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On Intellectual Property
By Behnam B. Marandi, Crossroad, Jinoos Taghizadeh
crossroad@tehranavenue.com
August 2006
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The issue of "intellectual property" is one that has pitted defenders of public rights against advocates of individual rights. In Iran, the issue has seldom been debated. Advocates of individual rights maintain that the originator of a work is its owner, that any use of the work is akin to theft, and that the law should treat it that way. For them, intellectual property is an absolute right of the owner.

Defenders of public rights, on the other hand, reason that limitations in the use of creative works ultimately benefit the rich and powerful who have the ability to inventory rights. To them, one of the characteristics of a work of art is its infinite connection with the environment that gave birth to and bore it; as such, works of art belong to the society at large and all must benefit from them equitably. Clearly, misuses and abuses are prices that must be paid for keeping the flow of knowledge and creativity unhampered.

In the absence of large, monopolizing (Euro-American) corporations and in the absence of intellectual property enforcement in Iran, the question of copyright has not had grounds for public discussion. Most people would readily agree that laws must protect the owner of, say, a piece of writing on the Internet, but when it comes to using images available on the Net, few will find it a case of rights infringement. The copyrights laws of Iran were first passed in 1969, which the post-revolutionary order re-affirmed in 1983, but they are seldom abided by or enforced. It seems that in a post-industrial, Western societies, the issue of individual rights is well entrenched, but the same issue in a country like Iran is much more ambiguous.

Our artists and producers complain about lack of binding laws and enforcement. For example, in a recent interview with the head of Hermes Record Company here (see "On The Difference Between Good and Serious Music"), Ramin Sadighi told TehranAvenue that many of the works of Hermes are daily broadcast from state radio and television without any royalty payments. Another example: the Barbad Record Company published an album by the well-known Iranian alternative band, Axiom of Choice, using a law that exempts any copyright application on works published outside the country. The company not only published a selection of songs from various albums of the band, but took liberties to add the voice of a male singer on top of that of the original female singer.

The following interview started two years ago. We spoke to photographer {Shadi Ghadirian} who had then taken the Alborz Publishing House to court for using a photograph of the Qajar collection of the artist without permission (the publisher when so far as amateurishly removing elements from the original photograph). When we first interview Ghadirian, the lower court had issued a favorable verdict, but the publisher appealed it. We decided to wait for the appeals court to finalize the verdict. Two years later, it went against the artist and her renowned lawyer {Shadi Sadr} -- TehranAvenue.

***

TehranAvenue: Did you know many among your artist friends who had problems with property rights? How did they deal with the infringement of their righs?

Shadi Ghadirian: I think all artists have had similar rights problems but didn't know what to do. The first thing that usually came to their mind was to go to ERSHAD [Ministry of Culture and Islamic Guidance]. There must be a place in Ershad filled with infringement complaints; and since the Ministry is unable to do anything, complaints are left by the wayside. The reigning bureaucracy forces the plaintiff not to pursue the matter in court. Before me, I know only of Mr. {Shahrudi} who filed a complaint.

TA: Is this true also of authors and writers?

Ghadirian: It is different with written material. When I saw Mr. {Abbas Elmi} [head of Alborz Publishing] first I reasoned that if there were no limitations on copyright, he could've easily published many books based on written material available in weblogs and websites, which are filled with short stories. He replied that stories were different and that he wouldn't bring himself to use them. Another words, he accepted that he shouldn't use works of fiction, but his position on photographs was different. The same was true with many other publishers.

TA: We should mention that Iran is not party to international copyright laws, which means that the country's laws would not protect a work registered outside the country, and vice versa. But we do have an intellectual property law, which is not necessary enforced.

Ghadirian: Once a Spanish magazine wanted to put a photograph of mine on the cover of a book. They found me, I don't know how, asked permission, and sent me the money they had set aside. The same book, when it wanted to get published in other European countries, brought me royalties. One can see how attitudes are different. It is not impossible to find the originator of the work, especially in the age of the Internet.

TA: It seems that in this case the Internet has become a double-edged sword. Do you happen to have the book that misused your photograph?

Ghadirian: I couldn't find the book, but I have the modified images that went on its cover. I also have the jury statement.

TA: After filing the case, how did your artist friends react? Were they hopeful that the court would create a stir and change things for them?

Ghadirian: When the story broke out and was first reported on www.akkasee.com, seven or eight individuals called me to ask for my lawyer's phone number. A good lawyer is very important in such a case. After the news, Mr. Shahrudi and several others also changed their lawyer. Everyone agreed that Ms. Sadr was an able representative.

TA: We learnt that Mr.Shahrudi was in fact one of the three members of the jury. Why did Mr. Elmi consent to this choice, while he knew where he stood with regards to the issue?

