Its a real place (part 5 of 5)

History shows us, again and again, that frontiers are lawless places, but that as they get richer and more settled, they join in the rule of law. American publishing, now the largest publishing industry in the world, began with piracy – Tim O’Reilly

The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries – US Constitution, the ‘copyright clause’

Watcha gonna do about it? Watcha gonna do? – Sex Pistols

Well. What should we do about it? I’ve been spending a lot of time reading around this subject, largely because I had to write this post, but also trying to sift the various opinions, to identify the axis that are in play. One of the bits I spent some time with is this talk by Professor Paul Heald of the University of Illinois. It’s just over an hour long.

He is presenting his work and trying to establish some reliable data that could inform the debate surrounding the length of a copyright, and the value of applying term increases retrospectively. It’s not an easy talk to watch, because it’s an interactive seminar and he is a generous speaker, sharing a lot of time with his audience, but very interesting if you have the time.

The question being addressed is “Do bad things happen when Works fall into the public domain?” , which, on the face of it is an odd question. He’s been looking at what happens when copyrights run out, and enter the public domain.

TL;DR summary here.

So, here we have the academic establishment looking at issues relevant to copyright extensions, but extensions that have nothing to do whatsoever with the incentive to produce new works. Why? After all providing new protection to old works, has no impact on incentivising new works.

Well it’s because congress and the rights holders, have been very seriously advancing arguments to justify retrospectively extending copyright terms. Professor Heald is preparing real data to inform these debates.

There are 3 arguments:

1. Fear of under exploitation – without an owner, there will be no incentive to use a work
2. Fear of over exploitation – without an owner, a work will be used so much that it will be diluted and hence lose value
3. Fear of debasement – porno Disney

This is all serious stuff. Why is it a debate happening, in of all places, America?

It’s because of the influence of European, and particularly French, history on the drafting of the key international treaty appertaining to copyright, the Berne Convention.

So, whereas the American model was, originally, built on the assertions of the US constitution quoted at the top of this post …  “To promote the Progress of Science and useful Arts”  … the European model was influenced by the French “rights of the author”, which encompassed both proprietary (much like US and UK copyrights) and moral rights.

Moral rights, granted to the author for their lifetime, protect against such issues as debasement and the integrity of the works. Hence the argument that Professor Heald is a party to, which certainly adds no value to the debate about encouraging innovation.

The Berne convention, of 1886 no less, eventually won the entire debate. Both the US and the UK finally signed (in the case of the US) and actually enacted (both the US and the UK) the requirements of the convention which now characterise our global copyright structures, but not until 1988. There are now 165 signatories in all, all of whom have agreed to respect the copyright law of other signatories as if it were their own, and have enacted legislation that invokes copyright at the moment of creation, there must be no obligation to register a copyright. It is immediate and automatic. The convention also sets certain minimum limits for copyrights. The minimum for most works is for 50 years after the death of the author, but countries are free to make it longer if they so wish.

Today, our law protects both proprietary and moral rights.

But even though we now have 2 sets of rights to protect, we still only have one weapon to use, the economic incentive of temporary monopolies created by copyright law.

Whichever way we look at it, it all comes down to the business model. The enforcement levers are chiefly economic, therefore the role of the appropriate law, in this regard, should be to provide the necessary protections of the rule of law, to viable and legitimate business models. The business model, whatever that ends up being, must inform the law.

So here we have a classic chicken and egg situation, which will last until someone or something breaks the legislative stalemate.

What do I expect of a business model that is protected by the rule of law?

Well, mechanically it needs to be viable, does it work, can it generate revenue and profit, but it also needs to be legitimate, does it pass muster on society’s ethical standards, particularly, in this day and age, with freedom of speech rights and civil liberties?

This whole series of posts has argued that we are facing a decision between the needs of what used to be a legitimate business model, and the needs of what is most likely to generate the new business model. So it should come as no surprise to learn that I favour making laws to support the requirements of new technology over big content. A business model that requires laws that infringe on hard won civil liberties is no business model for me.

So, with the role that the business model must play, in mind, I am going to look at the various levers we can pull in terms of reforming IP copyright law, starting from today’s base point.

There are 2 big levers we can pull and a whole bunch of silly ideas (that have been implemented to buttress the incumbent business model) that need to be repealed. The two big levers are term and registration, the repeals cover such things as the law against cracking DRM, adding protections against DMCA takedown abuse and punitive damages for infringement.

So, term. How long should a copyright last for?

