WIRED ON FRIDAY/From Silicon Valley: Authors are arguing that they, like painters, should get a cut of resale revenues and suggest technology might help them, writes Danny O'Brien
There's not much that California and France have in common. Fine wines? France might beg to differ. A film industry? Sniffier LA moguls might question that.
But despite la difference, both locales do share one thing - for their sculptors and their fine artists, there is the glory that is "droit de suite".
In California and France, whenever you resell a work of fine art or sculpture you must pay a percentage of the resale price directly back to the original creator. So each time a Hockney changes hands in Cali, Mr Hockney gets a cut.
This artist resale revenue, or droit de suite amounts to a 5 per cent payment of the new price of the painting or sculpture in California; 3 per cent in France. The payments continue for 70 years after the artist's death.
It's an odd extension of copyright law - no copies, after all, are ever made of the painting or sculpture. It's fairly recent: it was invented in France in the 1920s to assist the widows of artists killed in the first World War, and introduced to California in the 1970s.
And it is not, by any means, universally accepted. Few countries recognise droit de suite. The fine art markets in Europe, for instance, have fought long and hard, but ultimately unsuccessfully, to prevent the tax from being harmonised into the rest of the EU law, including the Republic.
What droit de suite brings home is that intellectual property laws are not fixed and can differ between countries - or even between US states.
Because of its novelty, droit de suite seems strangely arbitrary - why just painters? Shouldn't a potter expect revenue every time his or her pot is resold? What about an architect, who only gets paid once for his work? Or an author, who never receives a penny for those sales of rare first editions?
As a matter of fact, some authors are beginning to complain that they should get a cut of resales. And they're suggesting that modern technology might be able to help them.
Starting in 2000, publishers have been complaining that internet book store Amazon.com was placing offers for second-hand books right next to the prices of the first edition.
These second-hand books are placed by Amazon's users and appear whenever anyone searches for a particular book title. It's not unusual to find Amazon's hardback sales being heavily undercut by their own customers on the first day of publishing.
The Association of American Publishers heavily criticised this practice, saying this new ease of access to old books would decrease new book sales, and affect publishers and authors profits.
More recently, Britain's Booksellers' Association has suggested fighting back - by putting small radio-transmitting security tags in every book so that shoplifting and, by extension, resale of books can be recorded and monitored.
With a tag in every book, it really would be possible to charge a small sum back to the author for every purchase - or, in the case of the libraries, every time a reader takes out a book to read. It would introduce a droit de suite for authors.
Technological controls could also be inserted into e-book reading devices to ensure that electronic books could only be read a limited number of times, or never be passed on to other readers. Authors and publishers would have control and make money over a book's entire lifetime.
Publishers say these technologies are nothing more than a natural extension to their property rights. The idea that the readers should be able to lend out their libraries or enjoy a book more than once is just an artificial limitation of the current legal and political system.
As with the thinking behind droit de suite, this camp sees copyright as a "natural right" of authors and creators to benefit from all use of their works.
If that's true, it's hard to argue against these developments, even if they are expensive for the public and have worrying side-effects. How much privacy should we lose in order to keep a tally of where an author's books are? But in the US, copyright is not seen as a natural right. There, it's one of the few powers vouchsafed to the US Congress with a strong rider. Congress can provide artists with the exclusive right to their works, it says, but only for a limited time and only "to promote the Progress of Science and useful Arts". Hence a legal case that's currently being heard by the Supreme Court here.
Eldred vs Ashcroft is a challenge to the 11th extension of the copyright term in the past 40 years. Copyright holders claim that's an acceptable extension of their natural right (the author of the Act, Sonny Bono, wanted infinite copyright terms). The challengers claim that copyright has already gone too far.
The Bono law was not just for Disney, however - it was also an attempt to harmonise with the EU, where the powers of copyright have been extended with little complaint.
And there are a number of other copyright extension laws currently percolating through the European legislatures - including the recent European Union Copyright Directive, which proposes harsh punishments for those who try to break book-controlling hardware, and the criminalising of systems for distributing copyrighted material.
Many groups, like their US counterparts, are concerned about the effects on society - and in particular the growth of the internet - of these extensions.
But, unlike the US, it's hard to see how these laws can be challenged in the EU. Even with the backing of the influential and moneyed fine arts industry, the battle against the spread of droit de suite failed. By 2006 all European art transactions will be taxed in this way.
It'll certainly be interesting to see whether the French spirit of natural law will spread via high-technology beyond fine art; or whether Professor Lessig's view that copyright should be a servant of the common good will ever escape from its Silicon Valley home.
