Wednesday 13 July 2011

"Do we come to bury copyright -- or to praise it?" Debate report

The 1709 Blog is grateful to Emma Beverland and Sam Bardon (Freshfields Bruckhaus Deringer) for preparing this report:

The Copyright Debate organised by the 1709 Blog in conjunction with the IPKat, “Do we come to bury copyright – or to praise it?” took place on Tuesday 12 July 2011at the lovely offices of Freshfields Bruckhaus Deringer at 65 Fleet Street, London before an audience of over 200 people.

Setting the scene

The debate aimed to consider two opposing views of copyright: “a vital tool for protecting authors, composers and artists, and for encouraging investment in the recording and transmission of their works to the public” or “ an outdated, cumbersome barrier to the spread of information and to the stifling of the very culture which it purports to promote”.

Mr Justice Arnold, in the Chair, briefly introduced each of the speakers – those who wished to praise copyright: Emily Goodhand (Copyright and Compliance Officer at the University of Reading, she writes the copyright4education weblog and tweets as @copyrightgirl) and Richard Mollet (Chief Executive of The Publishers Association and previously Director of Public Affairs for the BPI), and those who wished to bury it: David Allen Green (head of media at Preiskel & Co LLP, a City TMT firm, legal correspondent for the New Statesman and writer of the “Jack of Kent” blog); and Crosbie Fitch (an R&D software engineer and researcher who tweets and writes the Cultural Liberty weblog).

An initial poll of the audience suggested that a handful were in favour of praising copyright, a handful wanted to bury it, whilst the majority sat somewhere in the middle.

The debate

Emily began the debate with suitably Shakespearean oration, giving her “friends and countrymen” the option to either kill copyright or allow it to live, with no middle ground. In Emily’s view, something that is dead cannot be reformed and so those who would propose to bury copyright must also show that there is a better system to replace it.

Emily discussed the reasons copyright exists and the purpose it serves: it is fundamentally a proprietary right in the work which is the expression of an idea. She argued that those who see copyright as a denial of something they want to do can be compared to those who break speed limits – just because they can do it, does that mean they should? Just because people can drive at 90 miles per hour, does that mean traffic laws should be abolished?

In Emily’s view Copyright gives creators the power to decide what to do with their works – if creators want to put their works into the public domain, they can. Copyright also gives creators recourse to justice if somebody misuses their works. In a world without copyright, creators’ choices are limited as they lose the right to protect their work. She submitted that disregarding the right to own and protect would not liberate creators, but rather would usher in a new dark age. Emily also acknowledged that copyright acts as an economic incentive; most people want something more than satisfaction in return for creating a work.

Emily then considered the fine line between replicating a work and being inspired by it. In her view, defences in the law of copyright allow people to be inspired by works, without protecting verbatim copies. Emily accepted that the defences could, and would, benefit from being updated, but when faced with a choice, she advocated reform of copyright and its solid principles, rather than burying it.

Speaking against the copyright status quo, David hit zenith of Roman imagery when he likened copyright to the gladiator chasing the scrawny slave around the Colosseum in the Life of Brian – out of shape, struggling to do its job. Rather confusingly, David then explained that he did not actually want to bury copyright, but that he had never been over impressed by it in his career as a “bog standard” media lawyer and journalist. David looked at copyright from a practical point of view and considered “worlds without copyright”. From a foray into fashion law, David saw two different attitudes to protecting intellectual property: on one hand, brand was to be protected at all costs, while, on the other there was complete disregard for other creators taking “inspiration” from the designs of clothes (the 6-month-fashion-cycle making enforcement actions pointless). David then pointed to the copy-and-paste world of blogging, where very little copyright protection exists, and yet creativity flourishes. However, David did point out that when one of his blog entries was recently copied verbatim, he (potentially jokingly) asked to whom at the offending publication he could sent his licence agreement.

David further argued that it is unnecessary for copyright to protect an assignee (up to) 70 years after the creator’s death; David was unconvinced that creators and assignees should have the same rights under copyright. David also stated that the current state of copyright law defences and remedies was unsatisfactory – lack of a parody defence and remedies other than a licence fee being available were particular concerns.

David also raised general points about how copyright is treated – should it be seen as a tort, and if so, can we abandon all reference to criminality? He also wondered how much further than moral rights copyright extends, and why the legislation limits the scope of the term “works”.

