Is True Copyright Reform a Practical Proposition?

It is currently fashionable to talk about reform of copyright. The US Register of Copyrights, the EU Commissioner for the Digital Economy & Society, the Canadian Government, High Court Judge Sir Richard Arnold, the Pirate Party, and other commentators too numerous to mention individually, have all advanced the need for reform of this most complicated of the various IP disciplines. Some might argue that Patent law and the systems which regulate it are just as complicated (and as confusing to the layman?), but they are epitomes of clarity and common sense when compared to the current state of copyright, with its related and neighbouring rights, its sui generis lookalikes, huge areas of incompatible jurisprudence and barely token comity between nations, and a general disagreement over the fundamental purpose of copyright. Is the purpose of copyright utilitarian as suggested in the American Constitution ("to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries") or the introduction to the Statute of Anne "for the encouragement of learned men to compose and write useful books ..", or is it a system to protect works of the mind (oeuvres de l'esprit) principally for the benefit of the author (the droit d'auteur)? One look at the dozen or so EU Directives on the subject shows how muddled things become when the two approaches are combined with a view to 'harmonising' copyright law. If a camel is a horse designed by a committee, then copyright is a computer game designed by an itinerant troop of macaque monkeys with their heads stuck in buckets.

My dictionary defines the verb reform thus: "make or become better by the removal of faults and errors; abolish or cure an abuse or malpractice". However worthy the intentions of those mentioned in the preceding paragraph, I suggest that whatever the outcome(s) of the various initiatives, reform will not be one of them. All we will achieve is more bells and whistles, along with the odd aardvark and possibly two nuns on a bicycle. 

The attempts at reform are doomed for two principal reasons. First, we are tied up in a macramé of international treaties and agreements which bind us too tightly to make the radical changes which are truly necessary. Secondly, there are numerous vested interests ranging from big business to collecting societies and a myriad of other players who will resist anything which they perceive as detrimental to their business models. One has only to look at the recent judicial review in the UK which resulted the already enacted exception for private copying being overturned to see how strong is the opposition to change. This judicial review was mounted by the same music industry which for years had publicly acknowledged that it would not take action against people who wished to format shift music which they legitimately owned, and which concerns an activity which nearly impossible to police anyway. These two impediments mean that a rational assessment of the problems, let alone a blueprint to rectify them, will not even be attempted.

At the heart of both the utilitarian copyright approach and the droit d'auteur is the concept of the author - the person who creates. The word is universally used in laws and treaties to denote the person who is to benefit from the rights accorded in return for his or her mental and creative efforts. Yet it is rarely acknowledged that the world of copyright involves far more non-authors than it does authors. These non-authors include, publishers, literary agents, copyright collecting societies, multi-national record and film companies, art galleries, photo libraries and licensees of various types and so on, all of whom take their cut, without adding intrinsic value to the actual work itself; they are the facilitators but they are not creatives in the sense that the author is. But when it comes to deciding the term of copyright and thus the overall income potential, the idea of the penniless struggling artist devoid of any other means of earning a living or of supporting his family is conjured up to explain why copyright should act not only as his pension plan, but also that of his grandchildren too. No-one mentions that by extending the copyright protection for Mickey Mouse, thousands of employees keep their jobs at Disneyworld. The entire reason put forward by the EU (or EC as it then was) for extending the copyright term from fifty to70 years after the death of the author was that people in Europe were now living longer. It was never quite explained why 20 extra years was appropriate when, between 1950 and 2000, average life expectancy amongst West Europeans only rose by about 3 years (from c 75 to c 78 years of age) - arguably this figure has gone down since the accession of the East European member states. At least when a similar extension was being contemplated in the USA, it was openly acknowledged that the driving force behind such changes were the large business interests such as the Disney Corporation. That is not to say that the meme of the struggling artist and his dependants was not also deployed, hence the informal name of the Act was the Sonny Bono Term Extension Act, even though the less reverential name was the Mickey Mouse Copyright Act. And more to the point, such arguments entirely fail to take into account that the rights in the majority of exploited works are owned by companies and not the individuals who created them, either by virtue of the authors being employees or because in most cases in order to publish their works they have assigned copyright to the publisher. It is true that in the latter case, the author and his heirs retain an entitlement to royalties in exchange for such agreements, but in reality it is the companies which reap the lion's share of the profits of exploitation, not the author.

