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Posted at 11:19AM on 30 Sep 08. Permalink.

First! (c)

Posted at 11:32AM on 30 Sep 08. Permalink.

That was deep, Mark. Surprisingly deep.

Posted at 11:37AM on 30 Sep 08. Permalink.

Copyright is not so much the right to make copies, but to stop others making them. That requires enforcement of some sort or reliance on economic barriers like expensive printing presses, distribution networks, etc.

The efficient internet and cheap fast manufacturing for physical goods changes the equation. New business model to support innovation needed.

Posted at 11:44AM on 30 Sep 08. Permalink.

Well, there doesn't seem to be any discussion starting here, so let's start with a few key points (at least from my point of view):

Copyright is a technological anachronism, and attempts to create scarcity where none exists.
The internet, which is by no means perfect, is really good at a few things; creating communities amongst geographically disparate persons of common interest, moving content from one place to another and forcing down the cost of communications to an accessable level.

When you combine these factors; ubiquity, community, connectivity and accessability new and interesting things start to happen. For example:

If community equals "people interested in watching the latest pixar film" then those people will use the other factors to a) find out about local session times on their local cinemas website (providing it's not a usability nightmare), and b) share highlights, mashups, commentary and most importantly copies with each other.

If community equals "people upset by the DRM imposed on their copy of Spore" then those people will use ubiquity, connectivity and accessability to wage a concerted campaign to hurt Spore's sales on Amazon by giving bad user reviews - something which costs EA a heap of money, but essentially costs each community member nothing more than a few seconds time (possibly the best circumvention device invented yet).

I guess my point is that like speed limits we're talking about individual people deciding that infringing the law is less important than their immediate need, whether that's doing 60 to get the kids to soccer practice on time or write wall-e/autopilot slash fic. People seem to think that these are "little laws" where they can see little or no potential harm resulting from their actions.

Posted at 12:05PM on 30 Sep 08. Permalink.

Matthew Poole on another thread was doing a pretty good job discussing how publishers are in essential breach of the "Copyright Bargain". That is the point reached where governments agree to suspend certain freedoms that readers might have (access to knowledge, for example) in the understanding that publishers may need some encouragement to cover the costs of producing that knowledge. It is an unnatural bargain, made more unnatural by the Internet and distributed production technology.

Section two of Richard Stallman's book, freely available here, has a number of essays discussing Copyright.

To me, "The Right to Read" chapter is the most chilling of his essays as in many ways we are now very close to the future he describes. (Plot spoiler, it follows the standard, now patented, narrative device and has a happy ending...boy meets girl, gives girl password to his computer, merriment ensues).

Finally, before we get too far into this discussion, can we have some clarity around terms.

These people are pirates. They kill people on the high seas.

Our 13 year old children are not pirates. They listen to MP3s.

Please stop equating the two.

Posted at 12:11PM on 30 Sep 08. Permalink.

Well, of course, we should start here, so people can see some of what we've been tossing around for the last couple of days.

Copyright is a state-sanctioned monopoly. Cutting through all the emotional stuff about moral rights and material rights, that's what it comes down to. The state grants you sole right to control what's done with the fruits of your labour. Sounds fair to everyone?

The contrast between the copyright and what I call natural rights is that natural rights exist without operation of law. Nobody debates that I have the right to live, to move around, to express my religious or political beliefs as I see fit. The state doesn't grant me those rights, it simply affirms their existence. The Elections Act doesn't give me the right to vote, it just confirms that as a resident aged over 18 it's my right. There's no legislation that grants me the right to free movement, or freedom of religion, just legislation affirming that those rights shouldn't be impinged upon by the state.

Copyright, however, requires the law in order to exist. Without the law, copyright is a nothing. There's nothing in nature to stop me from copying your work, there's only the law. So if it requires the existence and operation of the law in order to afford this right, what does society get in return for guaranteeing that right? Copyright puts the might of the judicial system (and the executive, in the event of criminal infringement) behind the enforcement of this right. That's no small thing, and it's something that shouldn't be granted without society getting something back.
The closest parallel to copyright is the law of patents, which provides similar monopolies over the fruits of one's labours. The quid pro quo is that, in return for throwing the weight of the judicial system into the protection of your right, you must publish the full specifications for your invention, such that others can copy it. There's an implied expectation that you will licence to others the right to produce your invention, if you lack the capital or other means to do so yourself. And once the term expires (with active renewal required to keep the patent for the full length of the term), your invention is available to all and sundry for their own purposes. So society gives you a monopoly, but in return once the monopoly expires you lose control.

