Archive for May, 2012

Copyright Hijacked? Who Should Make Copyright Policy

by Daniel Gervais on Monday, May 14th at 9:36 AM

Could it be said that copyright policy has been hijacked?

What does copyright need as a system? Two elements are essential: authors and users. We need people to create works, and for the system to function, we need people to read/listen to or watch them or otherwise use them (educators, etc.). No one is essential.

My point is this: Typically one or more intermediaries will link authors and users: a library, book publisher, record company, and nowadays one of many of the online player: (Google, iTunes, etc.) and rights managers (agents, collective management organizations (CMOs), etc.  However, none of these intermediaries have a right to exist. They use policy debates to try to guarantee thier role. That is understandable but must be seen for what it is. Intermediaries must make a case for what they do and why we need them. One possible exception: Librarians have been around for so long that they may have a natural role in the system.

To put is simply, commercial intermediaries come and go.  Yet, for the past thirty years or so, they have often been the only voices heard in copyright debates.  The Digital Millennium Copyright Act of 1998 and the two international treaties that preceded it (the 1996 WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty) and their insistence on anti-circumvention rules for technological protection measures (TPMs) are the poster child for this, because TPMs are not used by authors, but rather by intermediaries.

In recent debates, including on the Anti-Counterfeiting Trade Agreement (ACTA), and in the United States the Stop Online Piracy Act (SOPA), it is again mainly intermediaries that directed the debate. Professional production intermediaries (film and record companies) instrumentalized authors to justify their rights while major technology companies (Google etc.) instrumentalized users.

This is like debating highway construction with only toll booth operators and GPS device maker at the table, that is without drivers or road builders (or indeed transport planners). This makes little sense.

Not surprisingly, a number of authors and other creators feel that left out, as expressed succinctly and very clearly by the international Music Creators Alliance, for example.

We need authors and users (back) at the table. This means recognizing intermediaries are representing an essential function but not entities that have a natural right to exist.  Their voice must be heard but not as the loudest one.

Authors are less likely to insist on harsh enforcement against their fans.  They are more likely to ask for realistic business models that the recording industry, for example, has opposed since the Naspter forced shutdown (1999-2000).

While a number of authors have defended the harsh enforcement measures against individual end-users advocated by some intermediaries, many oppose them (see the music creators site above). I suggest that a properly constructed authorial position would more resemble Victor Hugo’s, the great French author, who presided the early work on the most important international copyright treaty, the Berne Convention. He wrote:

« Le livre, comme livre, appartient à l’auteur, mais comme pensée, il appartient – le mot n’est pas trop vaste – au genre humain. Toutes les intelligences y ont droit. Si l’un des deux droits, le droit de l’écrivain et le droit de l’esprit humain, devait être sacrifié, ce serait, certes, le droit de l’écrivain, car l’intérêt public est notre préoccupation unique, et tous, je le déclare, doivent passer avant nous…Constatons la propriété littéraire, mais, en même temps, fondons le domaine public. »  (Victor Hugo, Discours d’ouverture du Congrès littéraire international de 1878).

The three main thoughts in this quote are as follows:

•             A book belongs to its author but the ideas belong to humankind.

•             If either then right of the writer or the right of the human spirit must be forfeited (“sacrificed”), it is the right of the writer that must be because ‘public interest’ is the sole preoccupation and must come before everything else.

•             One must recognize literary property but at the same time establish (“found”) the public domain.

One must update this view, of course, to reflect the incredible power of the Internet to allow new forms of creation and global dissemination of works, but also the societal costs and undesirable outcomes observed when enforcing copyright online (do we WANT governments to mandate deep packet inspection of all that is sent online, for example). Authors, I suggest, want to be recognized as authors of their works and to be compensated fairly.   Is this revolutionary, or is it what copyright is all about? While authors may support shutting down the Megauploads of the world (so do I!), do they favor suing teens, or educators in Africa? The point is simple: there is much more room for agreement among people of goodwill…



Monday, May 14th at 9:36 AM