Thoughts on Copyright

Posted on: September 16, 2011 - 10:43 By: dave

It would be fair to say that here at the NZOSS we agree that copyright is a vital legal instrument to ensure that people get credit for their creative endeavours (and can't claim credit for that of others). It is key to free and open source software and free and open culture:

Copyright is the mechanism by which the source code licenses we use to ensure software is free and open source stick, and the Creative Commons licenses we use to license other creative works ensures that our works can be reused and incorporated into to other artefacts in unexpected - and possibly delightful - ways.

Another angle of copyright, however, that we're not nearly as concerned about, is people simply copying a copyrighted work, without pretending it's their own creative work. In some cases, those people will simply enjoy that work as it is, and in others they will build on that work, borrowing from it to create something different and perhaps new. The prohibition of copying is the area where the Copyright Amendment Act of 2011 treads on quite a few toes, particularly given the era of digital abundance in which we now live, thanks to the Internet: the largest, most effective copying machine ever devised.

Delicate Balance

The balance is between the rights of the creative individual to benefit from his or her creativity vs. the right of society to appreciate it and even lay some sort of claim of public or cultural ownership of it. It acknowledges the importance of both individual inspiration and the need to absorb and synthesise - "remix" - external cultural influences.

With regard to the recent Copyright Amendment Act passed into law under urgency, I (and I'm pretty confident to extend that to the NZOSS at large) believe that balance has been well and truly upset. I see a number of problems with the Act itself which I think safely doom it to failure, but far more worrisome to me is the method and motivation behind the changes to the Act which no longer even pay lip service to maintaining any sort of balance. Now, it's got little to do with encouraging creativity, and everything to do with preserving some obsolete business models.

More unfortunate, it appears that NZ has become a testing ground for US corporate interests, to the extent that they may be, in effect, buying NZ legislation.  This is not about protecting artists. It's about protecting incumbent US corporate interests and staving off the death of a now obsolete industry. In its heyday, the US "content" industry - movie studios, record labels, publishing companies, etc. - provided crucial marketing and distribution channels, moving physical goods (records, movie reels, books) from capital intensive production facilities to sales venues.

In NZ, the main representative for these industries are organisations like APRA and the RIANZ. They claim to represent creative artists' interests, and to a certain extent they do... but they do not speak for artists. In fact, if we kiwis see copyright as crucial for supporting the interests of artists, then we should look at which organisations artists support. I understand that the Creative Freedom Foundation represents substantially more artists than are currently signed up to either APRA or RIANZ. And the Creative Freedom Foundation strongly opposes the Copyright Amendment Act, with support from its members. Their very sensible position: "Protecting artists means reasonable copyright laws, not internet termination."

The Internet has rendered both the means of production and the means of distribution low (or even no) capital activities. The content industry of old no longer offers a value proposition. It could shrink substantially or even go extinct, and we might not even notice. But, truth is, it's still going pretty strong thanks to a nostalgic market that's attached to vinyl and paper books. It's just not growing like these companies have counted on.

It's Copyright Infringement, never "Theft" or "Stealing"

So now they attack their own customers, calling us "thieves", accusing us of "stealing" among other things. Of course, as most people realise, copyright infringement is not in any way related to "theft" or "stealing". Unlike theft or stealing, making a copy of something does not deprive its original owner of anything tangible whatsoever. It is copyright infringement, nothing more or less.  At worst it might be depriving the copyright holder of hypothetical revenue. Maybe. Conflating copyright infringement with theft and stealing is both false and insulting. Moreover, it substantially undermines so called "rights holders'" damage claims and stretched their credibility beyond the breaking point. For those still not clear on the difference between copyright infringement and theft, some very clever people have produced this video to clarify the issue. It's also available in the non-patent-encumbered OGG format.

That fundamentally flawed attitude greatly weakens the case of organsations like NZFACT (the NZ Federation Against Copyright Theft), which, in addition to being a thinly veiled front organisation for US interests, tend to quote highly dubious "loss" numbers (more analysis here, here, and here) due to copyright infringement to justify the huge copyright infringement penalties they demand. The dodginess of their copyright infringement loss calculations is rivalled only by those of the proprietary software industry representatives (thanks to Francois for the reminder of this gem). 

It's also worth pointing out that it's very hard to argue for lost value attributed to an infringing copy if the copied material is not available for legitimate purchase by the would-be copyright infringers.

Copyright and Culture depend on one another

As a market distortion (an artificial monopoly, granted by government, like Trademarks and Patents), to justify its existence Copyright must do more public good than harm. In general, by establishing a balance between the very individual pen or brush or plectrum or key strokes of an artist vs. the ability of others to build on that art by emulating it, I believe Copyright has the potential to fulfil a useful purpose for society as a whole. It creates an artistic signature that, in theory, makes it possible for an artist to gain credit and compensation for his or her work, and perhaps even earn a living creating, so that he or she can focus on becoming the best artist possible.

Society creates its own culture, and to an extent, culture is punctuated by the artefacts its exemplars create. Without creative artefacts (including virtual ones) societies are less cohesive, less fun, and generally less successful. To the extent that Copyright benefits creative people and provides them with a way of enjoying the basic social tenet of given credit where it's due, I support it.

What I do not support is non-creative corporations co-opting Copyright, building empires on the backs of others' creativity, and then using their wealth to influence governments to increase their influence by extending (in the US jurisdiction at least) the term of Copyright to the point of absurdity.

I neither support nor respect those whose business models depend on creating artificial scarcity with the assistance of government collusion. Their dam is already terminally cracked. My only concern is those who will be the collateral damage in the time between now and when the incumbent "rights holders" (as opposed to creators) finally give up, because the Internet world does what it does best: routes around the problem and carries on.

If you're not familiar with the Copyright debacle currently being foisted upon us by our misguided legislators, I encourage you to consult 3Strikes.net.nz - by the thoughtful people at InternetNZ - which provides a useful, if unhappy, description of the situation.

History of Copyright

Copyright, which has been around in various guises since not long after the invention of the printing press, is a legal monopoly, granted by governments around the world, which protects a specific expression of an idea. It does not protect the idea itself. That's what patents do.

Since it was first devised, copyright has been expanded in various ways. It now covers much more than printed works. It covers any type of artistic expression, whether recorded in physical media (paper, film, audio tape) or virtual (0s and 1s).

The intent of copyright is to allow the dissemination of culture and ideas while allowing the creator(s) to make a living out of it. Pre-internet, this made a lot of sense as substantial investment was needed to create distributable media and the turnover of new material was relatively slow.

Fast forward through the centuries and things have changed significantly. Not only is worldwide distribution a keystroke away, but our culture now communicates more rapidly and efficiently, recycling and redeveloping ideas at a furious pace. It makes sense then, to reduce the copyright term and allow culture to develop.

However, large corporations have been subverting copyright law in the interim to the point where its ancient and unnecessary provisions now artificially support a distorted market and restrict our culture. They have increased the term to well beyond a human lifetime, and increase it again every time their old media content nears expiration. This is done not for the benefit of our culture or understanding, but purely for profit.

-- Dave Lane, President, NZ Open Source Society