Let’s tackle the hereditary issue first. The prevailing wisdom is that the financial incentive provided by these legal protections is very specifically to encourage the production of further works, not just by the specific creator in question, but to provide incentive to encourage new entrants to these fields also.

In neither scenario described above, the original creator or a new entrant to the market, does the incentive need to last beyond their deaths. Once they are dead the law cannot incentivise them to produce more works. They are dead, and can no longer produce anything.

Ok, but, what about a young man, say 29, a genius composer, with a young dependant family, who tragically dies age 31. Should his dependants be deprived of the vehicles, that let’s face it, were otherwise going to be paying for their life costs, possibly for their entire lives?

Is the economic value of his legacy like a salary? It is certainly the mechanic via which artists earn their livings. Should they be able to earn money 30 years after they sweated over their craft, when you can’t do the same with the sweat you expend over the craft of your salaried job? Should their dependants be paid this money if they die? That certainly wouldn’t happen if you were salaried, unless you had paid for life cover.

Or on the other hand, isn’t it just like a business? A going concern that can be passed on to your children?

OK. Is an artist’s income like a salary? In some ways it is, in other it isn’t. It is clearly the mechanic that an artist earns their income via, much like a salary. But there are 2 key differences. The income level is variable and it arrives over a longer timescale. Your salary on the other hand is fixed, and arrives every month.

Is an artist’s work equivalent to a business then? Well, no I don’t think it is. The business analogy fails because a business worth inheriting is a going concern. An inherited business brings obligations that a monthly royalty cheque does not.

I think we should look for ways to make these issues irrelevant. I can understand the envy of the salaried, but I can’t see justice in the thought of a corporation profiting from a public domain work, while the creator’s grieving partner and child get nothing.

A fixed term copyright solves these problems. The copyright is inheritable if the owner expires within the fixed term, but cannot extend beyond the original term, regardless of who holds it.

We also, via the fixed term, deliver a mechanism that gives a reasonable opportunity to generate revenue. If a rights holder fails to exploit such an opportunity then I see no obligation on the part of the law to provide additional opportunity.

There are other things we could do. How about splitting that fixed term with protections that lessen over time? Maybe the first 50% of the term is full copyright protection, but the remaining 50% removes some of the rights, maybe enabling the charity sector to use the works as they see fit, commercially or otherwise (obviously there would need to be intelligent oversight here).

Maybe we could introduce a fee that increases over time, making it uneconomic to renew a copyright unless it had a substantial enough value to justify the fee. I think that came from Lawrence Lessig originally. Similarly we could consider a straightforward renewable term, matched with an obligation for application?

That rather deftly, introduces us to the other significant policy lever, registration.

Indeed those last 2 thoughts, both, have strayed into the territory of registration. To administer either a fee or a renewing mechanic, we would need both a central controlling body (they exist already) and an obligation to register, at least at some point, the copyright in order for it to be enforceable.

The Berne convention is clear and intransigent in its opposition to any kind of registration. To some degree I agree. In today’s landscape introducing an obligation to apply for copyright (much like patents) would be a significant advantage for commercial organisations over individuals. I do not think that that is conducive to generating efficiency in today’s communications landscape.

Nonetheless, what could we do with registration?

Well, as mentioned above we could introduce it firstly, but secondly we could add some simple variations.

We could stagger it via multiple renewable terms, maybe ever increasing in cost, maybe ever decreasing in length.

My favourite idea would be to enforce a short period of automatic and immediate copyright, maybe 2 or 3 years with an obligation for registration before the end of that term, in order to receive the rights of the full copyright. The automatic term should be set so that an individual has plenty of time to apply for protection is they so wish.

Now, the more attentive will have noticed that I have not put a figure on how long I think the term should be. Indeed I quite sneakily moved over to discussing registration without giving a number, at all. There is a reason for that, which is that I really don’t know what the answer is. Yet.

I think it is something that should be deduced via some form of structured analytic approach. The work done by Paul Heald, that I linked to earlier, shows that economists can and do structure studies to look at these issues. It is this kind of work that is needed to inform the debate.

For me the goal is to identify the optimum term that encourages innovation. I don’t have a study design to do this, but I’d love to see a series of data plots showing average revenue generated, on a 6 monthly basis over 50 years (more where possible),  for a series of different types of works covering music, writing, art and software. And I’d like to see that data for copyrights held by individuals versus companies.

We would also need to find a sensible proxy for measuring innovation, or progress. This is not straightforward and the main reason why I am not suggesting a study design.

Either way, my point is clear. It shouldn’t be too hard to introduce some useful, independent, analysis to answer these questions. This is how we should set copyright terms.

