More About The Proposal For Copyright Reform
The Proposal Revisited
Let’s have a more in-depth look at the proposal that was presented in Chapter 2. This is what the Pirate Party and the Greens/EFA group in the European Parliament propose:
• Moral Rights Unchanged
• Free Non-Commercial Sharing
• 20 Years Of Commercial Monopoly
• Registration After 5 Years
• Free Sampling
• A Ban On DRM
Taken together, these points constitute a proposal for copyright reform that solves 99% or more of the problems today’s copyright legislation is causing, while at the same time allowing 99% or more of the business models that are viable today to continue to be viable.
Moral Rights Unchanged
We propose no changes at all to the moral right of the author to be recognized as the author. If you make something, you have the right to be identified as the author of what you made.
This part of copyright is completely uncontroversial. In fact, good etiquette on the net is often more strict on the subject than any copyright legislation.
Bloggers tend to give credit and link back to sources in a way that far exceeds any legal requirement. There are several reasons for this. It makes your blog more trustworthy if you link to sources so that readers can check the background if they want to. It makes the people you link to happy, so they will get more likely to link back to your own blog on some occasion, and perhaps increase traffic. These are good, practical reasons why it makes sense out of pure self-interest for a blogger to be much more generous with giving credit than any law requires.
But there is also the basic human feeling that if you found something that was interesting to you, you want to give something back by showing your appreciation. This is just human nature, and a very positive aspect of it.
The right to be recognized as the author is under no threat on the Internet, and we propose no changes to this part of the copyright legislation.
Free Non-Commercial Sharing
Trying to stop or reduce file sharing through ever harsher legal enforcement doesn’t work. File sharing continues to grow exponentially, no matter what repressive means governments are introducing.
If you think it would be good if all illegal file sharing disappeared, please feel free think so (even if the Pirate Party and others disagree). But that does not alter the fact. Limiting file sharing with laws and punishments doesn’t work. More of the same won’t either. File sharing is here to stay, like it or not.
We should keep copyright, but limit it to when there is commercial intent. All non-commercial copying and use, such as file sharing, should be legalized. We can add this as a limitation in the copyright legislation, in full compliance with the international treaties like the Berne Convention and WIPO Copyright Treaty (WCT).
In Chapter 3, we saw how the attempts to enforce today’s ban on file sharing is threatening fundamental rights in the EU and elsewhere, which would be an unacceptable solution even if it worked, which it doesn’t, or if the cultural sector was in fact dying, which it isn’t.
In Chapter 5, we saw that the artists and the cultural sector as a whole are doing fine despite file sharing (or perhaps thanks to it), so there is no real problem to be solved.
The key to finding a better way for Europe is to separate commercial use from non-commercial.
If copyright is brought back to only cover commercial activities, it will present no major problems to society. There are some adjustments to be made (in particular the unreasonably long protection times), but there are no problems in principle to enforce copyright for commercial purposes.
The reason is very simple. The principle of “follow the money” is enough to enable the authorities to keep track of commercial activities. If an entrepreneur wants to make money the very first thing he has to do is to tell as many people as possible what he has to offer. But if he is offering something illegal, the police will get to hear about it before he has had the time to attract any larger circle of customers. No further restrictions on fundamental rights are necessary. The control systems that are already in place for other reasons are enough to keep track of commercial activities.
But where do you draw the line between commercial and non-commercial?
It is true that there is a gray zone between commercial and non-commercial activities, but this is a problem that the courts have already solved many times in different areas.
We already have a number of different laws that make a distinction between commercial and non-commercial intent, including copyright legislation as it exists today. This is a good thing, since it means that the courts have already established a praxis for determining what is commercial or not.
If you need a detailed answer as to exactly where to draw the line, you should ask a copyright lawyer (and pay 300 euros per hour). This is about how courts interpret the current legislation, and there the lawyers are the experts.
