October 26, 2005

ORG blog moves to a permanent home

Finally, we've got a new home for the ORG blog - www.openrightsgroup.org - and all the posts and the majority of comments have been moved over to the new domain. If you've linked to org.suw.org.uk, please update your link to point to the new URL! This blog is now officially decommissioned!

October 15, 2005

Launch of the RSA's Adelphi Charter on Creativity, Innovation & Intellectual Property

Professor James Boyle
John Howkins
Sir John Sulston
Paul Crake, Chair


These are my notes from the speeches given to introduce the Adelphi Charter at the RSA, on Thurs 13 October.

John Howkins
The question that was in mind 3 or 4 years ago when they had the idea for the charter was a very simple question. Getting question right is essential for getting the right answers.

What is intellectual property for? What is the purpose of intellectual property? Of copyright and patents?

Hard to come up with an IP policy unless you know what you're doing it for.

Several answers come to mind. The first answer is that they are to incentivise people, to motivate people to create work. This doesn't stand up to examination: e.g. algebra, the world wide web. Paintings didn't used to be copyrighted and yet the same amounts of skill etc. have been put into older paintings.

The argument that if you make something you should have protection so you can make money of it seems like a good answer. Reward is important, but it doesn't really do it.

Third argument is counterintuitive. It's to enable people to have access what others make. To use it and have access. E.g. patents require you to publish your work.

How do you compromise and balance between the two? How do you decide where the limits are?

IP - hardly any debate going on, hardly any evidence. There's a claim that we should have longer copyright term but there's no evidence one way or the other.

RSA now producing some principles that would fit the public service that they identified to help creativity and innovation.

No body likes the phrase 'intellectual property', it is a divisive phrase. So that's why they renamed it the Adelphi Charter.

The charter is in two parts:
- a set of principles that should be the foundation of any IP policy, that they should sustain a society's creativity and innovation
- a list of public interest tests that they hope the government will adopt and subject their legislation to.

[A short film describing the charter was then played.]

Professor Jamie Boyle
Alternatives to monopolies is prizes. Goal was to be banal, to make points that no one could argue with, but which in this bizarre world at the moment are seen as extreme. For example, the point that law and policy should be based on evidence and facts.

What we should learn is not hostility towards IP, what it is is a tool which is constantly being re-examined. Is it doing its job?

Some examples of applying the principles.

In the US, you used to get 28 years copyright with 28 registered renewal. That was abolished and it became automatic. But only between 7 and 11 per cent were renewing. This means 89 per cent didn't want a renewal, so abolish balance for just 11 percent of people and content is locked up. Benefits small, costs high. Should never have happened.

Software patents. Requires inventor to disclose details to a level that allows people to recreate things entirely. Information that might have been secret comes eventually into the public domain.

Open source. Distributed creativity, GPL. Robust model, and economically robust model. US/WIPO says they are promoting IP rights not giving them away. But IP rights are a tool not an end.

Broadcaster's Right. Another layer of rights above and beyond copyright where broadcasters have rights over what they broadcast. Theory is that broadcast will collapse without it, and that webcasters need it too. But 100 countries haven't adopted this existing right, but looking at what happened in those countries, to examine real evidence is anathema to the policy makers.

Sir John Salston
Wasn't always aware of the principles that we're discussing now. Involved in the Human Genome Project. The task of sequencing was completed a couple of years ago to the level currently possible, but understanding it is another matter. DNA is a 3,000 million letter code.

Have a mass of knowledge that needs sharing and using for centuries to come. Some implications of it now is that we're better at medical, diagnostics where DNA has a bearing. Will be new drugs, new therapies, but that's not why it was done. It was the done because wanted a full understanding.

Doing this was inevitable, but what was not inevitable was that the library was going to be open, because they only narrowly avoided a monopolistic source for this data which would have required a hefty fee to access this information. Having a proprietary monopolistic database at the centre of a business plan would have destroyed communication in this whole field, because it would have required to be successful a clamp down on the sharing of information. So scientists would be unable to talk to those who had not paid a fee, or even each other.

This had an effect on Salston, that they had only so narrowly managed to get this information into the public domain. This attempt to privatise the human genome has many parallels which need fighting.

Excessive enclosure throttles research and innovation, ethics, widens gap between rich and poor specially on a global scale, and this economic imbalance that arises as the rich enclose and get richer should give people pause.

All endeavors of the human race. What are we here for? Exploration, research and understanding. So important not to throttle activities by focusing on what is marketable.

Lynn Brindley, Chief Exec of the British Library
There is evidence that some of the rubbish of 100 years ago is the centre of research today, and the role of libraries has been to look after that, and provide access. But what is that role in the digital age. The Charter provides a set of principles and a framework in which practical work can sit.

Used to be that the scholarly information chain was very clear. But the internet has blown that to bits, so how do you cope with that?

