The Economist: Killing creativity; Copyright law
The Economist:Protecting copyright in a digital age: A radical rethink
Two new recent copyright bills
40 to 60 million Americans terrorists and criminals
The Economist: Some famous songs are losing their copyright protection
Killing creativity; Copyright law
The Economist April 17, 2004
IMAGINE that drug companies were so successful at lobbying governments that they won an extension of their patents from 20 years, as they are today, to 100 years; and that the scope of those rights was extended so that future medical discoveries were in effect blocked. The ensuing public outcry would almost certainly result in the law being rewritten in favor of scientific advancement.
Yet this is actually happening (and with little public scrutiny) in a different area of intellectual property: copyright law. As more and more forms of content go digital, the owners of that content are becoming more possessive and turning increasingly to the law for help. The result is a "permission culture", argues Lawrence Lessig, a professor at Stanford Law School and a leading authority on internet law, where creators increasingly need legal approval for their works, not a "free culture" where creativity is presumptively allowed, as was the case in the past.
Copyright was originally designed to restrict publishers from exerting too much control over information; today it constrains individuals from creating new works. This is because, in America at least, the duration of copyrights has increased (from 28 years in the 19th century to as much as 95 years today), and their scope has widened (to include all works, not just the minority that used to be registered). It now also applies to almost all media, not just printed matter, and to derivative works. Such broad application was never intended, nor existed, in the past.
Although Mr Lessig's analysis sticks to America, the problem he identifies is increasingly a global one. As the internet and computing technology allow more efficient ways to create, share and transform content, large media companies are lobbying for laws and filing law suits to preserve their businesses. Recent suits by the Recording Industry Association of America for millions of dollars lost thanks to music piracy are but one example. Instead of adapting to the internet, media companies are using the law to change the very features of the internet that make it so successful. Mr Lessig is no cyber-utopian promoting piracy or an end of copyright. Instead, he argues for a more reasonable balance, by redefining copyright law closer to the function that it served in the past. "A society that defends the ideals of free culture must preserve precisely the opportunity for new creativity to threaten the old," he writes.
The author himself is a partisan. Seeing the deficiencies in copyright law, he co-founded an organisation in 2001 called Creative Commons to allow content-creators to license their works in ways that are open rather than restrictive. (Fittingly, "Free Culture" is available free online for non-commercial use under this system; within days of its release, the book was reproduced in numerous formats, including audio recordings.) Mr Lessig took his arguments all the way to America's Supreme Court in October 2002. He lost, and the book in many respects is a reply to the majority of the bench who ruled against him. Free culture in Mr Lessig's view is akin to free markets—it does not mean a lack of regulation; it is just a vital platform for progress. Indeed, last year The Economist argued in favour of a return to the 28-year maximum copyright term as a decent starting point for reform. Among the solutions that Mr Lessig proposes—unconvincingly, alas—are copyright marking, registration and renewal, as was done in former times. His final suggestion: "fire lots of lawyers". Ultimately, "Free Culture" is about neither law nor technology, the author's areas of expertise. It is about power. Specifically, it concerns the way in which financial and political power are used by corporations to preserve the status quo and to further their own commercial interests. This may be to the detriment of something more socially valuable: a loss of creativity that can never be measured.
Protecting copyright in a digital age: A radical rethink
The Economist January 25, 2003
CRITICS have derided a 1998 extension of American copyrights as the "Mickey Mouse Protection Act" because it stopped early images of the Disney company's mascot from entering the public domain. But such laws, they argue, are no joke. Extending and strengthening copyrights, they claim, will help a handful of big corporations crush creativity in the digital age. On the contrary, say Hollywood studios and big record companies. Without stronger copyright protection, a wave of piracy will destroy their industries, depriving consumers everywhere of a broad choice of movies, music and books.
Last week America's Supreme Court weighed into what is rapidly becoming a nasty worldwide battle about the scope and enforcement of copyrights, by rejecting a challenge to the 1998 law on constitutional grounds. But even as it upheld the law, the court expressed misgivings. Blistering dissents from two justices dismissed the 20-year extension of copyright as unwarranted, and even the majority's opinion hinted that Congress's decision may have been "unwise". The court's ambivalence is understandable. The growing quarrel over copyright is just one of the many difficult issues thrown up by the spread of the internet and related technologies. But of all these issues, the copyright battle is becoming one of the most urgent, and bitterly fought, because it could yet determine the future character of cyberspace itself. Both sides have a point. Digital piracy does indeed threaten to overwhelm so-called "content" industries. As the power and reach of the internet continue to grow, the illicit trading of perfect copies may well devastate the music, movie and publishing industries. The content industries want to protect themselves with anti-copying technology, backed by stronger laws. So far, they have been at loggerheads with technology firms about how to implement such schemes. But a deal between Hollywood and Silicon Valley is likely eventually. Critics are right to fear that, when such a deal is struck, it will be in the interests of big firms, not the public.
