Free software exists in a kind of "special trade zone" within the existing copyright system, defined by free copyleft licenses like the GNU General Public License (GPL). Free culture has created similar zones with tools like the Creative Commons' licenses. We usually consider that to be sufficient. Yet we are often frustrated by the desire to interface with the rest of our culture, and sooner or later we'll all have to face the big bugbear that is reforming the copyright system. Aside from a few vested interests in the entertainment industry, nearly everyone hates the system we've got -- it's clearly overreaching and ill-adapted to the electronic world of the internet. But what sort of system would we like? That's much more contentious. Here's a synthesis of a few prominent ideas of what real copyright reform might look like.
Several people have written proposals for what copyright ought to look like, ranging from relatively mild reforms suggested by lawyer and Creative Commons founder Lawrence Lessig to total abolishment, as recommended by Danny Colligan on pragmatic grounds, while Anarcho-Libertarian Stephan Kinsella objects to it on ideological grounds. In between there are radical reformists like Karl Fogel (actually Fogel calls himself a copyright abolitionist, but then proposes copyright-like laws to take up the slack, which in my opinion is better termed "radical reform" than "abolition"), Drew Roberts, and Nina Paley.
My own opinions are very much informed by these earlier writings, so I want to acknowledge them and encourage you to read them for yourself. I am going to present my own version of a reform program below, for your consideration.
Incentives for Creation
The big question, especially for those who propose doing away with copyright altogether, is "What will (or should) take its place?" In other words, if copyright is not there to provide an incentive for creating intellectual works, then what incentives will apply instead?
Answers to this are many and varied, and there's just no way to lump them together, but I'll try to divide them into four main types:
- Do it for love: amateurs rule
- Pay-First: Patronage systems
- Pay-After: Fan-based "gift" systems
- As before, inside a more limited copyright
Do it for love
One argument, as made by Eben Moglun and others, is that it doesn't matter. Art and creativity, they say, are natural human behaviors and the copyright system doesn't really help. Some of this group suggest that where copyright does exist as an incentive, it mainly incentivizes bad, over-hyped, soulless, commercial drivel and that that isn't what we want.
Often, people from this perspective emphasize that the copyright system is not a welfare system for artists -- it's meant to promote the production of intellectual works. 'But,' they then argue, 'the internet has made this irrelevant.' In other words, publishing is now so easy that we don't need publishers any more, and everything should be self-published.
So, if you're an artist in the 21st century internet world, then according to this view, you'd better keep your day job
The most extreme position here says that, with copying now so much easier, creators should not get paid to create their works. They should do it if they are motivated by other reasons than money and -- they are quick to point out -- experience shows that people will find those reasons. Intellectual works will be made, they insist, with or without financial incentive.
So, if you're an artist in the 21st century internet world, then according to this view, you'd better keep your day job. Getting "out there" will be easy, but getting paid for it will not.
Pass the Hat and Pay First
The next group of arguments suggests that pay should happen in advance, before the work is published. Often, as with software, this is very common: the work is commissioned to be created for some specific client, who (of course) pays the bill. Society benefits from the released code. Similar things happen with "public works" like outdoor sculpture, where some patron (the City Council, perhaps) pays the artist and the people are free to enjoy it.
This model can certainly be extended to digital works. The Blender Foundation raised considerable cash for its Open Movie programs by pre-selling the DVDs that would come out of each project.
Pass the Hat and Trust the Fans
The next solution is to make payments voluntary and depend upon the desire of fans to help out the artists they admire. In this model, various channels are established as a normative "right way" to favor the creator with monetary gifts to show their appreciation. Sometimes this might take the form of "buying" works, such as under the "Creator Endorsed" trademark scheme developed by QuestionCopyright.org.
In this model, there is no legal coercion to pay, but fans are encouraged to pay the artist if they want. Marks like the "Creator Endorsed" mark replace legal sanction (buying a "legal" licensed copy of a copyrighted work) with a psychic value of authenticity (and knowledge that payment will help the author). This creates a new form of legitimacy, essentially legalizing the present situation of illegitimate "pirate" or "bootleg" copies as compared to legitimate "legal" copies -- but without the legal repercussions or cynicism.