But generally speaking, the line between commercial and non-commercial intent is roughly where you would expect it to be. If you as a private person have a blog without any ads, it’s non-commercial. If you get a few euros per month from Google Ads, your blog is probably still non-commercial, since it is a limited amount of money and your primary purpose with the blog is not to earn money from it. But if it is a big blog that generates substantial income from ads, it probably crosses the line and becomes commercial.
There are a number of copyright licenses, including the Creative Commons Attribution-NonCommercial License, that make use of this already existing definition.
Even if it is true that drawing the line can sometimes be a problem, it has already been solved in a reasonable way.
20 Years Of Commercial Monopoly
Much of today’s entertainment industry is built on the commercial exclusivity on copyrighted works, and we want to preserve this. But today’s protection times – life plus 70 years – are absurd. No investor would even look at a business case where the time to pay-back was that long.
We want to shorten the protection time to something that is reasonable from both society’s and an investor’s point of view, and propose 20 years from publication.
And we want to have the same protection term for all kinds of works.
Wouldn’t it make sense to have different protection times for different kinds of works?
20 years protection for a computer programs probably has different implications than 20 years for a piece of music or a film. Wouldn’t it be better to adapt the protection times according to what is reasonable for different categories of works?
This is actually what I (Christian Engström) thought myself, until I discussed it with a friend who agreed completely. When we started talking, we both agreed that it would be reasonable to have different protection times, since the markets work so differently.
I, who have a background as a programmer, thought it was quite reasonable to have a longer protection time for computer programs, since they quite often continue to be useful long after they were written. Code that I wrote in 1984-86 still runs in production today, and continues to generate income for that company. This is something different than a pop song, which at best is popular for a year or so, before it is forgotten to leave room for new songs. This is what I felt.
But my friend, who has a background as a musician (but is now a copyright lawyer, since that is an easier way to make a living), had the completely opposite opinion. He saw computer programs as something that you upgrade at least every second or third year. Programs older than that would have no commercial value, so it ought to be enough with a quite short protection time for computer programs. Music, on the other hand, could very often live forever, so the protection time for music ought to be much longer. This is what he felt.
And this is how it normally is, my friend, who had had similar discussions with other people, told me. For the kind of works that is closest to your own heart, you would normally find it reasonable to have a longer protection time, but shorter for everything else. This is how most people feel, it appears.
For this reason, we would probably not be able to agree about which kinds of works should have shorter or longer protection times. In this kind of discussions, where you are trying to agree on a time limit of x years, it is in the nature of things that all suggestions for values for x tend to be somewhat arbitrary and picked out of thin air. Having to come up with different semi-arbitrary values for each different category of works just makes it more complicated, and reduces the chances of finding a solution that you can defend with objective arguments.
But if you look at the issue from an investor’s point of view, things become different. The music industry may be very different from the computer software sector, but they have one thing in common. Money is money, regardless of what sector you choose to invest it in.
When an investor makes the decision to invest in a project in any industry – it may be music, film, computer programs for the mass market, or anything else – he will calculate his business case with a certain time to get a return on his investment. If the project goes according to plan it is supposed to cover its cost and make a profit within x years. If not, it is a failure.
x is always a very small number in this kind of calculations. That somebody would seriously make a business case for a cultural project where the time to payback is more than three years, probably never happens. People who build bridges and nuclear reactors and the like will of course use longer investment horizons, but outside those industries, business cases that are longer than three years are very uncommon in business in general.
This is of course even more so in the cultural sector. Who can predict what will be cool and hip two or three years from now, in such a fast moving landscape as culture. Most cultural projects are expected to pay for themselves and make a profit within a year.
By looking at the protection times from an investor’s point of view, we can justify having the same protection time for all works, even though they are different. The purpose of the economic exclusivity part of copyright is to attract investors to the cultural sector. And investors think in the same way regardless of what they are investing in.
The project should pay for itself and make a profit within one or a few years, otherwise it is a failure. The small theoretical chance that the work that you financed turns out to be a timeless classic that continues to generate revenues for decades is a nice bonus chance for the investor, but nothing that has a place in a serious business case.
So why 20 years, and not 5 or 3?
