Editorial

Afterimage, Jan-Feb, 2004 by Bruno Chalifour

There are several ways to implement democracy, just as there are several ways to apply laws. They are all linked. The protection of visual artists and their productions is a rather complex issue because of the variety of media used, of the variety of the productions themselves, as well as their daily volume, and because the status of these productions regarding their ownership, especially in the US, depends on how the work was done and who paid for it. Katherine J. Carver, a student at the University of Maryland School of Law, and an applicant to a 2004 MFA program, attracted our attention on the matter. She submitted a detailed comparative study on the issue of droll moral, "moral rights," regarding photography that we publish in this issue of Afterimage (pp. 4-8). Her study raises several related issues such as copyright, of course, but also laws in general, what their intentions are, and how the way they are implemented defines and expresses the societies that created them in the first place.

Compared to international laws, as defined in the Berne convention, or some of the best systems of protection for artists such as the French law of droit moral, the works of image-makers, most of all photographers--as well as other artists--working in the US are extremely vulnerable, especially when they fall under the denomination of "work for hire." Typically, and on a more general level that Katherine's paper brought to the forefront, copyright laws, and their ramifications expressed in areas defined as "commercial rights," "intellectual rights," "moral rights," should be the just expression of a fair society that protects and stimulates creation.

Democracy and justice: both systems are dependent upon each other, yet they are distinct. Democracy can be made to be the expression of well-informed choices by well-educated people (not limited to a self-reproducing "elite" but a general citizenry generated by that very society) for the good of the whole group. Justice should reflect this fundamental goal at the core of real democracy, if it does not, then the way laws are implemented becomes the symptom of the dysfunction of a system that pretends to be what it is not. Democracy requires an open sharing of information that has to be made accessible not only in its content but in its form to every member of society. It also requires, as a necessary premise, that emphasis be put on education so that not only people know where to find the information they need but they can also process it and use it; in a democracy each citizen should have the same right to information, access, education, expression, and justice regardless of their creed, race, gender, or social origin. This situation, in return, may engender a general respect for the institutions that generate the welfare of the group, a welfare that is shared, and not limited to particular areas of society. This welfare should not be limited to meeting material needs such as food or shelter (these basic needs are unfortunately not even covered at 100% in our western societies), but extend to other crucial areas such as health, information, education, expression, and justice, to name a few.

Copyright is about the respect of the work done, the protection of creation and invention so that they can flourish and keep on developing, the encouragement of enterprise in order for people who help improve society to keep on doing it; in order for society to acknowledge was is being achieved for its welfare. It is an empowering measure taken by the group and bestowed on its best elements, but it should not become power that is confiscated by a few for their own sake against the general good. Copyright should not be here to protect possessions acquired by virtue of power or money; there are other laws for this purpose and the status of "work for hire," where he who pays owns what has been created by others, stands as a perversion of Copyright laws.

Is it really reasonable, fair, and common sense that someone, some corporation, some private interest should own the sky, the oceans, the rivers, the shorelines, the air, our DNA? It sounds ludicrous. It is. It is in the same way that democracy should not be about power, the power to control information, to control resources, to control access and distribution, to control expression. Copyright should not be about power, the protection or limitation of it, but about the respect of the common good, and the respect of the individuals in society, within this notion of common good. The control of these key areas of democracy by a minority that has been entrusted by the whole group to take care of it, and uses them to obtain and keep more power than needed is dangerous. Democracy should be about respect, not just of one's own clan, one's own clientele, but about the respect of all and each component of society. Control without respect becomes manipulation, and just an expression of power that is disrespectful and causes frustration, cynicism, anger, helplessness, and ultimately violence. Examples of this, all around the world, are many. There may have never been a single human group that has not been a prey to such temptations and a victim of them. Laws should be designed and enforced keeping common sense, common good and respect in mind. Everyone should be equal in front of them, and they should apply equally and fairly. It so seems that our visual world, the one that is created by the members of our community, from the most "consumable" to the most artistic or conceptual productions, is one with which legislators, and after them the judiciary world, have had problems. The issues are complex; they require balance, fairness, and common sense for the general good, including that of those who improve the same general good by their productions, lost of this issue of Afterimage is dedicated to the examination of the fine line that exists between creation, the use of past creations, and the abuse of this use. Invention and creation should be protected but not to the extent that access for the general good be denied. Access should be granted to past creations so that new creations can build on the heritage of predecessors. But access does not mean overuse, exploitation, and abuse for the sole benefit of one element, or a few elements of the group. Access does not mean the understanding, diversion, and control of the energy, of a system, market, society, for one's own devices and gain, be it fame, money, or power in its many other forms.