A particular issue is statutory mission to be the intellectual and scientific memory of the nation. What does that mean digitally? UK has taken some steps in terms of legal deposit, but it's complex, taking a long time, need to balance public's rights and those of the copyright holders. If we don't crack that there'll be no access to this material in 50 to 100 years time.

Cory Doctorow, EFF
Social contract for creativity and public access has ruptured.

Napster came, but within months, was gone. The response to the response has been clear. Now 1 in 50 lawsuits in the US is the record industry suing a fan. The contract we're being offered now is unilateral and is being renegotiated without our permission.

Industry sees value in everything, and there is value, but they are trying to get access to that value which before was on the public side of the copyright bargain. DRM is an attempt to make a grab at that public side.

The Adelphi charter is a social contract that explicitly spells out the public side of the copyright bargain.

[There was a Q&A afterwards, but I've not taken notes from that. Bit too verbose for me to distill out the points.]

The RSA have published the charter in a pretty little pdf on their Adelphi Charter site, but frankly PDFs are a pain in the arse, so I'm copying the whole thing here, in toto.

Adelphi Charter on creativity, innovation and intellectual property Humanity’s capacity to generate new ideas and knowledge is its greatest asset. It is the source of art, science, innovation and economic development. Without it, individuals and societies stagnate.

This creative imagination requires access to the ideas, learning and culture of others, past and present.

Human rights call on us to ensure that everyone can create, access, use and share information and knowledge, enabling individuals, communities and societies to achieve their full potential.

Creativity and investment should be recognised and rewarded. The purpose of intellectual property law (such as copyright and patents) should be, now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation.

The expansion in the law’s breadth, scope and term over the last 30 years has resulted in an intellectual property regime which is radically out of line with modern technological, economic and social trends. This threatens the chain of creativity and innovation on which we and future generations depend.

1. Laws regulating intellectual property must serve as means of achieving creative, social and economic ends and not as ends in themselves.

2. These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life.

3. The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.

4. Intellectual property protection must not be extended to abstract ideas, facts or data.

5. Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business processes, methods of medical diagnosis, therapy or surgery.

6. Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.

7. Government must facilitate a wide range of policies to stimulate access and innovation, including non-proprietary models such as open source software licensing and open access to scientific literature.

8. Intellectual property laws must take account of developing countries’ social and economic circumstances.

9. In making decisions about intellectual property law, governments should adhere to these rules:

* There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights.

* The burden of proof in such cases must lie on the advocates of change.

* Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people’s basic rights and economic well-being.

* Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.

We call upon governments and the international community to adopt these principles.

Adelphi . London. 13 October 2005

www.adelphicharter.org

My thoughts
The Adelphi Charter is a nice document. It's short. Concise. Says some good things. But I can't help wondering whether the banality that James Boyle says they were aiming for - and which they clearly achieved - might mean that it has less impact than perhaps it might otherwise have.

The problem with the Charter is that the devil is in the details, and the wording is in some cases so banal as to be open to interpretations that, I think, would go against the spirit of the document and the intentions its writers harboured during its genesis.

Take Point 3:

The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.
Maybe I'm being cynical, but I can just see the phonographic industries arguing that the 'balance' between public and private needs means that they must be given the ability to exploit their intellectual property for longer through copyright term extension because that would provide them with more money to plough back into the industry so that the public can 'benefit' from more new music. This, despite the fact that the music industry now has no patience with new bands, dropping them as soon as they fail to recoup their costs; focuses all its marketing budget on a minority of top-selling acts; and is failing to provide access to back catalogues for a reasonable price (or sometimes, at all).

I also fail to see any clear statement on fair use/dealing. Now, I know some people think that fair use is dead in the water. Certainly for high-bandwidth media such as film, TV and music, it is. The permissions-based society we now live in forces all uses of sound and of moving pictures to require permission - there is no fair use defence anymore. In text and art, fair use exists, although the edges are fuzzy and it's being eroded every day. If the industry had its way, it'd go the same way as in music and movies.

This again seems to fall under the aegis of Point 3, the balance between public and private needs and rights. But again, there's so much leeway for interpretation that there's nothing there to indicate that the law should support fair use.

I believe in fair use. I think that I should be able to use small bits of other things in what I do. The entire computing industry has been built on the concept of taking snatches of someone else's work and incorporating it in your own, and not only has it not suffered from it, it's flourished. Now, I can quote bits of text from books or articles if I want to and incorporate them in my work, but I can't take snippets of film or music. There are, in my mind, very compelling arguments why I should be able to do that, although I won't rehash them here as Larry Lessig does a far better job in Free Culture. But the Adelphi Charter doesn't directly address this issue at all and I think it should.

Another bit of fuzziness that is disappointing is Point 6:

Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.
I have a real problem with the words 'proportionate' and 'necessary', again because they are easy to argue both ways. What, precisely, does 'proportionate' mean? In a world where the stated aim of some lobbyists is to extend copyright terms to 'forever minus a day', is 1000 years proportionate? 500? 100? And necessary. For whom? The industry will always argue that term extension is proportionate and necessary and unless we can come up with a better way of expressing how and why terms need to be limited they are going to use these very words to sway the policy makers in a direction opposite to that of the Adelphi Charter.