Same Old, Same Old
In some schemes, the copyright system doesn't go away completely, and so the answer to this question is simply: we'll do it just like we have done it, just in a somewhat more limited way. This argument says that copyright is basically a good idea, but it's just been stretched too far. So they suggest keeping enough of the copyright system to protect works, but take other measures to increase freedom (such as reducing terms or increasing fair uses).
My own position is to let these different methods coexist. I'm a big believer in diversity: I just think that a more complex, diverse system will be able to adapt to more different conditions. So we'll get more different niches of works. But I do believe that the traditional approach to copyright should be one of these methods -- so I want there to be a monopoly copyright privilege. But I want it to be a lot smaller, so that it doesn't squash the other approaches.
What Needs to Change
How can copyright be made better? I am only going to address US law here, because it's the only one I know enough about to do a creditable job with. The US lagged behind much of the world in acts of copyright maximalist aggression against the commons until quite late -- the corporate onslaught on freedom didn't get seriously started here until 1978. After that, however, the US has consistently backed extreme copyright-based grabs of our society and culture. And many of the biggest copyright rights-holders are based in the United States. So, I think that the United States' copyright laws do hold an inordinate position of importance in the world (although the European Union and Japan also have a lot to answer for, in my opinion).
In any case, if by some miracle or revolution, the US law can be changed, I think it will go a long way towards reversing the spread of copyright encroachment.
Intuitively, most people think it's perfectly okay to make and even distribute copies as long as they aren't "stealing income" from the artist. This is subject to a number of assumptions, but one of the more conservative versions would equate this with avoiding "commercial use": if you are making money on an activity, then the artist should too. But then, if you aren't making money, your activity should be unrestricted.
This vision would make "fair use" roughly equivalent to the Creative Commons Attribution-NonCommercial-NonDerivative (CC By-NC-ND) license
This avoids the sticky morass that is raised by the question of "potential income" that might be lost due to competition between free channels and paid copy production. But then, that represents an efficiency inherent in our world. The "first sale doctrine" established a long time ago that the free lending and selling of used books should not carry a royalty burden. In the same way, sharing files over the internet or re-posting videos on YouTube shouldn't either.
Some people might argue that the artist has a right to preserve the integrity of their work by refusing to allow derivations (within certain limits). This also might be used to preclude the removal of certain messages the artists want to deliver with their work -- including political messages or even commercial messages used to pay for the work (advertisements).
This vision would make "fair use" roughly equivalent to the Creative Commons Attribution-NonCommercial-NonDerivative (CC By-NC-ND) license: you're free to copy, re-copy, and distribute as long as you don't change it and you don't make money from it.
This may seem quite restrictive, at least here in Free Software Magazine, but remember this is a proposal for default terms that would be enforced on every work.
The NonDerivative (ND) part is probably the most controversial here: after all, free speech demands the ability to partially quote, parody, and/or remix works. However, we might imagine this to be adequately protected by today's "fair use" standards, when combined with the ND terms.
To this, one might also add the Creative Commons "Sampling" provision -- that small portions of the work should be usable in other works -- so long as the use is "sufficiently transformational."
I am still shocked to find out that there may be collage or mosaic artists who face legal consequences if they use copyrighted sources for their clippings
I think this is entirely rational, and I am still shocked to find out that there may be collage or mosaic artists who face legal consequences if they use copyrighted sources for their clippings. To me, that's insane -- a collage or mosaic is a new work, even if the old magazines it's made from are still protected by copyright. This would be like me trying to claim that my copyright in an article covered the words I used, and so you'd better not use those same words to write your next blog!
There are some people who suggest that such arguments can't be logically consistent, because if one has the right to make "sufficiently transformational" works, then one can simply make a work B which transforms A, then make a work C that transforms B -- and happens to be identical to A. This is hogwash, however -- we are not computers, and the law can recognize that recovering A is not included in the right to freely modify B, just because we allow transformational copies. That would be a bit like saying that, because I am free to arrange words freely to make new works that I could arrange them to exactly match a popular novel. But of course, that's not the case.
