Moral rights vs copyrights
p2pnet.net News View:- Amidst all the “will they?, won’t they?” excitement over whether European patent law should be updated, and whether the version currently on offer will allow US-style software patents, it would be easy to forget that another, bigger, battle continues around the world.
It is the “copyfight” – the continuing dispute over what sort of legal protection creative people or the companies that employ them should have over the ways in which their works are used.
It is the fight which has given us the European Union Copyright Directive and the US Digital Millennium Copyright Act, both of which provide for severe legal penalties against anyone who breaks the codes that protect DVDs, iTunes Music Store downloads and e-books etc.
On the other side it has given us the original Napster, peer to peer networks, BitTorrent and the DVD-reading program deCSS.
This week the Institute for Public Policy Research, the UK think tank, held a meeting on copyright as part of its digital manifesto project, and I went along to listen.
It was a fascinating discussion, not so much for what was said but because it revealed the depth of misunderstanding and lack of common ground between the different groups.
It also exposed a fundamental philosophical difference that I do not think can ever be resolved.
In legal terms, the basic argument is between those who see creative works as just another type of property, with what are increasingly presented as inalienable property rights, and those who see copyright as a deal struck with creative people by the state, one which is intended to benefit both sides.
Remix culture is everywhere. All we can do is accept it, adapt to it and find ways to work and make a living within it
Copyright history supports the second view, but since the mid-1970’s there has been increasing legal support for the second.
We saw this clearly when a lawyer in the audience expressed his concern about proposed changes to copyright law that would allow blind people to break copy protection and use screen readers on books.
He called it “expropriation” – a term used to describe the process of taking people’s stuff away from them – and demanded some compensation for rights holders if it were allowed.
Yet to Cory Doctorow, there on behalf of the Electronic Frontier Foundation, this view makes no sense.
If copyright is a deal between the state and the creator then it does not create the same sort of property rights that you get when you buy a car or even a book.
For him changing the rules is just changing the rules – if the term of copyright is extended then rights holders get more, if accessibility exemptions are offered then they get less, but neither attracts compensation or infringes any property rights.
A third view was put forward by David Ferguson from the Creators’ Rights Alliance.
He is a composer whose income depends on copyright, and he does not want to see it threatened by changes to the current regime which would either give the people who commission him more control over the work he produces or give the general public more freedom to use his work without paying.
Who decides what happens when someone writes an original piece of journalism?
Although I sympathise with him, since I rely on copyright too, I do not think he can stand in the way of the great changes that new technology makes possible.
The geeks and hackers will not allow it.
They have already dragged the music industry into the download era, and I am confident that they will soon see off digital rights management and locked-in music files.
Back in the 1980’s lots of computer software was distributed on “locked” disks that could not easily be copied.
But “easily” is only a challenge, not a real protection, and the protections were easily bypassed and eventually abandoned.
It will be the same with Fairplay – Apple’s Digital Rights Management – and the other tools that currently limit what we can do with the music files we purchase.
Fifty years ago it would have been impossible to remix a song or recut a movie without access to a professional studio.
Now anyone can do it on their iBook, and remix culture is everywhere.
All we can do is accept it, adapt to it and find ways to work and make a living within it.
However the question of reusing work does uncover a fundamental divide in this debate, one which I think may be irreconcilable.
It concerns moral rights – the rights I have as a creator to control how my work is used and exploited.
Moral rights are not about money but about integrity, and they pose great problems for those who want to liberalise copyright because they open questions of judgment, taste and even politics.
Put simply, if the law is changed to allow for remixing of work without my explicit permission, perhaps by introducing a compulsory license, then I cannot stop people I do not like or approve of using it.
This is not about getting paid – I would not want an article I had written to be used by a neo-Nazi group in their newsletter, however much I was offered.
Unfortunately most of the copyfighters take the US view of copyright as entirely about economics, and neither understand nor are interested in moral rights.
Lawrence Lessig, the lawyer who is leading the movement to revise US copyright, dismisses it as “a French idea” that has no real usefulness.
He is wrong, I believe, but I can see no way to provide moral rights in a form useful to creative people within the rebalanced approach to the economic aspects of copyright that Lessig, Cory Doctorow and others are proposing.
In the end we might end up doing what democracies do so very often – letting the views of those who can influence the majority of our legislators dominate and disregarding the interests of minorities with less power or fewer funds for lobbying.
Unfortunately we are likely to find writers, artists and composers among those minorities.
Bill Thompson – andfinally.com
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February 21st, 2005 at 2:02 am
…a Dr.Who scarf going on…nice
TT
February 21st, 2005 at 2:31 am
At this point, the entertainment industry has been caught in a deluge that they ignored. It was possible to see it coming, but barely.
