Re-imagining copyright

Re-imagining  copyright

Maria A. Pallante, the Register of Copyrights, recently spoke before Congress about the future of copyright:

The Register’s Call for Updates to U.S. Copyright Law

The transcription linked above is fairly short. I’ve read it, and I had a couple of people direct me to it as well (thanks for that…even if I’ve already found something, I appreciate getting a heads up).

There are certainly interesting things in this Federal document. I’m going to reproduce a couple of paragraphs here:

“A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.

Moreover, while philosophical discussions have a place in policy debates, amending the law eventually comes down to the negotiation of complex and sometimes arcane provisions of the statute, requiring leadership from Congress and assistance from expert agencies like mine. The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.”

However, while the Register says that “…Congress does not need to start from scratch…”, I wanted to do just that.

I’m going to free us from the requirement to think about what could pass, and what is technically possible, and ask us just to re-imagine copyright. I’m going to act as if there had never been copyright, and look at the idea afresh.

After all, the original concepts of copyright largely had to do with protecting people who made maps. There was a lot of risk in mapping a coast, and if you couldn’t benefit from it (since other people just reproduced your map and sold it), there would be a lot less incentive for people to invest in the enterprise. Certainly, people would still have explored, but it wouldn’t be likely to produce the kinds of relatively accurate maps that other people could use.

So, let’s start at the very beginning.

Someone creates something intangible, a book, a song, which can be consumed by others.

Why should the government be involved in what happens next?

What are the societal benefits in creating law which controls what happens to that work?

Well, there are a couple of things.

The first thing we could say is that there is just a moral right that the person who created the work should have control over how it is used. In that argument, we are protecting people from unreasonable exploitation by others.

We do pass a lot of laws for that reason. For example, if someone is a “Peeping Tom”, that’s illegal. There doesn’t have to be any monetary use of that…the observer doesn’t have to sell, or even record, images of you for it to be a crime. We just say that you have the right to that privacy, and someone who violates that right can be charged with a crime. We could think of copyright the same way: you created that work, and you should get to control who consumes it.

The other big argument is an advantage to the economy.

That says that there is a plus to the society in people creating something, and that they won’t tend to do it without the ability to make money from it (this is akin to the map argument).

Would somebody spend $100 million to make a movie if there wasn’t a way to make that money back?

Would someone spend two years researching a non-fiction book, if they couldn’t be compensated?

This one suggests that copyright makes it more likely for valuable ideas to get into societal use, even if that use is controlled by the creator of the work. If you can’t make money with that documentary, would you share it with other people the way movie makers do now?

While emotionally, the moral argument is powerful to me, I think I would tend to set up a government system based on making money. The taxes from that clearly benefit the society, and an economic motive is going to encourage production and risk.

Here’s my first new copyright postulate:

If you create something, you have the right to make money from it.

Now, current copyright recognizes something called “Fair Use”.

U.S. Copyright Office – Fair Use

When you look at the elements of Fair Use, it currently suggests that there are times when your right to control your material is  overridden  by a societal good…such as criticism of your work, or teaching (within limits).

I’m going to expand this in my thinking.

Here’s my second new copyright postulate:

If what someone does does not impact your ability to make money on your work, you do not have control over it.

This is sweepingly broad, and would be a big change. It would create a lot of arguments when there was transmission involved from one person to another, but it would remove a lot of controversies over personal use.

The burden would be on the rightsholder to prove that making money was impacted.

For example, let’s say you have a p-book (paperbook). You want to scan it and turn it into an e-book for your own personal use. While many people assume that’s legal, and it may be, that isn’t clear.

Under my re-imagined copyright, the rightsholder has to prove that you would otherwise have bought an e-book if you couldn’t do that. There isn’t a presumed control over every copy produced, just a control over making money from your work.

This is, incidentally, how a lot of readers seem to think it should work (that doesn’t make it right, of course). If they bought the book once in paper, they think they are entitled to a free copy in e-book form. The same could be said for going from a hardback to a paperback…if you wouldn’t have bought the paperback, should it be okay for you to photocopy the book and reproduce it in a more convenient form?

