Sunday, 9 December 2012

IPR and debt-exploitation (cont.)

Why There Is No Going Back For Creative Scotland
Pete Wishart
"…The battle over IP rights, monetisation of the net and the tension between content creators and distributors is what consumes the creative hub of London. Scotland has to get engaged in this debate and we must stake our place in the ever shifting sands of this new environment. …"

We outlined our concerns to the SNP's Westminster spokersperson on Culture regarding IPR and debt-exploitation, having rasied them in the 2008 artists' briefing paper: 
Extracting the Value

We believe that Creative Scotland will look to generate income streams (for itself) through the exploitation of cultural institutions and cultural workers, particularly through increasing the burden of debt. Increasingly, they will be treated as the consumer base for a new financialised system of commercial ‘creative’ exploitation - indebting artists and organisations whilst exploiting retention of Intellectual Property Rights.

NESTA was the outcome of such an exploration of copyright- and profit-orientated approaches to ‘investment’ - “set up with Lottery funding to help people turn bright ideas into products, services or techniques with social and commercial benefit”. NESTA advocates its retention of patent rights for intellectual property resulting from publicly funded work and the wider state exploitation of IPR. This is a significant shift from previous public sector models of support (however partial and problematic they continue to be with regard to elite power and their exercise of cultural taste) to a commercial model of exploitation still ultimately based on monopoly power.

“ [T]he cultural industries are seen as complex value chains where profit is extracted at key nodes in the chain through control of production investment and distribution and the key “creative” labour is exploited not, as in the classic Marxist analysis of surplus value, through the wage bargain, but through contracts determining the distribution of profits to various rights holders negotiated between parties with highly unequal power (Caves 2000). [For example, through the exploitation of Intellectual Property Right, as NESTA advocates & promotes] ... [T]he political economy approach placed its major emphasis on the technologies of distribution, on the ways in which key economic and regulatory debates were to be seen as struggles over access to distribution under shifting technological conditions without any necessary effect on either the nature of the product being distributed or the relation with the audience. In particular, this analysis stressed the ways in which the profits of the whole process were returned to controllers of technological distribution systems rather than to the original producers of the cultural products or services.”

(‘From Cultural to Creative Industries: An analysis of the implications of the “creative industries” approach to arts and media policy making in the United Kingdom’, Nicholas Garnham, International Journal of Cultural Policy Vol 11, No. 1 2005)

Liberal MSP Jeremy Purvis challenged Fabiani over the “provision to provide loans for business enterprise, although we still do not know how that will be delivered, or, indeed, what priority the new organisation will give to business support -- as opposed to acting as a grant- making organisation for arts bodies -- as there must be some form of financial assistance and there will be a cost in creative Scotland providing such services.” Indeed, a significant aspect of the financial crisis has been “financial institutions that aren’t banks from a regulatory point of view but nonetheless perform banking functions.” (Guardian Weekend, Dec 6 2008) It is doubtful a coincidence that Ewan Brown, an ex-banker complicit in ‘greed is good’ demutualisation and deregulation of financial services, has been placed in charge of overseeing Creative Scotland Ltd and its metamorphosis.


If Creative Scotland mirrors other European models, and given what the Culture Minister has said to date, the likelihood is that in Scotland, too, there will be significant financial pressure to replace grants with a system of credit or loans for both artists and organisations. Adopting an exploitative commercial model for ‘creative’ production would immediately place Creative Scotland at ideological odds with cultural organisations and services in Scotland established as not-for-profit. Furthermore, given the economic climate is predicted to worsen, such a move is sure to be ruinous for the organisations and infrastructure reliant on grant funding. There is evidence. A credit/loans system for arts organisation has only recently been tried and tested in Europe, before the height of the credit crunch. It failed. The Catalan Department of Creative Industries is currently under investigation for their calamity.
As the state seeks to reorganise and in part withdraw its already limited forms of public sector support and economically mobilise culture, cultural institutions are being given the task of attracting inward investment and contributing to cultural tourism and urban regeneration.
It is widely accepted that a cause of the current financial crisis was the rampant free-market exploitation of debt/ credit and the introduction of speculation and risk into an otherwise marginally more stable affair. With regard to Creative Scotland, we can detect no acknowledgement of this global tectonic shift and the deepening international financial crisis, and how it will affect artists in Scotland.
What follow are our exchanges with Pete Wishart at that time - he was encouraging all to waft past those "stale" debates on policy and structure which were raising opposition to the (cross-party) neo-liberalisation plans for Creative Scotland:
19 January 2009

