Posted by: Sk | February 13, 2009

7 “Ce qui est bon ne se copie pas” Edmonde Charles-Roux

Putting the problem of rights reserved

“What is good can’t be copied” Edmonde Charles-Roux

It’s a horrible question which though seems to be the axe around which evolves the financial world. It seems to be the clue to everything or nothing, to an economical breakdown or a financial revival. To my understanding it becomes of evidence that the nation that will be able to solve the question adequately, will assure itself long lasting wealth. Why though put the question or problem in such dramatic tones? It’s not only that it is linked to deepest psychological questions as treated before in, so that a healthy order in the structuring of society may be warranted by the very fact of correctly distributing in its recognition what is whose, and how much we may claim for what is ours in exclusivity, it may seem as if the very fact of allowing a sane economical environment would be warranted by the fact of intelligently solving this question. It is also that it concerns almost all fields of human activity and where our careful differentiation between the popular and the ‘registered’ gets an extreme interest. It is also of importance to further make the difference between the ‘mine’ as creation or production and the ‘registered’ as the attachment of a name and person to a given object through an organism of State. It is an evidence that something stolen even if registered does not belong to the one who has stolen, and usually other means are used in order to establish whether something did not originally belong to someone else (datable originals, similarity in style, and other very sophisticated means, sometimes).The question first arising is consequently how to make the difference between a copy, something stolen, something inspired of and to which extent and valuable originals. Let us take as hint for a solution, what is originally never registerable: mathematical functions, letters, numbers, common names, and some other having in common that they’re of universal use, can’t be registered for an exclusive use. Thus, in the quarrel Rothschild versus Rothschild, where a claimant of South America who, given the legislation of his country, has taken the Rothschild name and makes a webpage with it, is forbidden to make commercial use of his name by an international court, there is an obvious abuse favoring the Rothschild Bank (Geneva): not only the area of commercial activity is not the same, there are 300 Rothschild only in Jerusalem, who were then forbidden of making use of their name for a web page or other commercial activity? Legislation in Spain usually determines that a brand name is exclusive only for a branch of activity, but problems arise if it is a family name and it happens that someone in the same brand has the same name: factually it is impossible to restrict in this case even the use of brand to a given field, as it appears clearly in some cases in France (Rothschild wines), and internationally in the same case (Rothschild Bank UK, Rothschild Bank Switzerland), only and only if it is actually the family name, which on the other hand, causes problems in countries where legislation allows the somewhat too free acquisition of well sounding names. As seen before, actually the registration of name and thus of logo is limited to the country of registration, so that big companies have had to pay millions in order to have their name and logo registered all over the world (where some funny things as the loss of Burger King name and logo in favor of an Australian company may occur in the run for universal recognition.)Another problem.

If a work of art is universal property ‘de par soi’, a logo is not. A logo defined more or less as ‘visual composition allowing the recognition of a company and essentially attached to it’ is a legal item attached again to a given legislation. The name as little as the logo are ‘works of art’ attached to a name, a creator, but have value only if registered in some Commerce Chamber in some country with validity only inside of the country. We have now two criteria allowing to approach our horrible problem: the difference between the common and the particular creation and the difference between a commercial item and a creation. Logically: whatever I ‘copy’ from some popular inventiveness can’t be considered ‘mine’ as the mine can only be said such if I’m the creator of the object or have acquired it by some means, in which second case I may have the object, but am never the owner of the ‘idea’ for reproduction. Which attaches itself easily to the common practice of not allowing registration for items of common use. The second point is of even greater interest: what makes the difference between a creation and a commercial item? And why, strangely, ‘logos’ are not considered ‘creations’? In fact a creation is singular, unique, it is the result of a personal inspiration and has only one exemplary attached to the author: were it a painting, a sculpture, a song. As long as the ‘piece’ remains singular it stays a creation and appears in museums, expositions, exhibitions, etc. The problem appears the very moment the singular item becomes commercial through the possibility of reproduction: a painting becomes a poster, a sculpture is reproduced in other materials, a song is registered, a visual object becomes a logo. In this cases, the author gives away his ‘rights’ (sells) and gets a certain amount compensating his contribution to the augmentation of benefit of whoever acquires the rights. Normally the one who acquires the rights is a company, a registered legal entity, who, through the fact of paying taxes, obtains a legal cover to assure the exclusive use of the acquired rights, if ever so. (Clauses are not necessarily exclusive.)In order though for this company to have the right of distribution it is of obligation to have a written registered contract with the original owner of the item in question.

