Archive for March, 2012
It is well known that US elections depend on voters who switch between parties, not by those who will vote for whomever the Democrat or Republican candidate no matter who that person is or what the program (if any) that they propose may be. We call those in the former group independents. Does this apply to copyright?
I have just attended two conferences, including the ABA IP Section (Crystal City, VA, March 29-30, 2012) which was, as always, well organized, informative and useful. I was asked five times over two days (by people I had just been introduced to) which ‘side’ I was on in the copyright debate.
Because, you see, there are two sides: those who are for copyright and those who are against (sometimes derided as copyleft to accentuate the difference).
In a recent post, I noted that this is visible in international IP negotiations, where what we see are policy ships passing in the night: negotiations among like-minded countries instead of multilateral efforts: ACTA and TPP on one ‘side’, new super-regionals on the other to discuss limitations and exceptions. Both sides are preparing (or finished, in ACTA’s case) texts containing norms and counter-norms. They push separate, parallel treaties (audiovisual performers (Beijing) and broadcasters on one side; exceptions for the Blind and possibly libraries and archives, on the other). For what purpose? Isn’t it more likely that countries will ratify instruments they already agree with, so that these treaties are unlikely to be transformative? of course, they may be pushed as part of trade negotiations in exchange for lower tariffs on cotton or bananas, but that does not always guarantee good buy-in.
The underlying worldviews are fairly clear. On one side, copyright is seen as property and any authorized use is theft, piracy etc. The Internet is a tool that must be controlled, no matter how high we must raise the criminal sanctions bar or the level of privacy invasion. The other side sees copyright as an impediment to access to knowledge, cultural progress, and freedom of speech, and it is seeking a number of exceptions for specific categories of users, and not necessarily unhappy that there is much ‘free’ content online.
It may be time for copyright independents (somehow, I suspect that they exist) to stand up. Those who are ready to acknowledge that copyright is necessary, and that it must be properly cabined; that uses that interfere with commercial exploitation must be the subject of an exclusive right where appropriate.
Let’s see what is ‘appropriate’ might mean in that context. Let’s begin by acknowledging that (a) the Internet is not going away, (b) it is hard to control at an acceptable economic and societal cost; and (c) controlling the Internet has not (as a pure empirical matter) generated much additional revenue for copyright owners (the music industry is still shrinking).
First, let’s not treat people who set up Megauploads and a 14 year-old who occasionally file-shares as one and the same policy target by calling them ‘pirates.’ Those who put unauthorized content on commercial websites just to make a buck must be stopped and punished. Obviously. However, my sense is that many people who download do so not because they it is free, but because they actually like the music (etc.). Many file-sharers are in fact fans, not pirates.
Copyright (if dated back to the 1710 Statute of Anne), is 302 years old. Copyright’s battle with the Internet started in the mid-1990s, soon after the first browser (Mosaic) was made available in 1993. This means we have been trying to adapt copyright to the Internet for less than 20 years. In fact, the WIPO ‘Internet’ treaties were adopted in December 1996 and the Digital Millennium Copyright Act in 1998. Yet file-sharing is still rampant and copyright owners are still uncompensated for most online uses. Those ‘control’ instruments (DMCA et.c) were adopted well before we understood online business models or had any idea of the power of Web 2.0 for copyright owners and users.
So how might an independent want to move forward? Making fans felons may not be the best way. It may be time to acknowledge instead that copyright is not, and has not been for 100 years, a binary proposition between exclusive rights (saying ‘no’ unless licensed individual) and exceptions (saying ‘yes’ because it is a fair use or other exception). The former approach (‘no’ or negotiation ‘a la carte’) works well when professionals (authors, publishers, producers) negotiate for specific uses of specific works, like a novelist making an exclusive deal with a book publisher or film studio. Transaction costs are manageable. Beyond ‘yes’ and ‘no’, there is a huge middle zone, like the eight statutory and compulsory licenses in the US Copyright Act, and the voluntary equivalent set up by Performing Rights Organizations (ASCAP, BMI and SESAC in the US; SOCAN in Canada, etc.). Under all those systems, amounting to billions of dollars each year, users can use any protected work in a vast repertory but they must pay. I call this the ‘yes, but’ zone: yes, use the content, but pay (and, I would add, where appropriate acknowledge authorship). It this radical? Authors I speak to seem to want exactly that: attribution (recognition) and payment for their work.