David concluded that, while he did not want to bury copyright, he did not care very much for it and could not see creativity being limited by diminishing the protection copyright currently affords.

Moving again to the pro-copyright side, Richard began by emphasising that copyright is vital for the economy and cultural society, it’s importance to the “real” world. He caveated his praise by admitting that copyright was not perfect. However he asserted that even if the problems associated with copyright could not be solved, its benefits outweigh its weaknesses.

Richard argued that copyright is the means by which creators are supported, protected and rewarded and the mechanism by which creating becomes economically beneficial to the community. Publishing houses and record labels give economic, creative and distribution support to creators, and it is copyright protection which incentivises these invest to do so. They can engage in trade, confident that they have a right to the works they deal with.

Richard then considered alternative systems. He felt that patronage left the patron rather than the creator calling the tune, and questioned how a creator would meet a potential patron – this could lead to a drop in the different areas of society which contribute creative works. He dismissed micropayments and “contingency markets” systems, suggesting that copyright already included such the features of these alternatives. Richard considered it difficult to think of a system other than copyright which would provide such incentivisation to invest in creativity; providing a Winston Churchill quote, he noted: “copyright may be the worst means to drive the economy…except for all the others”.

As for the people who advocate that creativity and the economy should not be related; Richard dismissed this view as an indulgent state of fancy not in line with the current, parlous state of the economy. He emphasised that copyright has a proven track record of incentivising investors and that the creative economy currently contributes around 7% of the UK’s GDP, and the UK has the biggest exporting publishers in the world. According to Richard, unless we are able to replace copyright and replicate its benefits, we should not support its burial.

Crosbie then took up the anti-copyright cudgel, opening by stating that he was not proposing to bury copyright either, but rather to explain why it was coming to an end. He began by considering the history of copyright. He stated that before copyright there were natural rights; that these rights precede law and are superior to it. Crosbie explained that it is nature, not law, that creates rights. In his view law’s purpose is to protect these rights – rights to life, privacy, truth and liberty. By contrast, Crosbie characterised copyright not as a right but a privilege granted to the minority. He recounted the history of the 1709 Statute of Anne which created copyright for the benefit of the Crown and the Stationers Company in order to recreate the effect of a monopoly and to eliminate the sedition that had arisen in the free press. He asserted that privileges are unconstitutional, unethical and would be viewed by Thomas Paine as “the rights of all, held in the hands of a few”.

Crosbie felt that in the 18th century the relatively few press could be policed and controlled, but that in the 21st century this control has broken down – in the modern world we are all publishers, so copyright can no longer work. In his view, people have been indoctrinated into believing that copyright is a right, but that in fact each of us has the right to copy – law has attempted to annul that right, but it has never left us. Crosbie pointed to recent draconian punishments – fines of over one million dollars and prison sentences for sharing relatively few files – as evidence of publishing houses and record labels resorting to scare tactics to maintain the deception.

Crosbie continued that copyright is a historical accident from a les judicious time which should be rectified. His alternative would be for artists to exchange their works directly for money from fans in an open market – for example if 1,000 fans collectively agree to pay money to an author in exchange for that author agreeing to write a new book. He also asserted that without copyright moral rights remain, to prevent out and out plagiarism, for example . He concluded that copyright is a dead parrot that the market can and will continue without.

Questions from the floor

Mr Justice Arnold then allowed questions from the floor. There were a wide range of questions, the highlights were as follows:

A question on extensions to the length of copyright protection – in particular focusing on the recent USA/ Australia treaty. Are these increases just to further monopolistic interests? Richard answered that it was only right for creators to receive their just rewards, and to be able to provide for their families through their work. Now that people are living longer, the protection copyright affords should be extended as well

One member of the audience questioned why the length of protection afforded to copyright was so long when compared to, for example, protection provided by a patent over pharmaceutical products. Richard answered this by asserting that, despite Crosbie’s views, copyright is a fundamental property right and if we compare copyright protection to that afforded to real property, it is actually an incredibly short period of protection. Given the value of pharmaceutical products to society as a whole, they should be more widely available for exploitation at an earlier point. As Richard put it “songs may change lives, but drugs save them”.