Been following with interest your campaigning on Creative Scotland

But I do note in your petition a concern about intellectual property rights. I was wondering what they specifically are? I am a co-chair of the all party group on IP and I take a great deal of interest in this issue. I am also serving on a Parliamentary group looking at IP three years on from Gowers. []

You will be aware that IP is nearly exclusively reserved to Westminster, and Holyrood has Very little, if any, responsibilities on IP. Look forward to hearing what your concerns are and if they can be addressed. 

I have also recently written an article on why I believe it is imperative that the Creative industries/economy sit with the traditional artistic disciplines on the new body which featured in Fridays Scotsman.

Pete Wishart MP
19 January 2009

Hi Pete

As so little of anything concrete publicly exists regarding Creative Scotland, other than the repeated platitudes, it's very difficult to respond in detail other than to express the concerns we already have and to ask for more detail so that those concerns might be allayed.

It would be a great help if you and / or the Culture Minister could provide the details of the Transition Team's examination (or any other Creative Scotland / Scottish Arts Council / Scottish Screen discussions or consultancy work) of IPR and exactly what Creative Scotland's position will be on IPR? Not least how this relates to the models of IPR exploitation as proposed and exemplified by NESTA?

NESTA was the outcome of an exploration of copyright- and profit-orientated approaches to ‘investment’ -- “set up with Lottery funding to help people turn bright ideas into products, services or techniques with social and commercial benefit”. NESTA advocates its retention of patent rights for intellectual property resulting from publicly funded work and the wider state exploitation of IPR. The Scottish Arts Council has just put out a consultancy tender for "The 21st Century financing for the arts and creative industries in Scotland Study", does the exploitation of IPR feature in this consultancy?

Given the Transition Team appear to have lifted wholesale NESTA's definition of 'Creative Industries', it would also be of benefit to know who associated, directly or indirectly, with NESTA the Transition Team consulted / met with, how frequently and what was discussed, and how influential NESTA have been on the thinking underpinning Creative Scotland?

Scotsman - Pete Wishart - Creative Scotland Debate

The relationship between artists and funding bodies is often a rocky one, and a recent petition by the Scottish Artists Union on the subject of Creative Scotland has naturally sparked much attention.

The artists’ concerns seem to relate to the period of transition in the formation of Creative Scotland, and I know that Linda Fabiani, the Minister for Culture, has offered to meet with the SAU to discuss the matters they raise directly.

Constructive debate is of course an essential part of government, though, in my view the campaign against the inclusion of the Creative Industries in the new body is entirely wrong headed, and completely misses the point over what the establishment of Creative Scotland is about.

There should be absolutely no tension whatsoever between support for our traditional artistic disciplines and the creative industries. Indeed it is absolutely imperative that they each inform the other. There can be no creative industry without our artists, designers and the musicians. And indeed, what is an art gallery if not a creative industry, and what can the sale of a painting be called other than creative enterprise.
Where it is essential that we retain the hands off approach to artistic endeavour (and both enjoy and fund art for arts sake) we must properly understand and appreciate the future role of our creative industries and understand the centrality of artists and creators in that process.

This is important because we may be heading into a new industrial reorganisation on the scale of the 1980’s. Then it was the heavy industries that suffered terminal decline. What replaced them in Scotland was of course financial services. The credit crunch and down turn of the late noughties means Scotland is again adapting to a new economic future. We will need something new to assist the Scottish economy – step forward our creative industries.

It strikes me that our creative industries can be Scotland’s way out of the downturn, they already support 60,000 jobs and contribute over £4 billion to the wealth of Scotland. In Scotland we excel in the creative industries. Being innovative and creative is in fact a traditional Scottish skill.
We should be placing what we do in our creative industries in a line that goes all the way back to the great Scottish inventions and achievements of the past. Our artistic, cultural and creative industries can be properly rooted in recognising our history of fantastic creative and unique cultural output. 21st century Scotland has great artists, musicians and creators, and Creative Scotland is an opportunity to attract and retain talent, where the arts and our creative community are supported and celebrated - and ensure that their contribution to the economy is maximised.

