Copyright is not a binary yes/no question. What should it look like?

There has been an interesting series of articles on SlashDot between Karl Fogel who is a copyright abolitionist and Greg Bulmash who suggests that abolitionists shouldn't be using Open Source as an example given Open Source requires copyright in order to enforce the license agreements. Greg suggests that the goal should be reform, not abolishing.

As a very vocal proponent of FLOSS and other modern methods of production, distribution and funding who is involved in copyright reform, I agree with Greg. Abolishing copyright would not accomplish our goals. What we need to do is look much more closely at the parameters and decide what would best protect the interests of both authors and the general public.

What types of activities, and carried out by what person, should be regulated by copyright? What actives should require permission, and what activities should only require payment (compulsory licensing)? Should copyright be automatic and never require renewal, and only allow for cultural recycling generations past the death of the author? What rights should be able to be sold, and what should be retained with the human author unless explicitly waived?

I have my own answers to these questions, and abolishing isn't part of what I think would be beneficial. While I have to admit that I believe that abolishing would be better than the direction we seem to be going (copyright holders granted the right to choose brands of tools that can access works, with copyright regulating private non-commercial activities of all citizens, with an ever-increasing term which is effectively perpetual) . Abolition for me is a second last resort.

What do I believe modern copyright should look like? While some changes can be done domestically already, some will require modernizing international treaties such as those administered by WIPO. Existing treaties are modified all the time via newer treaties, and there is no reason to believe that we can't move towards these improvements given other far more radical changes have already been included in recent treaties.


  1. copyright is automatic only for a short term (10 years), renewable every 10 years for a maximum of 50 years.
  2. copyright only regulates public and/or commercial activities, and never the private activities of citizens.
  3. following on (b), time, space and device shifting of content would not be regulated by copyright. Once a citizen obtains a license for a work, that is a license to do whatever they want to do privately with that work. Copyright would only regulate situations where works are shared publicly (communicated by telecommunications, including on-demand or P2P or distributed mechanically).
  4. non-commercial public sharing of multimedia (music, movies, television) by private citizens, verbatim or modified (mashups, clips, etc), should not require permission -- only payment. This would for instance involve reasonable rates for a compulsory license for non-commercial P2P sharing of multimedia.
  5. radio, whether terrestrial, satellite or Intranet, should have the same compulsory licensing regime for all aspects of communicating the work including both the rights of composers and performers. We should not allow a situation where terrestrial radio only pays music publishers, while satellite radio also pays fees to performers and labels and Internet ratio is under a higher fee structure making Internet radio impossible.
  6. industries who only provide the technical means for recording, communicating or distributing works should not be offered copyright. Only human creators (authors, photographers, performers, directors, etc) should be offered copyright, not broadcasters or sound recording makers. Creators should be offered tools to enable them to skip intermediaries and make their own choices as to how to exercise their own rights. No matter how a creator is employed, the first holder of copyright should be the creator and copyright could only transfer to an employer as part of a contract.

I am curious to read what other people would consider to be an ideal structure for copyright. While we may not achieve our goals, it is still very valuable to articulate a desired direction.



Also published on p2pnet.

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Ideal Copyright Reform

Hi Russell. There is nothing I like better than to debate the merits of different models for Copyright amongst people with similar views. It gives me a change to properly analyze my own views as well as others.

Regarding your proposal

A) I agree in principle, however I think the first term should be somewhat shorter (7 years) and two subsequent terms of 14 years for a total of 35. The 7 years gives plenty of time for the author to determine the commercial value of the work. There is no justification for 50 years of copyright protection. Further I would say that software be limited to a one time term of 10 years. Also the work MUST have contact information included so that people wanting to copy or modify the work can easily contact the copyright holder. This way we can get rid of Access Copyright

B) I agree, but what is your view in this paradigm of the individual (or corporation) who buys a one copy of software to use on all their computers? I would also suggest that we reapply first sale doctrine to software so that you can legally rent, loan, or return software just like any other product you purchase.