The use of creations, productions, etc. with determined owner without contract is illegal and punished by law (laws concerning personal property.) Legislations have sometimes problems to deal with personal property, as often it is of obligation to have a registered activity (painter, etc.) in order to have the legal permission to sell as a creator. Which is true for the cases where you want to sell: in no case though, there may be appropriation of someone’s creation even if his ‘object’ is not the result of a registered activity. In the case he wants to sell, he may have to register his activity, eventually. This is specially sensitive in what may be considered ‘home’ activity: women do very often ‘invent’ things for their common life, without never registering anything. Would it be legally justifiable that someone arrives and registers such an invention for commercial use? Logically not, but it is difficult to prove. Such though is great parts of what affects fields such as fashion, cooking, even furniture, inner decoration, and other. In fact, the question of ‘rights reserved’ has been deformed by the field of ‘invention’ which is another territory of human activity. Invention differentiates itself from ‘creation’ in this that the ‘item’ conceived is not transmitting an idea through forms or colors (esthetics) but is pretending to give a technical solution for commercial use. Here, again, there are though ‘popular’ solutions and these that are the result of specific and personal ingeniousness.

The heavy quarrel between Microsoft and Linux shows how far the question has entered the most ample specter of human and social activity. And puts again the question of secrecy as last means to preserve property in it possible commercial exploitation. Coca Cola is relatively happy to be in measure to hide the drink’s formula in an impossible to break safe, although I ask myself what may happen if chemical analysis does not allow the reconstruction of the given formula. Microsoft though can’t so easily preserve its inventions. It’s not to suspect that codes of security of programs are necessarily broken (although …) it is that the very fact that something exists allows the ordering of thought in order to obtain some similar product, as this can’t be fundamentally forbidden. It’s true that perhaps Edison did not invent the bulb (apparently almost at the same time three different scientists of different nations did arrive more or less to the same result), but he had the idea to make of it a commercial item, which did though not stop others from producing similar objects without the original Edison invention. It is true that I solved the question in an almost Spanish mood by saying that logically only the finished product could be registered by the State and all the elements composing the product had to be kept secret or protected in such a way that it could not be easily copied without though infringing law (distance control of an acquired good is factually forbidden by law).

Inside of this perspective, the very fact of registering buttons and other computer functions is as absurd as trying to register a general function such as ‘engine to sell through internet as such’ (French inspiration of about 2002).To consider the problem globally, it is necessary to consider, too, what we’re actually aiming at. If an engineer sells some ‘invention’ in exclusivity, he may warrant his life’s income with a little improvement of some device. The fact of being the owner of such a ‘patent’ may warrant extreme benefit for a company that is the only one to have such a good. The intelligent balance of what is mine or for sale is actually the warrant of success and benefit. Such, a French who had invented some device for a motorbike which improved some functions at the start of the motor (if I remember well) patented it for himself and tried to make a whole motorbike. Consequence: financial disaster. The part, which may have been the source of millions if well sold, becomes a ruin, as the production of whole motorbikes is excessively expensive. The registration of goods and patents is thus of greatest interest. The problem is where to put the limits and more concretely how to protect common goods (first) and personal property (second). Imagine you register the exclusive right of boiling potatoes, for example. In fact, if you consider the whole from a human point of view, you soon arrive to the following conclusion: what is good, as well says Edmonde Charles-Roux, is quite difficult to copy. Why? Because it has a certain number of properties that demand very specific skills or knowledge (technological or other) that is very difficult to acquire. When this is not the case, companies usually strain  other qualities (service, image) in order to assure clients. Thus, you may think that in fact the problem of rights reserved does not exist: either you’re better or you fail, and the rights reserved become protective laws precisely in order to avoid abuse but difficultly may be a source of income as such (France Telecom’s strategy).