Another member of the audience asked how much copyright has been undermined and damaged by the internet. Emily admitted that she was unsure how to either assess or quantify such damage and flagged this as an area which she considered would benefit from independent research. Once again, she pointed out that certain aspects of the defences to copyright infringement do not hold water with the current times, and were in need of serious examination.

One member of the audience was curious as to why copyright had to be buried in order for a new system to emerge: we have the potential for competition between providing complete protection, and allowing complete freedom, and creators should be allowed to choose the system they prefer to express their creativity.

Mr Justice Arnold also put forward his view that worldwide collective licensing (as per Virgin Media/Spotify) would potentially solve may of the problems.

To bury or to praise copyright?

A final poll of the audience revealed that there were still a handful in favour of the burial of copyright, but that the “praise” group had persuaded a larger smattering of the fence-sitters to their cause.

The majority of the audience were also in favour of a new copyright act being drafted.


Anonymous said...

Collective licensing?.....oh my.....

Crosbie Fitch said...

"Anti-copyright cudgel"? I think you'll find it is copyright that is the cudgel (a weapon provided by the state for its press), not the liberty it derogates nor the people who have it still.

Otherwise, it's a fairly good synopsis of the debate. Well done.

See 18th Century Overture for further details of my position.

AndyJ said...

Many thanks to all the participants for what was a most thought-provoking debate, and to Freshfields etc for their hospitality.
The sextons of copyright were always going to have a difficult job because of the need to show what could replace copyright, and the model proposed by Crosbie clearly needs more refinement before it could be viable for all the areas of artistic endeavour currently covered by copyright.
The elephant in the room was possibly: if copyright was buried, what would that mean for the raft of secondary rights in areas such as performing and broadcasting, built as they are on the foundation of copyright?
Arguably many amateur writers, artists, musicians and photographers etc are not concerned about the economic benefits arising from the copyright they automatically get when they create and do not need the nuturing influence of publishers and record companies spoken about by Richard. It is the secondary rights in performance, film, sound recording or broadcast which, generally speaking, form the commercial basis of the copyright contribution to the IP 'industry' and thus to GDP. Royalties to original creators actually form a small percentage of the overall value of this sector.

Jeremy said...

Crosbie -- to be fair to Emma and Sam who drafted the report, it was I who added the "cudgel" bit, in what was intended as an editorial capacity, when trying to find a suitable way of helping the text of their notes move smoothly from one speaker to the next!

Anonymous said...

Crosbie Fitch triumphs again, swinging the fence-sitters to the side of copyright. How much is the RIAA paying him?

Crosbie Fitch said...

AndyJ, I figure I need a pretty crude model simply to introduce people to the possibility that artist and fans can exchange art and money directly without having to print and sell copies.

Even so, I still find people can't get to grips with the crude example I use where I suggest a thousand fans can book a thousand $10 tickets to a recorded studio performance (which they don't attend) in order to pay the musician $10,000 in exchange for their publication of the produced studio recording via BitTorrent (copyleft). As with a concert, if there are not enough takers there's no deal. Once you can comprehend this as an exchange of work for money as opposed to sale of copies at monopoly protected prices, then you can move on to more sophisticated and refined models.

See Reviewing the Situation for more details of what I've been up to on the software engineering and side.

Incidentally, I also use 'a thousand fans' to resonate with Kevin Kelly's observation of this as a non-copyright based exchange mechanism.

As to broader issues, if the intellectual work is paid for directly (blog articles to movies), and not bound up with payment for its distribution, then there's also a free market in distribution as well. People can pick and choose which printer has the best value binding, or which broadcasting service delivers movies most economically for a given quality.

Also see: &

Crosbie Fitch said...

Anonymous 09:08,

I'm not in the business of conversion, but in researching apparently intractable problems and developing solutions.

The natural rights explanation of copyright's demise at the people's assertion of their liberty is just that, an explanation.

I'm an engineer. I need to understand and to explain. I am not a missionary or politician with a need to 'swing' or persuade.

If you want to be persuaded and reassured that copyright is good for society and your future prosperity as an artist then Richard Mollet is far more persuasive than I am. In that respect I am not surprised that many fence-sitters jumped down to the 'praising' copyright side.

I explained what is at the root of copyright's waning power to constrain people's engagement with their own culture, their liberty to share and build upon it, and I explained how artists and their audiences can and must do business without copyright.