Why not a distribution right?
The only thing that really bothers me about changing to a "distribution-right" is the problem with copylefting things that aren't covered by copyright -- like hardware designs, as I've discussed before. In the absence of "paracopyright" legislation to cover specific instances, the only thing that could protect the openness of such works is a law that is triggered by copying or making a derivation -- not by distributing the copy.
The only thing that really bothers me about changing to a "distribution-right" is the problem with copylefting things that aren't covered by copyright -- like hardware designs
Otherwise, the idea is fairly sound: since the purpose of copyright is economic, it should be triggered by economic processes -- such as buying and selling copies. On the other hand, there are a whole range of alternatives that have been invented to avoid buying and selling copies while still making money from a work on a commercial scale. Such things include advertising-based television and magazines, public performances, and of course, making non-copyrightable things from copyrighted designs (as happens all the time with hardware).
So, I still thing the thing to focus on is "commercial copying" or "commercial derivation" -- these cases cover those edge cases better.
Also, a distribution right would not solve the problem of internet file-sharing or electronic re-publication -- those would still be covered by a distribution right, unless it carried a "non-commercial" exemption.
Reasonable Term Limits
Even more important to containing the copyright monopolist menace, is the reduction of copyright terms. These terms have become insane -- complete out of proportion with common sense.
What's been happening is bad... really, really bad
The rationale for copyright is based on the "incentive" idea: that the promise of monopoly protection for works will give authors a means to recoup their investment in creating the work before it enters the public domain. This is ostensibly intended to grow the public domain in a maximal way. But this of course, does not happen if works are never allowed to enter the public domain!
What's more, the value of the works as they enter the public domain matters to the quality of the public domain as well as the quantity of works in it. The relevancy of works fades over time as the culture changes underneath them. True, the greatest works are "timeless," but we shouldn't craft our laws around these few exceptional cases. For the most part, we will be left, by the time copyright expires in its current 95 year basis with only the dessicated remains of culture, having become so old as to be nearly irrelevant to most audiences.
For the most part, we will be left, by the time copyright expires in its current 95 year basis with only the dessicated remains of culture, having become so old as to be nearly irrelevant to most audiences
And the "incentive" basis is either myth or propaganda -- because it does not explain the laws we have already passed.
Take a look at the figure below to see what I'm talking about. On this chart, the light green represents the automatically-granted copyright for published, marked works (i.e. if the author does what they are traditionally supposed to do, which is to publish with a clear copyright notice). The darker green represents additional copyright privileges which can be acquired after publication via application. The gap -- filled in in red -- between this promise and the actual retro-active extensions provided by the various acts cannot be explained as an incentive (despite various tortured attempts by lobbyists to do just that)
Applying some common sense
First of all, there is the common sense notion held by many citizens that copyright should exist primarily to benefit authors of works. This is not to say that publishers don't deserve their cut -- whenever a publisher enables the transmission of the authors' works to their audience, they are doing useful work and are entitled to compensation for that (and to speculate, take risks, and be rewarded for their initiative).
However, when it so happens that the technology allows an author to reach his or her audience without the intercession of any publisher, then we should encourage that. Certainly, in that case, there is no reason we should encourage laws that promote publisher's ability to block or tax such transmissions, let alone to criminally prosecute anyone for it.
Furthermore, the incentive of copyright is diluted if it is given no time-limit. If a company can sit on a work and never release it (perhaps to protect the relative value of other works which do not require development work -- a situation many artists allege to happen quite frequently with the major music labels who drive the RIAA), then the copyright incentive is not working.
Most popular works will either make money in the first few years after publication -- or they never will!
Most popular works will either make money in the first few years after publication -- or they never will! There are exceptions, of course -- "sleeper" works that appeared well before their time, then came to prominence in later years. But they are, once again, the rare exceptional cases that we shouldn't be basing our laws on.