This does not eliminate the need for negotiations among professionals where this makes sense, nor does it exclude fair uses in any way. It merely acknowledges the fact that in many cases, the system works because copyright rights are neither exclusive nor excluded.
We need more clarity on exceptions and limitations. Refusing to engage on exceptions and limitations is not a good way to limit them–if that is the idea to explain the difficulty to discuss them fruitfully in multilateral fora. It only means that they remain unregulated policy space. Is that better? I believe that those who want higher enforcement levels would actually gain by discussing E&Ls. It would make copyright simpler and more predictable for all those involved, authors, copyright owners, intermediaries and users.
This would mean working to combine higher enforcement measures against true pirates (that is, some of the measures in SOPA, ACTA, TPP) with a broad discussion on exceptions and limitations. That way, everyone would have an interest in the discussions. A single new instrument combining both would be an ideal outcome.
This means that instead of coming up with proposals mean to assuage the lobbies that press for them (on both sides), a true negotiation must begin. That was the hard process of copyright not that long ago. Think of the negotiations surrounding the adoptionf of the 1976 Copyright Act in the US or, more recently, Bills C-11 and C-32 in Canada). Even with the Internet making matters more complex, it can happen.
Let me end by quoting Francis Gurry, Director General of WIPO, in a February 2011 speech definitely worth reading:
“I believe that we need to re-formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates. Indeed, some, as we have seen, even make a pride of it. They would respond, I believe, to a challenge to sharing responsibility for cultural policy. We need to speak less in terms of piracy and more in terms of the threat to the financial viability of culture in the 21st Century, because it is this which is at risk if we do not have an effective, properly balanced copyright policy.”
In a very good post, Professor Estelle Derclaye comments on the CJEU opinion in Case C-604/10, Football Dataco & others v. Yahoo UK ! & others. She believes that the Court may, especially in the wake of Infopaq, have killed skill & labour.
This is not surprising. First, Article 3(1) of the Database Directive (96/9) specifically refers to “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation.” This was transposed almost tel quel in UK law. Second, the language is reminiscent of article 2(5) of the Berne Convention and article 10.2 of the TRIPS Agreement. That language, as I explain in an article published in 2002, is widely considered as a indirect definition of the “originality” that the works or “intellectual creations” that the Convention (and, by implication, the TRIPS Agreement) protects must possess.
In a more recent piece, coauthored with Professor Elizabeth Judge, we argue that anchoring originality in the creative choices is the correct international standard, one that was made part of constitutional law in the United States in Feist and operationalized in the Supreme Court of Canada’s opinion in the CCH case. Those cases are discussed in detail in the two articles.
The “selection or arrangement” test points to (creative) choices not wholly dictated to the author(s) by functionality and efficiency considerations or by the tools used to create. My rule of thumb is that two authors with similar tools and in similar circumstances would likely produce different works, thus demonstrating the room for originality (creative choices).
While the decision is not perfect (which one is?), I see it as a step in the right direction for any Berne member.
Now if Australia would just do the same…
New Paper: Cloud Control: Copyright, Global Memes and Privacy (J. of Telecommunications & High Tech. L.) available at http://papers.ssrn.com/sol3/
The paper, coauthored with Dan Hyndman, examines the shift from the Internet connection paradigm to an amalgamation paradigm. Ultimately, almost all personal and commercial content will be stored or backed up in the computing Cloud. This is likely to change the way in which copyright is enforced and users’ privacy is protected.