The European Parliament sent the Copyright Directive to the trialogue process, where the views of the commission, the council and the parliament are negotiated; the final words agreed by the parliament are basically the words lobbied for by the large corporate press and content companies aided at the last gasp by the sports industry. To understand why this is shit we need to go back to basics.
The purpose of copyright and patent laws is to encourage innovation; this has two sources, invention and improvement. Invention is clear, although the intellectual property laws will transfer the ownership to a 2nd party, usually a large corporate. Improvement is the whole arena of derived works. Derived works are as an important source of innovation as original invention and the settled intellectual property laws must encourage both. It would seem for legislators and their citizens that there is a trade-off with wealthy corporates spending large amounts of money to get the laws they want. I think we wish that they listened to their voters more.
There is a supply chain for digital content, from author/creators to distributors, to makers and consumers. We should also consider those citizens that do not give a shit making a fifth role. The makers, I take from Jessica Litman’s paper “Real Copyright Reform”, are all those who invent and trade in items that enhance the content market, from trumpet makers to computer and device manufacturers. Our laws need to encourage the makers as well and we observe that today’s music and film industries would not exist without them. Littman agued in her paper, and I precis in my review, that
The current settlement is disproportionately in the favour of one player, i.e. the distributor … The bulk of economic value accrues to the distributors, because once upon time, that’s where the bulk of the cost was, it required capital investment and risk taking. Capital could only be acquired by Joint Stock Companies. Times have changed and as I have argued we need a new fair settlement that in Ms Litman’s words “produces an ecology”, …
It’s not good for innovation and the supply of entertainment content that Laws favour only or mainly the distributors or the inventors; society needs those that improve and those that invent orthogonally. Our laws backed by international treaty (not the EU this time) do not serve us well.
Digital content is non-rival and non-excludable, or at least hard to exclude. This means that one person’s use does not deny anyone else, and that unlike say a concert, or film showing where the distributor charges at the door, the use of digital content is much harder to control i.e. harder to exclude; it cannot be done without legal sanction. The non-rival aspect means that there is no economic reason to charge for the items use because we have no need to ration its use. The non-excludable nature of the product means that we have to spend time and money making it monetisable i.e. forcing exclusion and this is sub-optimal. i.e. there is no benefit to society in building exclusion techniques. The right price for non-scarce products is free, as shown by Spotify’s royalty payments.
In a modern, and not so modern, capitalist society, we only use the price mechanism to ration scarce resources, and digital content is not. It brings us back to Simon Indelicate’s question, why should creators get more than a market rate, which in terms of a music track, or an image is now virtually zero. I add the question if you’re a musician or a photographer and not earning enough, ask your distributors why this is?
The implementation of a link tax, the strengthening sports events copyright and the de-facto mandating of upload filters are all measures that favour the so called creators at the expense of other inc. fans. It is based on the premise that all derived works must licence the original content. While much of the agreed copyright law and its proponents might be seen to be based on this view this position is moderated on law, by the concept of fair use, which is recognised by the international intellectual property treaties. In numerous jurisdictions, it is also diminished by anti-monopoly law, in particular, for sports events of national importance. (In the UK, access to the FA Cup,Wimbledon and the domestic legs of the Nations Cup are guaranteed free to air access.) In these limited cases, the law favours fans.
Fair use permits the use of protected content provided the purpose, the nature of the protected work, the amount of the product reused, and the market impact of the new product permits. While the US was amongst the first to increase the period of copyright protection (from 28 years to author’s life + 75 years), they have one of the strongest fair use laws. It is in defence of fair use that the opponents in the European Parliament stressed the idea that the new law would lead to the prohibition on memes (or image based messages). Fair use laws in the EU are weak and authors have little access to the dispute resolution mechanisms. The lack of rights by citizens is one of the reasons why the laws should not be strengthened.
The linktax is an attempt by multi-national press organisations to tax the news aggregators such as google & yahoo. It has been tried in Germany and Spain; it raises no revenue for the press organisations and increases the barriers to entry for both news aggregators and the press. It penalises the smaller players. The bigger organisations just stop carrying taxable content. It also jeopardises years of legal precedent that linking to content is always legal.
Human rights law now states that the right of free expression contains a right to receive information. News cannot be protected by intellectual property law, only the text of any articles, and now it would seem even the headlines. The desire for profit means that the press seek to deny access to their content. We have the right to comment and read and consume. The words around what can be copied into a 3rd party site is unclear and I assume that the hyperlink remains non copyrightable. (This may make citations harder although fortunately Wikipedia has been granted exceptions.) One further disgraceful use of copyright law is in academic publishing where science and knowledge, often funded by the public becomes enclosed behind a copyright protected paywall. (NB Patents which would protect the ideas in white papers last for 20 years, copyright lasts for authors life + 75 years). Parody is an especially important protected form of free speech, no longer in the EU.
Another aspect of the upload filters is that programs cannot and should not be allowed to take judicial decisions. Much of this software is owned by corporations and we cannot cross examine it in court; it does what the authors want not what the public wants. Courts must remain human and we are judged on fact by a jury of our peers.
The arrogance of the content providers is that they assume, and demand that laws are written to support their business model of author/publisher. Yochai Benkler in his book, the Wealth of Networks identifies eight additional models many of which would require or benefit from other laws. The content owners look to make various open source and creative commons licences weaker. Their laws of exclusivity and the longevity of the protection inhibit the creation of derived works.
In my articles on Bioware & NWN2 & Abba, I show how derived works create demand for the original author’s works. It is to the benefit of all, including authors that we need stronger protection for derived works. Back to basics, intellectual property laws must encourage improvement as well as invention. On the whole they don’t.
We should not that with programs, they are designed with application programming interfaces so that others can use these programs and today, programs are often issued for free partly so that others will share the burden of improving the product. There is virtually no program today that doesn’t need another, this needs to be made easier not harder.
The attempt to take exclusive monetisation rights by the three monopolists who provide the bulk of the world’s music and film content has created the opportunity for trickle down income created not on the basis of the work undertaken, but on the investment in legal barriers to entry which are often used to create an artificial scarcity, if you can’t find what you once had, then they hope you’ll buy something new.
These laws have been written by corporations in their own interests, and they only support their interests, not those of creators, not those of fans, not those of ‘makers’ and not those who build the silicon age’s industrial capital. It’s time to move on and the 19 Labour MEPs who did so, should not be supporting laws of this nature.
Originally posted on my blog
