The End Is Nigh” signs. The most American things of all – cars! The American Cars! – weren’t good enough for the American people. They all bought Toyota instead. This was an apocalypse-grade sign that United States was approaching its end as an industrial nation, unable to compete with Asia.
This is the final part in my series about the history of the copyright monopoly. The period of 1960 to 2010 is marked by two things: one, the record-label-driven creepage of the copyright monopoly into the noncommercial, private domain where it was always a commercial-only monopoly before (“home taping is illegal” and such nonsense) and the monopoly therefore threatening fundamental human rights, and two, the corporate political expansion of the copyright monopoly and other monopolies. As most people are aware of the former development, we will focus on the latter.
When it was clear to politicians that the United States would no longer be able to maintain its economic dominance by producing anything industrially valuable or viable, many committees were formed and tasked to come up with the answer to one crucial question: How can the US maintain its global dominance if (or when) it is not producing anything competitively valuable?
The response came from an unexpected direction: Pfizer.
The President of Pfizer, Edmund Pratt, had a furious op-ed piece in a New York Times on July 9, 1982 titled “Stealing from the Mind”. It fumed about how third world countries were stealing from them. (By this, he referred to countries making medicine from their own raw materials with their own factories using their own knowledge in their own time for their own people, who were frequently dying from horrible but curable third-world conditions.) Major policymakers saw a glimpse of an answer in Pfizer’s and Pratt’s thinking, and turned to Pratt’s involvement in another committee directly under the President. This committee was the magic ACTN: Advisory Committee on Trade Negotiations.