Instead, copyright should represent a swiftly-moving blackout period during which an author can recoup their expenses, if they take initiative and act -- just like any other entrepreneur is expected to do. And in today's fast-paced publishing world, there are no good excuses for not doing so.
So, for starters, the absolute maximum duration of any copyright monopoly terms should be, in my opinion, 20 years. This is the current duration of patent protection in the US. I think we'd be very hard pressed to find works for which won't earn more than 50% of their total possible copyright value in that time -- if it doesn't break even in 20 years, it's time to write it off.
Other possibilities which perhaps sound more traditional in the US include 7 or 14 years, which sound reasonable to me (the same argument -- that the majority of the financial value will be extracted in that time anyway -- should probably apply even on these timescales).
Copyright as a Privilege and a Debt to Society -- Not a Right
But even this represents a long time in fast-moving popular media like computer software, music, or film. Measures should be instituted to control the burden of "abandonware" and other useless copyright.
Moreover, if an author or a publisher isn't going to actively develop the potential of a work, then it's far better for that work to become free as soon as possible -- so that someone else has the opportunity to do something with it while it is still relevant.
We don't need vanity copyrights, nor do we need copyrights solely for the purpose of censorship (copyright was never meant to be used for that!). Copyright is strictly an economic incentive program -- if the author chooses not to use it for a work, then that work should go immediately into the commons.
There are few things more frustrating than coming across an old work and simply not knowing whether you can use it or not
There are few things more frustrating than coming across an old work and simply not knowing whether you can use it or not. Research of this kind is a millstone hanging around the neck of creativity. It only makes sense that the people who benefit from copyright privileges should pay to reduce the costs of copyright to society.
Furthermore, in the interest of preserving fluidity in the marketplace of ideas, works should be presumed public domain unless proven otherwise. That means that proper marking (labelling works with a copyright notice) as a requirement for copyright protection should be restored. Furthermore, the work should be registered with databases that can be accessed to verify what works are and are not under copyright.
And copyright should exist on a strict use-it-or-lose-it basis: if the privilege of copyright monopoly is not enough to motivate the author or publisher to keep the work available, then it should be freed.
On the other hand, we don't want to impose a fee on copyright registration, because what may seem like a nominal amount might be manipulated to become a block on certain classes of citizens (much as poll taxes once did).
So, I would propose that copyright registration be free for an initial period -- say 3 years. After that, the author would need to pay an annual fee to extend his copyright.
Aside from this small detail, I think Karl Fogel's idea on this is brilliant: let the copyright holders decide how much their copyrights are worth to them. Let them declare the value for each work as part of each renewal. Tax them a fixed percentage of that value. That will keep them from overstating the cost.
Furthermore, the cost listed should be the buyout cost of the work. That is to say, its perceived total value (speculative if desired). And then institute a statutory buyout procedure. Thus, if the audience decides it's worthwhile, they should be able to simply buy the work outright from the holder, placing it into the public domain.
Interfacing With Copyleft
Now of course, certain aspects of copyleft licenses, like the GPL rely on copyright to enforce their terms. This is one reason why you (as a free software user and advocate) might not want copyright terms to be too short.
There is an unfortunate misperception that I frequently find while discussing this topic, which is that many people think the GPL solely reverses the effect of copyright (i.e. that it simulates a "world without copyright" and that, therefore, it would be just as effective to eliminate copyright entirely).
There is an unfortunate misperception that I frequently find while discussing this topic, which is that many people think the GPL solely reverses the effect of copyright
This is untrue. In a world without copyright, there would be a strong incentive to protect software source code by the means of "trade secrets" -- that is to say, simply never showing it to anyone. If binary distribution of derivative software from free software were allowed without incurring the source code requirements of copyleft licenses, that would have a serious negative impact on the free software community! We don't want that.
Karl Fogel goes too far here, in my opinion, proposing that "ShareAlike" or "Copyleft" terms be given special treatment and allowed to last forever.