In Scotland we excel in Digital Media, broadcasting and design. Our ambition must be to be a European hub for creative enterprise and that means a European hub for culture and the arts.

Siting our creative industries alongside our artists is surely how we achieve this. To do that it is important that we continue with the establishment of Creative Scotland and move away from debates over whether it goes ahead to the much more important debate about defining its context and hinterland.
Working together, we have the opportunity to transform for the better the landscape for investment in our art, artists and creative organisations. Creative Scotland is a bold initiative which will equip Scotland with a dedicated organisation capable of driving vision and organisational support at a time when creativity is vital to Scotland's cultural self-confidence and international reputation.
Our artistic and cultural talent deserve an energetic and strategic cultural development body that is fit for the 21st century. I have no doubt that, given the chance, Creative Scotland can deliver that excellence – and we should all engage constructively in the debate about our vision for the cultural future of Scotland.

27 January 2009

Thanks for that. Firstly the work of NESTA is fantastic and has also recently been beefed up with the UK Government's creative industries strategy. I don't know the answer to your question about who from the transition team discussed these issues with NESTA but will attempt to find out. You should also be aware of the work of Skillset Scotland who are proposing some very good suggestions about promoting the value of intellectual property.

Probably more critically is the totality of the IP framework most recently defined by the Gowers Report. My all party group have been unravelling Gowers to see if it is properly equipped to cope with the new demands of the creative economy and this report will be published in the spring. Unfortunatly the Scottish Parliament does not have the powers to legislate on IPR, and Creative Scotland will be very much dependent on what comes out of Westminster.

However NESTA themselves identify Scotland as a hot spot for creativity and recognise the fantastic work being done in Scotland. This is why I think it is imperative that the Creative Industries sit alongside the traditional artistic disciplines on Creative Scotland (the subject of my Scotsman article). Scotland can become a European hub for the creative industries and this has to be our ambition, but other small nations are really starting to get their act together and we must keep pace.

I am totally relaxed that Creative Scotland is a thin bill and think that this is a good thing. The new body has to grow organically and if we over prescribe for it now before it gets going we may be compromising its potential and ability to innovate.

I know that change is difficult and there are anxieties but we must be careful not to fill the sector with unecessary despondency. Scotland has great opportunities and we are supremely placed to take advantage of our unique place. What I want more than anything is to get over this debate about structures and boards and get to the important stuff about contexts and visions.

Hope this helps.

Pete Wishart
28 January 2009

Hi Pete

Attached as a PDF is a recent academic report on NESTA. It's a very neutral and timely analysis of NESTA's flawed methodological approach. You should read it. Unfortunately it deals with the real-life boring stuff of does-it-do-what-it-says-it-does -- sorry if this in any way inconveniences your "visions". I always found hard facts a preferable grounding to wishful thinking, as the problems of the Catalan Department of Creative Industries are testimony to, especially when you're dallying with mine and others' livelihoods and the entire creative base of Scotland.

The Catalan Department of Creative Industries is currently under investigation for their calamity over the introduction of loans for arts organisations. Below are links to three articles (in spanish) regarding the problems the Department is having getting the money back it distributed in the form of repayable credit / loans:
- The first one, is an article written by the current director, in which he tries to explain the situation. He writes (roughly) : "We conceived the refundable contribution [credit / loans] system as a way to have financial participation in market driven cultural projects and, therefore, be subject to enterprise risk. We tried to introduce a risk culture into a sector that used to function through public subsidies." ["De entrada, la aportación reintegrable se concebía como un mecanismo de participación financiera en un proyecto cultural orientado al mercado y, por tanto, sujeto a un cierto riesgo empresarial. De algún modo, se intentaba introducir en la cultura del riesgo a una estructura empresarial más avezada a la subvención pública."]
- The second article talks about how an investigation is being initiated into the Department:
- And the third talks about how they are trying to reconceptualize the loans back into subsidies as they can't track many of the people who received them -- who quite simply can't pay them back anyway:

[English translations are now available here: ]

You might also want to have a read of 'The creativity fix' by Jamie Peck: "Creativity strategies have been crafted to co-exist with urban social problems, not to solve them," writes Peck. "It should come as no surprise, then, that the creative capitals exhibit higher rates of socioeconomic inequality than other cities."