I need to be very clear that I am not advocating these changes, I’m just thinking about them.

Under this new concept, it isn’t reproduction that matters: it’s consumption.

Could it be worked out that the rightsholder collects a fee every time you read a book? In other words, you buy the book, pay for reading it the first time, don’t pay anything more if it sits around in your archives (on your bookshelves in the paper world), then pay for it again if you read it again years later?

As you can see, I’m not worried about the technological implementation in this “thoughtabout”. I’m looking for the guiding principles.

What about somebody licensing/buying a book from you, and then distributing it for free over the internet?

Hm…if the purchaser could be charged for everybody who read that free copy, that could work.

Somebody reads it, the rightsholder gets paid.

Ideally, of course, the rightsholder gets paid before somebody reads it.

That might be the best way to go, in this hypothetical world. The rightsholder is paid per use.

Of course, that would mean that there would be some sort of record of who was using what, and people would resist that…but I’m not concerned with what’s practicable right now.

Another major issue is whether creative works eventually belong to society at large. I’ve asked this question before:

Should copyright be permanent?

Under my first postulate, if copyright is purely to protect an economic value, then you give up copyright if you are not using it to make money.

That sends shivers down my spine in a bad way…I want artists to be able to control their art, emotionally. However, is that what the government should be doing?

We do this already with patents…if you don’t use your patent, you can lose it.

We could say that if your book isn’t available to the public (“in print”, in the old parlance), or if you aren’t making a good faith effort to make it available, you lose control over it.

What about educational use? If the educational use doesn’t cut into the market, then it would be allowed in this new conception. If it did, if the students don’t buy the work because they can read for it free whenever they want to as part of a class, that would fail the test.

Oh, those might be some complicated court cases in the beginning!

Actually, I think these two postulates create an interesting balance. You control your creative works as long as you are using them to make money, and any other use of them is okay.

What do you think? I’m not terribly happy with this myself, and can poke holes in it. 🙂 I just really want to rethink things. We shouldn’t have copyright which is based on individual ownership of physical containers, because that’s just not the entire future.

Do you think copyright should take into account art for art’s sake? Should educational use get any special and separate rules? Parody is legal in the USA, not legal in Canada…what should it’s status be? What do you think of what Register Pallante has actually suggested? Feel free to let me and my readers know by commenting on this post.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

5 Responses to “Re-imagining copyright”

  1. Chuck Says:

    Interesting read, and interesting thoughts. There is definitely a need for the US to come into the digital age, so to speak, with these laws. However, your possible postulates would only make things worse, I think. I know you were just offering thoughts and suggestions, but here’s a reasonable way that those ideas could play out–

    Scenario: You write a song. A good, meaningful song from the heart. A company decides to use it in a commercial. You don’t want them to, because you feel that cheapens it. According to what you wrote up there, couldn’t the company sue for use then, since you’re refusing to make money off of it? Even if you’re selling on itunes and getting royalties from the radio, can’t they argue that refusal to do business constitutes loss of copyright?

    To continue: the company decides to use the song anyway, without paying you. I think they could then reasonably argue that they don’t owe you any money. I mean, if you weren’t going to make any money off of it just sitting around doing nothing, then they haven’t impacted your economic ability by just taking it, have they? You’re making the same amount of money whether it gets used or not!

    Plus, what if the song takes off due to the commercial? Then, you’ve made money, and they definitely wouldn’t owe you!

    Obviously, laws are written and then loopholes are filled, but I don’t think the earning of money should be the end-result of copyright laws. Is that important? Yes, and should be protected. But the money itself is a by-product of the copyright ownership, not the point in and of itself.

    • Bufo Calvin Says:

      Thanks for writing, Chuck!

      Thanks for your thoughtful and specific reply!

      Let me parallel your scenario with a real world thing that happens.

