Win-win copyright proposals

When people talk of "balance" in copyright, I'm afraid that they're mostly thinking of a teeter-totter, where one person's gain is another's loss. I believe that it doesn't have to be like that. I think it's possible to find "win-win" changes that are an overall win. So in an attempt to back this up, here are a few modest proposals.

1. Reversion of copyright for out-of-print works

Under this proposal, if a work went out of print, copyright would revert to the original rightsholder (i.e. the creator). They would then be free to find an alternative way to monetise the work (or to use it for advertising, etc). This would provide an incentive to keep works in print, which benefits society as a whole. Publishers would lose those copyrights, but they weren't using them anyway, so the harm is minimal.

2. Opt-in "filesharing option"

The songwriters proposal to impose a levy on internet service received a mixed reaction. The existing levy is broadly unpopular (the Tories even promised to scrap it). But the problem of unauthorised filesharing really can't be ignored. So my suggestion is a middle ground. ISPs would arrange with collectives to be able to offer a "filesharing option". People who chose it would pay a bit more on their monthly bill but would be authorised to upload and download. People who don't fileshare would still pay the same. People choosing to opt out but who still fileshared could be sued by rightsholders.

Filesharers win by having a way to continue as they are but pay rightsholders. Rightsholders get more money. People who don't fileshare are exactly the same as they are now.

3. Broad private copying, levy free

This would extend the existing private copying scheme to cover any work, not just music, and any destination, as long as it remains "for personal use". At the same time, it would scrap the levy. This clearly benefits users - using your VCR and copying music to your iPod would become legal. It means a bit less money to rightsholders but at the same time, it would take copyright law back into the business realm, where it started. It also aligns copyright much better with people's ideas of a "fair" and "reasonable" law, and thus makes it much more likely to be respected. Infringing copies for personal use are pretty well undetectable anyway, so it's really not much of a loss. Many less well known musicians would be happier because they wouldn't be paying their competition every time they burn their own works to a CD.

4. Longer attribution right

Personally, I see no reason why the right to have your name associated with your work should only last for 50 years beyond your death. Why not make it perpetual ? To be honest, there's not a huge benefit either, but I like the idea of setting a precedent that the duration of economic and moral rights needn't be the same.

5. Copyright registry

When copyright changed from an "opt-in" regime where you had to register a work to receive a copyright, it lead to many problems. It pushed copyright into all sorts of everyday activities, it created the "orphan works" problem, and it lead to people trying to use copyright law to achieve all sorts of other ends that it wasn't intended for. This Lawrence Lessig's proposal for a copyright registry. Copyright would remain automatic but would expire after a shorter time unless a nominal fee was paid to extend it. This would make it easier to locate (and therefore pay) rightsholders and would drastically enlarge the public domain, making many more works available for "re=working", benefiting society and creators. Yes, it would require slightly more paperwork for works that are still making money when they reach the point where they have to be registered, but very few works fall into this category and by definition they're the high-profile ones.

No doubt there are holes in some of these, and I've probably missed many others. with a bit of luck, though, we can start thinking in terms of "improving the system for everyone" rather than "winners and losers".

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"3. Broad private copying, levy free"

We need more clear language around this. Part of why I don't like the current "private" copying regime is that it does not adequately differentiate between things which are actually private and things which are public.

The source of the material matters. If I purchase media or otherwise legally bring content into my home, then I should be able to make as many copies within the privacy of my own home on the devices which I own that I wish. No sharing/etc, just private. This includes time, device and format shifting. This should be uncompensated, and this is truly "private".

Borrowing media from the library, making a copy, and returning the original is not a private activity but a public one. This should require permission or payment, depending on the type content (I'll be writing a longer article about statutory licensing for IT World Canada next week), and is the type of thing that the so-called "private" copying regime should be covering. While the copies may not be shared publicly (which is the private part), the source matters for whether or not the copying should be considered fair use/dealings or clearly covered by copyright (whether compulsory or non-compulsory licensing).

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

agree and disagree

I agree that the source matters. Another change I'd make to this part is to specify that the source has to be a legitimate source.

I disagree with your library example mostly because as I understand it there's already a "public lending" license fee paid. This is where I would address the issue of "borrow it from the library, copy it and return it". My reason is mostly because this really doesn't sound like a "public activity" by any reasonable definition I can think of, and I think clarity is very important here.

It would be very interesting to know how many people do this today with CDs. My gut feeling (backed up by a quick poll of people around me) is that it's a negligible number.

