PUBLIC GOOD OR FREE MARKET?: Cultural professions in Germany and the European copyright regulation

Cultural performances and works have always been positioned in between national heritage and commercial commodity. Especially in the European continental countries the character of the cultural possessions has been traditionally emphasized. However, on account of technological development (digitalization), accelerated expansion, internationalization, the commercialization of the cultural economy has taken place over recent decades. Facing this development, the tension between a social relevance and the need of ethical values on the one hand and market forces on the other bears a new quality of contradiction between social and economic demands in the field of cultural work. This contradiction is nowadays expressed even in employment conditions, which are becoming more and more heteronymous, extremely competitive and more often precarious, because of short-term contracts and lacking continuance of income.

In Germany cultural professions enjoy a special position in the German welfare arrangement because of the imperative of freedom in the field of culture production. Therefore, cultural, artistic and even media work was treated as a necessary but exotic niche of the labour market. A special institutional arrangement has been built up to frame this field analogue to the general system of welfare state regulation – collective working standards, negotiated between unions and employers and social security provided by the welfare state – but less rigid and intended to support a limited group of freelancers only. But within the structural change of the cultural sector this institutional support has lost its efficiency and the stability of the framework itself is put into question. The underlying problems of this development have to be seen in the change of the cultural sector itself, and related to the economic environment and the development of the labour market in general.

One essential reason for the societal status allocated to cultural professions in the German context is related to the conception of intellectual property, which is incorporated in the German copyright law (Urheberrecht). In contrast to the Anglo-Saxon version, where the commodity character of cultural production is given priority, the German copyright is in line with the continental European tradition of the ‘droit moral’, which implies that cultural goods and services, being intellectual work, are protected as an individual property of the author. Caused by a rising imbalance between freelance professionals and the economically powerful companies of the cultural industries, this legislative protection of professional performances is loosing its effectiveness. But even new EU directions are destabilizing the national copyright law regulation in Germany.

European copyright regulations, attempting to achieve single market harmonization, tend to resolve the tension between national markets, domestic self-interest, and different legal viewpoints of the European member states. Furthermore, the idea of the so-called knowledge society is supposed to accomplish political coherence and to establish a universal frame for the allocation and distribution of information and knowledge in the European Union. But does this direction open up an adequate answer to the change in structure of the cultural and media sector and the entire information economy? Regarding the German case, this chapter will show that the present EU directions, developed within the concept of the knowledge society, break with the leading concept of cultural professions, but without providing a consistent foundation to solve the societal challenges of the internationalization of culture and media production.

In Germany the link between professions and the state has been deeply embedded in the institutional system of the welfare regime. Established professions are granted an exclusive monopoly of knowledge and jurisdiction, and their members enjoy a privileged social status outside of market competition. The cultural professions are allocated to the so-called ‘freien Berufe’, as the established professions in Germany are, but there is no Chamber principle and no control over recruitment. Nevertheless, the cultural professions are integrated into an institutional arrangement which refers to their social relevance and underlines freelancers’ professional autonomy (cf. Schnell 2003).

A cluster of institutions are involved here, which were set up or developed between 1965 and 1983, and which have had decisive influence on the structure of earning conditions for cultural professions in Germany. Autonomy is not guaranteed as a group privilege, but is intended to be enabling and supporting on an individual level. The principle of regulation behind this setting is illustrated by its two central columns: the German law for the protection of intellectual property, and the social insurance for freelance artists and publicists (‘Künstlersozialversicherung’).

As in most continental European countries, German copyright (Urheberrecht) is based on the concept of ‘droit d'auteur’ or ‘author's personal rights’. The centre of this legal perception is the idea of an ‘individual intellectual creation’ which has to be protected non-materially against change of content or other misuse, and materially in the form of property rights and exploitations rights, beyond various forms of exploitation and usage (cf. Fohrbeck et al. 1976: 328). Media companies as broadcasters or publishers, for example, are qualified as ‘utilizers’, who have to pay for the utilization of a creative or intellectual work, while the author keeps the property right on it.

