Copyright Reform Proposals Submitted by European Parliament Member Christian Engström

Original author: Christian Engström & Rick Falkvinge
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Christian Engström is a Swedish programmer, activist and politician. In April 2012, together with Ricard Falkving, he presented the European Parliament a book in which they address the main problems of modern copyright law, make suggestions for changing current legislation, and analyze the impact that these changes may have on the cultural sector.

On a habr already some chapters from this book, about the history of copyright , censorship and punishments have been published . In the discussion of these articles, habra-users often asked questions about what conclusions the authors draw and what they offer. Therefore, I decided to publish a translation of the chapter, which addresses this issue in detail.

Moral (non-property) rights are unchanged

We suggest not changing the moral right of the author to be called an author. If you have created something, you have the right to be known as the author of your creation.

This part of copyright is completely undeniable. In fact, network etiquette is often more stringent in this matter than copyright laws.

Bloggers cite sources and authors much more carefully than the law requires. There are several reasons for this. If you put links to sources, your blog will deserve more trust, as people will be able to check the information if they want. This will please the people you link to, so they may also want to put a link on our blog and eventually increase traffic. These are good practical reasons why a blogger is more interested in pointing out authors than any law requires.

But there is also a simple human feeling, when you find something interesting for you, you want to know who to say thank you for. This is human nature, and its very positive side.

The Internet does not threaten the right to be called an author, and we propose that nothing be changed in this part of copyright laws.

Free non-profit exchange

Attempts to stop file sharing by tightening laws do not work. File sharing continues to grow exponentially, no matter what repressive measures governments introduce.

If you think it would be better if illegal file sharing was destroyed, please think so. But this does not change the fact: limiting file sharing by laws and penalties does not work. Tightening this practice will not work either. File sharing will be like it or not.

Copyright should be preserved, but it should act only where there is commercial interest. Any non-commercial copying and use, such as file sharing, must be legalized. We can add this as a limitation to the copyright law, in full compliance with international treaties such as the Berne Convention and the WIPO Treaty (WCT).

In chapter 3, we showed how attempts to ban the file sharing today threaten fundamental human rights in Europe and around the world, which would be an unacceptable solution even if it worked, but it does not work, or if the cultural sector actually died and he does not die.

In chapter 5, we showed that artists and the cultural sector as a whole feel great despite file sharing (and possibly thanks to it), so there is no real problem.

The key issue for Europe is: how to separate commercial use from non-commercial use.

If copyright is returned to its place, to the regulation of only commercial activity, this will not be a big problem for society. We will have to make some changes (in particular, to adjust unreasonably long periods), but in principle there are no problems with protecting copyright in commercial areas.

The reason is very simple. The “follow the money” principle is enough for authorities to be able to track commercial activities. If an entrepreneur wants to make money, the first thing he will do is tell as many people as possible what he wants to offer them. If he offers something illegal, the police will know about it long before he can reach a significant number of customers. No further restrictions on fundamental rights will be required. Existing surveillance systems are sufficient to track business activities.

But where does the line between commercial and non-commercial?

Indeed, there is a gray zone between commercial and non-commercial activities, but the courts have already resolved this problem many times in different areas.

We already have several laws that establish differences between commercial and non-commercial purposes, including copyright in the form in which it exists today. This is good, as it means that the courts already have the practice of determining what is commercial and what is not.

If you want to know exactly where the line is, ask a copyright lawyer (it costs 300 euros per hour). He will tell you how the courts interpret current laws, and in this case they are experts.

But simply put, the line between commercial and non-commercial goals passes exactly where you can expect. If you, as an individual, have a blog, without advertising, this is a non-profit project. If you get a few euros per month from Google Ads, your blog is probably still non-profit, as it is a little money and the main purpose of the blog is not to make money on it. But if it is a large blog that generates a steady revenue from advertising, it is likely to go over the line and become a commercial project.

There are a number of licenses, including Creative Commons Attribution - NonCommercial , which are based on an existing definition.

Although drawing a trait can sometimes be a problem, it has already been successfully resolved.

20 years of commercial monopoly

A significant part of the modern entertainment industry rests on the commercial exclusivity of copyrighted works. We want to maintain this position. But the current terms of protection - 70 years after death - is absurd. No investor will even consider a business project that would pay off in such a long time.

We want to reduce the protection period to values ​​that are fair both from the point of view of society and from the point of view of investors. We offer 20 years since publication. And we want the conditions of protection to be the same for all types of works.

But wouldn’t it be logical to have different terms for different types of work? 20 years of protection for computer programs is probably not the same as 20 years for a movie or song. Wouldn't it be better to set deadlines in accordance with different categories of work?

That’s exactly what I (Christian Engström) thought myself, until I discussed this with a friend who completely agreed with me. When we started the conversation, we both agreed that it would be wise to have different terms of protection, since the markets are very different.

I, a programmer in the past, thought that it would be wise to have a longer protection period for computer programs, since very often they are useful even many years after they are written. The code that I wrote in 1984-86 is still in use and continues to generate revenue for the company. A completely different matter is a popular song, which is at best a year old or something, then everyone will forget it and other songs will replace it. So I thought.