Copyright has a similar return to society, in that the work becomes available to all for their own use once the copyright term expires. But from the original 14+14 term given by the Statute of Anne in 1709 (or 1710 by the modern calendar), we're up to life-of-the-author-plus-50-years. This puts today's copyright works out of reach of those who enjoy them today, potentially even out of the reach of the creator's children until they're well into middle-age. Is that a fair return?

To me, it's not. Copyright is necessary, no question, and I'm not arguing that it should be abolished as an institution. It's even provided for in the Universal Declaration of Human Rights. But that same Declaration says that people have duties to their state in return for the protection of their rights. I don't consider a lifetime-plus monopoly to be fair exchange. Based on the discussion in the thread above, I seem to be something of a lone voice on that. 70, 80, 90 years, or more, that's fair, seems to be the argument. But what is the artist contributing to the society in which they live? They're contributing their work to the cultural base of a future society, but to the society in which they live right now they offer little beyond the potentially non-existent tax on the potentially non-existent royalty payments. Doesn't sound like a good trade to me.

Posted at 12:41PM on 30 Sep 08. Permalink.

Good post Matthew.

70, 80, 90 years, or more, that's fair, seems to be the argument.

Yes, sounds very fair to publishers, but it is not fair to authors, on the whole. Some authors favour a reduction in Copyright term to less than 10 years. This frees them of restrictive contracts with publishers (who often end up "owning" the Copyright) and allows them to explore different distribution and revenue models once the publisher has stopped printing.

Posted at 1:23PM on 30 Sep 08. Permalink.

Eh, I'm pro life plus 10 to 20, or fixed terms around 60-70 years. I really don't think that fixed terms of less than 50 years are at all equitable to the creator.

I think that large parts of copyright are natural rights, though -- the right to the fruits of labour, basically, as well as the moral rights. If you propose changing copyright law radically -- essentially, anything beyond returning to 40 odd year terms -- the onus is on you to explain how this will still provide a fair return to creators consistent with their right to receive payment for work.

Posted at 1:34PM on 30 Sep 08. Permalink.

I think Stallman is correct, the term creator should be restricted to God like entities. At best we are talking about painters, writers, programmers, authors and so on. Craftsmen.

Who says they cannot have "fair return" on the fruits of their labours with short Copyrigh terms? If you combine a "life plus" rule where does it end? Where will the next renaissance come from?

Sorry, but there comes a point where the community good does trump individual "fairness". The Copyright holders are taking us well beyond that point. You can tell this because they would like to lock away 13 year olds for listening to MP3s.

Posted at 1:52PM on 30 Sep 08. Permalink.

<i>You can tell this because they would like to lock away 13 year olds for listening to MP3s.</i>

Oh, for heaven's sake, most creators (and I'm going to use creators because that's the common thread) don't actually want to lock up 13 y.o.s, and nor do most copyright holders. You might have noticed the lack of authors running around suing people off the face of the planet for fan-fiction?

As for the `craftsmen' comment, (a) craftspeople, and (b) some are fine arts, and some aren't. Painting and some types of writing are arts, not crafts, whereas others are crafts, and some are barely even that. The one thing in common is the expression of ideas; idea reifiers sounds too unwieldy, so you've kind of got to make do.

Posted at 1:53PM on 30 Sep 08. Permalink.

Briefly:

1. Recoup costs with fair margin
2. Costs of production by anyone are declining
3. Costs of enforcement by collective are increasing
4. No scarcity of product has been demonstrated

Thus the suggestion would be, and evidence supports, a much shorter term is sufficient.

Posted at 1:56PM on 30 Sep 08. Permalink.

Not quite first principles, but I've been thinking lately in the context of a proposed review on an explicit satire and parody exception for copyright (the implication is it might be needed to help clarify what an infringement is for notice-and-takedown purposes... sigh).

It occurs to me that many arguments that would justify parody or satire would also apply to collage (another subject dear to my heart) and ultimately to remixes.

Anyway, it seems hard to say how the people who did the original work(s) suffer any damage. Not even the consequential sort of loss when someone else exploits direct copies of your work commercially. Which incidentally, the fashion industry seems to cope with.