C) If copyright does not regulate private use of a work, then no licence is needed. Also, what about emailing MP3's to friends or giving them a CD with your favourite music mix. You suggest these activities should also be regulated. I disagree.

D) I disagree. The compulsory licence is fine but I take issue with the compulsory payment. Payment should only be required if there is a reasonable expectation for one party to either gain or be harmed financially by the act. If I want to do a mashup of my favourite music and share it on the Internet, none of the musicians I borrowed from will have any expectation of lost sales, and I certainly wont make money sharing it. So what is the reasonable argument to prevent me from doing so?

E) I think the payola scandals in the States has demonstrated that the labels gain far more from the publicity they get through radio than the licencing payments they receive. Therefore I think there should be no fees to anybody for radio exposure.

F) I agree.

Follow-on thoughts

a) The numbers aren't as important to me as the principles. An initial short term should exist without registration, but any term beyond that should require registration/renewals to solve the massive orphaned works problem and the complexity of locating copyright holders.

P.S. Access Copyright provides some useful services, both for copyright holders and for users. I think you were thinking of the "unlocated authors" scheme/scam.

b) I think that third parties trying to counting copies in a private setting is and always will be a failed activity. The solution is already the path being taken by the larger vendors, which is site licenses. A business of a certain approximate size would have a site license that had a different fee attached to it than a private citizen, and it would not be lawful for someone acquire a private citizen license and use it in their office. The idea of treating knowledge as something to be boxed up and sold like a consumer good never made sense, and trying to support this flawed thinking in the law will always lead to failures. I consider the vast majority of the current software copyright infringement to be related to this failure, not a failure in the morals of software users. (While I disagree with the vastly inflated BSA statistics, I do believe there is a fair amount of software copyright infringement)

c+d) We disagree. I don't believe that permission should be required to email MP3s to a friend or share a mix or mashup, but do believe that payment should still be required for non-private/non-commercial activities. I disagree with those who believe we should do away both with levies (compulsory licensing) and the requirement for permission as I believe that is totally unfair to the relevant copyright holders (for music that is composers, performers -- I don't believe makers of sound recordings should be copyright holders at all). I may agree that mechanical media (Blank CDs) isn't an appropriate thing to levy, but believe that compulsory licenses (meaning levies) should still exist.

We seem to disagree on the economic analysis, and whether the copyright holders might have reduced revenue from non-commercial sharing of your remix. I'm not talking about historical markets where any "play" (radio or home taping) was legitimately thought of as viral marketing, but current and potential future markets which we already know will be very different. We don't want to pass copyright law to fix problems of the past only to create more problems in the future.

e) I believe we need to always separate the different parts of the music industry to make sense of what is happening. What benefits composers and performers is entirely different (and often incompatible with) what benefits "makers". I also think you are looking at the historical marketplace where radio was marketing for physical product, in a marketplace that is moving very quickly away from physical product. If radio airplay (treated equal across all technology) is promotion, what is it promotion for? Concerts and T-shirts? Physical media sales in the physical media replacement bubble of 1980's and 1990's? I think the days of payola were numbered even before the states cracked down on this unlawful activity.

I believe that commercial radio should be a revenue-generating activity for the copyright holders, but that we need flexible compulsory licensing systems which are revenue-based. This would mean that the rates would be extremely low for amateur stations (you might suggest zero), low for non-profit, reasonable for commercial, etc. We need to avoid flat fees per audience member, which is the ludicrous decision that is killing Internet radio in the USA, or requiring permission given this industry has demonstrated an unwillingness to offer licenses for very legitimate activities. This is based on my interpretation of the UN UDHR talking about the material interests which is that where money is being made on top of the work of authors, then the author should either get a say in (permission) or a cut of (royalty) that business activity.


Free/Libre and Open Source Software (FLOSS) consultant.

A minor correction.

Hi, Russell, I'm glad you read the articles.