In addition to the legal protection of individual works and performance, the German model of cultural professions implies a social existence protection which is formulated in German social law as an exceptional case. The artists’ social insurance law enacted in 1983 is intended to guarantee a minimum level of security for artists and publicists who work freelance. The institution, ‘Künstlersozialversicherung’, organizes their integration into the obligatory system of pension and health care insurance, whereby contributions are divided among the insured, the utilizing companies and the state (cf. Betzelt and Schnell 2003).

A characteristic element is the inclusive alignment of these regulations. They relate to factual performance and not (exclusively) to a licensed group. The development of this regulatory framework for cultural professions in Germany can be explained by the interplay between historical, traditional ideologies and progressive welfare state reform. And until today these roots are still affecting the interpretation of cultural work.

One of the influences is reflected in the European cultural tradition, in which culture is interpreted as an affirmative, specially occupied sphere, in the sense of a collective, emotional area of protection. Of fundamental significance is the moment of subjectivity which arises from the romantic thought of originality with relation to artistic creativity. It is particularly significant in copyright law that individual authorship, or the idea of genial author personality as a key figure, forms the central culturally historical starting point for the collectiveness of the cultural professions in Germany. While in Anglo-Saxon countries the talk is more of ‘the arts’, ‘the press’, ‘the media’, the continental European perspective refers to a national culture as an entity.

Since the general rules of industrial capitalism established in the historically developed welfare state could not find a link to the niche of culture, most of the welfare states in the continental European area have developed a conservative-paternalistic relationship to culture (cf. Wagner and Zimmer 1997). In the Federal Republic of Germany, however, this classic model of ‘culture state’ is disconnected in a liberalizing manner (Göschel 1997: 246). And it is here that a second influence takes effect, namely that of the fundamental right of freedom of art, press and expression of opinion (Par. 5 German Constitution), which was included in the German Constitution after the second World War under the influence of the (western) allied forces. Although the fostering of culture was to be fixed as a public process and not left (only) to private interests, the decree of ‘state abstinence’ has since applied for concrete, cultural activities. This also involves the fact that the state may not make any qualitative judgement as to what is art or what is not art, and who can call him/herself an artist. Every person should be able at any time to become an artist and to freely express his/her opinion.

The third connecting influence which has completed the assembly of the institutional arrangement emphasized here is formed by the social-democratic policies and welfare state reforms of the 1970s. Starting from the paradigms of industrial society, the orientation of German cultural policy was expanded. In line with the school of pluralism, the democratic potential of a wide-ranging cultural participation was emphasized (‘culture for everyone’). At the same time the social standing of artists and publicists came to the fore with the interpretation of art as work, which is related to market constraints and intended to be paid for. As a consequence, several new regulations were established in the cultural sector with the purpose of creating a substantial basis for freelancing work on an individual level (Fohrbeck et al. 1975). In this perspective the copyright and exploitation law was considered as an ‘individual working right’ of freelance artists and publicists, and enhanced its institutional base accordingly. In a lengthy political process which stretched into the early 1980s, the ‘Künstlersozialversicherung’ was set up. Under special consideration of individual autonomy in ‘creative work’, cultural professions were integrated into the German welfare system. In a sense in cultural policy there was a reinterpretation of the principle of freedom of art, by which it was no longer defined as freedom ‘from’ the state, but as freedom ‘through’ the state.

Despite or because of the open and participatory conception of culture in the 1970s, traditional cultural perceptions have maintained their effective influence. And while the target group of cultural professions can only be defined positively, but not exclusively, the idea of ‘the’ culture proved to be a relatively manageable and limited niche of industrial society, which was as a precondition for the privileged integration of cultural professions into the (west) German welfare state. In addition to this, the assumption was implicitly incorporated that freelance artists and publicists were following a personal ‘calling’, for which the motive of autonomy formed a decisively subjective drive. This uncompromising defence of their individual freedom now had only to be integrated into the general system welfare state regulation. As such the regulatory framework provides a secondary support in relation to individual professionalization. Economic dependency and risks are confined, but without eliminating market forces (cf. Schnell 2004).