So anyway as a sometime exploiter and an 'author' (in the legal sense) and relative of a rather determined author I've got a bit of a mixed perspective on the right approach for core copyright. Though as a human and a citizen I worry find the legal escalation alarming.

On the more general point, someone at boingboing pointed to a short story based around the idea there was only a finite number of pleasant combinations of music notes and if they were all registered and enforced you'd eventually run out.

Can't think what to search for, or of the name of the legal guy's book Cory Dottrow was recommending more recently. Sorry.

Posted at 2:00PM on 30 Sep 08. Permalink.

Oh, and the other recent development is authors get paid for books in libraries.

Posted at 2:40PM on 30 Sep 08. Permalink.

Keir, how about you show us that it's not possible for creators (sorry Don, I think "painter" when I say "artist") to earn a good return in 20 years? It used to be that they got 28 years, at most, to extract maximum monetary value from their work. Dickens clearly didn't suffer much from those conditions. Nor did Twain.
Look at Rowling, who's gone from beneficiary to 12th-richest-woman-in-Britain in the space of a decade. Obviously she's a bit of an extreme case, but it demonstrates that it's not necessary to have an obscenely long term for a creator to make money from their works. In fact, I'd argue that having a stupidly long term is just a state-supported gamble on the future viability of the creator's work.

Posted at 2:59PM on 30 Sep 08. Permalink.

Oh and whatever copyright is, it's a civil matter. It certainly isn't up to the entirity of the rest of society to enforce it (and the penalty form making a copy shouldn't be more than actually stealing a real CD). The bod from the RIA was quoted saying it was "unacceptable" for them to have to go to court. That might just be because the keep losing cases, but either way - lump it.

And seeing as this has been said in public, illegal downloading is not like stealing. The best analogy I've seen is it's like jumping the fence to a swimming pool.

Posted at 3:07PM on 30 Sep 08. Permalink.

The best analogy I've seen is it's like jumping the fence to a swimming pool.

That's actually pretty good. I like "If I steal your CD, you don't have it anymore and can't listen to it. But if I copy your CD, you have a copy and I have a copy, and we can both listen to it."

Posted at 3:39PM on 30 Sep 08. Permalink.

Dickens clearly didn't suffer much from those conditions

Yep, one of the most fantastically successful authors to have ever lived was wildly successful, as were two other authors who were ridiculously successful. Although Twain wanted longer copyright terms to protect his children, it should be noted.

We have a system that works well at the moment, in general. Why change it as drastically as you're proposing? We don't know the consequences, but in terms of the creation of IP, we've never had it so good.

The Hobbit was published 1937; under 20 year terms, it would have been substantially out of copyright by the time the first book of the Lord of the Rings was published; I doubt Tolkien would've starved, but that's just not fair. His Estate wouldn't have got any money from the vastly popular films, even though he provided the important creative basis.

Discussing if it is possible for a creator to be adequately remunerated in 20 years is a bit of a red herring, because you haven't defined adequacy, and because the value of copyrights differ depending on the popularity of the underlying text.

And, yes, the RIAA are idiots. However, the fallacy of the excluded middle applies.

But if I copy your CD, you have a copy and I have a copy, and we can both listen to it

Doesn't matter; you haven't paid me for it, and you're depriving me of the money you should give me under the law. I don't care if I can listen to, listening to my own CD doesn't feed or clothe me. I don't really like calling it theft, because it isn't, but it is similar.

Posted at 3:45PM on 30 Sep 08. Permalink.

I doubt Tolkien would've starved, but that's just not fair. His Estate wouldn't have got any money from the vastly popular films, even though he provided the important creative basis.

Why should his estate have gotten any money? Your garbage men's families don't continue to get his wage from the council after he kicks the bucket.

Posted at 3:54PM on 30 Sep 08. Permalink.

RB,
The Copyright (New Technologies) Amendment Bill is, at 55 pages, pretty heavy reading. Would you care to remind us of a few of the specific areas of concern?

Posted at 4:02PM on 30 Sep 08. Permalink.

Why should his estate have gotten any money? Your garbage men's families don't continue to get his wage from the council after he kicks the bucket.

I can't accept this comparison. If the garbageman owned the grabage removal business, that would indeed pass to his family (if he so chose) after his death. Wages and royalties are completely different.

Posted at 4:04PM on 30 Sep 08. Permalink.

Your garbage men's families don't continue to get his wage from the council after he kicks the bucket.

First of all, one of the most important writers of the 20th century =/= a garbage man.