As others talk of the failure of governmental regulation and oversight, it seriously worries me that you are "relaxed" with regard to how Creative Scotland might "innovate". Something similarly redolent of Thatcherism was said of the finance industry not so long ago. As is becoming increasingly clear, it is in that area of exploitation Creative Scotland is truly intended to "innovate". And fostering a culture of carelessness with regard to markets is not reassuring. To your credit, you did steer clear of the phrase "light touch".

Though I note, where actually warranted, the Scottish Government are more reticent about upholding the "arms length principle" -- as in the Scottish Government carving out greater budgetary influence over cultural provision by ring-fencing the 'Creative Scotland Innovation Fund' for ad hoc "new government priorities". Currently, it is the Scottish Arts Council's role to determine what percentage of its budget is spent where and not for ministers to dictate. In this way it adheres to the Universal Declaration of Human Rights, Article 19, which states: “Everyone has the right to freedom of opinion and expression..."

While you encourage everyone else to waft past those "stale" debates about structures, those that know how power works on the inside, such as the Edinburgh finance/legal/property industry, are evidently quite keen to have those discussions you so readily dismiss: The outline for a panel discussion “Copyright – Credit Crunch Asset” (no question mark) organised in the heart of Edinburgh's finance services industry, just popped into my email box (please see details below). Again, this comes back to the question of democratic oversight, rather than unaccountable ad hoc lobby groups with ties to the finance industry having the ear of government. To misquote: to lose one economy to the financial sector may be regarded as a mistake; to lose another looks like negligence.

So, we maintain that in the interests of clarity and transparency, as well as the consultation that the entire arts sector is crying out for, Creative Scotland should not be included in the Public Services Reform Bill but undergo the rightful parliamentary scrutiny it deserves, which can only be achieved as a separate Bill. That there is now no impediment to the reintroduction of the Creative Scotland legislation, and, since the Public Services Reform Bill has been delayed by the addition of instructions that we are told have nothing to do with Creative Scotland, reintroduction as the Creative Scotland Bill is now the faster and more progressive option -- it might even restore a little 'blue sky' confidence in the process you are so keen to see. This would also not precipitate the scrutiny that the Culture Minister has said is the principal advantage of the legislative route, and would provide the debate craved by the entire arts sector and also protect the future cultural agency, should it come to pass, from claims of illegitimacy.

It also worries me that you say "other small nations are really starting to get their act together and we must keep pace", just as Iceland's parliament collapses, following its economy -- not something I'm keen to keep pace with; nor with Catalonia's immiseration  and endebtment of artists. Ireland : first among the 15 nations that use the euro to officially fall into recession. Before you go off on a tangent to Norway, let's be clear: to have the Social Democratic gains of Norway requires the Social Democratic system of Norway -- you cannot 'graft' Social Democratic gains onto a neoliberal market economy. It's not a Woolworths' pic-n-mix bankruptcy sale. And you won't distract from the negative effects of neoliberalism by ratcheting up a deleterious competitive nationalism.

In one sense you are right about catching up with our neighbours:

A couple of years ago Marita Muukkonen of the Finland art magazine FRAME, and formerly of the arts institute NIFCA, wrote: “Looking at recent policy and political developments in arts and culture in Finland and the EU it becomes clear that cultural-political instrumentalisation and economisation is infused with nationalist and protectionist tendencies, and that is a growing concern.” Marita also worryingly identified the strengthening tendency of the transformation of cultural politics into cultural economics, the idea of arts and culture as a competitive factor of national economic growth. Evidently, it didn't protect Finland from the financial melt down. You can find a PDF of Marita's paper here:

Also, Be[com]ing Dutch: "A two-year project developed both inside and outside the Van Abbemuseum, which consists of debates, reading groups, artist's projects, exhibitions, residencies, and forms of collective participation and production. As questions of cultural identity and normative 'national' values become ever more of an issue in political and cultural debate, Be[com]ing Dutch asks whether art can offer alternative examples of thinking about how we can live together today. Be[com]ing Dutch seeks to put our ideas of cultural identity under pressure and examine the process of inclusion and exclusion in the world today."