I've run into too many cases of conflicting licensing terms that would make this a considerable burden (even if not as great as the burden from most conventional copyright). Also, it's not unreasonable to expect that even copylefted free software should eventually become available for exploitation by the conventional copyright system -- so long as the timescale is appropriate. I think the 20 year term makes this quite sensible.
The most important free software would of course, never actually expire, because it is constantly changing
The most important free software would of course, never actually expire, because it is constantly changing. Linux has been around for about 19 years now, so you might think its copyleft would expire next year, allowing for a sudden wave of exploitation. But in fact, the Linux of 2010 is not the Linux of 1991! The material that would become public domain would be Torvalds' original release way back then. The new material -- such as the recently added Nouveau driver, would get (nearly) another 20 years protection -- by which time, the world will have changed, and the kernel (if it is still relevant) will once again be a completely new work.
So I don't think free software has much to lose there. The things that would go into the public domain, though, would include examples of important algorithms, the basic Unix operating system, and many other things that are so familiar as to be nearly regarded as public domain already (and of course, these would be no longer covered by patents, either).
On the other hand, it would seriously impede free culture and free software if taxes and fees had to be extracted to support them. Thus, I would suggest that free-license terms (i.e. non-monetary use terms such as ShareAlike) be given a special exemption from all copyright fees proposed in the previous section. So, it costs nothing to register or renew. The buyout value is essentially arbitrary (holders might choose to set it very high, or set it at a market value, hoping for a buy-out -- it seems reasonable to let them do that), but it does little damage for it to be over-inflated. Thus, most copyleft works would have copyright periods lasting the full 20 years. This should provide plenty of "protection of the commons," allowing copylefts to work nearly as they do now.
Attribution, Plagiarism, and Endorsement
As with ShareAlike terms, formal attribution terms should also be given a free-ride on the copyright system. After all, it's quite rare that anyone is limited by the need to properly acknowledge their sources.
Plagiarism has never been illegal, and copyright does not protect against it. This is ironic, since the conflation with plagiarism is one of the most popular fallacies supporting the idea of copyright as a "natural right." I think, however, that the cost of plagiarism is sufficient today, and codifying it into law would represent far too much burden on the courts.
Conflation with plagiarism is one of the most popular fallacies supporting the idea of copyright as a "natural right"
Today, plagiarism is an honor code offense, not a violation of law, and this seems to be quite adequate. The defense against plagiarism accusations is simple, though: simply identify your sources. This informal attribution requirement hardly needs enforcement.
Formal attribution requirements do carry a burden though, of transactional costs involved in tracking the information and meeting the notice requirements. In this way, they are similar to the BSD advertising clause that the GNU project objected to. So, I think it is reasonable to have time limits to the formal requirements of attribution, exactly as for copyleft terms.
Making the Change
So far this is a kind of personal fantasy -- how I think the laws ought to be changed. But actually making a change will be hard.
There is a kind of ratchet effect created by international copyright treaties. If the US were to make these changes, they would have to carve out extensive exceptions for foreign works, or they would be in violation of the Berne Convention on copyright, abrogating treaty obligations.
There is a kind of ratchet effect created by international copyright treaties
And a system with so many exemptions would potentially create an unfair marketplace for the time it takes for other countries to follow suit (assuming they ever do).
Doing this will take something akin to revolutionary fervor: there will have to be lobbies in many countries around the world. And that means there needs to be some consensus.
As it is, there is very little consensus, and the world of free culture and free software is full of "independent thinkers" who don't find consensus easy to swallow. This kind of divisiveness weakens us. At some point, we'll have to iron out some set of principles we can all agree on.
We certainly won't get it if we can't even decide what that is, so I think it's time to start having a conversation about what we want.
This work may be distributed under the terms of the Creative Commons Attribution-ShareAlike License, version 3.0, with attribution to "Terry Hancock, first published in Free Software Magazine". Illustrations and modifications to illustrations are under the same license and attribution, except as noted in their captions (all images in this article are CC By-SA 3.0 compatible).