      You make a video of your kid using a hula hoop, and the TV happens to be on off screen. A song is playing on the TV, and it gets recorded in your video. You post your video to YouTube.

      At that point, you aren’t making any money on it, but the music publisher can (and they do) go after you for it. That’s one reason why videos get removed from YouTube for copyright violation.

      I would argue, in your scenario, that the rightsholder is commercially exploiting the song (protecting the copyright), by selling it on iTunes. When you protect a patent, that doesn’t mean that you have to accept every offer that comes along…just that it is still in the market.

      As the rightsholder’s hypothetical attorney, it would be easy to argue that their exploitation of the song in their commercial reduced your ability to sell the song for another commercial…and possibly, that it reduced the value of the song on iTunes (due to overexposure).

      If you have not been protecting the copyright at all…the song has been freely distributed everywhere, and you haven’t asserted your rights about it. In that case, the commercial use is probably okay…and that’s similar to how it works with patents, also.

      A good example of that was Universal Studios versus Nintendo over the use of “Donkey Kong” as infringing on King Kong. Part of the argument was that the plot of King Kong was in the public domain, because it hadn’t been defended (there was more to it than that).

      I would say, to broaden my explanation of it, that any use of it in the market is enough to protect copyright, not every use of it. If I am selling t-shirts with an image on it at conventions (which is what George Lucas has said he thought he’d be doing with the Star Wars merchandising rights), that would protect the image from other uses, like posters…even if someone had offered me a deal on posters.

      If you’d like, talk a bit more about why the government should be involved in non-economic uses of the work. Again, emotionally, I really support that…I want to be able to control uses of, say, a diary I’ve written. However, if I’ve made it freely publicly available, and haven’t defended commercial uses of it of which I am aware, it gets harder for me to see why that should be a legal right.

      For me, again just as a postulate, I can clearly see the state’s interest in the commercial use…I have a harder time with the state’s interest in protecting it as pure art. What is the state’s interest in protecting non-commercial uses?

      One other thing…I have to think about the burden being on the rightsholder, rather than on the user.

      I hope you write again!

  2. Jane Newhagen Says:

    Hi Bufo,

    For several years I’ve been a steady subscriber on my Kindle, and surprisingly this is my first time to comment. I’m also an author of historical novels (Sand Dollar and Pieces of Eight, both tales of old Key West), and it’s as an author I’m responding.

    It seems to me that one of the greatest protections of copyright is from plagiarism. Any written work is automatically copyright protected, even if it’s not formally registered with the office. (This applies to your blogs as well as my books. 🙂 ) If that weren’t so, what’s to prevent other writers from taking your or my words verbatim and representing them as their own?

    Jane Newhagen

    • Bufo Calvin Says:

      Thanks for writing, Jane!

      Thanks for being a subscriber, too. 🙂

      Copyright has no remedy for plagiarism, and plagiarism is not inherently illegal. It’s when the plagiarism also involves infringement.

      Plagiarism is claiming someone’s work as your own. If, for example, someone quotes Shakespeare to a date and claims to have written that, it is plagiarism but is not infringement (since Shakespeare is no longer under copyright protection).

      Here’s an earlier article of mine that addresses a case that happened to me both where it was infringement and plagiarism:

      Your automatic copyright protects you against infringement, but not plagiarism.

      That doesn’t mean you can’t legally go after somebody for plagiarism…but it’s really for the results of the plagiarism. Plagiarism is the tool. For example, somebody could plagiarize your copyrighted work…and sell it as their own. It’s the distribution that’s the problem. Someone could plagiarize your work…and use it to defraud someone. It’s the fraud that’s the problem, legally.

      Once you create something, there would have to be some time before you were forced to demonstrate commercial intent…it can’t happen instantly, of course. 🙂

  3. rogerknights Says:

    Here’s my second new copyright postulate:

    If what someone does does not impact your ability to make money on your work, you do not have control over it.

    Thumb’s up!

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