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Wednesday, 13 July 2011

Do we come to bury copyright — or to praise it?

The Statute of Anne, 1709
Speaking first in praise of copyright, Emily Goodhand paid heed to the question, offering no middle ground. We must support copyright because it protects creators; and, despite its flaws, there is currently no proposal for a viable alternative

The debate, organised by the 1709 and IPKat blogs, was useful despite the constraints of the binary question posed in its title.

In practical terms, with absolutely no political support in Westminster for the prodigious leap into the unknown that is copyright abolition, the options available aren't so black and white.

There's a colourful spectrum of challenges: what classes of works should be protected? How long should protection last? What enforcement powers are appropriate? Should licensing be facilitated by a central body, and how? And what exemptions should apply to facilitate eg news reporting, educational debate, personal convenience (format shifting, digital lockers)  and innovation of new digital services?

Despite the limitation in the title, the four speakers did a good job by avoiding circular arguments of previous debates I've attended.

Over 300 years of copyright

In favour of copyright, the 302-year-old legal right withstood the test of time because it works. Reprover Crosbie Fitch counters that copyright is rooted in immoral and archaic privilege first granted to facilitate Crown control of the printing presses and thereby limit criticism of the state.

Both sides have a point. The fact the law survived indicates democratic pillars like the free press found ways to function effectively despite the formal extension to publishing monopoly formerly controlled by the Worshipful Company of Stationers and Newspaper Makers prior to 1709.

But the step change brought by digital publishing and copying capability is a serious challenge.  "As a blogger, copyright somehow just doesn't feel right" said lawyer and blogger David Allen Green, referencing a blogger's need to link to source material in order to facilitate public discussion.  Newspaper paywalls can seriously hamper wider debate.

Rewarding David, protection from Goliath

Yet David joked he'd only made around £12 from adverts on his Jack of Kent blog, and most of this was from people clicking on adverts for chiropractors! The serious point I think David was making: there is little if any direct monetary reward for bloggers - yet we keep on creating, absent of remuneration. So either copyright is not needed, or it's failing in its aim of rewarding at least one pool of creators.

However, he was less than happy when he discovered a blogger at the Daily Telegraph had copied a post wholesale, but the remedy came through interaction with the infringer rather than court proceedings.  In this statement, David Allen Green unwittingly (!) made a case in praise of copyright - considering what might have followed had the infringer been unwilling to cooperate. Copyright law is there as a legal backstop.

A point here: in asserting that copyright protects creators against the corporate Goliaths we cannot overlook the cost of litigation, which can put enforcement action beyond the reach of many content-creating Davids

David Allen Green seized on Emily Goodhand's earlier reference to gladiatorial combat, stating in the digital age it was more appropriate to think of the creator as the guy being dragged around the Colosseum in The Life of Brian, and Crosbie Fitch continued in a Python theme by declaring copyright not just flawed; it wasn't sleeping, it wasn't ill, it was a dead parrot.

Investment in creation

Corporations, middlemen, lawyers, administrators and facilitators across the publishing industries exist solely to support the creators themselves; taking their own healthy slice of the profit.

Richard Mollet, chief executive of the Publisher's Association, praised their collective role in supporting the creators; who would otherwise struggle to raise sufficient capital to pay for editors, proof readers, cover artwork, correct meta tagging of e-books, and promote their work in the market.

Richard has a good point in that copyright allows the market to support creators. It's a myth that a lone creator can write and/or perform a global hit without support, and support costs money. Copyright gives investors the confidence to invest in creative works. 

Even with copyright, only one in every handful of investments will return dividends due to market uncertainty; so each successful book must pay for the editing and promotion of its less-successful cousins, etc. A highly valid point often overlooked by critics of the publishing industry.

Richard was challenged over his support for a copyright protection term that extends to 70 years beyond the death of the author (for written works).  He countered that 70 years was appropriate as it gave an inheritance to a creator's children. I find it hard to sympathise with moral arguments against copyright, but I take issue with the need to reward both a creator and his or her descendants.

David Allen Green stated "There are very few people in the world that will live to 70 years beyond their death."

On copyright term length, I put it to Richard Mollet that I agreed with his investment argument, but investment in science, engineering and pharmaceuticals comes with only a 20-year protection term for patents; and the cost of bringing many drugs to market can surpass even the most expensive blockbuster films.

Richard countered that patents protect advances that are generally useful to society, so there existed a public interest argument in limiting protection to relatively short periods before returning patented ideas to the public domain.  