A grand new bargain
The alternative is to return to the original purpose of copyright, something no national legislature has yet been willing to do. Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right. Its sole purpose was to encourage the circulation of ideas by giving creators and publishers a short-term incentive to disseminate their work. Over the past 50 years, as a result of heavy lobbying by content industries, copyright has grown to such ludicrous proportions that it now often inhibits rather than promotes the circulation of ideas, leaving thousands of old movies, records and books languishing behind a legal barrier. Starting from scratch today, no rational, disinterested lawmaker would agree to copyrights that extend to 70 years after an author's death, now the norm in the developed world. Digital technologies are not only making it easier to copy all sorts of works, but also sharply reducing the costs of creating or distributing them, and so also reducing the required incentives. The flood of free content on the internet has shown that most creators do not need incentives that stretch across generations. To reward those who can attract a paying audience, and the firms that support them, much shorter copyrights would be enough.
The 14-year term of the original 18th-century British and American copyright laws, renewable once, might be a good place to start. However, to provide any incentive at all, more limited copyrights would have to be enforceable, and in the digital age this would mean giving content industries much of the legal backing which they are seeking for copy-protection technologies. Many cyber activists would loathe this idea. But if copyright is to continue to work at all, it is necessary. And in exchange for a vast expansion of the public domain, such a concession would clearly be in the interests of consumers.
Public Access to Science Act (PASA) (HR 2613)
"It is wrong when a breast cancer patient cannot access federally funded research data paid for by her hard-earned taxes. It is wrong when the family whose child has a rare disease must pay again for research data their tax dollars already paid for," Sabo said. The Minneapolis Congressman went on to say, "Common sense dictates we provide the most cutting-edge research to all who may benefit from it - especially when they’ve already paid for it with their tax dollars, and my legislation will do just that." --Congressman Martin Olav Sabo (D-MN) website
On June 26, 2003 Rep. Martin Sabo, a Minnesota Democrat with 25 years in the House, formally introduced H.R. 2613, the Public Access to Science Act (PASA).
PASA is the boldest and most direct legislative proposal ever submitted on behalf of open access. US Copyright law already holds that "government works" are not subject to copyright. PASA extends this exemption to works that are "substantially funded" by the federal government. The preamble to the bill estimates that the federal government spends $45 billion a year on scientific and medical research. If all works "substantially" based on this funding were in the public domain, taxpayers would get a significantly higher return on their investment in research. These works might be published in conventional, priced journals, but anyone who wanted to extend their reach and impact beyond the small set of paying subscribers would be free to do so. All this literature would suddenly be much more useful.
Sabo aides have told the press that the word "substantially" was not defined in the bill so that the many federal agencies that fund research could define it in their own ways. Hence, one agency could say that any publication based 25% or more on its grant must be in the public domain, while other agencies could set the threshold at 50% or 75%... --Open Access Newsletter
Sabo's bill poses a direct challenge to large commercial publishers. Under the established system, most scientific journals own the copyrights to research papers they publish. Authors traditionally assign copyright to the publisher, which means that they cannot freely distribute their works or allow open access to them. --Scientific Research: The Publication Dilemma
Latest Major Action: 9/4/2003 Referred to House subcommittee. (The bill died in subcommitee)
Public Domain Enhancement Act (HR 2601)
In a well-reasoned dissent in the Supreme Court Eldred case, Justice Breyer hit the problem right on the head. He found that only 2 percent of works between 55 and 75 years old retain commercial value. Yet under the law that was upheld by a majority of the Supreme Court, these abandoned works will not enter the public domain for many years. This prevents commercial entities and the public from building upon, cultivating and preserving abandoned works. The Public Domain Enhancement Act...will return abandoned American copyrights to the public domain. The minimal burden that this bill places on copyright owners is well worth the enormous societal benefits this legislation will have. This bill will breathe life into the 98% of older works identified by Justice Breyer; those long-forgotten stories, songs, pictures and movies that are no longer published, read, heard, or seen. It is time to give these treasures back to the public.