What I was rebutting was only Greg's claim that copyright abolition is inconsistent with support for open source. Whether abolition is the best course for society is another question entirely; all I was pointing out is that there is no hypocrisy in being against copyright while being for open source.

According to Greg, the reason open source advocates should support reform, rather than abolition, is that open source depends (in some presumably fundamental way) on copyright. I don't think it actually does, and you didn't mention anything about it in your points above, either. So while you may agree with Greg about reform being preferable to abolition, are you sure you agree with the reasoning by which he arrived at that conclusion? It's the reasoning I was arguing against, not the conclusion. I tried to be explicit about that in the last paragraph of my response:

I'm not arguing, by the way, that total abolition of copyright is necessarily the best thing. I do think it's a defensible position, though, and that either abolition or very fundamental changes to copyright terms and restrictions are needed to save our culture from being stuffed into a vending machine and sold back to us dollar by dollar. But that's a topic for another article. With respect to Greg Bulmash, my point is just that copyright abolitionists are being consistent when they use the open source movement as an example.

Best,
-Karl Fogel

www.QuestionCopyright.org

Thank you for clarification.

You are correct. I didn't address the specific question of the arguments against using FLOSS as an example by copyright abolitionists. I was using the articles to launch into what I hope to be a conversation on what the community thinks copyright should look like.

Software is different that other types of creative works, and can exist under entirely different incentive structures. I believe you are correct that abolitionists using FLOSS as an example against software copyright is consistent.

I don't think that the Creative Commons is appropriate as an example in discussing abolishing copyright on multimedia (music, movies, television) or fiction books. While all FLOSS licenses are royalty-free and the business models don't depend on monetary rights (Right of attribution is a different discussion, as you note), the most common CC licenses are the NC versions which authorize non-commercial uses but suggest commercial uses will still require more traditional contracts/payments.

Lets expand the discussion of software to the possibility that abolishing software copyright could actually backfire. Are all abolitionists presuming that no exclusive rights will exist at all? Imagine a world without software copyright, but only software patents. I happen to think that this would be worse, not better. We have found the ability to use contracts to enable new business models doesn't work as well for software patents as we have done with software copyright. Copyright turns out to just be far more flexible than patents for software.

Side-note on your argument: In Canada our copyright act explicitly offers protection for moral rights, including attribution and the right of integrity. The fact that US law doesn't explicitly mention these things and separate them from material rights makes the argument that much harder in a US context. Another source to reference is the UN UDHR which in article 27(2) also separates material and moral interests of authors and inventors, recognizing that these different types of interests should be understood to have different contours.


Free/Libre and Open Source Software (FLOSS) consultant.

Re: Thank you for clarification.

Yes, I'm glad that much of the world makes that distinction, even if the U.S. doesn't! :-)

Regarding Creative Commons Non-Commercial licenses: it would be interesting to know exactly why people choose them. I don't think we can conclude from their prevalence that all these artists are making any money on the commercial licensing (let's face it, most of them probably aren't!), or that the availability of the NC licenses (as opposed to other kinds of open licenses) was a major factor in either the creation or the release of the work.

In many cases, it's probably more that gut feeling that "if anyone's going to be making money off my work, then I should be making some too". That's what some artists have said to me about it, at least. But since in practice no one's making much money off the works, the whole question usually remains theoretical — which means that using the NC licenses' popularity to draw conclusions about the true economic basis of non-software creative activity is dicey at best. If those NC license hadn't been available, or if the artists had chosen to release their stuff under one of the other licenses (either attribution-only or share-alike), would there really have been a different result, in most cases?

Meanwhile, I've released a book under a CC license that does allow share-alike commercial redistribution and derivatives, and it seems to be working out just the same as if I'd chosen an NC license.

