saraewood.com

Just for you Thirukumaran

Do we need a wholesale replacement or is it possible to work within existing framework?

Copyright law, one tine in the trident known as “intellectual property,” might appear to most as a straightforward approach to ensure that people are rewarded for their creativity. If you were to write a best-selling novel, you’d want to get credit for it, right? If that book were adapted into a screenplay and then into a blockbuster movie, you’d want your name affiliated with the work, wouldn’t you? I mean, you’d want credit at least, if not money to go along with it. Seems logical enough.

However, in the context of modern technological advancements that allow creators to publish directly and disseminate widely in a variety of formats, our copyright laws seem dated and lacking in comprehension for all that we need to copyright in this day and age. While a wholesale replacement of copyright law is not an easy or truly feasible solution, the framework needs to be seriously reconsidered by global policy makers with the eye towards making copyright protections fair for all, both consumer and creator.

This fine balance between rewarding creativity and spurring it is often the crux of the battle over how copyright protections should be defined. Some argue that all creativity is born on the back of those that came before. Mickey Mouse has often been used to further this argument and has been the subject of books, like Lawrence Lessig’s “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity” and articles such as Salon.com’s “The mouse who would be king.”

As technology advances, players on both sides of the aisle are trying even harder to gain a solid foothold in the discussion and direction of modern day legislation on copyright. This includes the daunting task of analyzing how technological advances will affect creative works. The rapid pace of the discussion only continues to escalate because of the flaws in the standing doctrine combined with the uncertainty of where technology will take us in both the near and far future.

As the legal experts, scholars, industry and artists pore over existing texts and trends, the policy makers sometimes take steps to correct, where possible, obvious omissions. For example, a provision currently under debate is the Orphan Works Report by the US Copyright Office. In this case, the office is recommending that the owner of the creative work bear responsibility to remain contactable so that future users of the work can seek permission. (For further info, see the Orphan Works Report from the U.S. Copyright office.)

There are other movements that seek to create frameworks that can exist within the existing laws that give greater flexibility to both sides. One such organization pushing this agenda is Creative Commons – a group founded by Lawrence Lessig and James Boyle among others in this field. Creative Commons licenses are beginning to be used quite widely – and the trend is encouraging. As Thomas Jefferson said, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me.” Creative Commons licenses exist for a variety of purposes and types of works. They are for the distribution of audio, video, in addition to text and images, formats which did not exist at the time the original laws were drafted. Subsequent alterations to the existing laws have not been seen to be as inclusive as they need to be for these new formats and technologies and Creative Commons is seeking to address some of these shortcomings. One such detail is that copyright protection is automatic. A creator does not need to explicitly register their works with the government in order to receive copyright protection. The same holds true for the Creative Commons approach. The owner or publisher simply needs to select which license works best for them and apply the disclaimer to the work. The license types range from “Attribution Non-commercial No Derivatives” (by-nc-nd) to “Attribution” (by) only – and a variety of combinations in between.

The Creative Commons licenses also withstand the test of national and international laws. Recently, a court in The Netherlands ruled in a case that the Creative Commons license is in fact binding. The judge ordered in favor of a plaintiff that was accusing a Dutch gossip magazine of selling issues that illegally included photos he took and published under a Creative Commons license on the community photo sharing site Flickr. “The Creative Commons licenses are quite new, so there has been very little in the way of case law so far, so this is a significant development,” Groklaw reported. And according to the Creative Commons organization, “The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license.”

As wonderful as the approach may sound, one shouldn’t get too excited just yet. There are shortcomings in the approach and new international legislation is under discussion that might make the Creative Commons license a moot point. One such shortcoming is that the Creative Commons licenses are not the best fit for software, but to fill this gap, other open source models exist and have an established community. Other areas where the Creative Commons licenses are not a good fit is when the most restrictive (by-nc-nd) is still not restrictive enough. A good example of this is illustrated by Derek Powazek on his blog. His point in the hypothetical is that he would not want his photos of same-sex marriages in San Francisco to be used by an anti-gay marriage group to illustrate the issue in a negative light. Even worse, in his view, is that under the Creative Commons license, they would have to give him credit for the photo which would make him seem like a willing participant to their use of the photos and indirectly their “cause.”

This is not an argument that is relegated only within the borders of the U.S. Similar laws exist within international agreements and the same arguments transpire across global borders.