But my friend, who used to be a musician (and now he is a copyright lawyer because they are paid more), had a completely different opinion. It seemed to him that all programs are updated every 2-3 years, and older programs have no commercial value, so a very short protection period is enough for programs. Music, on the contrary, can often live forever, and therefore the protection period for music should be much longer. So he thought.

And so it usually happens, my friend told me, who discussed this with other people. For those things that are close to you, you usually consider it reasonable to have long terms of protection, and for everything else - short. Most people seem to think so.

For this reason, we probably will not be able to find solutions, which types of work should have large and which should have shorter protection periods. In such discussions, when you try to agree on a restriction of X years, it is natural that all sentences about the meanings of this X tend to be random, taken from the ceiling. If you set a goal to choose different semi-random values ​​for each category of work, this will only complicate the task and reduce the chances of finding a solution that can be supported by objective arguments.

But if you look at the problem from the point of view of the investor, everything changes. The music industry may be very different from the computer software sector, but they have one thing in common. Money is money, no matter where you decide to invest it.

When an investor decides to choose a project - whether it be music, a film, or a program, or anything else - he will calculate the return on investment for a certain time. If everything goes according to plan, it is assumed that the project will pay off and bring profit for X years. If not, the project failed.

In such calculations, X is always a very small number. It almost never happens that in the cultural sector someone is seriously engaged in a business project that should pay off in more than 3 years. People who build bridges, nuclear reactors or something like that, of course, have more distant horizons of investment, but outside these areas, generally in business, projects for more than 3 years are very rare.

And of course, this is even more true for the cultural sector. Who can predict what will be cool and stylish in 2 or 3 years, in such a rapidly changing landscape as culture. Most of these projects are expected to pay off and make a profit within a year.

Considering the terms of protection from the point of view of the investor, we can justify the presence of the same period for any work, although they are very different. The purpose of economic exclusivity, as part of copyright, is to attract investors to the cultural sector. And investors think alike, no matter where they invest.

The project should pay off and bring profit for several years, otherwise it is a failure. A small theoretical chance that the work that you financed will become an eternal classic that will be profitable for decades is a pleasant bonus for the investor, but there is no place for such thoughts in serious business calculations.

So why 20 years, not 5 or 3?

Our proposal for a protection period is a pragmatic compromise. Despite the fact that there are strong arguments why 5 years or even less would be enough from the point of view of society, many people instinctively feel that 5 years is too little, at least in some cases.

And instead of bogging down in useless quarrels about what will always remain at least partially random numbers, we decided to choose 20 years.

The main thing is to move away from today's numbers that exceed the life of a person. Such terms are obviously harmful to society, since they actually keep most of the common cultural heritage under lock and key, although the vast majority of the work has already completely lost commercial value to copyright holders. This is a heavy loss from an economic point of view, and gross arbitrariness from a cultural point of view.

If the terms of protection were reduced to 20 years, this would solve most of the problem of the “black hole of the 20th century”, and would allow librarians and collectors to begin the necessary work to save the rotting works of the 20th century in archives by digitizing them. From their point of view, 5 or 10 years would be better, but 20 would be nice.

At the same time, 20 years is enough to support the pleasant (but very unlikely) dream of creating a super hit that will become eternal and will be profitable for decades. If your next project shoots and suddenly brings you the same unfading glory that Paul McCartney or ABBA use, 20 years will be more than enough for you to become very rich, and never to worry about money again.

Registration after 5 years

Orphan works are works that are still protected by copyright, but for which it is difficult or impossible to determine the owner of the rights. It can be a book, song, film, photograph, or any other work that falls under the protection of copyright.

Orphan works are a big problem for anyone who would like to use them. If you do this without permission, there is a risk that the copyright holder will unexpectedly appear and sue you for a large amount. As we all know, the courts are ready for claims for losses even for minor violations in the form of astronomical figures. In many cases, this is simply an unacceptable risk.

But since the copyright holder from whom you could ask permission is unknown, there is nothing you can do about it. No matter what you consider, how valuable it would be to share this work with people, you will not be able to do this without breaking the law, and without exposing yourself to serious financial risk. Orphan works are actually preserved by the copyright system.

This is not a minor or minor issue. A huge part of our shared cultural heritage from the 20th century falls into this category. About 75% of the books that google would like to digitize as part of its Google Books initiative are no longer published, but are still protected by copyright.

Although, theoretically, for many of these books, you can find the copyright holder by thoroughly investigating each specific case, it becomes almost unrealistic if you want to carry out mass digitization.

Google Books is not the only project to digitize works in order to make them available, although it has recently attracted attention. There is a European project Europeana with a similar goal, and an open initiative of Project Gutenberg . All of them are faced with the problem of orphan works.

If we do not do anything, a huge part of our common cultural heritage of the 20th century runs the risk of being lost in a black hole before the law allows it to be preserved for posterity.

Reducing copyright terms to 20 years would solve this problem for the most part, but due to technical legislative problems this is unlikely to happen soon. To reduce timelines, several international agreements, such as the Berne Convention, need to be reviewed. And although Europe undoubtedly has the political and economic forces to do this, if there is political will, even in the best case it will take a lot of time. We need something that can be done faster.

