Copyright, the public interest and false assumptions

9 juli 2015

Neil Turkewitz kindly responded (via email) to this piece. Please read his interesting reply here. In turn, I responded to his points here.

As Europe is looking into copyright reform in its Digital Single Market strategy, Kennisland is advocating for a copyright++KL and copyrightRead more on Kennisland’s position on a modern copyright fit for a modern society here. that works for a 21st century society, one that balances the needs of citizens with the needs of rightsholders (organisations). Neil Turkewitz, Executive Vice-President of the RIAA (Recording Industry Association of America) in international affairs, has written about copyright and how it serves the public interest on the blog of Intellectual Property Watch earlier this week. Turkewitz thinks that we do not need to rebalance copyright, better yet – he wants to strengthen it.

He starts his piece by referring to the discussion that arises when discussing copyright in an international context:

“Far too much of the existing dialogue has been based on an oversimplified and inaccurate assumption that the protection of intellectual property is somehow inconsistent with the rights of the general public given that the protection of intellectual property is technically the protection of an exclusionary interest.”

He continues by explaining how copyright serves the best interest of creators, and if copyright were to cease existing cultural production would dwindle to next-to-nothing, leaving us in a cultural apocalypse.

“If we want to foster cultural diversity (and I assume we all do), and want to ensure that diverse content is available to be accessed (and I assume we all do), then we must be more vigilant in ensuring the effective global protection of copyright.”

In his piece Turkewitz complains about the discussion on copyright being oversimplified with its relation to the public interest. However, in his reasoning he completely misses the nuance needed in arguments against the rights of the general public. Namely, he reasons with the assumption that champions of a modern copyright want to eliminate the protection of intellectual property all together. His assumption is wrong. We simply want to balance it.Turkewitz reasons with the assumption that champions of a modern copyright want to eliminate the protection of intellectual property all together. His assumption is wrong. We simply want to balance it.

The Zaporozhye Cossacks Replying to the Sultan
The Zaporozhye Cossacks Replying to the Sultan

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Length: How copyright is not working

Copyright restrictions in Europe generally apply until 70 years after the death of the last living creator. In Spain it is even 80 years after death. Culture thrives not only by creating new cultural production from scratch, it thrives because we build upon what we have already created as a society. We do this by making derivative works or simply by being inspired by the cultural heritage that we have (online) access to. Unfortunately this access is impossible for a large portion of our culture due to the length and exclusivity of copyright.

Copyright holders are increasingly difficult to trace, and you need explicit permission++PermissionThis permission is often given in the form of a license. This is a legal document in which certain permission are given for use (like permission to publish on a blog). from rightsholders to copy or distribute a work (like putting it online). Imagine finding all the copyright holders in a 1920’s audio piece++All together in one placeWhich is something our partners in the Europeana Sounds project are trying to do. . The copyright holders have almost certainly died, endowed (untraceable) children or other relatives with the copyright, with rights not entrusted with CMOs++CMOsCollective Management Organisations. Organisations who manage the licensing of rights for creators..

This inability or improbability to license works, even if you could afford the fees, means that our cultural heritage is locked up until we can reasonably assume it to be in the public domain (which now means about everything before 1870). And this is not even taking into account neighbouring rights and other rights prevalent in audio works++Neighbouring rightsCopyright is part of the collection of rights called Intellectual Property Rights. Neighbouring rights also fall under IPR and is the protection given to for example musicians and actors. Works can have an unlimited amount of rightsholders..

Volume: how copyright is not working

The second problem with the length and exclusivity of copyright is the sheer volume of new copyright protected works, which will soon be orphans. Everyone with a camera phone creates new copyright restricted works pretty much daily, often without the realisation that it is copyright restricted. Three shares on Facebook and blogs later, it is next to impossible to trace the copyright holder. The work has almost certainly not been entrusted with a CMO, which again means that using the work is copyright infringement. The only thing we can do to use the photo legally is to wait until it is in the public domain. Using the photo I made this morning of my breakfast as an example: since I expect to live until about 80, this would mean roughly 125 years from now. Feel free to use the photo in 2140.

Yes, copyright ensures rightful remunerationLet’s discuss how we can balance copyright so that we all get our way: with both thriving cultural production and a copyright that fits our digital lives. Move away from the false assumptions. for creators, and yes, copyright may very well add to cultural diversity. We are not in disagreement. We should however, rebalance copyright in favour of the public interest. How? By having clear harmonised exceptions and limitations in copyright++Harmonised copyrightMore detail on this on the COMMUNIA-website, where we (co)write policy recommendations to this effect. for research purposes, educational purposes, cultural purposes and freedom of panorama. We should also shorten the length of copyright protection starting with the minimum set out in the Berne convention++The Berne conventionThe Berne convention is one of the most important international treaties with regard to (international) copyright, drafted in 1886. It’s standards are still shape our copyright law today. Read more (Life +50) and then figure out how to make it even shorter. We should consider creating a registration system for copyright, having a shorter protection for works that are not registered, that is to say, works that are not meant to serve as someone’s income. We should not abolish copyright. A modern copyright system should foster cultural production, entice use of culture and enable inspiration. The system we have now is not suited for this.

Turkewitz, let’s discuss how we can balance copyright so that we all get our way: with both thriving cultural production and a copyright that fits our digital lives. Move away from the false assumptions.


 

Neil Turkewitz kindly responded (via email) to this piece. Please read his interesting reply below. In turn, I responded to his points below that.