Or, Translocal Express. Jubilee Edition: "An international seminar in the series of Public Preparation events addressing the growing tendencies of nationalism on Eastern borders of Europe (from Helsinki to Istanbul) and its relation to contemporary art. ... Translocal Express. Jubilee Edition takes place in parallel with the celebrations of the 90th anniversary of the Republic of Estonia, aiming to turn attention to alternative ways of how to think about society in the era of global democracy as a counterperspective to the narrow nationalist mindsets that are dominant in contemporary Estonia."

Or, Rethinking Nordic Colonialism: "A Postcolonial Exhibition Project in Five Acts. Curated by Kuratorisk Aktion for NIFCA, Nordic Institute for Contemporary Art, the project combined exhibitions with workshops, conferences, hearings, and happenings in the locations of Reykjavik (Iceland), Nuuk (Greenland), Tórshavn (The Faroe Islands), Rovaniemi (Finnish Sápmi), Copenhagen (Denmark), Helsinki (Finland), Oslo (Norway), and Stockholm (Sweden). Fifty-six internationally recognized artists, theorists, politicians, and grassroots activists from all over the world participated in the project and exchanged colonial and postcolonial experiences and strategies during its course. Together, they examined why this past has been forgotten and how it continues to reproduce itself as waves of intolerance, xenophobia, and nationalism."

If it truly is the 'contest' you describe, isn’t it time we at least caught up with our northerly and eastern neighbours and started to publicly discuss equally searching questions about the manifestations of competitive nationalism and its inter-relationship with a discredited free market ideology? Or should their publics be better equipped than ours to understand their global situation; their democratic systems more attuned to a healthy, functioning public sphere? Using the economic crisis as an excuse to stifle debate isn't what I thought of as the Enlightenment tradition.

So you are also quite right about needing context:

There is an urgent need to contextualise Creative Scotland with regard to deeper policy issues such as the paradoxical responses to the financial crisis, a crisis which has discredited the 'Anglo-American' model of finance-led capitalism, yet the Scottish Government continue to pursue the main planks of that neoliberal agenda, including labour market 'reforms', privatisation, and financialisation as is exemplified in what we know of the proposals for Creative Scotland. The Creative Scotland profit-orientated approach to culture / information management belong to a pre- financial collapse set of cultural / developmental policies peddled by the likes of the Bush-era Richard Florida, and new Labour's Demos and NESTA. Florida's lazy but influential theory that cities can reverse sinking fortunes by becoming fashionable magnets for a mobile, trendy elite was never the case -- in Europe this gentrification mostly hinged on public sector disinvestment via property speculation, which has brought its own problems, and which is precisely why we have Glasgow City Council's current cash-crisis. Not only was it reliant on an unstable property bubble, but it relied on disinvestment of a finite public resource -- once you've no assets of any worth left to strip, then what? John Swinney is recently reported as saying taxpayers are losing out on millions of pounds because public bodies are carrying out "irresponsible" land sales while prices tumble during the recession. Is he wrong? But what policy have GCC got other than Florida's candy floss which is found severely wanting? So hardly political models I would expect a progressive Social Democratic Scottish Government to be tagging on to.

I was also hoping the "change is difficult" pseudo-psychology was just contained to new Labour's happiness industry assault on the poor, but it seems either contagious or too convenient a tool, and that, I'm afraid, does fill me with despondency.

[Notes / attachments]

Artists and art schools: for or against innovation? A reply to NESTA
by Angela McRobbie and Kirsten Forkert, Department of Media and Communications, Goldsmiths

Wednesday 25 February – Edinburgh – 6pm – (Coffee 5.45pm) – at Anderson Strathern LLP, 1 Rutland Court, Edinburgh (£5 per head)
“Copyright – Credit Crunch Asset”
Speakers: Simon Brown, Partner, Anderson Strathern LLP [who are hosting it] and Professors Simon Frith and Hector MacQueen, both of University of Edinburgh
Simon Frith is Tovey Professor of Music at the University of Edinburgh and chairs the judges of the Mercury Music Prize.  He co-edited Music and Copyright (Edinburgh University Press 2004) and is currently directing an AHRC funded research project on the promotion of live music in Britain. Hector MacQueen, Professor of Private Law, as RSA Fellows know, was closely involved in IP issues and the RSA’s Adelphi Charter. He publishes widely on issues of public, IP, copyright and design law.  Simon Brown is a partner with Anderson Strathern and is on the Board of Publishing Scotland.


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