Predictably, my explanation is only going to appeal to those who do not find succour in pro-copyright evangelism - typically those who have recognised copyright's ineffectiveness and who have seen enough of its injustice to notice something rotten.

Indeed, even if you felt I should, I do not need to persuade people of copyright's inherent injustice. The cartel of publishing corporations are doing this already.

I only explain: why copyright is ending, and how to do business without it.

WillT said...

One thing that struck me as particularly interesting was the talk about the Internet making people lose respect for copyright. I do wonder if the majority of the population ever had any respect for it to start with - or whether it was just some legal concept they were vaguely aware of but didn't interact with.

Perhaps all that the Internet has done is make the general public's lack of awareness and respect for copyright so much more obvious. Take, for example, this blog post; it has four pictures scattered across it, all of which are likely covered by copyright.

Did the authors (or the editor) investigate whether or not the works were covered by copyright and try to obtain a licence to copy them onto Blogger or communicate them to the public? Did they consider any applicable defences to copyright infringement and the possible sanctions that could be imposed on them if they got the above incorrect? Or did they just do what thousands of bloggers and authors do across the world; simply grab some appropriate images and stick them in without a thought about the legal implications?

On the subject of patents and duration; the argument given seems to contradict the purpose of copyright. Either copyright, patents etc. encourage 'creativity' and dissemination of works (which is one of the original justifications given in the Copyright Act 1709), or it hinders dissemination and creation. If the former, then surely patents, being more valuable, deserve greater and longer protection than copyright?

From a logical point of view, copyright should last forever, not exist, or last for some time in-between. If the latter option, one must accept that any duration picked is arbitrary unless there is ample evidence to support it (and as we've seen with term extension for neighbouring rights, evidence is often ignored when it comes to copyright).

Francis Davey said...

@Will - the 1709 blog is run by copyright specialists. I suspect that they do what most people don't do and expressly check the license status of all their images and clear those about which there is any doubt.

This is really hard work. I gave a talk a couple of years ago illustrated with images of (mostly) paintings and I had to go to enormous lengths to clear them (eg by finding generous galleries, or people with sufficiently old editions). I was impressed that the blog had managed to find a suitable image for their logo back when they used a portrait - but I suspect they have special connections.

Anyway, I think your point is almost certainly bad for the 1709 blog, but probably good for everyone else. I have yet to meet someone outside my religious community who actually believes that copyright ought always to be complied with. Whatever their theoretical or political opinion, any reasonable length of conversation will reveal that (a) they have deliberately infringed copyright at some time and (b) think that it was OK to do so.

Of course as children almost everyone copied tapes of each other's music (back in the 70's when I was young). This hasn't changed. "Ordinary" people don't care very much on the whole and hardly anyone believes in it as much as (say) believing that theft is wrong.

I can't help thinking this is an unsatisfactory situation that is going to get much, much worse.

Anonymous said...

CF wrote: "Indeed, even if you felt I should, I do not need to persuade people of copyright's inherent injustice. The cartel of publishing corporations are doing this already"

FYI, most Unsigned and DIY artists are their own publisher.
As an artist, you have the option of doing yourself, and if the offer is right, have someone else do it for you. your use of the word "cartel" is offensive and inaccurate. I believe you should know HOW the industry works currently... before you try and tear it down...

Crosbie Fitch said...

Anonymous 18:54,

Self-publishing individuals so rarely have the wealth & power of publishing corporations, let alone the same psychopathic profit motive, that they are extremely unlikely to be recognised as those indulging in draconian copyright enforcement.

Even if they are wealthy individuals, instead of kids and grannies, they're more likely to enforce copyright against their peers, e.g. wealthy photographer vs wealthy photographer.

So, my point stands. It is the cartel (a rather kind term for sociopathic predators) who are capably demonstrating copyright's injustice in their 'educational' offensive against the people.

I'm doing no tearing down, I'm just explaining that it is the people and the returning tide of their natural liberty that is rapidly eroding the ramparts of King Canute's 'Castle Copyright', returning it to a mere ripple in the flat sands.

Anonymous said...

is protecting your interests and investments by legal means somehow more offensive when it's the Entertainment industry?

Might i ask whey you choose this subject as your Crusade; instead of say.. the Big Oil lobby, Wall Street Bankers, or a mirade of other 'evil' enterprises ACTUALLY ripping off the public?