Strangely many efforts are made in order to obtain benefit through the proof of copied functions, inventions and other, while to my understanding the problem of dirty competition has been shifted to image: without wanting to take any party whatsoever, it seems to me obvious that for example Microsoft products tend to be much better than many other in this that they’re more functional, over viewable, secure, compact (not all, but to talk about Office, Excel, and other). It seems to me that they’re very difficult to copy in their extreme complexity, and those who sell with broken codes (replica) are selling products that can’t keep the original quality. Consequently you may think that it is enough to present things as they’re in order to avoid excessive losses. Thus is the case for extremely complex computers, such as Sony, which will you may say almost always be better than others (reliability, security, endurance), characteristics that are though never strained in publicity campaigns, where you may find almost indifferent references to vivid colors and other that are, to my understanding, of secondary importance. To come back to the problem of for example fashion and our rights, it is easy to see the difference to an invention. Fashion, similarly to arts, does not make products, it creates styles. It is not functional, it is ideological. It is true, that all over history you may observe even killings and murders and complots in order to get secrets of production: even in arts, the very fact of being the only one who knows the chemical composition (or derivation) allowing the manufacturing of some specific color or effect (shining or other). Thus it were also for music instruments or the know how to make sculptures, weapons (metal work) etc. But this is to be intelligently differentiated from the creation as such, which has ‘no matter’, it is just the adequate distribution of colors, volumes, space, figures, etc. or tones in the case of music.

The one who makes a good violin (Stradivarius) is a good handicraftsman: the one who knows to use it, is a talented artist. The one who wrote the music pieces in a certain ‘esprit’, is a genius. What is the most difficult thing? The third. Then comes the second. And finally the first. How though do you measure the difficult? By its rarity and complexity, usually. Stradivarius will never have to invent a violin: he improves in techniques something that has been developed by the genius of people for hundreds of years. The artist will never do but the same inside of the pattern of school teaching techniques. The composer has to express in a synthetic whole a particularity which at the same time has to fit into a given social environment, which is to say, he has to make up the world again, because if he doesn’t, he’s just following currents that do not deserve a name. Logically, the fact that something belongs to one of those geniuses is of extreme importance: the amount of works allow up to a certain extent to keep a process of generation as such and this, if well studied, allows the adaptation to other environments or contexts. It’s different to have a process of reproduction in adaptation than to have a process of generation and this is why many, many efforts are made through history in order to carefully keep the works as such attached to a specific name. Strangely it is easy finally to steal the secret of how a colour is made: it is though horribly difficult to copy or steal a style. That styles form ‘écoles’ (schools) is natural. Thus, you may see hundreds of trying to be Guayasamines all over Ecuador, although it is obvious that none has the same original balance in colors and forms inherent to the first and probably not the same technical skills (I suppose Guayasamin creates through layers, which finishes by giving the compact visual impression proper to his works). In a certain way the ‘want to be’ are nothing but underlining the inherent interest of a message which is though difficult to reproduce: logically Guayasamin wins even through comparison, because he’s good.

Even if it is possible to understand Charles-Roux’s statement as “it is forbidden to copy what is good” it is obvious that it is the latter she means: even copying lines, buttons and ‘plis et volets’ the good as such remains because it is the proper expression of an individual that has the qualities of a genius. And here appear clearly the limits of the rights reserved: if your intelligence does not get up to the point of producing what can’t be reproduced, you can’t oblige the state to reserve your tasteless inspiration through law. It appears thus as if, from this point of view, it were impossible to ‘reserve’ a ‘mean’: fabrics, colors, cuts, etc are only ways, means, not a finished product. You can keep secret the ways you obtain a certain effect by, or a specific technique. I never laughed as much as the day a German student was referring to her despair because he couldn’t get the recipe of some Prussian sauce from … her father! Which is to say that greatest parts of the configuration of society was build up on secret and confidence. In Spain, you were very careful before you fired someone of a post of responsibility, and thus you took greatest care before you hired someone, precisely in order not to loose secrets and important data. In fact, don’t ask a Turk how ‘salep’ is made or where you get the grain from, you’ll get no answer. Thus, while trying to make up your way to where acorn ham is made in Spain you were usually sent … to the mountains of Granada. And there we get the clue of the whole problem. Reliability, confidence, ability in keeping and transmitting a secret are … moral values that can’t be assured by a school, or perhaps yes, sometimes. The means through which these are obtained and tested do sometimes belong to the most ancestral traditions. Tones of voice, intuition, slight traps, control … All sorts of inventions of human’s intelligence that got lost with the pretension the state could substitute the personal effort in his attempt to preserve his goods and assure his benefit. This is why in fact the question of rights reserved does quickly go over to the more fundamental question of what the attribution of state and what of the particular and to my understanding, the fact of intelligently solving the first question will allow the ordering of more fundamental attributions that as not ordered, are causing gravest financial disturbances. But this we will consider at another moment. 







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