Public activity.

I agree that clarity is needed, but have no idea how going out of your home to a public library to borrow (not buy) content isn't a public activity.

Maybe the word 'public' shouldn't be used in any of the definitions as it gets as confused as the word 'private' has in the current act.

We can address the issue in the definition of "legitimate source" for personal copying. When you purchase your own copy of content, then making personal backups, time/space/device/format shifting and other such things shouldn't be covered by copyright (living Fair Use regime). If you borrow content that someone else owns (whether a private citizen, company or library), then it is not a "legitimate source" for you to make your own uncompensated personal copies that you retain after the original is returned. That type of activity should clearly be covered by copyright.

For music it makes sense for this to be compensated as part of a levy that replaces the confusing Private Copying levy. But for reasons I detailed in a recent article, should not be extended to all types of works covered by the act.

The "Public Lending Right" has nothing to do with making copies, is not a "right" (IE: it is a government funded cultural program with specific beneficiaries, not a copyright related right -- and it goes to authors and not the copyright holders), and it only applies to books.

The government calling the PLR a "right" causes confusion that was entirely unnecessary. I'm just glad some of the CCC folks haven't been lobbying to incorporate all cultural programs and union contracts into the Copyright Act. If they had their way, the Canadian Copyright Act would be at least 800 pages long (per language ;-).

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

That's not what you said was public

Whether going to the library is public or not isn't really relevant here. I have difficulty with the idea that sitting at home and making a copy of a CD I borrowed from the library is somehow a "public activity".

I agree that you could get a reasonable result by saying that you should have to own the original.

I see no reason why a right to make copies of things I own for my own personal use should need a levy. I think it should just be "fair dealing". If it weren't for the existing levy, it would be taking away a negligible source of income for rightsholders.

The "copying" isn't the relevant activity.

This conversation reminds me of why I hate the English language. Not only do we have oddball problems about the meaning of the word Free in Free Software (free as in speech, not as in beer), we have the same problem with the word Copy in Copyright (copy as in manuscript, not as in additional instance).

The focusing on the "additional instance" variation of the word "copy" is that it has been interpreted to include things which it should not (IE: activities that happen privately within our homes which might be "additional instances", but which don't affect the legitimate rights of the copyright holder) and confuses people for additional uses that are not copies which should be covered (IE: communication to the public by telecommunications, public performances, exhibitions, lending, rental, etc).

Sometimes determining whether an "additional instance" exists becomes a necessary part of the conversation, such as in the Théberge case.

Then again, I suspect cases like the Théberge case will be decided differently after we create a droit de suite (resale right) for creators of limited edition (not mass produced) works. I think the creative objection really amounted to a material interest and not a moral interest as claimed, and that droit de suite would have appropriately compensated for that interest (IE: adding value to the work would have been seen as a bonus, not an attack on the creators' rights).

In the case of lending the law needs to consider it not an infringement to borrow something and time/space/device shift in order to enjoy it, but to then clarify that any "additional instances" must be deleted when the original media is returned (or the time limit for the lending expires). The point is that you shouldn't still be able to enjoy the work after it has been "returned", otherwise the term "borrowing" doesn't apply and it should have been considered a purchase/license and fully compensated accordingly.

I think achieving "Fair Copyright" requires that we start to think of it as Creators' right (generic name for all the types of creativity, rather than just manuscripts) and not 'additional instances' right.

Just like the clarity of Logiciel Libre as the French counterpart to Free Software, there is clarity in Droit d'auteur (authors right) as the French counterpart to Copyright.

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

Further thoughts on reproducing borrowed works

“Words mean exactly what I want them to mean.” - was that the Red Queen in Alice in Wonderland ?

After thinking about this some more, I still end up finding myself feeling that making copies of borrowed works needs to be legal, despite the fact that it doesn't feel like it "should be".

First of all, there's policeability. The actual reproduction of the borrowed work would usually be done in somebody's home. All the evidence would be there, too. I still feel that the less the government restricts what we can do in our own homes, the better. The fact that libraries are public and borrowing form libraries is something you do in public is irrelevant because you could just as easily borrow from a friend.

Secondly, I still don't think that it's a very popular activity (I again note that this would be a good area for some research). A copy of a CD isn't the same as the real thing, even if you go to the hassle of scanning and printing the cover art and booklet. For books, it's even less of a substitute. So even if you say that every copy made like this is a lost sale, it still doesn't have much impact.

