Ways out of Darkness – Re-Attenuating Copyright
I am a pretty verbose critic of todays copyright, and I highlighted several Issues in past blog-posts:
- Aufstand der Toten — per Urheberrecht On the consequences of granting rights beyond the death of the creator.
- Artificial Scarcity When old works compete with your new ones.
- Stealing from the Public Domain Indulging in Copyfraud by claiming copy rights to public domain works.
- Intellectual “Property” and other contradictions The rhetoric of proponents of a prohibitionist and mercantilist copyright
- Urheberunrecht Outlawing cryptanalysis for the sake of “protecting content”.
- Copyprotection doesn’t work On the futility of Digital Restriction Management (DRM).
- Schwarzkopie und Marktwirtschaft Illegal copies are in competition with legal ones.
The general strife of enlarging the protection of copyrights because of rent-seeking behaviour in the past 200 years, pretty much since its inception, both in length, and in breadth, has shown some dire consequences to the “promotion of the art and sciences”.
This post will try to show how these problems could be fixed, and a balance between rights of artists and public may be achieved.
No rights for the dead
Thomas Babington Macauley already warned 1841 in front of the House of Commons from doing that, and the consequences in diminished respect of the copyright and in problems with inheritances and orphaned works are dire. So
Copyright may at most last to the death of the creator of the work. If the work is made by several artists, at most to the death of the last one of those.
For works whose author is unknown, this needs to be considerably less, I’d propose 14 years after publication if one does not decide to accept my next proposal:
Making the Long Tail public
Most works generate 95% of its revenue in the first few years. There exist several estimates, ranging from 7 to 14 years. There are only very few works which are lucrative beyond that, leading to the situation that the very long copyright-terms are only useful for a handful of works, while keeping the vast body of works unavailable. So:
Copyright shall expire 14 years after publication, or with the death of the creator.
There’s room for discussion with this for best-selling works, maybe one could give another 14 years upon request and public note of the artist. Or maybe one could rise the duration to 20 years altogether, but I think that should be the maximum. Anonymously published works will be granted the same duration of copyright.
Protect the Public Domain
There is rampant copyright-infriction nowadays by publishers, which republish public domain works and illegaly assert that they own a copyright on it. So
For works in the Public Domain, everyone has the right to initiate legal action against illegal assertions of copyright.
This is in line with the practice of the artist able to take legal action against infringers against his own rights.
Protect the future and people with disabilities
The practice of putting on Digital Restriction Management (DRM) schemes has spread from software to works of art, sometimes it is even applied to works in the public domain. Even if DRM-schemes are mathematically proven to be ineffective, there is still a lot of effort needed to break or circumvent them; and they do not automatically disappear when a work becomes public domain. With the latest WIPO-treaty, it has even become mandatory to outlaw circumvention of it, hampering science, outlawing cryptanalysis, and finally enacting barriers to people with disablities. Thus:
Works employing Digital Restriction Management will not be granted copyright at all.
This isn’t even an issue with online-games, which very well may decide to employ DRM instead of copyright.
Save computing heritage
Computer porgrams are especially protected by copyright, for instance the fair-use clause usually does not apply, meaning every copy without a license is a violation of copyright. Furthermore, a lot of computer programs are distributed in binary form, only runnable on one computer-type or operating system; which is of course not suited for archival purposes. Thus
computer programs only enjoy copyright if the source-code is publicly available
This would not mean you could legally change it or republish it, but it would be available when copyright expires. But it would make debugging and finding security holes in the meantime much easier, thus increasing software-quality.
Transition Periods
There need to be some transition periods, in order to allow publishers to adjust to these laws. Most noteably, publishers need some years to fix erroneous and frivolous assumptions of copyrights on public domain works, to remove DRM from publications and to publish source-code for their software. The dead need no transition periods, but it might be prudent to allow for an initial transition period in the same length as the coming copyright period if one decides to shorten the copyright ahead of the death of the artist.
Goals
Apart from freeing a large corpus of works into the public domain and thus not only protecting our heritage, but also allowing free incorporation of old works into new ones, one of the goals of this is to actually strengthen copyright. It only lasts a few years, thus people will show more respect towards it. What’s more, since there won’t be so many works in copyright, this will free up legal resources, thus making it easier to take legal action against infringers.
Remedies against infringement
There are absolutely no new remedies needed if copyright does not get reduced to last only a few years; actually, they are astronomically already. But if copyright only lasts 14 years, one might very well decide that copyright violation is much more serious than as viewed today, where people have lost respect towards it due to the landgrab of copyright holders. I however still consider this a matter for civil law.
Copyright-violations are a vast field, from re-mailing a picture of a cute cat to your whole office or to putting a map on your homepage, to wholesale distribution of block-buster movies on DVD. Since most people don’t even know that they’re violating a copyright when e-mailing said picture, the law must be extremely clear cut on what is allowed and what is not.
A clear cut law which everyone understands will help a lot to quash unintentional copyright infringements.
A few notes on Software
Copyleft-licenses like the GNU Public License or various Creative Common Licenses grant the public more rights than copyright before copyright expires. This isn’t actually a problem. Typically, Software gets changed constantly so if copyright would expire for works older than 14 years now, Linux 1.2 would become Public Domain (you can still download that, but you will be disappointed: Personal Computers at this time featured a Pentium clocked at 133Mhz maximum), as would Windows 95.