Rep. Zoe Lofgren (D-CA) in late June introduced the Public Domain Enhancement Act (HR 2601). It would require copyright owners who wish to avail themselves of the additional 20 years of copyright protection codified in the Sonny Bono Copyright Term Extension Act to register and pay a $1 fee 50 years following the publication of the work and every ten years thereafter.
The plan would work on two fronts: if copyright owners do not pay the fee, the work enters the public domain, meaning that libraries and others would be free to make the work available in digital editions. If the copyright owner does pay the fee, the information is on file in a database, thus making the now cumbersome and often costly permissions process more easily managed.
Latest Major Action: 9/4/2003 Referred to House subcommittee. (The bill died in subcommitee)
This bill was opposed by the Motion Picture Association of America (Technews.com April 14, 2004)
40 to 60 million Americans terrorists and criminals
The "war of prohibition" reflected in a congressional proposal to intensify criminal copyright infringement punishments for file-sharing declares "40 to 60 million Americans terrorists and criminals under the definition of the law" and promises to create a generation that believes "the rule of law is just unjust law" in general, the leading intellectual light of the copyright libertarians said last week. "I deeply believe in the rule of law, and there is nothing more terrifying to me than a world where our kids believe the law is to be ignored," Stanford Law Prof. Lawrence Lessig told a U. of Santa Clara audience. "I am a strong believer in intellectual property... I think it should be strongly protected -- once the right regime for that protection has been struck."
He was promoting his new book, Free Culture: Creativity and Its Enemies, in a presentation recorded by sponsor Commonwealth Club for public radio broadcast nationally. Lessig devised the Public Domain Enhancement Act (HR-2601) introduced by Reps. Lofgren (D-Cal.) and Doolittle (R-Cal.)
Wikipedia: Lawrence Lessig
Lawrence Lessig's web blog
Jan 6th 2005
Some famous songs are losing their copyright protection
“EVERY three months from the beginning of 2008,” says Cliff Richard, who was once Britain's answer to Elvis Presley, “I will lose a song.” The reason is that in most European countries copyright protection on sound recordings lasts for 50 years, and (now) Sir Cliff recorded his first hit single, “Move It”, in 1958. This month, early recordings by Elvis himself started to enter Europe's public domain. Over the next few decades a torrent of the most popular tracks from the Beatles, the Rolling Stones and many other artists will become public property in Europe—to the pleasure of fans and the consternation of the music industry.
One of the big four music firms estimates that about 100m “deep catalogue” (ie, old) albums now sold in Europe each year will have entered the public domain by the end of 2010. Assuming a current wholesale price of $10, that could jeopardise $1 billion of revenues, or about 3% of annual recorded music sales. And that estimate accounts only for songs up to the end of the 1950s. Far more will be at risk as music from the 1960s and 1970s moves out of copyright.
Even once much of the back catalogue has entered the public domain, the big music firms can carry on selling it on CD. They will even benefit from not having to pay anything to the artist or to his estate. They will in many cases still own copyright on the original cover art. But they will face new competition from a host of providers of CDs who may undercut them. And on the internet, public domain music is likely to be free, as much of the copyrighted stuff already is on peer-to-peer networks.
Music executives want the European Commission to protect them from such unwelcome competition by extending the copyright term. Artists have rallied to the cause: U2, Status Quo and Charles Aznavour all want the 50-year limit increased. Many more acts will sign a petition this spring. Sir Cliff has spent hours complaining to the commission that composers of songs get copyright for 70 years after their death: more than performers.
The music industry also points out that America gives artists almost twice as much copyright protection as Europe. America has repeatedly lengthened copyright terms, with the latest reprieve, the Sonny Bono Copyright Term Extension Act of 1998, giving performers protection for 95 years after publication.
Many people believe that America has gone too far in protecting copyright at the expense of the public good, including, it seems, the commission, which said last year that it saw no need to lift its own 50-year limit. Its deadline for proposals on copyright law has slipped from this year to 2006. But governments are likely to weigh in on the issue. France, Italy and Portugal have indicated that they support an extension of the term, and Britain is likely to stick up for its own music major, EMI.
Although artists and their estates want longer copyright, the big music firms would benefit from it the most, especially in the next couple of decades, says Stephen King, chairman of the Association of United Recording Artists and manager of the Libertines. Back in the 1950s, he says, performers got only one-tenth of the share of royalties that they do now. For years, artists have, with good reason, accused big record labels of ripping them off. Now they have wised up about making deals. The best guarantee of financial security—safer than clinging on to copyright—is hiring a good lawyer early on.