What’s wrong with copyright and how to fix it

The chief problem with recent debate about copyright reform is that it tends to revolve around the essentially ethical question of how to balance the interests of creators (and the corporations who monetise their work) against those of consumers. While it may be true that lately commercial lobbying has done much to swing this balance in favour of creators and corporations, this is not the main source of our current problems with copyright law, and framing the debate in these terms will not address them.

The real problem with copyright is that it chiefly exists to support two business models, only one of which remains viable. One is to restrict access to created works to those who are willing to pay for the privilege. This is currently used by most books, musical recordings, DVDs, etc. The other is to restrict incorporation of part of all of such works into new original works, again unless the incorporator is willing to pay. This latter model is used by many photographs, some music, much clip art, etc. and remains viable, although in need of simplification.

The restricted access model

In an age where almost all content is digitised, and that which isn’t almost certainly will be as soon as it becomes of interest, almost anyone on the planet can create a near-infinite number of copies of a given work, and distribute them almost instantly, largely anonymously and at near-zero cost, on a global scale. This clearly renders the restricted access model obsolete, but it lies at the heart of many commercial operations. Almost all of these have shown great reluctance to abandon it, for understandable reasons, and have instead appealed to lawmakers for assistance. This has in turn led to ridiculous scenarios in which Google is flooded with myriad DMCA takedown requests, often automatically generated and erroneous, people such as Anton Vickerman are jailed for running a website on which people discuss the whereabouts of materials that some of them may not have the right to access, and a live speech by Michelle Obama is blocked on YouTube by automated systems looking for copyright violations.

One particular danger of this situation is that corporations have a very strong incentive to take seriously the claims of anyone who claims they can rescue their business model. This incentive invariably gives rise to companies who claim that they can do so, usually through something called Digital Rights Management (DRM), which is claimed to restrict access to electronic materials to those who hold the appropriate license. DRM is essentially digital snake oil. It is essentially useable to a degree on platforms that the manufacturer controls, such as the iPhone or the Tivo, but hopeless on a general computing platform such as the PC in which the user can do whatever they please. The technical details of this are beyond the scope of this response, but it was recognised by Microsoft engineers as long ago as 2002 (http://crypto.stanford.edu/DRM2002/darknet5.doc). There are also some good explanations at http://superuser.com/questions/14224/how-can-i-explain-why-drm-cannot-work.

Most worryingly, attempting to limit the activities of users on general computing platforms are already being advanced by commercial interests, and are placing our future well-being at great risk, as Cory Doctorow explains in his speech to the Re:publica conference (http://boingboing.net/2013/05/10/corys-berlin-talk-its-n.html, or you can read a précis on my blog at http://fleetingwords.com/?p=93). Pursued to their logical limit (and pursuing them halfway gets little result) they potentially enable a global disaster compared to which the recent financial crash would be small potatoes. If all the world’s iPhones are compromised by hacking attacks, or all the world’s Tivos, that’s bad but not disastrous. If all the world’s general computing platforms are compromised, they are connected to our financial systems, our nuclear missiles, our power stations, our dams, our cars, and even our pacemakers. As Doctorow cogently argues, the danger of this threat is such that even if every record and publishing company goes out of business as a result, we would still be far better off than if we allowed business interests to compromise general computing.

Fortunately, it need not come to that. Academic science publishing already shows signs of moving to an “open access” model in which the costs of publication are met up front, and content is made freely available. For established artists, crowdsourcing the pre-funding of their latest book or album through platforms such as Kickstarter is already a business model with many advantages, including lack of risk, less involvement of middlemen and direct connection to the people who want their product. In addition, it’s in the interests of artists, musicians, authors, even scientists, to distribute their work as widely as possible, so long as doing do is economically viable. Filtering the resulting explosion of self-published content for quality and bringing new talent to the attention of its potential audience remain problems, but I am confident that the market will solve them if there is an incentive to do so.

However, this incentive must be supplied by government and the law. The situation regarding the restricted access model has been abundantly clear for many years, and it’s becoming obvious that business interests will not move forward until forced to do so. Therefore my first proposal is this:

The “all rights reserved” option should no longer be available for any new materials published in 2020 or thereafter: the maximum protection available should be Creative Commons Attribution Non-Commercial Share Alike (http://creativecommons.org/licenses/by-nc-sa/3.0/).

This gives anyone contemplating writing a book or making a movie plenty of time to plan accordingly, knowing that they will not be able to monetise access to their product, because people will be able to copy and distribute it without fear of prosecution, and incentivises the construction of new business processes that will address the modern world. It also has the useful effect of disincentivising all-embracing DRM schemes, thereby averting global catastrophe. Existing materials should remain within copyright for their existing term, as this was the creator’s expectation. The existing legal mess will continue with respect to their distribution, but can be greatly improved by the next proposal

Penalties for violating unexpired ‘legacy’ copyrights should be strictly limited to damage that can be proved to the copyright holder (i.e. you download one copy of Die Hard, you owe the publishers the retail price of Die Hard, nothing more) plus legal costs if the matter comes to court (i.e. no £500 “processing fees”).

We should not tolerate further the ludicrous claims of lost revenue that pass for “copyright math” (http://blog.ted.com/2012/03/20/the-numbers-behind-the-copyright-math/) and make the average iPod supposedly worth 8 billion dollars. It also renders largely uneconomical the activities of “copyright trolls” such as Prenda Law, and frees up courts and related bodies to engage in activities that are actually useful, rather than attempting to turn back the tide of technological progress.

The restricted reuse model

This model remains relatively viable, as it is not fundamentally undermined by our advances in copying and distribution. However, there is little point in attempting to monetise the reuse of content by people who are not engaging in commercial activity. Far better to reassure the general public that they are free to play in the creative world, so long as they don’t try to take credit for things are not theirs, or to make money out of other people’s work. Most people instinctively recognise these two moral obligations as reasonable and intuitive. However, for smooth running of this model, it is essential to:

Establish a repository of original materials, so that their authorship can be unequivocally established. This would include “orphan” works.

Such efforts appear to be underway in the UK, but international cooperation is needed so that national databases are compatible with each other and a global registry can eventually be established. A small fee (e.g. £1) could be required to register an item, to limit baseless claims. Thirdly:

Commercial reuse of original works should never be free, apart from US-style “fair use”, unless the rights holder deliberately places the item in a license explicitly stating this, or grants the user this right as a favour. Orphan works should have the government of the user’s country as the temporary rights holder, and be automatically assigned a CC-BY-NC-SA licence.

Charges to reuse orphan content would made on a fixed scale, and the money received would be refunded to the rights holder when they succeeded in proving ownership. Money from unclaimed works would help to fund the registry.

Fraudulent claims of authorship should be subject to severe sanctions, especially if shown to be deliberate and made for profit.

In the case of a stock photographer, this is essentially attempting to misappropriate someone’s entire livelihood, exposing them to financial ruin, and should be punished accordingly. Deliberate violations should be a criminal offence.

This set of reforms would not entirely solve our current problems. Difficulties would still exist over combining materials with different licences, simplifying the process of making commercial agreements over content reuse, etc. But it would go a long way towards advancing our legal framework to one based on the world as it actually is, rather than as it used to be, and reflecting public attitudes to what is ethical conduct, rather than corporate lobbying to prop up a business model that should have been condemned as unfit for purpose many years ago.

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