The distinction between commercial and non-commercial can be hard to define. I play your jazz piano song at home: clearly non-commercial. I play it one night in a bar with some friends: still probably non-commercial. I start showing up at the bar regularly on Wednesday nights, playing jazz standards (including your song), but without taking a salary: ummm, bordering on commercial, because it may make the bar more attractive to some patrons (or less, depending on my playing, I guess). Now I put out a tip jar. Are we commercial yet? The owner starts paying me to show up and do this. Okay, we've definitely crossed the line now.

One might say: but this is why we have courts, to work this stuff out. The problem is that this is a recipe for endless litigation. Between all the discrete activities listed above is a continuum of other things, gray areas as gray as you want. Whereas if I'm just allowed to play music, because human beings like music, things get a lot easier.

This is why I'm not convinced that a "non-commercial use is fair use" system is such a good thing. We should at least consider the "any use is fair use, with proper attribution" alternative. (In the current climate of debate in the U.S. of course, it's hard to even have real consideration, unfortunately, because just getting past the "attribution rights != copy rights" hurdle is so difficult.)

By the way, I didn't quite understand what you meant in the paragraph about patents, copyrights, and contracts. I'm not seeing the specific "backfire" scenario you're talking about...?

Best,
-Karl

www.QuestionCopyright.org

Patent backfire..

Independent authorship is a defence in copyright, but not patents. It is possible with software copyright to author effectively the same software implemented without prior knowledge of competing software, or even by clean-room reverse engineering. This new software can use contracts/licenses to protect against abuses of copyright that would force derivatives to be proprietary.

Once one person has a software patent on key methods used in a type of software, then you have to wait the term of the patent to get any related software under any business model. People ignoring and casually infringing software patents all the time is about the only way any software ever gets written. No substantial piece of software doesn't infringe software patents, and there is no evidence that software patents provide incentives rather than disincentives to innovation.

With patents it is either 'first to file' or 'first to invent', and independent invention isn't a defence. There has been no such thing as "PatentLeft" as there isn't a way to do the legal jujitsu for software patents as has been done with software copyrights. All the FLOSS licenses have been able to do in licensing is render a small number of software patents harmless, nothing more.

I am a software patent (information/mental process patent) abolitionist, but don't consider that to be radical like copyright abolition (or even software copyright abolition) would be. I consider the extremists (lawyers, lobbiests, etc) who fooled the courts into allowing software patents in the first place to be the problem. Software patents have no benefit to anyone other than a tiny number of executives of incumbent businesses and the lawyers who get to waste money suing each other based on these non-inventions.

As to the NC, I agree that the line is vague. I do know many creators, primarily musicians, where the NC designation is the only reason they are willing to share their music at all. Essentially they want private citizens to be able to share music with each other, while ensuring that any business interests still have to pay the composers/musicians. This is their business model. Software and Music may both be under copyright, but there is very little in common as to what business models work. The pure royalty-free regime that works extremely well for software would fail for music.

This is why in my proposal I make a line between private and public, rather than commercial and non-commercial for when copyright should apply. Even there the line isn't always perfectly clear given you can debate whether sharing with family members who live in another building is private or public. I think that will always exist in a grey area that isn't likely to get litigated, but to me P2P is clearly public as you have no personal relationship with the people you are sharing with.

That said, I believe that while copyright should regulate the public activities of private citizens, that for multimedia it should be payment and not permission (compulsory licensing). I don't extend that to other types of works (especially software, educational material, health/scientific research) given there is a far larger set of workable business models -- including many that don't rely on royalties at all.


Free/Libre and Open Source Software (FLOSS) consultant.

two choices

Then today I see this CNET article.

Unfortunately, the author doesn't even mention the range of possibilities with copyright or that patents are very different when applied to ideas (e.g. software) rather than physical objects. It's really amazing that such uncritical propaganda gets published like this on a regular basis.

Anyway, you made me think of my Church of IP post a couple years back with the mention that copyiright is not a "yes/no" matter.

Phrases like "Intellectual Property" make it harder to work for
progress as such terms not only contain a bias ("property") but can't be looked at in any other way than binary for such terms are overreachingly broad.