Furthermore, this institutional arrangement framed collective action, organizational structures and political strategies, in cultural professions. As an analogue to the principles of industrial relations in Germany, the contradiction between capital and work was in the centre of political consciousness at this time. In fact, however, collective action resulted from the advancement of disciplines. Although the regulatory framework referred to the conglomerate of the cultural sector as one more or less consolidated complex, it supported further specialization and the professionalization of single occupations (cf. Selander 1990; Schnell 2005).

With this open approach to the market, the regulatory framework served as a catalyst for expansive change in the cultural sector in the subsequent period. Compared to the densely regulated German labour market the working structures of the cultural sector remained much more open and flexible, even though the institutional system provided a basis for social security. This was shown to be a successful model, especially in the 1980s, which were characterized by relatively moderate growth of the cultural sector. However, the acceleration of expansion and structural changes of the cultural industries in the 1990s caused an imbalance between regulation and growth. Step by step the constitutive material preconditions and moral ties, which the regulatory framework is based on, have been undermined.

Commercialism and market rationality increasingly infiltrated the cultural sector. While previously a ‘public borne’ cultural landscape was assumed, there has now been a shift in location from the cultural sector as a public cultural service to the private-commercial domain. The information and media industry as well as the design and music industry prosper, while in the arts the positive influences soon falter due to the increase in economic priorities at the start of the 1990s. Digitalization and the international links of the media market organized on a private, economic basis cause a ‘secularization’ of the media from the national niche of culture. The ‘digital revolution’ drives forward the transfer from mono-medial exploitation of artistic and publicist performances to media-overlapping exploitation. Audio-visual media, newspapers and magazines, the book trade and music are in the hands of globally operating media concerns. Overall, capital considerations and the ‘shareholder value’ gain importance in media production (Hautsch 1999: 15).

The historically developed reciprocity structure of the cultural sector, which forms a decisive precondition of the regulatory framework, is removed. ‘Author’ and ‘utilizer’ were traditionally seen as a moral (‘ständische’) community of interest, which could only guarantee cultural freedom together. The reforms of the 1970s caused a re-examination of this relationship into the so-called ‘solidarity consensus’ in the cultural field. In the 1990s, however, these traditional bonds became a victim of economic developments. In their place singular and temporary commitments emerge, which are based on project work and mostly comply with pragmatic and economic rules. There is a change in role on both sides of the labour market. For example, the classic publisher, who traditionally filled the dual role of media entrepreneur and publicist personality, develops increasingly into a manager, thinking in economic terms. And the functional role of the newspaper editor or the publishing lector, which implicated a dual obligation to the publishing house or the company and the freelance authors, now disappears and is replaced by calculated economic rationality (cf. Dex et al.2000; Blair 2001). Outsourcing measures increasingly exacerbate this development.

While fixed and short-term working contracts and self-employment in the cultural sector were treated as exceptions in the otherwise tightly regulated German labour market, and were justified by means of the guarantee of pluralism of opinion and variety of contents, such aspects disappear in the course of structural change based on market rationality, economic efficiency and flexibility. The differences in power between the cultural industry and cultural professions increases even more on account of intensified competition in the labour market, as a result of the increasing number of qualified university graduates who can no longer be absorbed by the market. The regulatory framework was not ready for the diversification and deregulation of media and cultural work which followed the dramatic intensification of competition after the slacking of the media boom and the collapse of the ‘new markets’. Secondary support via institutional regulations no longer provided freelance professionals with sufficient protection against bureaucratic and commercial restraints and the overriding power of the economy.

In addition, the arrangement itself comes under increasing pressure. Its original capacities were clearly overstretched as a result of market expansion. For example, the artists’ social insurance originally forecast a target group of 30,000 persons maximum. In fact in 2005 there were more than 140,000 insured persons registered. The dependency on public subsidies considerably increased the pressure for justification in view of the chronic lack of finances available from government and the social system. At the same time, on the side of the utilizing companies, the gap widened between public facilities and economically weak companies on the one hand, and internationally operating media companies on the other, which successfully sought to detach themselves from the system. There was not only an immense change in culture from a public entity to cultural commercialism, but also from internationalization, with the result that the strategy of national protection no longer proved to be functional.