Look, the wage-earner does a job and then gets the money straight away; the creator does a job and then gets paid over a period of decades -- essentially, to make the accounting easier & more accurate. However, they both get paid for doing work. If the creator's family randomly got assigned more copyrights after death, this'd be meaningful, but as it stands it doesn't make sense.

We can evaluate the worth what a garbage man does basically at the point he does it; it isn't sui generis, whereas as most works of art are. Therefore, to find out the worth of an idea, one must let time pass to find the judgement of society. However, the work was done at the point of creation; all that's happening now is evaluation and payment for, essentially, services rendered.

The garbage man's family do get any wages that the council owes for work done before his death.

Posted at 4:05PM on 30 Sep 08. Permalink.

but in terms of the creation of IP, we've never had it so good

In terms of reusing existing IP, we've never had it so bad. And when Mickey's next coming due for release into the public domain, it'll probably get worse. How can you possibly say that it's not a broken system when every time a century-old cartoon character is about to become available for everyone to use, he's retroactively granted a couple more decades of protection?

His Estate wouldn't have got any money from the vastly popular films, even though he provided the important creative basis.

So bloody what? Why is the estate entitled to a damn cent just because it's the estate of someone who created something? That's your argument: "Because Tolkien was popular, his descendants are entitled to a whopping income for decades to come." If he'd died the day after writing The Hobbit, his estate would've been entitled to the income for the next 20 years. If he'd died 19 years after, with a fixed term of 20 years, they'd be entitled to the residual of whatever royalties he was paid during that 19 years, plus the remaining year.

The kids haven't done any of the work. What entitles them to decades of income from it? And don't try rebutting this question with the testamentary disposition of real property or financial instruments. They're not the same thing.

Posted at 4:15PM on 30 Sep 08. Permalink.

"Because Tolkien was popular, his descendants are entitled to a whopping income for decades to come."

Yup. That's about the measure of it. Hugely successful businessmen make their descendants hugely rich; hugely successful whatevers tend to be able to make their children rich.

Why shouldn't creators?

You're making a powerful argument against inheritance full stop, not inheritance of copyrights.

Posted at 4:59PM on 30 Sep 08. Permalink.

FWIW: I think that inheritance, particularly with respect to large sums and estate is perverse. On the one hand it seems almost a feudal proposal that my offspring are special as am I, and therefore inherit a position in life that has not been earned. On the other hand, giving your kids a fair chance would also seem to be a reasonable proposal. It is a really interesting argument that inherited copyright and associated protective behaviour denies future generations a living despite their legitimate intentions and labours.

I also disagree with the notion that in fact there is shortage of good ideas. People have loads of good ideas, what is lacking is industry, craft and determination to render those ideas into something that represents a decent living. From this point of view copyright and to some extent patent law actually protects the labour of those who present ideas, not the ideas themselves. Furthermore as has been pointed, out the value of an idea is tied to its popularity which is a matter of chance as much as it is a matter of merit or indeed deliberate promotion.

Posted at 5:01PM on 30 Sep 08. Permalink.

How can you possibly say that it's not a broken system when every time a century-old cartoon character is about to become available for everyone to use, he's retroactively granted a couple more decades of protection?

I can't see anyone arguing for copyrights being extended based on the demand of one person or company. That's a silly system, but you get that in the USA. If it's copyright for life plus 50, or plus 70 or whatever, that should be the system, if it changes it should be for good reason rather than Mickey Mouse being another 25 years older.

Because Tolkien was popular, his descendants are entitled to a whopping income for decades to come.

Actually Tolkien, for one of the most popular authors in history, didn't do particularly well out of his books during his lifetime. He was comfortable, but certainly not rich like a lot of authors who have sold a lot less books.

I do think you need to take into account what Keir has said about the payback from a copyrighted work flowing after the work for a number of years, not like a wage and salary where you get paid two weeks later.

I think lifetime plus 75 years is too long. But lifetime would be too short for me. Many authors publish shortly before their death, or even after it (again, Tolkien, edited by his son). If it was just lifetime someone would just reproduce it straight away. Which sounds fine in theory, but the publisher would never publish it as they couldn't protect it, and we wouldn't necessarily see books like the Simarillion and the Children of Hurin.

Posted at 5:11PM on 30 Sep 08. Permalink.

Yup. That's about the measure of it. Hugely successful businessmen make their descendants hugely rich; hugely successful whatevers tend to be able to make their children rich.