Dear Lisette,

Many thanks for the response to my article. I found it quite encouraging, and indeed reflects the kind of balance and thought that will advance sensible approaches to copyright issues. This may surprise you, but while I may disagree with you in the end about whether term should be lengthened, shortened or kept the same, I find this a completely reasonable debate in which well-intentioned people may disagree.“This may surprise you, but while I may disagree with you in the end about whether term should be lengthened, shortened or kept the same, I find this a completely reasonable debate in which well-intentioned people may disagree.” And I share your concerns about copyright not unintentionally restricting distribution or use of materials for which the copyright owner can’t be found, or where she has no interest in asserting such restrictions. These issues, while complicated, should admit of a solution if reasonable people are prepared to find common ground in an arena principally marked by hyperbole rather than reason, compassion and flexibility. My article was principally addressed not at these kinds of discussions, but as a response to the suggestions by many that any attempt to address piracy in the online environment conflicts with the public’s interest in access and freedom of expression. You write: “let’s discuss how we can balance copyright so that we all get our way: with both thriving cultural production and a copyright that fits our digital lives.” I agree. At the moment, the practical reality is that copyright hardly lasts one minute given the immediate circulation of infringing materials on the Internet. If we can effectively address this so that creators can be sustained through their craft, then we substantially enhance the likelihood of reasonable debates, and resolutions, of more nuanced copyright discussions. I hope that your desire to promote thriving cultural production means that you will join us in demanding reforms to expand economic opportunities and to address the distortions caused by unfair competition. That you will insist that intermediaries take more aggressive action to address infringement on their proprietary networks and platforms.“I hope that your desire to promote thriving cultural production means that you will insist that intermediaries take more aggressive action to address infringement on their proprietary networks and platforms.” That search engines take reasonable steps to stop directing people to infringing materials. That credit card companies, advertisers and ad networks stop providing the revenue that drives online piracy in the first place. And that tech companies stop hiding behind safe harbors to avoid paying creators for the distribution of their works. If we can manage to do that and to thereby help to make copyright fit for the digital age, then I am confident that issues relating to ensuring that copyright protection doesn’t inadvertently stifle new creation can be resolved.

Neil Turkewitz

Ps: I didn’t see any way to post a comment on the site, but you invited a discussion, and you are free to post this if you would like. Thank you.

 


 


My response to his points:

Dear Neil,

Thanks for your kind mail and interesting points. I will gladly post this under the article, as I am keen to discuss these subjects more, with a broad group of people, and as openly as possible to entice more discussion.

I am happy that we agree on the hoped outcome of changes made in our current (approach to the) copyright system. Now it is simply the case of hashing out how we can best get there.

Piracy is indeed a serious issue. Last year I wrote about this issue in the context of the Game of Thrones piracy numbers. Though in that context somewhat lightheartedly, I would argue that the solution for piracy, and more broadly in getting remuneration for creators, is not in intermediaries taking more aggressive action in addressing infringement. To me that is focusing on one of the symptoms of the problem, instead of focusing on the problem itself. The piracy issue is too engrained with another issue – unintentional infringement – to be looked at separately.“The piracy issue is too engrained with another issue – unintentional infringement – to be looked at separately.”

While copyright infringement is rampant online, it is mostly done by people (mistakenly) thinking that there is either nothing wrong with what they are doing (‘if I change an image in six points it is not copyright infringement’), people who have interpreted the pre-digital age exceptions and limitations wrongly in a digital context (‘but don’t we have an exception for education?’), people who are assuming they are working within a different legal system (Europeans who assume they can apply ‘’fair use’) and many more. To me it is not justified to punish these people too harshly for their wrong interpretations of a very complicated law.

It is probably not your intention to enforce these rules on private citizens from the start, but work through the big companies also profiting from this wrong interpretation of copyright. But the result would be that personal videos, photos and other normal online actions are removed. I feel that this removal is so unfair that we should focus on the bigger problem before enforcing. Which to me is that the schism between what the law restricts, and what citizens feel they can do is far too wide.“The schism between what the law restricts, and what citizens feel they can do is far too wide.” We need to first bridge that gap before we can focus on enforcing the law to a greater extent. BEUC, a consumer organisation in Europe, has recently done a brief study on basic daily online actions, and asked legal experts and ministries whether they thought this was legal or not. The diversity in answers was perhaps not surprising, but still shocking. If even the experts cannot answer the questions, how can we expect citizens to abide by the law?

Do not get me wrong, there are a lot of people intentionally and knowingly pirating restricted material, for the kicks and the glory, and that is simply wrong. But, I do feel that solutions for piracy presented now are not capable to diversify between those two groups, and therefore they are not just to be applied, yet.

Up until now the solutions proposed for piracy frighten me, since they seem to undermine fundamental cornerstones of the Internet. I hold net neutrality and the right to link in very high regard, and fear that – well intended – piracy solutions such as making linking to illegal content illegal, will cause the Internet to be a far too restricted place.

I hope you will join us in the debate to solve the unintentional infringement problem which is so ingrained with piracy. If we do so, by for example creating harmonised consumer-friendly exceptions and limitations, it will help us to reach to our shared goal by separating the accidental lawbreakers with the true lawbreakers. After all, we both want thriving cultural production and a copyright that fits our digital lives.

With kind regards,

Lisette Kalshoven

 

Deze tekst heeft een Creative Commons Naamsvermelding-licentie (CC BY) en is gekopieerd van de Kennisland-website. Ga voor de volledige versie met afbeeldingen, streamers en noten naar https://www.kl.nl/opinie/whats-going-on-with-the-eu-copyright-reform-for-education/

This text has a Creative Commons Attribution License (CC BY) and has been copied from the Kennisland website. For a full version with images, streamers and notes go to https://www.kl.nl/opinie/whats-going-on-with-the-eu-copyright-reform-for-education/