The Adelphi Charter reads like an executive summary, neatly couched in management speak, but missing the rest of the report. Where are the facts and figures to back this up? The case studies? The meat of it? Where are the compelling arguments? The discussion? The dissection of the extremist viewpoints that are so prevalent now?

What is the point of a charter that essentially just says 'play nice' without giving any sort of reason why playing nice would benefit everyone?

I think I understand why they went for banal. If you can fly an idea under people's radar by presenting it as harmless and inoffensive then maybe you can subvert their opinions without them realising it. Maybe you can present things in such an unarguably sensible way that people just can't, in comparison, find justification for the extremist viewpoints that are otherwise presented to them. Thus you bring them to a more moderate line because they are compelled by the simplicity and incontrovertibility of your statements.

Or maybe banal also means 'easily ignored'.

One of the questions after the speeches asked what will happen now? Having a document is all well and good, and I don't mean to sound too negative about this - it is good that this charter has been written. But it will do no good if all it does is sit on people's desks or moulder in a dusty corner of the internet.

Apparently, and I think it was Howkins who said this, copies will be given to every government, to the heads of delegations to WIPO, to Kofi Annan at the UN, to people at UNESCO, WTO and ITU, to trade associations and the RSA will work on trying to get bodies to adopt the charter.

I guess that's a start, but it remains to be seen if the Adelphi Charter will have any sort of impact.

Rationality in the debate
I think it's worth going over here a conversation that I had after the event during the schmoozing session about rationality. I think one of the strongest points made during the evening, a point that James Boyle has repeatedly and articulately made, is that there needs to be more examination of available evidence and facts when any legislation regarding intellectual property is drafted, and at the moment there just isn't.

This is one of the strongest points of the Adelphi Charter, I think - it clearly advocates a evidence-based approach, instead of the faith-based approach that the IP industries use to manipulate public opinion and which governments employ to develop policy.

At the Larry Lessig debate the other week, he effectively wiped the floor with the IP industries' faith-based positions by rationally going through facts and figures and demonstrating that there would be no increase in creativity or innovation if phonographic copyright term was extended. The look on John McVay's face pretty much said it all when Lessig was done - 'We've just been made to look like fools'.

This is why the music industry puts so-called piracy at the heart of the debate, and why 1 in 50 lawsuits in the US is the creative industry suing its own customers - because those positions allow them to take up an emotive stance and to argue that people, e.g. artists, are being 'hurt' by copyright infringement, and that thus the industry needs more and stronger IP rights. They argue from an emotional point of view because they can't argue from a factual point of view, because the facts do not support their stance.

Last year I wrote a piece for The Guardian on a report by Felix Oberholtzer and Koleman Strumpf on a report they'd written comparing actual download statistics with actual sales statistics. They discovered that at worst there was no impact on sales, and at best there was a very small positive impact. I had a devil of a time trying to get someone from the music industry to talk to me about this study and in the end the guy from the BPI just blustered and harumphed his way through the interview, claiming repeatedly that the study was 'flawed' and then quoting industry surveys at me that, surprise surprise, supported the BPI line. He didn't, of course, acknowledge that the BPI's surveys are actually far more seriously flawed than the Oberholtzer-Strumpf study.

It was a case of emotive arguments being put forward to try to counter rationality and fact.

If the Adelphi Charter can achieve a swing away from the emotional to the rational then it will have had an important impact. I don't think that, as it stands, it's going to convince anyone to reassess their view on intellectual property because I don't think there's anything in it that is capable of changing people's minds. Those who already agree with it will continue to agree with it, and those who don't will dismiss it. But I think it can encourage more reasoned discourse on the matter, and if it does then that will be a huge, and very positive, step forward.

October 08, 2005

Links for 8 Oct 05

Time to clear out my browser and pass on a few URLs:

Your Right To Know: Why we must cut the costly Crown copyright - Heather Brooke from The Times on why Crown copyright has just got to go.
FT.Com: James Boyle More rights are wrong for webcasters - The Broadcasting and Webcasting Treaty is going to be a disaster for pretty much everyone, and has been drafted without any regard for the facts.
Bill Thompson: Extending Copyright Term RSA Seminar - Bill blogs about the Lessig vs. the Industry seminar I also went to.
New Statesment: Capitalising on Creativity - write up of a round-table discussion held by the Smith Institute about 'how Britain might capitalise on its creativity' (free downloadable PDF). Don't expect any dissenting voices.
Virtual Rights Institute Annual Digital Identity & Human Rights Symposium in Costa Rica, 18 Nov. How I wish I had the budget...
Wikipedia: Data Retention - good piece on Wikipedia about data retention, with sections that focus on the UK.
Information Today: Open Content Alliance rises to the challenge of Google Print - Brewster Kahle and a bunch of others take up the Google Print baton and start scanning everything they can get their hands on.
ZDnet: Tsunami appeal site 'hacker' found guilty - disgraceful conviction of Daniel Cuthbert simply for typing ../../../ into his browser to see if a site was phishing or not. Not good.