The problem is compounded when the principles one applies to individual author or artist then get transferred to the so-called neighbouring rights. Why is the making of a film treated like the writing of a book, when in reality it has more in common with building an aeroplane? Why does the person who makes the arrangements for a recording to be made equate to the composer of the symphony? Why is an actor's performance on stage worthy of protection for 50 years, but an athlete's performance on the track is not worthy of any exploitation rights, despite the fact that the latter's endeavours at an international level like the Olympics probably have equal or increased economic value? In the current climate, 'reform' of copyright would see the athlete or footballer being added to the long list of neighbours to copyright, instead of the more rational stance of completely divorcing performer's rights from the concept of droit d'auteur.

There isn't space here, or patience enough amongst the long suffering readership to examine each and every flaw, defect, abuse and malpractice by which copyright law has become burdened. Suffice it say that when the only tool in your tool box is a hammer, all your problems are seen as nails. This approach just will not do when we have a problem comprised of screws, finely balanced Swiss watches, priceless porcelain and lot of small children who are orphans.

My first proposal would be to split the area over which 'Copyright' currently extends, into discrete parcels which are not inter-dependent and which cannot then be put side by side in order to ratchet up the benefits to one area by reference to another unrelated area. On this basis the argument for increasing the term of protection for a phonogram would need to be argued on its own individual merits, not by reference to an entirely different area of artistic endeavour. This should be taken further within the groups of similar works. For instance, having accepted over fifty years ago that we needed something called design right, isn't about time there were clearer boundaries between that right and certain artistic creations which fall within copyright? No work should be able to fall into both categories. Similarly, greater distinction needs to be created between the 'work' and the authorised reproduction or copy of it. For example the manuscript and the book. In that way different approaches can be applied to things like the term of copyright. This approach already exists to a degree in UK law where there is a (much shorter) copyright in a published edition, which is separate from the author's general rights, but the same distinction is lost when the duration of protection for a sound recording now approaches that of the song. By separating the manufactured embodiment of the work from the underlying work we can address the anomaly of a large corporation's asset (say a movie or a work made by an employee in the course of his/her employment) having its term based arbitrarily on the lifetime of some individual. The US approach of giving a fixed term to material created under work-for-hire conditions is much more practical and fairer, although the actual term applied in the USA (95 years following publication or 120 years after creation) is absurdly excessive.

This approach of separating works into different categories and then applying different conditions within the categories could then be used much more equitably to suit the type of work and its potential for exploitation. For example, a provision such as the Artist's Resale Right - whether you think it is a good thing or not - is something specific to certain kinds of artistic work. It has no corresponding application to, say, a work of literature or of music. In theory it is there to compensate for the fact that an artist's original work (as a single one-off object) can only be exploited to a fairly limited extent. But this sort of exceptional treatment points up the need for less, rather than more, of a 'one size fits all' approach. With this segregated approach it becomes easier to define, for example, what originality might mean for each specific genre within a sub group, such as photographs on the one hand and sculptures on the other, within the overall class of artistic works. To take another example, computer programs are currently treated as literary works, although they have virtually no commonality with true literary works. These days they aren't even written on paper, but are generated digitally with sets of automated tools to assist the programmer or coder. Few computer programs are likely to have an economic life beyond about 10 years, with an absolute maximum of about 25 years, and so a lifetime plus 70 years is a ridiculous term of protection to apply to them. In neither utilitarian nor droit d'auteur terms can such a period of protection be described as logical or justified. In many respects computer programs have much more in common with the sort of processes and methods covered by patent law. And given the close inter-relationship between hardware and software (consider the many recent disputes over APIs and the like) there would be much merit in putting both in the same area of IP protection.