No, you'd rather spend your time trying to take coins out of a poor busker's cup...pathetic.

Crosbie Fitch said...

Anonymous 16:59,

If anyone's taking any coins out of the poor busker's cup it is the publishing corporations via their exploitation of copyright. They take about 99% of all audience revenue leaving the actual artists with about 1%. In other words, for every pound coin a punter puts in a signed busker's cup, the publisher/record label takes it and replaces it with a penny.

I would actually rather spend my time trying to enable buskers to keep all the coins they get from those in their audience who would pay them for their work, i.e. at least 99% of audience revenue.

If you see performer protocol you will find evidence of my efforts under 'See also/Contingency market' and 'Further Reading/Crosbie Fitch'.

PeterJ said...

I think copyright will sooner or later be (or should be) killed. Not the legally enforced attribution but rather the fictional copying=stealing concept. Enforcing it in an environment where everyone copies stuff and where such copying is absolutely effortless and done in a matter of seconds at most, is nonsensical. If governments try to continue enforcing this obsolete concept through legislation like SOPA, people will revolt. There's hardly any way for authors and producer to regain control over copies in the current Internet and the high speed highly encrypted future Internet that's being built. I'm starting to wonder if it simply wouldn't be a good idea if copyright dependent organizations and individuals simply became charities. If people like the work, they will contribute to its creator. If the creator works in a niche market and a limited number of people want a new work, they will obtain money to pay him/her for the work. Such a change would be a huge revolution, but wouldn't it be for the best? Why does our society reward entertainers, musicians and actors as if they were the cream of the crop? Why does a kid actor who stars in a successful series or movie earn so much that they become set up for life? Are these careers really so beneficial to society that they need to be rewarded in such a big way? Wouldn't it be better if we lived in a society where more useful careers are valued more? I think there would still be plenty of money for really good musicians, etc. to receive. Sure, this would most likely limit production of these works as really only the good stuff would be rewarding for the authors.
Just a crazy thought.

John Baker said...

The pragmatic part of copyright until personal computing happened is also why most ordinary people didn't notice copyright much - it required investment in batches of vinyl, CDs and fleets of lorries etc to move those around, put up posters to communicate etc. Effectively you stood to lose investment and the copier had to have a commercial incentive to even bother infringing where it mattered. So for most people they never really thought about it.

You can read a physical book without copying it, but all digital and computing technology in general can't even function without copying and moving information. Reading a book on a screen requires copying to even to make the pages appear. Attempts to block that with more technology will also just add unnecessary complexity. Only more mental and technical gymnastics is inevitable.

Because of this, any law trying to cope with copyright infringement can only become ever more complex (also adding ever more impractical exceptions) and penalties to counter act infringement harsher.

Awareness of the absurdity is growing because very few of the people doing copying and sharing have any profit motive now, are basically fans and eventually end up getting attacked at some point or knowing someone who has. A big stick is a very weird as a form of marketing, so to preserve copyright you need to attack your own potential customers.

I don't see how copyright can continue without gradually increasing violence and replacing democracy with a police state. Copying and distribution will only ever get easier technologically.

If people think the current situation with copyright and sharing files is 'bad', wait until 3D printing becomes common place. You will be able to share objects as well!

I really don't see how copyright can continue being compatible both with future technology and at the same time remain a democratic society. You cannot have both.

I would rather choose to end copyright than democracy. I think I am not alone.

Any pragmatic elements of copyright are ending. Its is reality that will get in the way. The only obstacle you could put in the path of reality is totalitarianism which doesn't care about reality or inefficiency.

Never underestimate the powers of the human mind to deny reality though and it can be very dangerous. So many people are even paid not to see it such as lawyers and lobbyists. They cannot and will not give up. When Getty said intellectual property is the oil of the 21st century he was right that people would go to war over it both with other countries and their own populations.

This is a very strange point in our technological history.

I happen to be staying in Sheffield this month and so many people are talking about the Richard O'Dwyer case because he is a local. I met a school teacher who says all the student are discussing it all the time and think it is nonsense etc.

I think it will be a bloody nasty battle that cannot be one (without a police state). It will also slow progress for a while.

Many artists are already working out how to turn inevitable unstoppable sharing into a positive form of marketing. Those will be the survivors in the long run. The ones that don't will ask the state to enact violence on their own fans which is just damn weird.