A failure to serve fans

The European Parliament sent the Copyright Directive to the trialogue process, where the views of the commission, the council and the parliament are negotiated; the final words agreed by the parliament are basically the words lobbied for by the large corporate press and content companies aided at the last gasp by the sports industry. To understand why this is shit we need to go back to basics.

Invention & Improvement

The purpose of copyright and patent laws is to encourage innovation; this has two sources, invention and improvement. Invention is clear, although the intellectual property laws will transfer the ownership to a 2nd party, usually a large corporate. Improvement is the whole arena of derived works. Derived works are as an important source of innovation as original invention and the settled intellectual property laws must encourage both. It would seem for legislators and their citizens that there is a trade-off with wealthy corporates spending large amounts of money to get the laws they want. I think we wish that they listened to their voters more.

There is a supply chain for digital content, from author/creators to distributors, to makers and consumers. We should also consider those citizens that do not give a shit making a fifth role. The makers, I take from Jessica Litman’s paper “Real Copyright Reform”, are all those who invent and trade in items that enhance the content market, from trumpet makers to computer and device manufacturers. Our laws need to encourage the makers as well and we observe that today’s music and film industries would not exist without them. Littman agued in her paper, and I precis in my review, that

The current settlement is disproportionately in the favour of one player, i.e. the distributor … The bulk of economic value accrues to the distributors, because once upon time, that’s where the bulk of the cost was, it required capital investment and risk taking. Capital could only be acquired by Joint Stock Companies. Times have changed and as I have argued we need a new fair settlement that in Ms Litman’s words “produces an ecology”, …

It’s not good for innovation and the supply of entertainment content that Laws favour only or mainly the distributors or the inventors; society needs those that improve and those that invent orthogonally. Our laws backed by international treaty (not the EU this time) do not serve us well.

The right price

Digital content is non-rival and non-excludable, or at least hard to exclude. This means that one person’s use does not deny anyone else, and that unlike say a concert, or film showing where the distributor charges at the door, the use of digital content is much harder to control i.e. harder to exclude; it cannot be done without legal sanction. The non-rival aspect means that there is no economic reason to charge for the items use because we have no need to ration its use. The non-excludable nature of the product means that we have to spend time and money making it monetisable i.e. forcing exclusion and this is sub-optimal. i.e. there is no benefit to society in building exclusion techniques. The right price for non-scarce products is free, as shown by Spotify’s royalty payments.

What is welfare economics?

In a modern, and not so modern, capitalist society, we only use the price mechanism to ration scarce resources, and digital content is not. It brings us back to Simon Indelicate’s question, why should creators get more than a market rate, which in terms of a music track, or an image is now virtually zero. I add the question if you’re a musician or a photographer and not earning enough, ask your distributors why this is?

Fair Use

The implementation of a link tax, the strengthening sports events copyright and the de-facto mandating of upload filters are all measures that favour the so called creators at the expense of other inc. fans. It is based on the premise that all derived works must licence the original content. While much of the agreed copyright law and its proponents might be seen to be based on this view this position is moderated on law, by the concept of fair use, which is recognised by the international intellectual property treaties. In numerous jurisdictions, it is also diminished by anti-monopoly law, in particular, for sports events of national importance. (In the UK, access to the FA Cup,Wimbledon and the domestic legs of the Nations Cup are guaranteed free to air access.) In these limited cases, the law favours fans.

Fair use permits the use of protected content provided the purpose, the nature of the protected work, the amount of the product reused, and the market impact of the new product permits. While the US was amongst the first to increase the period of copyright protection (from 28 years to author’s life + 75 years), they have one of the strongest fair use laws. It is in defence of fair use that the opponents in the European Parliament stressed the idea that the new law would lead to the prohibition on memes (or image based messages). Fair use laws in the EU are weak and authors have little access to the dispute resolution mechanisms. The lack of rights by citizens is one of the reasons why the laws should not be strengthened.

Hyperlinks

The linktax is an attempt by multi-national press organisations to tax the news aggregators such as google & yahoo. It has been tried in Germany and Spain; it raises no revenue for the press organisations and increases the barriers to entry for both news aggregators and the press. It penalises the smaller players. The bigger organisations just stop carrying taxable content. It also jeopardises  years of legal precedent that linking to content is always legal.