If further anomalous examples were needed, let's look at architecture. An architect may well be 'an artist' but he could equally well just be an engineer who produces functional buildings like warehouses. Yet whatever the finished building looks like or is used for, its physical appearance is protected for the same lifetime + 70 years as a painting by David Hockney. The architect gets his fee and moves on; he and his heirs don't get about one hundred years worth of royalties, and the opportunities for any other sort of exploitation (the film of the building? the graphic novel of the building?) are extremely limited. He doesn't even get exclusive rights over photographic reproductions of his building unless it's located in one of a handful of European countries which protect the panorama. And I won't even begin to look at how the moral rights (the droit d'integrité) of the architect should be applied when an owner of a building wishes to alter or demolish it. 

 

My second proposal would be to de-commission, or at least reduce to an advisory status, many of the existing international treaties on copyright. This may appear naive given that what the world needs is greater comity rather than less in the era of the internet. But my reason is simple. By hanging onto outdated monoliths such as the Berne Convention, we create excuses for those who oppose copyright reform to take the 'do nothing' approach. An example of this is the ALAI response to the Court of Justice of the European Union's finding in the Svensson case. One of their major objections was that the CJEU had created the concept of a 'new public' which might need to be examined when considering if making available a protected work via a link on the internet constituted infringement. ALAI laid great emphasis on the fact that the most recent (1971) version of the Berne Convention made no provision for a sub-set of the public as a whole, and thus the CJEU was not entitled to conjure it up. I suspect that the main reason why the Berne Convention has not been revised for 44 years, when previously it was revised roughly every 20 years, is that it is now seen as too all embracing and inflexible, and that more tailored agreements such as the WIPO Performances and Phonograms Treaty or TRIPS are the way to define common principles between nations. However every international agreement which ties the hands of the reformers is to be regretted. It is hardly the case that Berne or the Universal Copyright Convention or the WIPO Copyright Treaty (to name but three of the more significant treaties) have actually achieved a closely matched world of copyright law. On the one hand we have the EU desperately trying to meld together the droit d'auteur approach with the Anglo-Saxon utilitarian approach, all in the name of harmony of the marketplace, yet this results in Directives so imprecise that the same question can get several references to the CJEU before clarity is achieved (for instance, Svensson, Bestwater and now GS Media v Sanoma). And on the other hand we have the USA forging its own idiosyncratic view of copyright (with virtually no acknowledgement of moral rights) and imposing their world view upon other nations by means of multilateral trade treaties such as TPP.

Some have seen the way to reforming and harmonising copyright within the EU being through the CJEU. Can CJEU operate effectively in this role? Probably not, and in any case, that should not be the preferred method, lacking as it does any democratic mandate. The CJEU is not a true court of appeal, but rather a forum for seeking clarification. In that role it can’t really effect reform, and at best it may assist harmonisation. But if the underlying law (as found in the Directives) is faulty, the CJEU is helpless to sort this out. The court is supposed to be dealing with principles rather than trying the specific facts in each case, although inevitably many of its judgments do reflect the facts in the case which lead to the referral. A good example of this the Art&Allposters v Stichting Pictoright (c-419/13) case. Because the court needed to consider the technical issues involved whereby the image on some posters printed on paper was transferred to canvas, and whether the exhaustion of rights doctrine should or should not apply to this process, the resulting judgment was fact-related. However because they weren’t asked to, the court didn’t look at the more fundamental issue of whether copyright subsisted in the posters in the first place. As the posters were reproductions of long out of copyright works of art, would they have passed the originality test as being oeuvres de l'esprit? Perhaps ALAI would have preferred it if the court had sought guidance from Article 2 (as amended by the Paris Additional Act) of the original Berne Convention of 1886: "It is understood that an authorised photograph of a protected work of art shall enjoy legal protection [...] for the same period as the principal right of reproduction of the work subsists [...]" . (this section has been withdrawn - see comment No 3 by Juris)

Because there is no end to the list of the things which need fixing in the law of copyright, there might be no end to this polemic. But fortunately this auteur's esprit is craving a coffee, and since the first of April is too far away to hold this article over until then, I might as well make it into a paper dart and see how far down the garden it will fly, for all the effect it will have on the push for real reform, anywhere, ever.