In October of 1961, the Rome Convention was accepted by the World Intellectual Property Organization as a way to offer protection to works not covered under the Berne Convention of 1886 which primarily focused on written works. The Rome Convention was intended to give property protection primarily to broadcasters. Yet the U.S. was never a signatory of the final convention. Technology has advanced to such a degree in the intervening years that broadcasters are looking for a solution to protect their interests even beyond what the Rome Convention would have given them.

To address this, WIPO is debating regulations that would extend broadcaster rights to the web. The initiative is being led by the U.S. government and the European Commission as well as lobbyists in the private sector for companies such as the News Corporation, AOL, Microsoft and Yahoo! among others. This “web casting” proposal being put forward combines elements of the Rome Convention concepts but gives further protection for new methods such as internet distribution.

In this way, the media industry will finally have legal control over works they themselves may not hold copyright over. The “web casting” proposal is intended to be in addition to copyright, and like U.S. copyright, is extended automatically to the work. The legal text combined with the requirement to use technological protection measures (TPM) and digital rights management (DRM) make the new proposal very controversial.

The new proposal will essentially give web site owners the right to authorize or prohibit others from re-using the information on their site in any form. Large content-based web sites are increasingly owned and operated by large broadcast companies, which make this an interesting proposal from their point of view. For the average user of content, however, it seems almost draconian.

The web caster right will give protections over the content for 50 years from the last date of transmission. Meaning, the information is protected not from the first time it is accessed on the web, but 50 years from the last time it is accessed. This seems to imply an infinite loop because as professional web sites evolve into newly designed sites or onto new devices such as handhelds, the legacy content is migrated along with the new content. It often doesn’t just disappear from the site so the 50 year rule would continually apply with each time the content is requested. And if the site did remove the content, thereby starting the 50 year timer, then the consumer looking for the content would have to either have downloaded a copy of the content onto their own computer 50 years prior or use an archive site such as archive.org in the hopes that they have a copy. Therefore it seems likely that under the web casters provisions, the content will be under protection in perpetuity. And what is the future of sites like archive.org? Will they have the right to retain web versions of web content under this new scheme?

Furthermore, the web cast right is in addition to existing copyright, not in replacement of. So even if something has entered the public domain or has been released under a Creative Commons license, one would still have to seek permission from the owner of the web cast.

The questions raised by such a proposal are made even more difficult when we examine how technological advancements will affect the implementation of the draft legislation. If we combine the concept of property rights as determined by this proposal with the additional technical obligations it outlines, a potentially scary beast emerges. It is when the legislation is coupled with technology that it becomes clear the drafters of the policy have the special interest of industry in mind, not necessarily the artists. Technical obligations such as TPMs and DRMs and other provisions such as the “anti-circumvention” clause of the Digital Millennium Copyright Act prevent consumers of their rights as defined by Fair Use and can also prevent the rightful owner, the creator, their own right to copy as well. As one Boing Boing user recently lamented, “I am in possession of a video, of me, shot by a friend, copied to a piece of physical media given to me as a gift. In the video, I am speaking words written by me, and for which I am the clear holder of the copyright. I am working with said video on a machine I own. Every modern legal judgment concerning copyright, from the Berne Convention to the Betamax case, is on my side. AND I CAN’T MAKE A COPY DIRECTLY FROM THE DEVICE. This is because copyright laws do not exist to defend the moral rights of copyright holders — they exist to help enforce artificial scarcity.”

The debate has escalated in many different directions with legal experts, economists, policy analysts, artists and technologists both domestically and internationally all weighing in on an infinitesimal number of issues. It has escalated to such a degree that a balanced debate seems impossible.

But as Cory Doctorow points out in his comments on a pan-Euro DRM proposal, “A more reasonable and balanced approach would be to start by asking, “How can we enrich creators and encourage creation?” and “If DRM vendors claim to be able to enrich creators and prevent unauthorised Internet distribution, what evidence can they offer in support of these claims?””

At this point, there seems to be no option other than that the debate must take a few steps back and try not to lose sight of how we got to this point in the first place. Before we engineer ourselves into a corner and construct mountains of legal code which only the experts can understand, we need to look at what we are hoping to achieve and what evidence exists to help determine the best policies. As a civil society, we need to take stock of how we want to function and locking up creativity of any kind behind technical barriers just may not be the answer.

Trackback This Post | Subscribe to the comments through RSS Feed