Ultimately, I think publishers have to get over the idea that they should be paid for every copy. They should instead recognise that every copy they sell will be copied an average of say 1.4 times and price the product accordingly. Some small fraction of those extra copies will actually represent "lost opportunities for sales", but no business actualises every possible sale.

I would entertain the idea of a statutory license to be paid to rightsholders for works borrowed from public libraries if it could be shown that a significant proportion were borrowed and reproduced. I wouldn't introduce that up front, though, but would research how common this was after the new regime had been in place for a while.

Of Libraries and Internet

Interesting conversation. I didn't see this here until you posted a link on Facebook.

I'd submit that the argument for free and open file sharing is identical to your argument for reproduction of borrowed works. I would say it is just as hard to police the Internet as the Library. Therefore I am curious to hear your argument for supporting one but not the other.

Personally I think they should both unregulated. There are plenty other avenues for remuneration without having to try try to bring order to chaos on the Internet.

Frankly I think all music movies, books, and software will ultimately have to be free, if our society will itself remain free, for the simple reason that there is no way to prevent it. The challenge will be for creators to make money from associated products and services rather than from these works directly. I think it is a challenge easily met, but it would change the landscape significantly.

There are differences

Good question. I guess it comes down ultimately to the old "uploading vs downloading" issue. I agree that there's little difference between downloading a file from a p2p network and copying a borrowed work. Uploading, of course, sends the work outside your home and that's clearly no longer "private".

For consistency, then, I guess my opt-in "filesharing option" would really be for uploading, with downloading being legal private copying.

It's clear that p2p filesharing (both uploading and downloading) is (to some extent) policeable whereas copying a borrowed work in your home isn't. (It's debatable just how policeable p2p is, and for how long it will remain so, of course).

If copyright isn't going to grant a distribution monopoly, then what's left ? Seems to me that copyright has always been about publication and distribution and that if you take that away, you might as well scrap the whole thing, and I'm personally not ready to advocate that.

So p2p ends up being treated kind of like radio, where you need a license to broadcast legally. That doesn't seem like too much of a stretch, although it's always struck me as ridiculous that radio stations pay royalties for an activity that is so valuable to the rightsholders that they're willing to pay bribes (payola) for it.

In the longer term, I too suspect that "pay me for copies of content" will turn out to not be a viable business model. I get there more from an economic argument, though - the price of a good always tends towards the marginal cost of production, which these days is almost zero.

Well Chris, if there is

Well Chris, if there is little difference between download via P2P and copying a borrowed work, then too, there is little difference between uploading via P2P and lending a work.

I don't think advocating for unrestricted P2P is throwing in the towel on copyright. The copyright holder would still be the only one legally allowed to print real books, press CDs, licence for performances or other commercial derived works. There is a whole host of associated products and services that only the copyright holder will be able to exploit. Will there be less money overall for creators? Quite possibly (at least in the short term) but, none the less, there will be no shortage of creators because the barriers to becoming one are so low. I'm also convinced that new money will come in through other means unrelated to copyright which until now have played a much smaller role. Government grants and corporate sponsorships can make up for many of the losses due to reduced copyright protection. And there should be more of this money available due to the savings generated by eliminating the advisarial and punitive system Big Media is tryig to force upon us.

If you think we'll ultimately end up there anyway, then shouldn't our task be geared toward how to get us there with minimal pain? I hope we do get there because the other path I see leads to something very reminiscent of Orwell's 1984.

PRivate copying levy.

No matter how much the two of you would like to carve this out of copyright, that isn't going to happen. Copyright holders will be compensated for these activities. For things which aren't truly private (and the borrowing from the library and the P2P sharing are public in nature), and can't be enforced (and I don't even agree with you on this), the most likely solution has always been compulsory licensing.

I happen to disagree with both of you and the CCC/DAMIC groups that the ease of enforcement should be the only factor in this equation. In Analyzing when copyright levies are a good idea, and when they are a very bad idea I suggested other criteria, using the 3-step test as a model. While levies for recorded music, multimedia entertainment, performances and compositions would work well (and is already how most monetary reward is achieved), this same policy would be very harmful in areas like non-entertainment software, non-fiction educational material and scientific/health knowledge since emerging Peer Production models would be stifled.

Even if your idea of not requiring permission or payment for this type of sharing (mass scale online public-to-public or small-scale person-to-person) were allowed, it would wipe out many peer production communities which is not likely what you are intending.