Our suggestion for a protection time of 20 years is a pragmatic compromise. Even if there are sound arguments for why 5 years or even shorter might be enough from society’s point of view, many people still instinctively feel that 5 years would be to short, at least in some cases.
And rather than getting bogged down in an unproductive quarrel over what will always remain at least partly arbitrary numbers, we choose to say 20 years.
The important thing is to get away from today’s protection times of a human lifetime or more. These long protection times are clearly harmful to society, since they effectively keep most of our common cultural heritage locked away even long after the majority of the works have lost all their commercial value to the rights holder. This is a deadweight loss in economic terms, and an outrage in cultural ones.
If protection times were reduced to 20 years, this would solve most of the problem of “the black hole of the 20th century”, and allow librarians and archivists to start the urgent task of preserving the 20th century works that are rotting away in archives by digitizing them. 5 or 10 years would be better from their point of view, but 20 would be okay.
At the same time, 20 years is still enough to support the pleasant (but very unlikely) dream of creating a major hit that becomes an evergreen that generates revenues for decades. If your next project strikes gold and suddenly propels you into the same kind of longlasting fame that Paul McCartney or ABBA have enjoyed, 20 years will be more than enough for you to become very rich indeed, and never have to worry about money ever again.
Registration After 5 Years
An orphan work is a work that is still in copyright, but where the rights holder is not known or cannot be found. It can be a book, a song, a film, or a photo, or any other kind of work that falls under the copyright legislation.
Orphan works present a big problem for anybody who would want to use them. If you just go ahead without getting a permission, you run the risk that the rights holder suddenly turns up and sues you for a large amount. As we all know, courts can be quite prepared to set the damages for even minor copyright infringements to pretty astronomical figures. In many cases, this is simply not an acceptable risk.
But since there is no known rights holder that you can ask for a license, there is nothing you can do about it. No matter how valuable you think it would be to share that work with the world, there is no way to do it without breaking the law and exposing yourself to a great financial risk. The orphan works are effectively locked away by the copyright system.
This is not a small or marginal problem. A large part of our common cultural heritage from the 20th century falls into this category. About 75% of the books that Google want to digitize as part of their Google Books initiative are out of print, but still under copyright.
Even if it is theoretically possible to find the rights holders for many of these books by making a thorough investigation in each individual case, it simply becomes unfeasible when you want to do mass digitization.
And Google Books is not the only project to digitize works and make them available, even if it is the one that has attracted the most attention lately. There is an EU project called Europeana with a similar goal, as well as the open initiative Project Gutenberg. All of these are being held back by the problem of orphan (or semiorphan) works.
Unless we do something, a large part of our common cultural heritage from the 20th century risks getting lost in a black hole before it becomes legal to save it for posterity.
To reduce the copyright protection time to 20 years would solve most of this problem, but for technical legal reasons, this is unlikely to happen fast. In order to reduce the protection times like this we would have to renegotiate a number of international treaties on copyright, such as the Berne Convention. Although this is something Europe most certainly has the political and economic strength to do this once we have the political will, it will take time to get there even in a best case scenario. We need something that can be implemented faster.
We propose that copyright (including the monopoly on commercial use and distribution) should be granted automatically without registration when a work is published, just like today. But if a rights holder wants to exercise that commercial monopoly for more than 5 years, he should be required to register the work after the first 5 years have lapsed.
Rights holders who have chosen not to register their claim to a work that was published more than 5 years ago would still keep their copyright as such, but would be seen as having waived their commercial monopoly rights by not registering the work.
From a technical legal point of view this is perfectly compatible with the Berne Convention, since this does not alter the existence of the right, but merely adds a reasonable and justified condition on the exercise of that right.
All we are saying is that if you want money for the use of a work that is older than 5 years, you have to make it known in a public database how to contact you and where to send the money. This is not an onerous or unreasonable demand in any way.
At the same time, the existence of public databases where anyone interested in licensing a work commercially can easily find the relevant rights holders, will of course benefit the rights holders. If you want to sell something, making your identity know to wouldbe buyers is quite obviously in your own interest.