October 01, 2005

Should the term of copyright protection be extended or shortened in the UK?

RSA, IPPR, PCMLP Lecture

Prof. Lawrence Lessig, Creative Commons
John McVay, CEO of PACT (representing film and TV producers)
Adam Singer, CEO of MCPS and the PRS (musicians' royalty collecting societies)
Moderated by John Howkins, RSA

My preamble
I really enjoyed this debate, although I was a little surprised to see quite a lot of agreement between the panellists. Not sure how much of this was just out of a desire on the part of John McVay and Adam Singer not to get into a fierce debate in public, and how much was genuine agreement with the points that Larry Lessig was making. But I was pleased to see Adam and John take the stage with Larry - Adam joked a couple of times about how he'd get fired for publicly agreeing with Larry, and I there were definitely undercurrents that some of his constituents would likely not be happy with this event even taking place, so all credit to him for resisting pressure and helping make this debate happen.

It would be easy to paint the industry as the antichrist, and in fact I have heard Adam described as just that (ironic, then, that he joked about how some people in the industry see Larry as the antichrist). But picking an extreme standpoint and sticking to it is not always the best way to progress towards a reasonable compromise and it was encouraging to see Adam acknowledging some of Larry's points as valid and to see Larry suggesting potential middle paths.

I do have to disagree with Larry on one point, though. I don't think copyright term extension in the UK/Europe is inevitable. Maybe I'm just being optimistic, but software patents were defeated, and I think that we can defeat term extension too. But we need to start debating this in public now, not wait until it gets to a crucial juncture in parliament.

So, now, on to the notes from the evening...

Larry Lessig, Creative Commons
RSA appropriate place for this discussion. It's remit is to encouraging new arts and invention, but through prizes rather than monopolies. In the 17th/18th centuries, monopolies were unpopular. Monopolies - such as those on golden thread or playing cards - were abused, and response to abuse was resistance to monopolies.

Statute of Anne, to 'encourage learning', 14 years renewable once for new, 21 for existing work. 1731, interesting question was would copyrights expire? Publishers insisted copyright was perpetual, despite Statute of Anne, claiming that common law granted perpetuity. In 1735 they asked for a term extension but were defeated. In 1737 they asked again, and were again defeated.

In 250 years since then, this history has been forgotten. Discussion of monopolies is not about limits or balance, specially in the context of copyright, instead have a race for increasing copyright term.

Germany +70, 'to account for the war'
Europe +70, to keep up with Germany
USA +70, for 'harmonisation'

But then in US corporate [sound recordings?] works was +95, but EU was +50.
EU wants to harmonise now to +95
Mexico wants to go to +100, and Spain wants to match Mexico.

Terms increase, never decrease.

The radical arguments for terms are:
- Radicals = Jack Valenti 'forever minus a day'
- The Economist = 14 + 14, exactly as statute of Anne.

Don't need to address the radical position. Extending the term for recordings, should it be +50, to +95?

Two points.

1. Copyright is about encouragement, incentives, monopolies in exchange or creativity. Should we change terms should be about incentives to produce new creative works? Distinguish between prospective change of terms for a work not yet creative, and the retrospective change of terms for works that exist.

For new works, the prospective increases:
Is 50 years enough? Look at costs and benefits. How much more valuable is a 95 year stream of income over a 50 year stream of income? The difference between these two streams of income is tiny under any realistic calculation. 1% increase in value of 95 over 50 years.

Is the 1% important? It could help... it's plausible. But the 'maybe' is the part that's important. This increase in incentive is so small it's implausible to imagine it would have an impact.

Retrospective increases:
No numbers to calculate at all. Benefits from the prospective of what copyright is to be about, producing incentives to create new work, the benefits are 0.

Incentives are prospective. Anything we do about existing copyright cannot do anything to increase production from the past - Elvis can't create any more work in 1955 than he already has. Increasing terms doesn't increase incentive, but it will make people richer.

Maybe the people use this money to make new work, but maybe they'll do up their house in the Bahamas instead.

If the focus is on principle, there is no principled reason to extend copyright.

But principles won't win.

Larry thinks:
We will extend copyright terms, despite principle. But there is a simple and obvious point about how that should be done. There is no reason to extend copyright terms indiscriminately and adopt a blanket term.

Owners of Laurel and Hardy movies filed a brief saying "We make millions when you extend copyright, but if you don't strike down the act, there is a whole section of film history that will disappear, because the vast majority has no known owner. So no one will invest in restoring the work because someone may come forward and own it. Only when film is in the public domain does anyone invest in restoration. But the films will disintegrate, because the film stock cannot survive until it goes into public domain again."

Vast majority of the work that would be affected is commercially unavailable - 98% of work is invisible to the current culture. If copyright is extended, it will remain invisible.