In general all indications point to a situation in which the supposed line between culture and society has become more permeable over the course of time, both idealistically and structurally. Beyond the clear contrast between creative work and Taylorized industrial work, there are no clear ideas, processes or instruments which could plausibly differentiate between legitimate artistic cultural works. One concrete example of this is the question whether the professional image of the web designer, which developed in the course of the internet boom, is integrated into the artists’ social insurance or not. It was only after years of legal dispute that this was decided and agreed. In contrast, the case of an action artist, who ran across cars, was rejected because it was deemed that he did not display an ‘artistic, creative standard’ (cf. Bundessozialgericht 22, 2005).

While in the 1980s and 1990s under the conservative government (Kohl era), the development of the cultural and media market was observed in a passive manner, the red–green coalition which came to power in 1998 took on the task of reforming the institutional framework of the cultural professions. Institutional reforms were launched which represented an attempt at continuance of the German model of regulation for the cultural professions into the new century, while further developing the thread of the social-liberal politics of the 1970s. State responsibility for the variety of culture and opinion is emphasized as well as the absorbing of social risks for the cultural professions. The discussion remains inadequate, however, in respect of the economic imbalance as well as the structural thinning out of disciplinary and moral orientation (cf. Dietz et al. 2000: 21). A characteristic of the legal adjustments was the maintenance and stabilization of institutions. But, because the field of cultural professions has grown so dramatically and has differentiated, only a relatively small section of the overall problem is dealt with, and the reforms have missed the real requirements of the challenges for regulation.

The amendment of the Artists’ Social Insurance Law of 2001 is an example of such political pragmatism (BT-Drs.14/5792 2001). Structural problems are taken as a cause for system-inherent modifications, without actually changing the institution in its substance. A redefinition of social and cultural political reasoning for the artists’ social insurance is not provided. The weakening of the reciprocity structure within the cultural and media field is ignored, as is the decreasing obligation, especially for private companies, in relation to charges.

A continuance of the regulatory framework for cultural professions is also the aim of a new regulation of the protection of intellectual property in the form of German copyright law. A law amendment in 2002 aims at diminishing the risk of evading the protection of individual performances – which has increased as a result of technical and economic development (Bundesgesetzblatt 2002). Such practices as ‘total buy-out’ or contractual paragraphs which deny the authors the chance of generating economic earnings from the growing potential for multiple exploitation via new communication technologies justify a new regulation of the legal contract conditions of authors. In line with the institutional framework even the process which resulted in this law amendment at the beginning of the twenty-first century concentrates primarily on the level of labour policies, that is to say exploitation and dependency are to be replaced by contractual freedom and economical viability. A campaign for ‘appropriate payment’ for intellectual and creative work, initiated by an association of unions and professional organizations, resulted in a lengthy and intense debate. But even in the course of this conflict, the dramatic economic gap between the utilizer companies and employees is demonstrated. While publishers use extensive advertising campaigns, banners in TV series and direct lobbying among highest government circles against the copyright contract law, authors’ associations can only turn directly to the political representatives of their interest and have difficulty in bringing their positions into public view. So at the end of the day the ‘Law to strengthen the contractual position of authors and artists’ (authors’ law) in the frame of the German copyright legislation became effective in mid 2002, but it was slow in implementation and with considerable restrictions (cf. Delp 2002). This is not least on account of the fact that no concrete regulations for its execution are specified by the legislator. The delegation of negotiation of the concrete conditions between the corporate actors, similar to the German tradition of labour agreements, was problematic. The contractual parties were called upon to show their cooperation and to negotiate an ‘appropriate payment’. But the utilization companies in the publishing field formed an umbrella association to deal with this issue, and ignored the aspirations of the creators’ or authors’ associations in the scheduled negotiations regarding ‘appropriate payment’. Finally, years later in 2005, an arbitration process was initiated, on the intervention of the legislator. But only authors of fictional literature were able to negotiate with the association of publishers concerning a consensus about standard contract conditions, royalties and profit participation. In the case of film and TV producers the new law requires a change of the system of production financing. In cases such as freelance journalists and especially literary translators the corporate employers blocked negotiations and up to now no consensus has been found (Schermer-Rauwolf 2007).