The media landscape for movies changed overnight. Music was a little slower, but go buy a new cassette. You still can, but with limited selection. VCRs are all but dead. Computers that could barely draw a 16 color game in 1995 can now do complex video tasks. For US $1500, you have a video and audio studio that can do almost anything.
Instead of embracing this new technology completely, they took it in hand and tried to shape it to an old model. The music industry was very resistant to CDs in the mid 80s. No one would want or notice the difference, they said. Too expensive for us, they said. But the CD prevailed. I know I was blown away the first time I heard one. No noise in-between tracks.
DVD was the same way. Divx, anyone? A terrible model, at best.
When it became possible to copy all this stuff, the industry should have stood up right there and noticed that the model needs to change. What worked in the past, the tight control of physical media was gone.
When that control dispersed, the entertainment industry should have looked up from counting the coins that come in from sales and tried to make this new technology work for them. How?
Well, maybe selling lower-quality music rips very cheaply. Sell VCD quality movies via download for a few dollars, or even 20 minute cuts for nothing. It’s called advertising. Make people want your product. Make it different, unique. $10 for an album of poor quality ripped music is not cheap. Sorry.
Make it easy for people to get your product. Don’t limit yourself via regions or because of stupid controlled areas where some company can sell it but another can’t. Keep a tighter control on who distributes the media, but not what’s distributed. The entertainment industry has a huge catalog of material that they don’t let out. If something needs to go out of print becuase it doesn’t sell well in a physical format, keep it alive in a downloadable form.
Give DIY material. Make it much cheaper if you provide your own media. I’d pay to download a real movie and burn it myself. I do this often with http://www.archive.org, a site that offers a lot of open-source and public domain movies. Fancy menus and packaging are often a waste of time. The media isn’t permanent, so that life could be built into the price.
Get rid of the model where most of the money lines the pockets of executives. Yeah, everyone needs to make a profit, but when the profit goes to those that aren’t doing anything for it, it makes things top heavy.
There will always be those that pirate. You’re not going to get rid of that. No matter how cheap it is, some people are going to steal it. The only way to prevent that is to make it so people don’t have access to it. No more movies at home. No more music, except for the radio. Maybe some 78s, and some 16mm film if you really need to see it at home.
I guess it’s really too late now. Pandora’s box is open and everyone has a taste for the free stuff. Nothing is going to change that fact.
Would any of this been different had a new model been presented at the turn of the digital revolution? The point is moot now, you can conjecture all you like.
I know I’ve embraced the computer as a media play and storage system. Too bad I can’t get anything legally online that can show that off.
What’s my point? Act quickly, entertainment industry. With each new computer sold, you have one more potential customer that can copy your stuff. Make it cheap ‘n easy to buy and you’ll capture most of the audience. Cheap, real versions, minus the top-heavy executives. This will capture a good portion of the market. Most, not all, mind you.
Keep travelling down the road you’re on? The bridge is out.
February 21st, 2005 at 4:48 pm
> It concerns moral rights – the rights I have as a creator to control how my work is used and exploited.
There is simply no such thing as a “natural” right to prevent someone else from using your work any way they see fit. Copyright, like most other IP rights, is completely a creature of law, not of morals or ethics.
Your desire to control how others use your work is simply a wish that the government use its power to coerce others to indulge your whims on how you might want your writings to be used. It is no wonder that no one is interested in discussing “the moral right to hoard one’s IP in plain sight”.
If you want absolute control over who reads or republishes your work, there is a simple solution – Don’t publish it.
Your concept of “the only people who can republish my stuff are those I like…” has so many problems in a free society that it’s not worth discussing.
BTW, nice scarf.
February 21st, 2005 at 8:59 pm
I have to agree here. One of the risks you have to accept when you decide to create something is that it might wind up being used or interpreted in some way you did not intend. That’s just the breaks.
I don’t see really how current copyright law protects these “moral” rights you lay claim to. In any truly free society, there is always the right of parody and copyrights always expire (though the US legislator sometimes seems hell bent on trying to change that).
Do you think DaVinci wanted the Mona Lisa on stamps and postcards? Do you think Shakespeare wanted one of his finest works turned into a horrible movie starring Al Pacino (worst Shylock ever)? Do you think Nietzsche would’ve wanted his sister to use the concept of the Ubermensch as pro-Nazi propaganda (or do you think he would’ve agreed with all the postmodernists who constantly use his writings to justify their mindless drivel)?
You have no “moral” rights to control how your creations are used once you put them out into the world. As soon as you publish something, or put it on display it becomes a part of our shared culture. People will interpret it, debate it and inevitably reuse it in one form or another from that moment on and there’s nothing you can do to stop them.
Copyright law was never intended to give you any “moral” rights. It was originally designed solely to insure that you, the creator, would be able to gain some compensation for your contributions to society before those same contributions irreversibly become part of the public domain.
