Negative: a century of photography, on the verge of privatization

by Digital Rights LAC on December 16, 2015

1940's_Bs._As.,Vendedor_de_diarios._Mediados_s._XXIt was a busy day of November in 2009 when, among 130 bills related to diverse subjects, Argentine deputies decided -without much consideration- to extend the term for the monopoly over phonograms from 50 to 70 years after their publication. Mercedes Sosa, the most important female voice of Argentine folklore, had died a month earlier. Her first records, such as La voz de la zafra, had been published in 1961 and were about to enter public domain. Nevertheless, the quick action from the legislators prevented this from happening: the bill S3030/09, presented by Miguel Pichetto (Front for Victory party), was presented the same month that “la Negra” Sosa was dying; it was treated on the Senate’s tables and, in less than two months, Argentine deputies and senators had stolen 20 years from the people’s music to Argentina.

The problem to extend the monopoly from 50 to 70 years was pointed out with concern by some NGOs, such as Wikimedia Argentina, in charge of promote Wikipedia and their jointed projects; Fundación Vía Libre, an NGO devoted to protect digital rights; and Red Panal, a musician’s platform. In their releases the warned that the senators, with Peronist affiliation, were making a mistakes by privatizing the march that represents them and that so many headaches had brought to them : on june of that same year, Hugo Fontana, Hugo del Carrils’ son, had forbid them to play the march on campaign acts. Hugo del Carril Peronist march had been registered in 1949 and, on January 2010, was going to enter public domain.

Record labels rushed the bill, backed by renowned Argentine voices such as Fito Páez, to ensure that the parliamentary procedure  was expedited and that’s it. Mercedes Sosa’s son helped along the way. After saving the record for 48 years, without a re-edit, and with Mercede’s body still warm, record labels finally decided that La voz de la zafra needed to see the light again, as stated by Diego Fischerman on Página/12. When, if not now, were they going to edit the record again?

Nevertheless, few people realized this was going on. Página/12 was the most active media and published a series of notes regarding the subject. One of them asking the question “Is 70 years nothing?”. But the answer was left floating in the air: no one, none of the legislators that presented the bill, dare to answer it, or even consider it of importance. Litto Nebbia, renowned musician and Argentine rock pioneer, criticized the bill.

Marx said that Hegel used to say that history repeats itself, the first time as a tragedy and the second as a farce. In this case is a double tragedy: once that the voice of “la Negra” Sosa has been privatized and it’s once again under the seven seals of record labels decisions, now it’s time to privatize some of her most emblematic pictures.

This time, the bill is presented by Liliana Mazure (Front for Victory party) and carries the signatures of Gloria Bidgain, Susana Canela, Gastón Harispe, Héctor Recalde and Eduardo Seminara. It proposes to extend the copyright of photos, from 20 years after publication to 70 years after the death of the author, as it is for the rest of the authors on the bill 11.723. That’s the reason why Annemarie Heinrich’s photos, between them Mercedes Sosa’s portrait, are going to disappear from sites such as Wikipedia.

The bill was presented by request of the ARGRA, the Argentine Republic’s Graphic Journalist Association, and between its goals it reads “make equal the term of protection for Photographic Authors” (yes, Photographic Authors in upper case). On its base, it argues that “by the term, works fall prematurely on public domain which in fact coexist with the creative and professional activities of their authors, and  this way they lose them from their acquis, recognition and delight. […] This access to the public sphere doesn’t contribute to a general benefit for the community, instead it represents a pecuniary and moral robbery from the author’s heritage”.

In practice, the extension of the terms would mean to outlaw activities of acquis and digital repositories as diverse as the General Archive of the Nation, the Trapalanda Digital Library of the National Library or community and volunteer projects such as Wikipedia. In fact, article 72 of the Argentine Intellectual Property Law establish criminal sanction for those infringing law 11.723. In the case of projects such as Wikipedia, its own regulations establishes that one cannot upload files that doesn’t comply with the following rules: have free licence or belong to public domain. This is to avoid copyright claims.