Free Speech

Human rights law now states that the right of free expression contains a right to receive information. News cannot be protected by intellectual property law, only the text of any articles, and now it would seem even the headlines. The desire for profit means that the press seek to deny access to their content. We have the right to comment and read and consume. The words around what can be copied into a 3rd party site is unclear and I assume that the hyperlink remains non copyrightable. (This may make citations harder although fortunately Wikipedia has been granted exceptions.) One further disgraceful use of copyright law is in academic publishing where science and knowledge, often funded by the public becomes enclosed behind a copyright protected paywall. (NB Patents which would protect the ideas in white papers last for 20 years, copyright lasts for authors life + 75 years). Parody is an especially important protected form of free speech, no longer in the EU.

Automation/privatisation of justice

Another aspect of the upload filters is that programs cannot and should not be allowed to take judicial decisions. Much of this software is owned by corporations and we cannot cross examine it in court; it does what the authors want not what the public wants. Courts must remain human and we are judged on fact by a jury of our peers.

Alternate business models

The arrogance of the content providers is that they assume, and demand that laws are written to support their business model of author/publisher. Yochai Benkler in his book, the Wealth of Networks identifies eight additional models many of which would require or benefit from other laws. The content owners look to make various open source and creative commons licences weaker. Their laws of exclusivity and the longevity of the protection inhibit the creation of derived works.

Derived works and shared value

In my articles on Bioware & NWN2 & Abba, I show how derived works create demand for the original author’s works. It is to the benefit of all, including authors that we need stronger protection for derived works. Back to basics, intellectual property laws must encourage improvement as well as invention. On the whole they don’t.

We should not that with programs, they are designed with application programming interfaces so that others can use these programs and today, programs are often issued for free partly so that others will share the burden of improving the product. There is virtually no program today that doesn’t need another, this needs to be made easier not harder.

Musician’s trickle down

The attempt to take exclusive monetisation rights by the three monopolists who provide the bulk of the world’s music and film content has created the opportunity for trickle down income created not on the basis of the work undertaken, but on the investment in legal barriers to entry which are often used to create an artificial scarcity, if you can’t find what you once had, then they hope you’ll buy something new.

These laws have been written by corporations in their own interests, and they only support their interests, not those of creators, not those of fans, not those of ‘makers’ and not those who build the silicon age’s industrial capital. It’s time to move on and the 19 Labour MEPs who did so, should not be supporting laws of this nature.

ooOOOoo

I apologise, this is a rant, and too long, I might come back and make something shorter, but I don’t normally. …

Sectoral Balance of Trade

As one does I am considering the international trade implications of copyrighted products? I wonder what the balance of trade state is, over the last five years for Standard Industrial Classification (SIC) groups J.58 broken down to 58.1 & 58.2, J.60, J.62, M.72, R.90? These are Publishing inc. computer games and other software, Programming and Broadcasting, Computer Programming and Consultancy, Scientific Research and Creative Arts and Entertainment?

It would also be good to see the balance of trade for the UK drug industry but it is no longer a single SIC and I am afraid that much as for the five SIC classes above, the real surplus/deficit will be hidden through inter-company transfers, i.e. the import is by one company that buys from a another foreign division of itself and the trade is a sterling internal market trade. …

Ulveas together

Another interesting copyright story. In 1974 ABBA won the Eurovision song contest with Waterloo. This launched an amazing career releasing 66 singles between 1974 and 1982, with nine UK No. 1 positions and 11 BPI Gold discs, putting them in the top 20 best selling bands ever.

But as we know, copyright lasts for life + 70 years and so reusing their material can only be done at a price. While researching this article, I discovered that we can perform an artist’s copyrighted material for money in a venue, and it is the venue’s responsibility to pay the collecting society. However, band names are protected by intellectual property laws.

It became clear, that ABBA had ceased to perform, and declared that they never would again and in 1988, Rod Stephen launched an ABBA tribute band, called “Bjorn Again”, which is a different name and also protected. This has also been successful. The line-up has changed, and even at times there have been two bands on separate tours.  Fascinating that such a simple copyright statement allows the appropriation of value. I think I’ll copyright “Ulveas together”.