Registration after 5 years is a win-win proposal that can be implemented quickly and easily.
In its description of the documentary film Copyright Criminals, the US broadcaster PBS writes:
Long before people began posting their homemade video mashups on the Web, hip-hop musicians were perfecting the art of audio montage through sampling. Sampling — or riffing — is as old as music itself, but new technologies developed in the 1980s and 1990s made it easier to reuse existing sound recordings. Acts like Public Enemy, De La Soul and the Beastie Boys created complex rhythms, references and nuanced layers of original and appropriated sound. But by the early 1990s, sampling had collided with the law. When recording industry lawyers got involved, what was once called “borrowed melody” became “copyright infringement.”
Copyright Criminals examines the creative and commercial value of musical sampling, including the related debates over artistic expression, copyright law and money. The film showcases many of hip-hop music’s founding figures like Public Enemy, De La Soul and Digital Underground, as well as emerging artists such as audiovisual remixers Eclectic Method. It also provides firstperson interviews with artists who have been sampled, such as Clyde Stubblefield — James Brown’s drummer and the world’s most sampled musician — and commentary by another highly sampled musician, funk legend George Clinton.
Computers, mobile phones and other interactive technologies are changing our relationships with media, blurring the line between producer and consumer and radically changing what it means to be creative. As artists find more inventive ways to insert old influences into new material, Copyright Criminals poses the question: Can you own a sound?
Today, the answer to that last question is unfortunately yes. The big record companies do claim ownership on individual sounds and very short samples. If you are a hip-hop musician, be prepared to pay hundreds of thousands of euros up-front for the sampling licenses you need if you ever want to make your music available to the public.
This is clearly an unwarranted restriction on the right to create new culture.
Film makers and other artists who want to create new works by reusing parts of existing works face the same problem.
We want to change this by introducing clear exceptions and limitations to allow remixes and parodies, as well as quotation rights for sound and audiovisual material modeled after the quotation rights that already exist for text.
A Ban On DRM
The purpose of this proposal for copyright reform is to get a balanced legislation that benefits society as a whole, including consumers. But having the right to do something according to the law is of little value in itself, unless you also have the practical means to do it.
DRM is an acronym for “Digital Rights Management”, or “Digital Restrictions Management”. The term is used to denote a number of different technologies that all aim to restrict consumers’ and citizens’ ability use and copy works, even when they have a legal right to do so.
In his book Free Culture, law professor Lawrence Lessig gives an example of an e-book published by the Adobe company. The book was Alice In Wonderland, which was first published in 1865, and where the copyright has long expired. Since it is no longer under copyright, anybody has the legal right to do whatever he wants with Lewis Carroll’s text.
But in this case, Adobe decided to set the DRM “rights” for the e-book to say that you could not copy extracts from it, not print pages from it, and not even lend it or give it to a friend.
Blind and visually impaired people, who need to have e-books converted to accessible formats to be able to enjoy them, are often restricted by DRM. Although they have the legal right to convert the books they have bought, the DRM restrictions prevent them from doing so in practice.
Another example is the region coding on DVDs, which prevents you from watching movies that you have legally bought, if you bought it in a different region of the world from where you bought your DVD player.
These are things that you have all the legal rights in the world to do. But that will do you no good, if a company decides to put DRM restrictions on their product that restrict your technical ability to do so. And not only do the restrictions as such make it difficult to exercise your legal rights for a work that you have bought a copy of. The way the law is written today, it is illegal for you to even try.
This is clearly unreasonable. It should always be legal to circumvent DRM restrictions, and we should consider introducing a ban in the consumer rights legislation on DRM technologies that restrict legal uses of a work.
When doing this, we should define “DRM” as “any technical system that restricts consumers from anything that they have the legal right to do”. Since there are exceptions and limitations for certain uses (including the right to make private copies) in the copyright legislation of all countries, this definition covers all systems that one would normally think of as DRM.
There is no point in having our parliaments introduce a balanced and reasonable copyright legislation, if at the same time we allow the big multinational corporations to write their own laws, and enforce them through technical means.