The massive imbalance of power between utilizers and authors was thus slightly improved. But, overall, it seems clear that the strategy of continuing a quasi-Fordist social policy, based on collective regulations negotiated by the corporate actors of employers and employees in combination with an income based, state regulated social security system, is bound to fail in the field of cultural and media work today. It does not consider the removal of the outer limits of the niche of culture, nor the shift in internal relations, especially the imbalance of market power between huge media companies and individualized self-employed artists and authors.

As one can see regarding the regulatory framework of cultural professions in Germany, institutional regulations provided supportive preconditions for the expansion and development of the cultural sector in the past, but it does not provide a regulatory perspective, which might be still appropriate for the structural changes and social and cultural changes involved. In the background the dichotomous models of culture and industrial society are still evident. A solution able to integrate the changes and economic restraints of the cultural sector is lacking. Only social democratic politicians argue strongly for state responsibility in culture politics. Otherwise the model of cultural policies built up in the 1970s, which focussed on cultural participation beyond elitist distinction, and which supposed cultural production supported by the welfare state, has become obsolete. Instead, the idea of a post-modern pluralism, which emerged during the 1990s, is being adopted and aligned with an agenda of cultural policy which emphasizes more differentiation and selectivity. Therefore, the focus turns back on to the classical fields of culture production, art, music and literature. In addition, importance is attached to the contribution of cultural workings and performances and to the symbolic representation of the national culture. Facing the reality of the ‘market society’ (Neckel 2001), the general increase of privatization of common goods, widespread deregulation and rising competition, the old idea of the cultural sphere as an island of non-expedient communication experiences a revival. With regard to media policy, however, a different orientation is pursued. Economic interests gain in significance over idealistic, media-political targets. Not least because of the payment obligations of the consumer which are considered to be too high, the fee-financed public broadcasting system has to legitimize its financing policy. Related to the private media market, regulations shift in a complex balance of interests between the state's need to stem the concentration of power in opinion-formation, and the international competitiveness of the domestic location.

Now European directions are changing the constellation of copyright law on the national level with a decisive impact on the regulative framework of German cultural professions. On a European level the so-called information and knowledge society forms the core of the development model for the twenty-first century (cf. European Commission 2001). This involves the transformations brought about by the expansion of the modern communication means of Fordist industrial society into a societal formation, in which information and knowledge have become the central precondition for societal development, and the most important productive factor (UNESCO 2005). Copyright laws and pertinent intellectual property rights represent an important regulatory instrument for this concept of the knowledge society. Therefore, EU directives passed in 2001 tackle the question of copyright legislation from two sides: of special importance is the harmonization of the European domestic market in view of the technological development of information industries. In addition, however, there is another overlapping political direction of impact which implies requirements for the development and safeguarding of the ‘democratic knowledge society’ (cf. Steinbicker 2001).

The perspective of information and knowledge society enhances the context into which national copyright laws have been embedded up until now. Actors, such as the electronic equipment industry and the consumer, who had previously played a secondary role, are becoming more important. The electronic equipment industry in particular represents an extremely strong economic interest. In arguing against charges levied on units used for copying, and defined in the exploitation rights of intellectual properties, this emphasizes the argument about the intensive price war on the international electronic market.¹ The financial dues are seen as a further weakening of the national economy and an alignment to the real sales price is demanded. In addition the new technical possibilities are to serve the interest of the general public by providing open access to information. For example, to fulfil their education requirements, libraries are able to make their stocks accessible in digital form.

In essence the question here is the access to knowledge as a public property and core resources of the knowledge and information society on the one hand, and the protection of intellectual property on the other (cf. Grassmuck 2002: 2; Poltermann 2002: 19). The aim of the national implementation of the EU framework directives is declared to be a ‘fair compromise between intellectual property and the knowledge society’ (Bundesministerium für Justiz 2004: 1). In fact the interests of the author and the artist in comparison to the economically strong actors of utilizers and the electronic industry, and in comparison to consumers in general, are losing importance. This can be seen in the omission of the author's personal rights, the ‘droit moral’, within the scope of the adjustment attempts.