My instincts suggest that they should be much shorter than they are today, but I’d rather see a proper study, to be honest, than add more opinion to a debate that is in serious need of a few factual anchors.

Ok. What about the various pieces of bad legislation mentioned earlier. There are 4 things (at least) I think should be changed.

1. DMCA takedowns. The current system is philosophically horrible. Guilt is assumed and innocence has to be demonstrated. There is no due process. It needs to be demolished. However, assuming that compromise is a more likely outcome we should strive for the introduction of fair compensation for legitimate content owners who are negatively impacted by incorrect takedown notices. This would introduce a much needed measure of justice into this tawdry practice.

2. DRM is simply an affront to common sense. It is only enforceable by making the publication of the encryption key illegal.

DRM has to have a legal component. Basic cryptographic principals state that you can keep something secret by having secret content or having a secret key. In order to work you need one or the other. But DRM requires that you give the user both the content and the key. Otherwise the user wouldn’t be able to decode the content to use it. The only way to make DRM work is to make it illegal to expose the key – slowpoke, Ars Technica poster

Current law makes it illegal for you to crack the DRM placed on a product that you own, even if you still use the product in a completely legitimate way.

3. Punitive damages in legal redress for copyright infringement. Simply needs to stop.

4. Expansion of trademark and trade dress usage. These are dangerous tools for corporations to be leaning towards, because they are perpetual protections. We must guard against their unreasonable use to restrict fair technical competition.

Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.^[1] Trade dress is a form of intellectual property.

Trade dress, and trademarks are the basis for much of the Apple v Samsung IP fight.

The issue here isn’t whether Apple has a good case in current law, or not. The problem is that a case that has significant impact on the distribution of value via technology  innovation could be decided by ‘4 identically sloping edges’ and a bunch of icons that are little alike. Apple set the standard for high end user expectations via these features, as well as the inherent value of the technology itself, which is why Apple wants to limit their usage. Whereas the claim is understandable it is not in the public interest to support monopoly provision of technology via issues such as visual aestheticism. Certainly when those protections are stronger than the technical protections available, patents.

And therein is the danger of trade dress and trademark expansions. These are perpetual rights. Forever. And ever. It might be understandable that corporations seek these levels of advantage but that does not make it right. There are very real issues of loss at risk if we do not find ways to limit these trends.

Right. That’s most of what I wanted to say. This is a long post about a diverse and detailed topic but I still do not imagine I have come close to representing most of the relevant thoughts, ideas and counter thoughts that are furnishing this global debate.

If I have one principle that I feel is important, that needs to be a guiding principle of whatever solution we arrive at next, however long it takes us to get there. It is this.

Clarity. Please.

Clarity implies simplicity. This is important because issues of copyright now affect us all. We (almost) all own tools that we commonly use to publish copyrightable content, and often republish others’ content over a wide range of new digital platforms. Copyright law is no longer a matter of industrial concern, it is something we could all find ourselves on the wrong side of, all too easily.

Take for example, this last story.

Two photographs. Here, please have a quick look. I provide a link instead of the pictures themselves, sincerely because I do not know if I will be infringing copyright to publish without permission.

It was ruled that the second photograph infringed the copyright of the first. This article tells the story (notice how careful they are to credit the photo!) and this is the judges ruling.

I don’t like the ruling, personally, but I can see how he gets there, even though I disagree. The point, however, is how complex it is, when it really shouldn’t be. Clearly there are similarities in those two images, but the second one was taken and structured in such a way, quite deliberately to avoid infringing the first photo’s copyright. The judge took this fact, presented by the defence, and partly used it to establish a derivative link between the two. Anyway have a read, if you can face it. This level of complexity makes the law inaccessible to the common man.

One last point. I have mentioned previously that there is a bloody conflict brewing. I don’t literally mean violence, but I do suggest that this is a conflict of hardened entrenched positions. Defeat will hurt, whoever has the misfortune to be forced to accept it.

Maria Pallante, the US Register of Copyrights, recently said … “Copyright is for the author first and the nation second.”

This post sums up exactly how wrong she is. I will leave you with the sign off (from that post), stating the obvious it may be, but the fact is its highly unlikely Maria Pallante is worried for her job, however much the facts suggest she should be.

The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.

– Fox Film Corp. v. Doyal

I could understand the usual kneejerk anti-Techdirt trolls lying about this.

But when the person who is supposed to be in charge of copyright doesn’t even know this basic fact, it’s time for her to be fired.   –   Karl Heinz