170,000 78s
383,000 vinyl records

Are being digitising as they pass into the >public domain, but a tiny proportion has an owner. Shouldn't block access to the 98% for the benefit of the owners of the 2%.

Instead, find ways to discriminate. Extend copyright only if it's needed.

Proposal: if you want an extend term, then at 50 years file a form and attach £1. If you do those things, you'll get 95 year term.

We know that from the history in registration in the US, the vast majority is in the public domain. And this would also guarantee that Sir Cliff, Elvis (or rather, his record company), Maria Callas (or rather, her record company) can continue to benefit. A twist is that the benefit sought by the 2% will not destroy the benefit of the 98%.

No good reason to extend copyright.
No principled reason.
But if you do, narrow it to those who ask. No reason to ask to extend it beyond that.

At this time, when technology could make our past accessible universally, there is no reason to use the over-burdensome system of copyright to block that access. We can grant additional benefits selectively. Only extend for the 2%.

John McVay, PACT
Represents rights owners. Don't want to see a decrease in copyright because they think it's a deterrent. And that the long tail is going to become more important to reward investment, and to encourage investment in new content and platforms in different ways.

Critical to them that law doesn't decrease as only just became copyright owners because of investment from the city, and city expects certain returns.

UK second to US in terms of global TV exports, and can be a better second and the way to do that is to make investment, and a return on investment.

Agree with Lawrence in terms of when does extension stifle creativity? Also we are users of rights as well as rights owners, so there is a conflict there. So generally, for extending the term, is the term OK as is? Would argue that perhaps should focus on piracy rather than copyright.

[Paper from IP Forum with good quote that he reads allowed very quickly]

Create
Respect
Eductate
Access to creativity
Trust between creators and consumers
Economic benefits from IP, basis for employment

Principles that PACT would sign up to.

Protect rights of those who make a living.

Adam Singer, MCPS/PRS
In some circles this subject provokes extreme reactions. The reasons people think Lessig is the antichrist is because they are creative people and they are frightened, and fear produces irrationality.

Broader questions that need to be addressed.

What is the right structure to ensure there is a vibrant creative community? Not just music, not just TV. Everything becomes a subset of IP, because making stuff isn't important anymore, designing it is.

Need to make sure people are willing to invest time and money in creation. To have a creative society you need a creative mulch in which everybody can return what they've created to the communal compost heap.

A 3D printer makes IP important because anything you can think of and design can be printed in 3D.

So what is the right balance between extending and reducing copyright? Some things need a longer investment, others are shorter.

Doesn't fully understand argument for extending term of recording, because if things haven't made a return in that time, why do they need to be in copyright? Do they need to be providing a pension?

It's not necessarily true that government has bought into extension, but some things will need extension.

Discussion
John Howkins (moderator): What is copyright for? What is the balance between encouraging creativity and rewarding time and effort? Is registration a valid model?

John McVay: It's an interesting proposal. Not sure of what point that kicks in, whether it's 50 years. Going forward most works - who owns the copyright is explicit, and the orphaned works issue doesn't apply to works being made now.

JH: Chain of title in the film industry is complicated.

Larry Lessig: I think we've got very strong agreement up here. Will the system we're developing internationally help make copyright simple going forward? UK System that the US copied, the system was simple and that's what the system needs. The French and Europeans have pushed the idea that formalities are somehow an insult to the rights of man and the idea that you need to take any formal steps to assert copyright are an insult. Even if the French were right, that registration was too unfairly burdensome, which it was then, in 1909, but now it's not. Cost of registration could be trivial. With one click you can buy a $15k computer, and where we need to renew domain names every 3 years, why do we insist that affirmative action on copyright is burdensome.

If you're extending an existing term, there can't be anything wrong with requiring registration for that. Those who believe in copyright as a property right and want to see that system function shouldn't have a problem with that. In the UK the debate is more same. In the US it's stopped because 'it would be too burdensome from poor copyright owners who can't afford one dollar'.

Extremism in the US, so hard to have sensible debate. So eager that this get address in the UK where there is a more balanced debate. If adopted here, it'd change what's happening in the US because the US want to force everyone else into the extreme position on copyright, so this would be a real contribution.

JH: That hasn't been proposed in the UK?

Adam Singer: Concepts: copyright stretch - stretch it til it gives you income. Vs. strength, with piracy, reporting issues, enforcement. If you knew you had stronger copyright, then how would that impact the desire for longer terms.

LL: Agree that piracy is important and orthogonal to this debate. This is not about your right to steal music from Britney Spears (no one should steal music from Britney Spears, because no one should have to listen to Britney Spears' music). This is not about piracy and no one supports piracy.

But the second part is to distinguish between strong control for your work, and strong control over the right of others to build on your work. If I write a book I should earn royalties, and I understand the moral claim that says I should do that. But don't understand the moral claim to not allow people to build on the work.

When copyright was born it was about protecting the work, not derivatives. Not it's about the work, all derivatives, and it gets insanely complex.