We suggest that copyright (including the monopoly on commercial use and distribution) be given without registration, automatically when publishing a work, as is happening now. But if the rights owner wants to continue to use the commercial monopoly for more than 5 years, he will have to register the work after 5 years have passed.

Rightholders who decide not to register their rights to a work published more than 5 years ago will still retain copyright as such, but will be considered as having abandoned their commercial monopoly without registering the work.

From a technical point of view of the law, this is fully compatible with the Berne Convention, since it does not change the existence of law, but merely adds a reasonable and justified condition for the application of this right.

All that is required is if you want to receive money for using work that is more than 5 years old, you will have to indicate in the public database how to contact you and where to transfer the money. This requirement cannot be called burdensome or unreasonable.

At the same time, the existence of a public database in which anyone interested in the commercial use of the work can easily find the corresponding copyright holder, of course, will be beneficial to the copyright owners themselves. If you want to sell something, the communication of your data to potential buyers is clearly in your own interests.

Registration after 5 years is an offer that is beneficial for everyone and can be implemented easily and quickly.

Free sampling

In the description of the documentary "Copyright Criminals", American broadcaster PBS writes :

Long before people started publishing home videos on the Internet, hip hopers improved on the art of audio editing through sampling. Sampling is as old as the music itself, but new technologies that appeared in the 80s and 90s made it easier to use existing recordings. Bands such as Public Enemy, De La Soul and Beastie Boys created complex rhythms, transitions and nuances from the original and their favorite sounds. But in the early 90s, sampling ran into the law. When the lawyers of record companies got involved, what was once called a “borrowed tune” became a “copyright violation”.

Copyright Criminals discusses the creative and commercial value of sampling in music, including related debates about artistic expression, copywriting, and money. The film shows both the founders of hip-hop, such as Public Enemy, De La Soul and Digital Underground, as well as new artists, for example, the audiovisual remixers of the Eclectic Method. It also contains personal interviews with sampled artists such as Clyde Stubblefield, James Brown's drummer, the most sampled musician in the world, and comments by another often-sampled musician, funky legend George Clinton.

Computers, mobile phones and other interactive technologies are changing our relationship with the media, blurring the line between producer and consumer and radically changing the meaning of creativity. Since artists are finding increasingly inventive ways to use old materials in new works, Copyright Criminals raises the question: “Can I own the sound”?

Now the answer to this question, unfortunately, is “yes”. Big record companies do claim that they own individual sounds and very short samples. If you are a musician, get ready to pre-pay thousands of euros for licensing the samples you need if you plan to publish your music.

This is obviously an unjustified restriction on the right to create new cultural works.

Filmmakers and other artists who want to create new work, partly using existing ones, face the same problem.

We want to change this by introducing clear exceptions and restrictions allowing remixes and parodies, as well as introduce citation rights for audio-video materials, in the image and likeness of citation rights that now exist for texts.

DRM Prohibition

The purpose of these copyright reform proposals is to get a balanced law that is beneficial to society as a whole, including consumers. But the right to do something according to the law does not have much value if you have no practical opportunity to do it.

DRM is short for Digital Rights Management or Digital Restriction Management. This term is used to refer to various technologies whose purpose is to limit the ability of people (consumers) to use and copy works, even if they have a legal right to do so.

In his book, Free Culture, Justice Professor Lawrence Lessig provides an example of an e-book published by Adobe. This is the book "Alice in Wonderland", published for the first time in 1865, the copyright period for which has long expired. And so anyone has the legal right to do anything with the text of Lewis Carroll.

But in this case, Adobe decided to establish the “rights” of DRM to this e-book in such a way that we can neither copy excerpts from it, nor print, nor even lend or give it to a friend.

Blind and visually impaired people need to convert books to a special format so that they can read them, but often DRM prohibits this. Although they have the legal right to convert the books they bought, in practice DRM does not allow this.

Another example is regional DVD encoding, which prevents you from watching movies that you legally bought if you bought them in a different part of the world where you bought your DVD player.

These are the things you have every right to do. But this will not help you in any way if the company decides to establish DRM restrictions on its product, which will not give you the technical ability to do this. But such restrictions do not just complicate the use of their legal rights to work, a copy of which you bought. In the form in which the laws are written today, they forbid you even to try to do it.

This is completely unreasonable. Bypassing DRM should not be illegal, and we should consider introducing a ban on DRM technologies that limit legal use.

In doing this, we must define “DRM” as “any technical system that restricts the consumer to actions for which he has a legal right.” Since the copyright laws of all countries have exceptions and restrictions for certain uses (such as the right to personal copies), this definition includes all systems that you would usually consider DRM.

It makes no sense to promote balanced and fair copyright in parliaments if, at the same time, large multinational corporations write their own laws and enforce their implementation by technical means.

I did not intend to publish the book here in its entirety, since it may seem naive in places, designed for the European mentality, it contains many well-known topics that have already been discussed many times, including on the hub. However, if anyone wishes, you can read the full translation here .

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