The position of individual authors under copyright legislation is, as described above embedded in different legal traditions and appreciations of cultural works and performances in the European member states. Interpretations and classifications range between the UK, adoption of the common law tradition, and France or Germany, as countries which act on the Roman legal tradition. Pursuant to the doctrine ‘work for hire’, the Anglo-Saxon model of copyright law prioritizes traditionally economic imperatives. Therefore, it only provides a protection for investment, which mainly relates to the production companies, and which accordingly allocates the character of a service to artistic and publicist work. In Germany, as in most continental European countries, the concept of ‘droit d'auteur’ or ‘author's personal rights’ is firmly embedded in copyright legislation, i.e., ‘Urheberrecht’ (Dietz et al. 2000: 22).² The central dimension of the droit d'auteur or author's personal rights, which is missing in the Anglo-Saxon frame of copyright, is the idea of ‘individual intellectual creation’ which has to be protected non-materially against change of content or other misuse, and materially in the form of property rights and exploitation rights, beyond various forms of exploitation and usage (cf. Fohrbeck et al. 1976: 328). The continental European model constitutes a special moral right on the part of the individual person and attributes even a societal relevance to cultural professions, neither of which appears in the Anglo-Saxon concept of copyright law.

EU directives, however, exclude the dimension of author's rights, which means that these are still to be dealt with as a national issue. The justification for this is that no trade barriers or distortions of competition will result if this continues and so authors rights’ come under the subsidiarity principle (cf. Alemdjrodo 2005). It can be assumed that the incompatibility of legal constructions of intellectual property rights play a decisive role here. Overall, the context for consideration is enhanced by means of the EU legal directives, but the role and the position of cultural professions in the international information and knowledge society is not resolved. However, defining a new frame across national markets and cultural traditions to exploit intellectual properties as in the concept of knowledge society but without re-defining the position of the authors there in, implies first of all the assertion of the Anglo-Saxon model of cultural work, promoted by the more and more dominant, internationally acting media companies.

In the German context the regulation requirements stemming from the EU directives have been affected in two stages. At first, relatively uncontroversial elements were implemented which were raised by technical development, particularly with regard to the Internet. In this first ‘basket’ of laws, supporting regulations were passed for measures which prevent unauthorized distribution, for example, Digital Rights Management technology. It was the second ‘basket’ which contained regulation requirements with regard to contradictory dimensions of the media which necessitated structural change. The priority here was the adjustment of the payment system to the technical development of digital, multiple copying, and especially the problematic issue of private copies (Bundesministerium für Justiz 2004).

The lack of EU directives regarding the protection of the author is, however, structured in the national implementation in the German context in such a way that the interests of the industry are almost inevitably paramount. The principle of non-transferability of copyright emphasized in the recently passed amendment, the ‘law to improve the contractual position of the authors’ (Bundesgesetzblatt 2002) mentioned above is questioned, because of its contradictory implications concerning the frame of regulation which is supported at the European level. Following the intention to facilitate consumers’ access to information, the German government is considering allowing the transfer of rights for future unknown types of use of works and performances to the utilizing companies. With the consequence that it would be even easier for the utilizing companies to use performances and works, without ‘appropriate’ participation of the authors involved. This would affect especially works which are to be found in archives. Protection for the authors against the utilizers as the stronger contractual partners is only provided by the obligatory claim for payment and rights to revocation (Bundesministerium für Justiz 2004: 19).

The processes of interpretation of the EU directives and new interpretations and precedents of German copyright law have continued now for more than three years. Questions of detail lead to controversial discussions between the federal government and the federal council, the electronic industry, the media industry, consumer organizations, the collective society (which takes up and distributes charges for utilization of intellectual properties) and the authors associations. Conflicts are resulting from an increase of demands and interests and unsolved questions about the exposure to intellectual properties against the background of internationalized information industries and demands for open access by consumers to knowledge, as a requisite for the developmen t of the knowledge society. The situation of cultural professions is affected by new competing objectives of copyright regulation, whereas the protection of the individual intellectual work loses priority (Bundesrat 2006).