Need to encourage derivative works.

JH: Economic or moral rights? On the continent moral rights are very important.

LL: Haven't spoken about moral rights. Set of rights we called moral rights are distinct and we are not addressing that in this discussion. Implemented differently internationally. Creative Commons are struggling with the moral rights worldwide, but they are radically different [from country to country].

Some aspects of moral rights are perpetual, e.g. right of attribution. Should be perpetual. Bizarrely, in US it's unconstitutional that that right should be perpetual. Attribution is fundamentally important.

Disagreement is things like dignity claims around integrity. Different media have different norms:

So I wrote a book, some people review it, and it's idiotic, or they are trying to use the words to advance their own ends. And in the context of text that's legitimate, and we allow them norms of scholarship to judge. In Film or music, when you want to use someone else's work, you have to clear permission and there's a presumption that you have the right to veto it.

Products of different markets. As everyone becomes a multimedia producer, the gap between these two cultures will shrink. Will move more to text paradigm. Not that you get away with it, but the way we regulate it is not through law, it's through saying 'what you said was unfair and stupid and I'm not going to listen to you anymore'.

AS: Mentioned the piracy thing. I think piracy is irrelevant in this conversation. It happens when you get the risk reward equation wrong.

What we're really dealing with is that piracy is a friction in the system, such as accurate reporting. So what's the right term of copyright - longer in friction rich environment; short in friction poor environment.

LL: The level of copyright is way above what we really need. No one ever does a spreadsheet on the basis of 50 years. No one gets a 100 year mortgage, but the difference between a 100 and a 35 year mortgage is zero. So if we adjusted it, we need to recognise that it's wildly above what we need.

Will Davies, IPPR: Think you're right that there will be a copyright extension, but don't think it will be done for economic rational. the rational that this government would use would be the economic context of globalisation. Balance of trade problem in UK and US, so this is more about the government panicking.

LL: You say that's cruder, but it's false economic justification. Balance of trade argument is not an argument. If you think about how the rights actually restrict the opportunity for new creativity, then it becomes even more compelling that you need to not extend terms that restrict creativity.

Many film makers felt that extension of copyright was a disaster because they wanted to do stuff with stuff bud couldn't until it was public domain. Have to think about the growth opportunity and the economics.

JMV: Been discussing with Creative Archives, and some producers might even put stuff they make under Creative Commons licence, but it has to be a choice for the rights owners to do that. As producers you do want to see new creativity, new things, innovation, and that's a good reason to do it. But don't want a compulsion to do that.

Mike Holdness: The justification for life +70, which is the life works of Keats edited by his grandson. Focus on the author and the works is important. Moral rights are important because it provides a way for people to object if stuff is misappropriated.

LL: Moral rights, attribution is something that should be forever, with respect to distortion, the legal system is not the place to say whether or not there is distortion. Should be done in public.

Supports systems for authors to reclaim their rights. CC are launching a step-through process to help people to reclaim their rights where it's valid to.

But factually, not correct to say that the fact there might be a spike changes discount economics, because it's all about probabilities and you're estimating uncertainties.

Phil Sutcliff: Creators' concern is not to do with extension, it's that they all work in businesses where corporations want to blackmail them into surrendering their copyright. In the UK that means self-employed creators. If copyright is a human right it values creators; if it's a property right it values companies or individuals with huge economic power. The discussion needs to embrace the absolute fundamental importance of the creative work. Because of the panic in copyright, largely stirred by the internet, those businesses whose instinct is always to crush the economic right of creators have been more stimulated to crush the economic rights. The human rights based model is a help. Copyrights and moral rights come under the heading are inalienable rights which can't be sold, and that model establishes the principle of the valuableness of their creativity.

LL: Don't want to have a semantic disagreement. US said copyrights can only be granted to authors, Statute of Anne said authors or companies. I say copyright is a property right but it's the Author's property right. A fundamental mistake was Work for Hire. In favour of conceiving it as rights of authors. But inalienable rights that weakens their power, because they need to be able to sell stuff. Some stuff is inalienable, like attribution. But should be allowed to assign copyright, whether to a company or through Creative Commons.

Richard Cole: Difficulty of finding owners. Is a possible solution and e.g. of Adam's members, in that those people have assigned their rights and there's a clear route to who owns the rights, or is administering those rights. Opportunity to turn all copyright where it's only collected by collecting societies.

LL: Collecting societies have played an important role, in allow people to administering rights without a lawyer. But wouldn't go so far as to say that it should be compulsory. Should be competition. Shouldn't take the author's right to say who controls the rights.

AS: Agree with Larry, but a contrarian view. In an offline world, collecting societies have been highly effective. Interesting questions going forward - they are territory based and in a networked world how do you deal with non-territoriality. Have to supply works to everybody, can't create scarcity. Is a monopoly system the best way to achieve value? The idea that collective societies as we've known them as territorial, non-competitive societies is stretching it a bit.

