The Case for Copyright Reform (14 page)

Registration After 5 Years

An orphan work is a work that is still in copyright, but where the
rights holder is not known or cannot be found. It can be a book, a song, a
film, or a photo, or any other kind of work that falls under the copyright
legislation.

Orphan works present a big problem for anybody who would want to use
them. If you just go ahead without getting a permission, you run the risk that
the rights holder suddenly turns up and sues you for a large amount. As we all
know, courts can be quite prepared to set the damages for even minor copyright
infringements to pretty astronomical figures. In many cases, this is simply not
an acceptable risk.

But since there is no known rights holder that you can ask for a
license, there is nothing you can do about it. No matter how valuable you think
it would be to share that work with the world, there is no way to do it without
breaking the law and exposing yourself to a great financial risk. The orphan
works are effectively locked away by the copyright system.

This is not a small or marginal problem. A large part of our common
cultural heritage from the 20th century falls into this category. About 75% of
the books that Google want to digitize as part of their
Google Books
initiative
are out of print, but still under copyright.

Even if it is theoretically possible to find the rights holders for many
of these books by making a thorough investigation in each individual case, it
simply becomes unfeasible when you want to do mass digitization.

And Google Books is not the only project to digitize works and make them
available, even if it is the one that has attracted the most attention lately.
There is an EU project called
Europeana
with a similar goal, as well as the open initiative
Project Gutenberg
. All of
these are being held back by the problem of orphan (or semiorphan) works.

Unless we do something, a large part of our common cultural heritage
from the 20th century risks getting lost in a black hole before it becomes
legal to save it for posterity.

To reduce the copyright protection time to 20 years would solve most of
this problem, but for technical legal reasons, this is unlikely to happen fast.
In order to reduce the protection times like this we would have to renegotiate
a number of international treaties on copyright, such as the Berne Convention.
Although this is something Europe most certainly has the political and economic
strength to do this once we have the political will, it will take time to get
there even in a best case scenario. We need something that can be implemented
faster.

We propose that copyright (including the monopoly on commercial use and
distribution) should be granted automatically without registration when a work
is published, just like today. But if a rights holder wants to exercise that
commercial monopoly for more than 5 years, he should be required to register
the work after the first 5 years have lapsed.

Rights holders who have chosen not to register their claim to a work
that was published more than 5 years ago would still keep their copyright as
such, but would be seen as having waived their commercial monopoly rights by
not registering the work.

From a technical legal point of view this is perfectly compatible with
the Berne Convention, since this does not alter the existence of the right, but
merely adds a reasonable and justified condition on the exercise of that right.

All we are saying is that if you want money for the use of a work that
is older than 5 years, you have to make it known in a public database how to
contact you and where to send the money. This is not an onerous or unreasonable
demand in any way.

At the same time, the existence of public databases where anyone
interested in licensing a work commercially can easily find the relevant rights
holders, will of course benefit the rights holders. If you want to sell
something, making your identity know to wouldbe buyers is quite obviously in
your own interest.

Registration after 5 years is a win-win proposal that can be implemented
quickly and easily.

Free Sampling

In its description of the documentary film Copyright Criminals, the
US
broadcaster PBS writes
:

Long before people began posting their homemade video mashups on the
Web, hip-hop musicians were perfecting the art of audio montage through
sampling. Sampling — or riffing — is as old as music itself, but
new technologies developed in the 1980s and 1990s made it easier to reuse
existing sound recordings. Acts like Public Enemy, De La Soul and the Beastie
Boys created complex rhythms, references and nuanced layers of original and appropriated
sound. But by the early 1990s, sampling had collided with the law. When
recording industry lawyers got involved, what was once called “borrowed melody”
became “copyright infringement.”

Copyright Criminals
examines the creative and commercial value of musical
sampling, including the related debates over artistic expression, copyright law
and money. The film showcases many of hip-hop music’s founding figures like
Public Enemy, De La Soul and Digital Underground, as well as emerging artists
such as audiovisual remixers Eclectic Method. It also provides firstperson
interviews with artists who have been sampled, such as Clyde Stubblefield
— James Brown’s drummer and the world’s most sampled musician — and
commentary by another highly sampled musician, funk legend George Clinton.

Computers, mobile phones and other interactive technologies are changing
our relationships with media, blurring the line between producer and consumer
and radically changing what it means to be creative. As artists find more inventive
ways to insert old influences into new material, Copyright Criminals poses the
question: Can you own a sound?