Why shouldn't creators?

To be of value, a business must be successful. If it's inherited, in order to provide income to the inheritors it must continue to be successful. Successful businesses contribute to society, through tax paid, through employment provided, through goods and services provided to other businesses that allow those businesses to pay tax, and employ people, and so on. A business doesn't exist in and of itself, and it doesn't rely on the state saying "Pay up, or else" in order to exist. Inherited financial instruments rely on the continued success of the issuing body to remain of value. If I will you a million shares, but the company goes bust, those shares aren't much use to you, are they? Land, the ultimate asset, has value because it is scarce. If I own the land. you can't own it. If I will it to someone, you can't own it, because they'll own it, etc.

Contrast this with copyrights, which are of value to society as a whole only when the subject matter passes into the public domain. Until then, they're a private benefit to the creator and their family, and then to the creator's beneficiaries. Copyright doesn't exist solely to benefit the creator, it exists to benefit the creator and to benefit society. You're so fixated on the benefit to the creator that you cannot see that society must also benefit. If there's no benefit to society, why offer the coercive power of the state as an incentive to create?

Posted at 5:17PM on 30 Sep 08. Permalink.

The issue for copyright now is similar to the major problem with DRM.

Copyright protects people who make a living selling certain kinds of information (keeping it secret is obviously not an option). Computers work by copying information. It will be copied. I don't really know what the new model is, but all the machinery of the old model used to its full power will not prevent this.

Unauthorised copies have always happened, just not so easily. Font designers have had it since the invention of type and might have lessons - AFAIK they've learned to - mostly - lump it.

Posted at 5:28PM on 30 Sep 08. Permalink.

I can't see anyone arguing for copyrights being extended based on the demand of one person or company. That's a silly system, but you get that in the USA. If it's copyright for life plus 50, or plus 70 or whatever, that should be the system, if it changes it should be for good reason rather than Mickey Mouse being another 25 years older.

Yes, it's silly. Yes, it's corrupt as all hell. But it's reality. NZ has life-plus-50 because of the first time it was extended to protect Mickey. We haven't moved to life-plus-70, but you can be certain that any FTA with the US will require not only life-plus-70, but also that we stay at life-plus-whatever as the terms keep getting extended. Twice Mickey's nearly entered the public domain, twice the term of copyright has been extended to ensure it doesn't happen. I'd almost put money on a hat-trick.

I think lifetime plus 75 years is too long. But lifetime would be too short for me. Many authors publish shortly before their death, or even after it (again, Tolkien, edited by his son). If it was just lifetime someone would just reproduce it straight away. Which sounds fine in theory, but the publisher would never publish it as they couldn't protect it, and we wouldn't necessarily see books like the Simarillion and the Children of Hurin.

I don't like lifetime at all. For one because it encourages people to knock off artists in order to get their works into the public domain. For another, because it discourages, as you observed, deathbed works from being published by their estates. But why does the author's lifetime have to factor into it at all? Why can't it just be a fixed term, say 33 years? Why 33? Because it's roughly half the current average lifespan. Remember, copyright is meant to confer a benefit on society, too, not just provide for the remuneration of creators over time. Once you start using life-plus terms, you're pretty much ignoring entirely the fact that society is meant to benefit too.
Consider the Beatles: when they formed, the average lifespan in Europe was roughly 10 years less than it is now. By the time McCartney dies, the average could be another five years higher. That's 15 extra years that their work is unavailable for the public at large to utilise in creating new works, and that's if terms don't get extended any further. Once you start down the life-plus path, you're ensuring that every generation has to wait even longer than the last before they get access to their grandparents' pop culture.

Posted at 5:35PM on 30 Sep 08. Permalink.

it exists to benefit the creator and to benefit society

I'd have said it exists to benefit society by benefiting creators (and the 'creation' industries). One bit you miss is that the social benefit isn't just from having the work in the public domain, it's from having it exist at all.

In fact the first can't happen without the last either.

So for me whether it these legal right should be heritable - like every other aspect of copyright - is between the extra work and production it encourages makes up for the imposition of everyone not being able to use it as they like.

If we all sound like IP dinosaurs to you, speaking for myself it's because you've found a rather odd area to fixate on.

Posted at 5:37PM on 30 Sep 08. Permalink.

Why can't it just be a fixed term

Actually, I'd always assumed that was administrative convenience.