I didn't get chance to counter this, but the public utility argument in support of far shorter terms applies equally to many software products, yet software is protected under UK law by copyright terms equivalent to written works - 70 years beyond the death of the author.

The moral view

So what should replace copyright? I don't quite believe the mixture of cross-promotion and parallel merchandising Crosbie Fitch suggested will be sufficient to support all forms of creation.  Patronage was discussed and dismissed - how to pair up creators with patrons? Wouldn't nepotism strangle innovation?   

Crosbie Fitch, a veteran of free and open source software, posed a moral argument against copyright. Copyright is a privilege and privilege is immoral. 

I disagree, perhaps because of my centrist world view.  Even property rights - viewed by some as a natural right - are viewed (for most non-essential items) by Marxists as a privilege, and immoral.  I agree with property ownership so I'm not fundamentally opposed to intellectual property.

Crosbie also stated that law does not create rights, rights create law; and suggested ulterior motives brought the first copyright act into existence.  

But what did bring the first copyright act into existence? A desire by Queen Anne to control the press? Or was the precursor to the first copyright act itself just an extra-judicial form of copyright? Book publishers paid subscription fees in exchange for an enforcement brigade who took direct action against illicit printers.

Perhaps an attempt to differentiate between natural rights and indoctrinated rights overlooks the influence of the market; and, depending on your interpretation of history pre 1709, the market found a solution that looked suspiciously like copyright, enforced by the Stationer's Company. 

The flaws: monopoly

But copyright does have some serious flaws.  Monopoly, the massive administrative overhead in royalty collection, and the lack of a scalable and proportionate enforcement regime for digital works.

Contrary to the claims that copyright and IP rights promote innovation, monopoly puts copyright owners in a position to prevent innovation; to kill-off rivals.  This can be done through disproportionate licensing demands or a simple refusal to license partial re-use, remixing or other derivatives.

I previously wrote how unrealistic appraisals of the value of individual components of intellectual property has lead to the sum of the parts being way more than the value of the whole, and I fear this equation alone will ultimately prove that some uses, misuses, abuses and corruptions of the intellectual property system kill innovation. 

It's this argument that lead Crosbie Fitch to describe the current system as a "cultural gridlock" ... "polluting our whole culture".  I sympathise, but there's no objective test of this. 

There is however incontrovertible evidence that rights holders are focussing on business models that rely on artificial scarcity; that is, pricing a product to limit demand - as though it was a physical item limited by scarcity of natural resources.  

Artificial scarcity is a marketing approach that is supposed to lead to a higher perception of the value of an item. If bananas are rationed, they're more special on the rare occasions you get one.  But this approach could have backfired; and, according to a Social Sciences Research Council study, be largely responsible for the emergence of organised media piracy (in the emerging markets studied).

The flaws 2: scalability of enforcement, fatal?

If copyright has an Achilles heel then surely digital enforcement is it.  Crosbie Fitch stated, quite fairly in my view, that penalties for infringement have become Draconian. Prison sentences, million-dollar-plus fines, and a mention of Richard O'Dwyer - facing extradition to the US for alleged infringement by running a website that simply links to infringing content - are disproportionately severe to act as a deterrent to others.

Against principles of retributive justice, million dollar fines, prison and extradition are punishments which clearly don't fit the crime; and the reason, argued Crosbie, is scalability of justice.  Copyrights are so widely disregarded when file sharing music, films and some video games that it's simply not possible to punish each wrongdoer.

So instead we have opted for a highly illiberal approach: to come down very hard on the few that do get caught. This for me is the most distasteful aspect of copyright.

Richard Mollet said he believed that flaws in copyright could be fixed, but I personally doubt this.  I predict we'll learn to live with a compromise that, in its own messy way, facilitates a knowledge-based economy.

Tangible and intangible assets

An interesting debate arose around whether copyrights should be analogous to physical property rights. On one hand illicit copying doesn't deprive the owner of the original. It also doesn't deprive the owner of all means of profit, but it can dilute the profit. But we heard how illict copying can also increase the opportunity to profit from parallel merchandise by helping establish and build a fan base.

Yet copyright ownership and licensing has clear physical parallels to e.g. land rights, leasing and wayleave.  Rights can be purchased by "landlords" to facilitate developments that could not be funded by the creator alone.  It suits the market to allow copyrights to be traded and inherited in the same way as physical goods; and, this system it can be argued has served us relatively well for over 300 years.