Furthermore, this extension of the terms would not mean a real benefit for the authors, since establishing a 70 years term post-mortem, in reality would guarantee right for the heirs. The dire consequences of this extension to the heirs has been verified in multiple cases: from Fontanarrosa’s heirs, whom after his death prevented the publication of his work for several years until a reasonable judge reminded them that there are cultural rights above property rights; to the more recent case of Borges’ widow, whom threatened to incarcerate writer Pablo Katchadjian because he put in circulation a restricted edition (200 copies) remake in a clear literary experiment.

This way, Mazure’s bill gives more power to the heirs, who can be a real annoyance as it is in the case of the most renowned authors. But in most cases, heirs just condemn the work of their ancestry to be forgotten. In order to avoid precisely that, in 2010 Argentine photographer Jorge Royan began to upload more than 600 photos to Wikipedia, to avoid “that this photographs stay on his computer, lost when he was no longer around and they become just an oddity to his future grandsons.”

The extension of the term would be simply catastrophic to projects such as Wikipedia. Wikimedia Argentina announced that “Wikipedia could be left without photos about Argentina’s history”. This title is strong enough, but to illuminate the idea, it will suffice to take a look through some of Horacio Coppola’s photos or the more than 10.000 photos grouped under the “Argentina’s Public Domain” category on Wikipedia to realize the size of the loss. Photos of emblematic symbols will be lost such as the Coca Sarli, the soldier crying for Perón on his wake in 1974, or the iconographic Eva Perón on her polka dot mesh photograph. That, without taking into account the whole historic photographic archive from the 70’s, with the Grandmothers and Mothers marches on the Plaza de Mayo, that will be back to the archives of the journalist media and the heirs ostracism.

In some cases, such as the one of the photos of December 19th and 20th of 2001, it’s impossible to assess when are going into public domain. 2106? 2150? The same thing will happen to photos of the Malvina War, among other significant historic register. We must remember: from 20 years after publication, to 70 years post-mortem.

Vía Libre Foundation, along with more than 50 organizations, signed a declaration opposing the bill. Among the signatories organizations are the Electronic Frontier Foundation, Creative Commons International, several Wikipedia chapters, and similar organizations. Several international outlets picked up the news, even tho the repercussion in local press seems to be lacking, except from some loose notes on the radio, and on the journals La Nación, Infobae and Tiempo Argentino.

But declarations and international press doesn’t seem to dent Liliana Mazure, the deputy who presents the bill. She only assured on her Twitter account that “On the Internet, this matter is not regulated, meaning that nobody will take down anything”. It could be asked then why The Pirate Bay is still banned in Argentina. After that she warned that “on other media, the authors will charge for their copyright as well as the actors, musicians and directors”.

Mazure’s bill exposes on its bases: “The safe use of this images will result in benefit for the business activity of the journalistic media, whom can use, free of charge, material that will preserve its validity and effectivity.”

But, against its manifest target, it grants more power to the journalistic companies who hires graphic journalists. ARGRA’s own website, in a section devoted to copyright, expresses that: “When the works were made in the context of a relationship of dependency, the patrimonial rights are subject to the conditions negotiated on the contract (art 28)”. This means that the rights of the work are for the companies and not for the authors when this are in a relationship of dependency. In fact, the doctrine of acquisition of rights of intellectual property by contract is not news, and it’s applied to works of software and works under demand. In practice, this bill grants big media corporations more than 50 years of photographic archive, given the retroactive nature of the law.

The benefits for the photographers are rather scarce. The damages for the community, huge. Discussing law 11.723 is a task that cannot longer be postponed.

Editor’s note: On November 4th 2015, the Deputies Chamber approved and sent to the Senate the bill to extend protection to 50 years from first publication of the work. The approval was given after the original redaction of this text.

Image: Public domain via Wikimedia Commons