A single compulsory licence, it's already breaking up, publishers are already breaking up the rights,e.g. online or offline rights.

Steve Bowbrick: Why is it such a big deal? If we move out of the economic into cultural? Why are we so worried about the public domain? It's more robust than ever, more than the 18th Century, but in those days it was very thin impoverished area.

LL: It's not as healthy. There's more control now than there's every been. But now there's an extraordinary range of new ways to use culture. Look at GooglePrint, which wants to scan 20 million books and if the work is in copyright all you can see is a snippet, but if not you can see the whole thing. Most important advance since the library. But because Google needs to 'copy' the books to build the index, and copyright law grants an exclusive right, the publishers are saying you should have to ask permission. So there's no way to do it unless it's an opt-out. Publishers says no don't do it, but what they want is a tax. And if that becomes the rule, no doubt Google can do it, but the local library will not be able to do it because the right to innovate in this space will depend on money.

We're all creators now. In order to create you've got to have a lawyer clearing permission seems anathema to our tradition and is economically senseless.

JH: In a creative economy everyone should be able to exercise the right to creative.

Becky Hogge: Agreement with Last.fm about Audioscrobbler which allows people to manipulate tracks they are listening to on the radio. Felt that this is taking out the middleman. Is it a vision for the future.

AS: I don't know. I don't know enough about it. But it's a good point.

Damian Rafferty. What one thing would you do for all your members who really want to build on works, get at the archive that would enable them to do more of that more easily?

AS: Don't believe his job is to preserve collecting societies, but to support what ever system provides greatest amount of reward to members. In terms of copyright, i think this is a real issue for government and it is for government to start asking questions. As a copyright society we are a vested interest group so not detached. ONe of the roles of government is to be questioning rather than listening to vested interest groups. So should ask what is the right copyright structure for this country to create most value from IP in an economy where manufacturing skills are irrelevant. Problem with government is that they listen to the the vested, rather than question.

Damian Rafferty: If I assign my copyright to PRS it's forever, but what else could the PRS do to help creators with reuse?

AS: The issue that faces us is that one you start fragmenting the various natures of rights it's very hard to make sure people get he right appropriations. Until you have really efficient metadata, can't do that.

JH: Are you working to provide something like that.

LL: A practical way would be to go look at how kids look at computers. People think that kids hoard music, but what kids are doing with computers which is to take the culture that they experience - film, music, etc. - and remix them. produce media and that creativity is astonishing when you begin to look into it.

Genres of music which are nothing more than taking clips and remixing them. Vast majority of it is technically illegal. So how do we adjust the law so that this creativity is illegal. This is not a new thing - think of the cover record. Have the right to make a cover song, but don't have that right with a book, can't just turn a book into a movie, need the rights to it. In music the record industry, they recognised that the right to cover was more creative than the right not to. It's a compromise on copyright. An adjustment to enable this new tech.

Sampling is not covering, need to negotiate, so that music lives underground, or when it surfaces lawyers make lots of money out of it. Totally destructive way to architect the rights. There's real value that's destroyed by the design of the legal system.

Mark Young: Return to proposal on extending copyright. You're convinced it's going to be extended. Most people won't register, could it be improved by making it like trademarks and design rights, which can be challenged.

LL: The reality of copyright law is that there's nothing guided by principles. What governs is interest group saying 'this is what we must have'. Worried from standpoint of pragmatic politics that principles don't matter. Prove me wrong, and be the first time in 50 years where extension has not occurred, but at least let's open up a space to do it in a way that's not so totally destructive to the opportunities that the creative community provides.

Right now, the US is forcing country after country to extend copyright terms. And no country has been able to open up alternatives that the US has accepted. If we don't extend, it would be very important to help reform in the US.

Five year renewable term forever. Would be a better place than we are now. There's a lot in trademark that's good, trademark is about ensuring there's not misidentification. But there are a lot of formal steps, and it's would be good to add that back into copyright. But a system that that goes on forever is not a good one.

[Note: Fingers about to drop off, can't capture everything.]

Dave Birch: Curious about the IP context to the debate. What is special about pop songs that they should get life plus a million years but steam engines don't? [Patenting is 20 years]

JMV: Under the current system is that business are trying to make people rich, companies trying to make a living, and that's where he starts from. They need to get a return. Investors want a return, and the length of term makes them feel secure.

AS: It's a really good question. If you take the original 14+14, and now it's life +70, and I don't think anyone is arguing that a pop song is more important than a drug, but you have a situation where people want to defend it.

More important for society that drugs go out of copyright so that people can start making it cheaper.

LL: Patents and copyrights started the same length. Radical shift. What justifies it? Patent right is more powerful than copyright, and it's more costly to society. Benefit vs. cost then should be more worried about patents than copyright, but the risk of concentrated powerful media organisations is what's pushed copyright. Once the US became exporters it became an issue. Didn't respect foreign copyright at all for first 100 years. Became interested in maximising term.