It is interesting to see that a split of interest is now appearing amongst the authors and producers of intellectual and creative works. Whereas scientific authors in general are particularly interested in open access to their works and findings of research, authors associations in the field of cultural professions are understandable afraid of expropriation of their properties (cf. Sieber and Hoeren 2005). But this has to be seen in the context of different systems of regulation in both fields of intellectual work. Whereas the majority of scientific staff and researchers in Germany today work as civil servants, in cultural professions it is market-related, freelance employment which is dominant. Yet even in the field of scientific knowledge production a similar development to that in the field of cultural work is becoming apparent, which is that professional careers are becoming much more uncertain and are no longer secured by the academic institutional system.

In Germany the traditional continental European understanding of intellectual and creative work – as original and subjective, and only able to be developed under conditions of individual autonomy – resulted in the implementation of an institutional system intended to balance market forces and the need for public support. A decisive element in this balance was the copyright law which provided non-material as well as material protection for the individual performance.

This model of regulating cultural professions has been undermined by immense structural changes. Since the cultural and media industry now form a central segment of the international economy, the problematic issues of overall societal importance are to be dealt with by the regulatory framework, which inevitably can not handle these excessive demands. At the same time the liberalizing of the concept of culture, the change in lifestyles and media infiltration of the working and private world, results in a situation in which culture is no longer identifiable as a closed, societal ‘niche’. Attempts to continue the institutional arrangement on a national level against the loss of constitutive preconditions have proved to be inadequate in the face of the dramatically superior strength of the economy.

In the context of the EU the question of copyright is placed in an expanded framework of interpretation, that of the information and knowledge society. The ambivalence of immaterial societal properties and the private acquisition and marketing of intellectual property is negotiated in this context between economy and society. In addition the idea of the knowledge society even implies a paradigmatic change with regard to the construction of professional expertise, which does not comply with the traditional conception of a small group of experts which collects and acquires knowledge and passes this on to the initiated only. Because of the tremendous expansion and spread of modern means of communication, it has become possible to gain an unlimited amount of information. But information is only transformed into knowledge by means of evaluation, classification and hierarchization, which implies an increasing requirement of expertise in the selection, translation and mediation of knowledge. From this perspective the cultural professions represent, in a prototypical manner, a post-modern paradigm of expertise, in so far as they contribute considerably to the transformation of information into knowledge. In contrast to the established professions, however, they are not able to claim an absolute authority, monopolize their field of knowledge and distance themselves from economic competition (cf. Charle 1988; Koppetsch et al. 2002; Krzeminski 2002).

The differences between the idea of public support of individual autonomy in cultural professions (illustrated here in respect of the German case) and the less ideological and much more pragmatic Anglo-Saxon model (of markets of cultural productions) highlights the difficulties in attempts to arrive at an agreement about the legal warranties and the role of cultural professions in Europe of the twenty-first century (cf. Alemdjrodo 2005). On the one hand there is the ‘old’ idea of a social need for a stimulus of intellectual creativity and originality which is supported by subjectivity. On the other hand professionals are positioned as service providers. Regarding the reality of the cultural sphere today, both dimensions seem to co-exist. Alternatively, present scenarios, on both national and European levels, indicate that the relevant questions regarding the quality of performances and the disciplinary and ethical requirements in the field of cultural work seem to be less important than the technical and economic arguments for the transformation process. According to this perspective it can be suggested that, instead of the politically ambitious guiding idea of the knowledge society, the term ‘information society’ would appear more appropriate and relevant to the European project today.

Christiane Schnell is post-doc researcher at the Institute Labour and Economy at the University of Bremen. She completed her Ph.D. about the regulation of cultural professions in Germany in 2006. C. Schnell published several articles about the field of cultural work and has contributed to conference proceedings in which she has investigated empirically and theoretically in the structural changes of the cultural sector and the development of the so called Creative Industries, networks and collective strategies as well as biographical dynamics in artistic and a broader range of cultural professions.