Today, the answer to that last question is unfortunately yes. The big
record companies do claim ownership on individual sounds and very short
samples. If you are a hip-hop musician, be prepared to pay hundreds of
thousands of euros up-front for the sampling licenses you need if you ever want
to make your music available to the public.

This is clearly an unwarranted restriction on the right to create new
culture.

Film makers and other artists who want to create new works by reusing
parts of existing works face the same problem.

We want to change this by introducing clear exceptions and limitations
to allow remixes and parodies, as well as quotation rights for sound and
audiovisual material modeled after the quotation rights that already exist for
text.

A Ban On DRM

The purpose of this proposal for copyright reform is to get a balanced
legislation that benefits society as a whole, including consumers. But having
the right to do something according to the law is of little value in itself,
unless you also have the practical means to do it.

DRM is an acronym for “Digital Rights Management”, or “Digital
Restrictions Management”. The term is used to denote a number of different
technologies that all aim to restrict consumers’ and citizens’ ability use and
copy works, even when they have a legal right to do so.

In his book
Free Culture
,
law professor Lawrence Lessig gives an example of an e-book published by the
Adobe company. The book was Alice In Wonderland, which was first published in
1865, and where the copyright has long expired. Since it is no longer under
copyright, anybody has the legal right to do whatever he wants with Lewis
Carroll’s text.

But in this case, Adobe decided to set the DRM “rights” for the e-book
to say that you could not copy extracts from it, not print pages from it, and
not even lend it or give it to a friend.

Blind and visually impaired people, who need to have e-books converted
to accessible formats to be able to enjoy them, are often restricted by DRM.
Although they have the legal right to convert the books they have bought, the
DRM restrictions prevent them from doing so in practice.

Another example is the region coding on DVDs, which prevents you from
watching movies that you have legally bought, if you bought it in a different
region of the world from where you bought your DVD player.

These are things that you have all the legal rights in the world to do.
But that will do you no good, if a company decides to put DRM restrictions on
their product that restrict your technical ability to do so. And not only do the
restrictions as such make it difficult to exercise your legal rights for a work
that you have bought a copy of. The way the law is written today, it is illegal
for you to even try.

This is clearly unreasonable. It should always be legal to circumvent
DRM restrictions, and we should consider introducing a ban in the consumer
rights legislation on DRM technologies that restrict legal uses of a work.

When doing this, we should define “DRM” as “any technical system that
restricts consumers from anything that they have the legal right to do”. Since
there are exceptions and limitations for certain uses (including the right to
make private copies) in the copyright legislation of all countries, this
definition covers all systems that one would normally think of as DRM.

There is no point in having our parliaments introduce a balanced and
reasonable copyright legislation, if at the same time we allow the big
multinational corporations to write their own laws, and enforce them through
technical means.

Nobody Asked For A Refrigerator Fee

A hundred years ago, one of the largest employers in the Stockholm,
Sweden, was a company named Stockholm Ice. Their business was as
straightforward as it was necessary: help keep perishable food edible for
longer by distributing cold in a portable format.

They would cut up large blocks of ice from the frozen lakes in the
winter, store them on sawdust in huge barns, cut the blocks into smaller chunks
and sell it in the streets. People would buy the ice and keep it with food in
special cupboards, so the food would be in cold storage.

(This is why some senior citizens still refer to refrigerators as
“ice boxes“
.)

When households in Stockholm were
electrified
during the first half of the last century, these distributors of cold were made
obsolete. After all, what they distributed was the ability to keep food cold,
and suddenly everybody could do that themselves.

This was a fairly rapid process in the cities. With the availability of
the refrigerator from circa 1920, most households had their own refrigerator by
the end of the 1930s. One of the city’s largest employers — distributors
of cold — had been made totally obsolete by technical development.

There were many personal tragedies in this era as the
icemen
lost
their bread-winning capacity and needed to retrain to get new jobs in a
completely new field. The iceman profession had often been tough to begin with,
and seeing your industry disintegrate in real-time didn’t make it any easier.

But here are a few things that did not happen as the ice distribution
industry became obsolete:

No refrigerator owner was sued for making their own cold and ignoring
the existing corporate cold distribution chains.

No laws were proposed that would make electricity companies liable in
court if the electricity they provided was used in a way that destroyed
icemen’s jobs.

Nobody demanded a monthly refrigerator fee from refrigerator owners that
would go to the Icemen’s Union.