It’s a story of great music and showmanship, abandoned and restored, but still enclosed. You can perform it, but you can’t monetise it without paying a tax. When I first conceived of this article, I was curious as to whether the Bjorn Again owners were licensing the name as a franchise, however it seems not but it would be a smart business move, and another illustration of the monopolistic tendencies created by modern creative copyright.

There seems to me to be something not quite right about the way the performers & fans are at the bottom of the heap in this particular model. …

Big Copyright strikes again

Big Copyright strikes again

This time in the European Parliament. They want upload filters and to tax ISSP’s reuse, but you can do something about it.

Last week a committee of MEPs voted 15 – 10, reported here by one of its members, Julia Reda, the sole Pirate Party MEP, in favour of the EU Copyright Directive’s disastrous Article 13. This misguided measure will introduce upload filters that would change the way that much of the Internet works, from free and creative sharing, to one where anything can be removed without warning, by computers. They also voted in favour of Article 11, which Europeanises a German & Spanish law and places a monetary liability on internet software service providers who use snippets of news articles originally published by for-profit publishers.

This article explains why the measures are wrong, and points to the campaign sites. It was amended on the 5th July after the vote to report the result, which was that the Parliament voted to re-open the discussion in plenary.

Here are the votes, interesting splits. …

Manifesto bingo, digital liberty and the internet

Manifesto bingo, digital liberty and the internet

I have had a look  at the manifestos and see what they have to say on the internet and Digital Liberty. I have been very influenced by the EDRi voting exchange and summarise the issues of Digital Liberty as e-citizenship, equality before the law, privacy and copyright reform, to which for this election we must add internet governance and industrial & innovation policy. I have created a table summarising the positions of the Tories, Labour, LibDems and Greens. Possibly I should have analysed the SNP manifesto since much of this is Westmister reserved powers. I was hoping to write something easy and quick to read. I don’t think I have succeeded. My super summary is in the figure immediately below, and here is the table I built to help me write this article. (I lost the excel file, so this will have to do!)  My main source was the ORG pages but I have been reading the Labour Manifesto also. I feel that the opposition parties have suffered from the surprise; they probably expected more time to develop their promises. All three opposition parties 2015 manifestos covered these issues in more depth.  …

The Digital Economy Act (again)

The Digital Economy Act (again)

The Digital Economy Act 2010 showed the long term goal of the entertainment industry, they want to criminalise file sharing. At the time, individual acts of copyright infringement were civil acts and the copyright owners had to pursue them through the courts, one at a time. This is expensive, slow, uncertain and most importantly expensive, compared with the cover price of a CD or DVD. The DE Act did that, it also sought to automate the justice system and in order to do that it weakened innocent until proven guilty, by prescribing defences and also placed a charge on going to court to argue not guilty. It really was a shit piece of legislation. However, the Law stated that the costs of surveillance and discovery had to be shared by the copyright owners and the internet service providers. The Courts struck down this part of the Law, (see here … for more)  …

Labour & Digital

Labour & Digital

Trefor Davies of trefor.net commissioned and published an article by me on the state of the politics of digital and its likely impact on the General Election. In the article I classify the issues around citizenship and economics. Obviously the manifesto has not been published and so prediction of its content is not easy. Regular readers will know that I am a supporter of both the Open Rights Group and Privacy International. I have also served on NESSI, the EU’s internet/I.T. R&D project incubator.  I am hopeful on the issues of citizenship, unsure on copyright and intellectual property laws and expect a good offer on digital government. …

On the economics of copyright

On the economics of copyright

When looking at the furore surrounding Julia Reda’s report to the European Parliament’s JURI committee, I am coming to the conclusion that those of us who argue for a fairer, more pro-consumer copyright settlement have won the economic arguments. The massive focus on the tiny change in duration reinforces this. All arguments I have had recently with proponents of the current settlement have rapidly moved from public good arguments to the issue of equity in investment, and the moral failure to compensate creators for their speculative investment.  …