October 01, 2005

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


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]

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.

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 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 14, 2005

Expanding the public domain

A transcript of James Boyle's remarks on the public domain, copyright and Creative Commons, given at the Association of Research Libraries 146th Membership Meeting, May 26 2005. James calls for more evidence-based thinking on intellectual property issues, something that is currently sorely lacking.

Here’s another remarkable thing about intellectual property policy over the last 10 or 15 years: it is almost evidence-free. People criticize the FDA about Vioxx. But if we were doing FDA drug approvals the way we approved intellectual property expansions, this is how the process would go. The drug company would say, “This is my friend. He took the pill and he feels better.” Or sometimes even, “This is my friend, he needs to take a pill and he thinks it will make him better.” And then they would offer a model about as complicated as a picture of the person with a mouth and the pill in their stomach and say, “See?” That’s about as data-intensive as things have been.

What if we had a test case where two regions adopted different intellectual-property policies, and we actually had evidence showing how these policies worked? Well, we actually do have such a case—in the area of database protection. In Europe, there is strong database protection under both copyrights and sui generis database rights. Many European governments also claim some kind of copyright over databases. And there is the idea that institutions, such as the Ordnance Survey or the weather companies, should recover their costs by charging users. The US tradition is totally different. In the US, there are no rights over data or unoriginal compilations of data. Any text produced by the government is free from copyright and passes immediately into the public domain. As for government-funded data, it is produced and distributed to the public with the idea, remarkably, that taxpayers have already paid for this, and shouldn’t have to pay for it again.

Now, we actually have some good evidence about the effects of these different approaches. The United States database industry is considerably larger and more thriving, and has higher rates of return, than the European database industry. In fact, at the moment when Europe introduced sui generis database rights, there was a short one-time spike as database producers raced into the market, but then growth rates returned to previous levels, and many companies left the market. And when did Reed Elsevier and Thomson enter the legal database market in the United States? It was after a case called Feist, which said that facts, and unoriginal compilations of facts, were uncopyrightable. That is to say, European companies chose to come into a classically public information field in the United States after they had found out, for sure, that they could get no copyright in unoriginal databases. Yet, even without database rights, they’re getting high rates of return. So, we have evidence showing that less protection has been better for innovation than more protection. But you could spend days listening to arguments about database rights, and you’d never hear these facts mentioned.

(Via Open Access News.)

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