Parallel models

Mr Justice Arnold in the chair raised an interesting point: new models to reward creators could emerge in parallel with copyright. Creators aren't obliged to enforce their copyrights, and are free to seek-out other ways of monetising their content.

Whilst true from a legal perspective, the denigration of many of the distribution mechanisms that could be used to distribute free (legal) content - with strong and persistent calls to block file sharing sites for their role in illicit file sharing - may prevent experiments with new models.

There are reports that even YouTube rival Vimeo is being targeted by sections of the music industry as a site that supports piracy.

And, from a consumer perspective, an abundance of legally-available free content from alternative sources might hamper the educational message that rights holders wish to send out through e.g. 3-strikes notification schemes such as that enabled under the Digital Economy Act.

Closing poll

The audience voted in favour of praising copyright, and the debate lead to a small swing towards praise.

However, the audience also voted overwhelmingly in favour of copyright reform, with only 2 votes against!


  1. Well summed up James!

    A longer version of my position can be read here: "The 18th Century Overture - A Crescendo of Copyright - Natural Finale and Reprise"

    Incidentally, mine was one of the votes against copyright reform, i.e. a vote for repeal instead. Perhaps the other one was too?

  2. Did you really mean wayleave in your analogy to physical property rights?

  3. Yes, I did mean wayleave, as in the fees paid to landowners for the right to run services across/under their land.

    Sometimes someone else's intellectual property is a means to an end - almost nothing at all to do with a new work, but somehow still a crucial hurdle to getting there.

    Things like remixing and sampling, where you need to "cut a path" across others' land to get to your new work.

    I'm also thinking about software, where something invisible to the end user - like a vital library - is a vital part of making a new software programme.

    I see this as analogous to wayleave charges, although it's just my interpretation!

  4. "A point here: in asserting that copyright protects creators against the corporate Goliaths we cannot overlook the cost of litigation, which can put enforcement action beyond the reach of many content-creating Davids."

    We need lower barriers for small creators to enforce their rights, then. We need a British DMCA: the Digital Economy Act doesn't go far enough.

    But aren't you try to fight that?

  5. I was stating the argument.

    I'm arguing for a fair, proportionate and rational solution.

    I'm against the Digital Economy Act because I think it won't work, it will waste money, and it will hamper ISP investment in improved services.

    The Digital Economy Act (excluding S17 site blocking powers) on the surface appears to offer a proportionate solution, but has 2 serious flaws:

    (1) The ISP account holder is held to account for what other users do on their connection. This has serious ramifications for institutions such as educational establishments, hotels, cafes etc. The net result will be reduction of open public WiFi - a very serious issue.

    (2) The scale of the problem means the cost burden on ISPs could be significant. Passed on to the consumer, by the government's own numbers, 40,000 households could be priced-out of broadband.

    As Crosbie mentioned, the scale of the problem from a criminal justice perspective means there's a temptation to hand down severe punishments to act as a deterrent to others, since there simply isn't the manpower or court time to detect and prosecute all alleged infringers.

    Punishment must fit the crime in a civil society.

    DCMA covers several mechanisms, if you're talking about copyright takedown notices then to a point, yes. But look how the DCMA is now being subverted in the US to attempt to force ISPs to disconnect file sharers and, potentially, censor websites.

    I don't think we understand enough about the potential for DMCA abuses that could restrict freedom of speech. DMCA-style legislation risks tipping the balance too far the other way in favour of creators making speculative claims.

    Without a central copyright repository, it can be hard if not impossible to trace owners. But we're all creators now, so any repository could be too huge to work. The cost of a central register of works would dwarf its benefits.

    We need to keep this in perspective. Copyright was a state-backed monopoly granted to publishers as an incentive to investment in publishing. What was then an incredibly expensive operation (operation of a press, typesetting etc).

    Now, publishing is cheap - large swathes of creators aren't getting even a living wage (and yes I've done the interviews with musicians, producers, writers), other sections of the industry are overly fat.

    We need to look at the wider issues of content generation and reward, given the new reality of very cheap publishing and ease of copying.

    Copyright term length is an insult to democracy. Remixing, re-use, sampling etc overvalues the worth of "micro works", similarly with software patents in computer programming.

    With the notable exception of music industry lobbyists and execs, the large majority of people I canvas on this believe the solution lies with some scaling-back of copyright (.e.g term lengths, fair use - or even legalised personal sharing - media taxes, etc).

    James Firth


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