I chose Mr. Shahrudi. Mr. Elmi chose Mr. {Haqiqi} and Ms. {Zandi}. Ms. Zandi worked with Albors, selling the publisher photographs, and Mr. Haqiqi, who is a graphic artist, was a friend of Elmi. Even these two voted against Mr. Elmi. They contacted me later and said that their friendship with Elmi had gone sour over the court case. Ms. Zandi asked for Ms. Sadr's phone number and Sadr is currently representing her.

TA: Let us pursue the issue from a different angle. We can see that legal rights vis-à-vis property rights in Iran are virtually non-existent, which steps on the rights of artists. On the other had, legal strictness when it comes to these laws will benefit large commercial corporations more than the artists. These corporations sometimes register rights for themselves and do not even allow the artist to use them. Our question is, what are the limits of such laws?

Ghadirian: I always believed that it was the artist who needed to decide how her work should be used or presented. The first thing, of course, is to mention the artist's name. If this doesn't happen, we have a case of cultural robbery. They once used my photograph without permission in Denmark. They used it for an article on {Salman Rushdie}. This came as a surprise and I even thought that it might be dangerous for me. This was years ago; I think it was the second time any of my photographs were being published. The Danish magazine later apologized for this action, but the question that it gave way to remains -- the context within which an image is used is also important and can change the meaning of the work, and this is an important issue. Therefore, only the artist can decide where she wants to publish her work. Here, I think the question of using the Internet should be made clear.

TA: Does Ershad issue a permit for work that would oblige the user of an image to report to its originator? I think when it comes to music or film there is such a permit, but what about works of the visual arts?

Ghadirian: No such obligations for visual arts is in place and publishers are not bound to consult with the originator of the image. As such, the issue becomes very subjective; another words, it is left to the discretion of publishers whether to ask permission or not.My approach towards the publisher was originally based on this subjective relationship. I talked to Mr. Elmi, thinking that he would change his mind once he sees the infringement, and I would've been happy had the issue ended there.

TA: Of course, such permits also aim at individuals rather than legal establishments. New laws are introduced to the legal system very conservatively. The nature of legal institutions dictates this conservatism, as even legal activists argue, because it is a very delicate matter when you want to pass a verdict. I am sure that Ms. Sadr would also agree that the passing of a law and the introduction of new concepts like intellectual property my take years in the existing structure. This is also true in legal systems that are a lot more flexible than ours.

Ghadirian: Well, my intention was to bring awareness with regards to this issue. And, let me add, that book was printed with my photograph on its cover.

TA: We understand that in the reprint, the publisher was forced to change the cover image. Did Ershad ask the publisher to do this?

Ghadirian: What Ershad did was to tell the publisher that they wouldn't issue a permit for the book should it keep its cover. We thought that the Ministry would stop the book's publication entirely, which would've constituted a much harsher punishment. But this didn't happen. Changing the cover of book is not that difficult for the publisher.

TA: Do you know of publishers that would commission photographers?

Ghadirian: Publishers usually have contract agreements with graphic artists. I think every publisher, in fact, has a graphic artist at its disposal. The problem is, however, that even graphic artists do not respect the rights of others. I have never heard a photographer, for example, be commissioned to do work for the cover of a book. Graphic artists simply treat images on the Internet as their archival source.

TA: You mentioned that you went to the Tehran Book Fair to meet with the writer of the book at the publisher's booth. How did she react to the news?

Ghadirian: I didn't know that the writer would be there. I just went to the booth to show my presence. When I saw the writer, I thought that she wouldn't know about the issue, as such, I didn't blame her. And she didn't know about it.

***

Two years later…

TA: We heard that despite the final court ruling, you are still pursuing the matter. What have you done recently?

Ghadirian: After the unfavorable court ruling, I was sitting in SHOOKA Café and relating the story to its owner, {Yarali Pourmoqaddam}, who is a writer. One of Mr Pourmoqaddam's stories, called Pagard-e sevvom (Third Flight of Stairs), had also been printed without permission in a book called Hashtad saal dastaan-e kutah-e irani (Eighty Years of Persian Short Story), collected by {Hasan Mirabedi}. Together we decided to use the website (www.fanoosphoto.com) to create an exhibit of works whose rights of authors had been disrespected. The idea was that if enough people got together and raised their voices against such theft, it would be more effective in both raising awareness among artists and in bringing attention to publishers and graphic artists. We prepared a general call for the submission of works thus disrespected, to ultimately show them in an exhibit next to works that had used them illegally.

TA: So far, how much has it cost you to pursue this case? The reason we ask is that many people my want to know if it was worth going through such ordeal?

Ghadirian: Since Ms. Sadr is a friend of mine she agreed to charge me half her usual fee. She ask half of that amount up front and half contingent upon the verdict. In my case, since we lost, I didn't pay the entire fee, but only 250,000 Tomans [roughly 250 Euro].

TA: So the lawyer's fee has nothing to do with the price of the work of art?

Ghadirian: Indeed, there are no art experts at the court to determine the value of a work and for the judge to consult with.

TA: We wish you success in your pursuit.



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