Tom Chance: Much creativity has a non-commercial use/value, but it doesn't come into the debate. There is no organisation that looks after those uses. In this debate on term, not getting the counterbalance.

LL: One way we can bring it into the debate is to shift the debate. The point is freedom - that's what you're talking about when you're stopping people from engaging in creative rights. By what right does the government stop this? When you frame it in terms of freedoms, it becomes harder to justify except in context of commercial transaction. In US it's not seen as freedom, but seen as property. They only see it as theft, they don't see it as creative. Instead of building for that creativity, building against.

AS: Regarding helping people add value. In schools there's lots of technology been put in place, but teachers won't because they are worried about copyright. A place to have a debate is about using free educational debate which would create a new angle on it.

Jaime Stapleton: Parnell has the Creative Industries forum which allows people to make submission. Anyone can make a submission, go to DCMS.

Summation from the panel
JH: Is the debate here different to in the US.

LL: more optimistic about what's happening here. There are wider diversity of industry reps who are experimenting across the board who are experimenting with new models, BBC, Channel 4, and the level of public discourse is much higher in the UK than in the US. In the US hard to imagine more than 2% of the public knowing there was even an issue. Debate here will help the debate internationally.

JMV: Interesting point about registration, it's the point of when you do it. There are different forms off creativity. Citizen/creator debate, when do you move from a citizen to being a creator and how do you make the move?

AS: Like the idea of registration, the idea that there's a cut off point that the rights revert to the author and that they a have right to decide what happens next.

September 27, 2005

But what about Scotland?

Just spoke to a group of ISPs at the UK Network Operators Forum conference about ORG (Ian spoke about data retention), and from the audience came a very important question. What about Scotland?

Scotland has a different legal system, different legislation and its own parliament, so that means a whole different group of people we need to be talking to. We are keen to be inclusive, and didn't intentionally leave Scotland out, but we'll need to find our counterparts there. We are talking to Digital Rights Ireland already, but I am not aware of a similar group in Scotland (or Wales or Northern Ireland, for that matter.)

If you know whom I should be talking to, point them out to me. Meantime I shall put some feelers out to try and find the right people.

September 26, 2005

Briefing for members of the European Parliament on data retention

Privacy International have put together an excellent open letter to all members of the European Parliament, addressing the current proposals on communications traffic data retention. It begins:

Dear Members of the European Parliament,

We would like to take this opportunity to address you regarding the current proposals on communications data retention. As you are well aware, both the Council and the Commission have put forward proposals on data retention. It now appears that the policy is finally shifting to the first pillar away from the third. This does not mean that the policy has improved. Despite many edits over the last two years, both the Council and the Commission proposals continue to be invasive, illegal, illusory and illegitimate.

These proposals continue to require the collection and logging of every telecommunication transaction of every individual within modern European society. Almost all human conduct in an information society generates traffic data. Therefore traffic data can be used to piece together a detailed picture of human conduct.[1] Under the various proposals, this data will be kept for between six months and four years.

There are clear challenges for these proposals with respect to the European Convention on Human Rights, the European Charter on Fundamental Rights and national constitutions. The case still has not been made that retention is necessary in a democratic society.[2] The claimed need for harmonisation is premature at best and challenges democratic process.

The letter, which is well worth reading, has been endorsed by:

  • Association Electronique Libre, Belgium
  • BBA Switzerland
  • Bits of Freedom, the Netherlands
  • Chaos Computer Club, Germany
  • Computer Professionals for Social Responsibility - ES, Spain
  • Digital Rights, Denmark
  • EFFi, Finland
  • Forum InformatikerInnen für Frieden und gesellschaftliche Verantwortung, Germany
  • Foundation for Information Policy Research, UK
  • GreenNet, UK
  • ISOC-Bulgaria
  • Open Rights Group, UK
  • Privacyblog.net, Slovenia
  • Netzwerk Neue Medien, Germany
  • quintessenz.org, Austria
  • Stand.org.uk, UK
  • Statewatch, UK
  • Stop1984, Germany
  • Swiss Internet User Group, Switzerland
  • VIBE!AT, Austria

September 24, 2005

Baroness Sarah Ludford MEP: No justification for data retention

On her website, Baroness Sarah Ludford MEP worries that there has been no serious cost-benefit analysis of the UK's data retention proposals for Europe, and calls on other MEPs to question the necessity for such 'sloppy' legislation:

"[S]torage of everyone's phone, email and website use is costly as well as a massive invasion of privacy and increase in state surveillance, so the threshold for justification is a high one."

"I am still worried by the absence of a serious cost-benefit analysis. Assertions are made about the need to keep records for a considerable time, but the evidence is thin. No decent rebuttal has been delivered of the case for a short retention time plus specific 'freezing orders' for communications records of suspects."

"Since we will have the leverage to do so now, MEPs must probe the real necessity for invasive measures. Whilst EU-wide cooperation is crucial to stop terrorism and organised crime, Member States should first end cross-border turf wars and actually implement cooperative arrangements they've signed up to."

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