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

Alas, you and Chris are both

Alas, you and Chris are both right. It isn't going to happen. At least not soon, as Chris states himself. But just as the Magna Carta began the reformation process which ended up with democratic governments, we need to make sure that copyright reform is in the direction towards a cultural democracy.

The problem with the 3 step test is that the definition of 'normal' necessarily changes as a result of the wide spread availability of technology. What was normal exploitation of work 300 hundred years ago? It certainly didn't include adaption and derived works as it does now. I contend that it wont include getting royalties for the direct copying and distributions of works in the future.

I disagree on the effects to peer production models. Software would become software as a service. Closed source software would still exist. So would TPM on closed software, which would certainly motivate people to buy those service contracts from the software developer. The TPM might not be perfect, but it would provide sufficient annoyance to encourage businesses at least to fork over some dough.

As for the the other examples, that is where I said other remuneration systems would come into play such as corporate or government sponsorships.

Now since much of the basis of my argument does hinge on one small point, which is the unpolicability of a FREE Internet, I would be curious to here your ideas (perhaps in another thread) regarding how controlling all the P2P sites and keeping millions of citizens off of them can be done without massive surveillance and heavy handed punishments.

We're disappearing into a side-street here

I never said that ease of enforcement should be the only factor in this equation. Go back and read what I originally wrote. I do consider it to be one factor, though, partly because privacy is important to Canadians.

Also, note that I agreed that borrowing from the library is public, and agreed that compensation may be reasonable there, if copying borrowed works was shown to be not uncommon.

Fundamentally, the main reason that I want to carve this out is to better align the Copyright Act with people's ideas of what is and is not reasonable (and legal).

I don't expect any of my proposals to be adopted any time soon (if ever). The point of the exercise was to explore win-win possibilities.

Opt-in "file sharing": privacy concerns

I think most of these ideas are very, very good. I like the registry, because I know many works that are under copyright but held by a defunct company, most notably software companies.

I'm not sure about "3. Broad private copying, levy free", but I think there's been enough discussion and I'll leave at that.

Where I have concerns is #2. '2. Opt-in "file sharing option"'. It sounds like a great option for those who want to pursue file sharing of "all rights reserved" copyrighted works. However, how do we monitor those who don't opt in? Do we port scan? Do we monitor the bits coming out of the home? Is a high traffic account a motive for a warrant? What does become a ground for a warrant? (I'm assuming that in a normal world, copyright violation would be under civil lawsuit, not criminal and a warrant applies to civil lawsuits).

I *could maybe* be comfortable with the following being a motive for further investigation if one had not opted-in to the file sharing levy:
- Open known file-sharing ports (in a non-NAT world - there's a difference between ISP port scanning a NATed house and any stranger port scanning a non-NATed address)
- Unusually high traffic

... but even then, what happens if I'm only file sharing Open Office, the open disc CD and Fading Ways CDs? How is the investigation pursued?

Julien Lamarche
This post is dedicated to public domain

Public vs private

I still think the focus is on private activities rather than public activities. There is no need to monitor your personal connection looking for the possibility that you might do something that you aren't allowed to do. It is just like how we have wiretap and other laws today where blanket monitoring of phone connections by the police is not allowed, but monitoring is allowed of a suspect during an investigation.

The activities which are harmful will be easy to detect. If they weren't happening at a scale where they could be easily detected, they are not happening at a scale that is really worth investigating. Being at that scale also requires they be open -- trying to seek out hidden encrypted networks is a waste of time as they will always be small by their very nature of trying to remain hidden.

Once your IP address comes up in a legitimate investigation, getting a court order for disclosure of your identity from an ISP is easy, and you will then be easily sued (either for the infringement itself, or for contributing to the infringement by running an insecure network if you weren't able to disclose who had actually used your network to infringe).

If there was a voluntary compulsory licensing system for recorded music, movies and television (I would strongly oppose a levy system if it were extended to all forms of creativity), then any investigation would stop at the stage where your name came up in any investigation.

This isn't a system that needs to catch everyone. I suspect many people will simply go with a service where the ISP would bundle paying the levy on your behalf as part of the service. Parents would do it automatically to avoid the hassle of having to worry about it.

Some people may opt out and still share music, but I really believe this will be such a small number of people to not be worth worrying about.

Copyright is always a leaky system by the very nature of intangible rights -- "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it."

Anyone trying to capture every possible person who is doing anything with a copyrighted work, rather than simply seeking just rewards for the creativity, is on a fools errand.

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