The existence of copyright laws and other creator’s rights management laws has led many authors and IP creators to think that they are entitled to some kind of creative control of their work AFTER they’re done creating it. But in reality and throughout history, once you’ve created it, it’s done. It is now out of your hands, on its in the wide world and no “moral” law exists to say otherwise.
As a fellow creator, I understand your feelings on this issue, but I think you’ve missed the real point. As creators we are supposed to be contributing to culture, not controlling it.
February 22nd, 2005 at 3:49 am
>copyrights always expire
This is the one thing that I see people always miss. If producers are allowed to lock their works with technology, then consumers should have the right to demand that the technology be forced to expire when the copyright expires. Currently we are not afforded this and future historians and artists will end up with tons of inaccessable material.
February 22nd, 2005 at 8:55 pm
hahah fucking moralist. believer/disbeliever(pointlessnessificizations). don’t you know property as violence egoism or cynicism. think fluid organic ethics and that people who enjoy your art/work will give naturally to you from their heart or not and you are not the dictate of that you are the discoverer who shares because you love to do it it adds meaning to you life
i suggest you look towards sydicalization and mutual aide donation really really free market economics.. else i see you whining complaining criticizing with no end. as it is evident you know from several points you make in this writing. (witch you made for free for p2pnet ? witch i will expropriate and edit ala lessing free culture book to my own satisfaction and poignant opinion that moral ism leads to punitive force violence and that copyrights patents and intellectual property are human rights violations.) ;P and i hope you still love it , i will work with you to grow food and create a sustenance ecological footprint culture worker owned and run and you know this….
i enjoy reading this but your bias shines thru and its not Bright or radical at all. it’s fearful and protectionist based on assumed creationism in trading inventions when the obvious current is moving towards sharing discoveries.
February 22nd, 2005 at 9:43 pm
Theoretically, those technologies are patented and patents are supposed to expire as well. The problem now is that tech advances so quickly, that by the time the patent on a protective device expires, it’s no longer in wide use. A novel approach would be to establish a public archive of DRM protected works that can not be read, but are released into the public domain as soon as their DRM tech patent expires.
That way, if the old info is reincoded onto a new protective medium, you can still distribute the old version. That is, until another boneheaded DMCA-like law is passed granting tech developers permanent rights of content control.
It is interesting to note as a sort of aside that the 15 year expiration date for US patents was originally intended to be 30 years. But the legislators who first established our patent office decided that such a long term of protection would stifle creativity. They felt that 30 years was a long enough period of time that a creative individual could live their whole life supported by the fruits of a single good idea. They felt that shortening the expiry time to half of a lifetime would encourage creative people to come up with at least two good ideas before retiring.
The point being: Our original IP laws were intentionally designed so that a creator could NOT support themselves forever on one idea. But now, we have companies like Time-Warner who control the Happy Birthday song, and the children of creative individuals continuing to profit from their parents’ work without adding anything new of their own. Our current crop of IP laws were broken even before p2p networks started breaking all the rules.
It’s time for creatives to start actually listening to people like Cory Doctorow. It used to be that artists and other creators were the symbols of rebellion against the status quo. It used to be that they craved innovation and freedom. Now, far too many are content to support the status quo, tow the party line and stifle the creativity of others in order to protect their own meal ticket (which may or may not actually be threatened by emerging trends. Why are so few people paying attention to the successes that have embraced the new/old ideology of sharing their art rather than selling it?).
February 23rd, 2005 at 5:55 pm
The challenge is to live as aesthetically as possible, thus preserving moral rights and copyrights.
February 23rd, 2005 at 8:51 pm
“The geeks and hackers will not allow it.”
Thatâs absolutely correct, we are not going to permit music to go back to the stone age at the whimsy of the music industry.
“Unfortunately most of the copyfighters take the US view of copyright as entirely about economics, and neither understand nor are interested in moral rights.”
Well thatâs an egotistic comment. You presume to understand and sum up the reason for ‘copyfighters’ into a single group of uninformed automatons when in fact most keep very well apprised of the facts – one fact being this all is ‘mostly’ about the economics – riaa could care less about the artists – if they could still make money on the tracks and kill the artists so they donât have to pay any of the money to them we’d have a lot of cd’s and no living artists to take the money from the riaa types. As for the moral side of it, oh we take that into consideration about as much as the artist or riaa/mpaa took into consideration when they charged $20 for cd’s with one good song and really great marketing… If artists want to make money, they need to have concerts – once they make that music available on cd its going to be distributed and remixed – no matter what the artist wants….. I agree the artist should make the money if the works are SOLD but if they are being shared – thatâs FREE FREAKING MARKETING and people who like your music will buy cd’s (as proven with music sales being outrageously great still, oh golly single-song sales are down except on the net, and cdâs with 1 good song on them cant sell, boo hoo – then write better songs!)…. they will continue to be distributed and guess what those same downloaders will often buy them IF they are DAMN good the … and buy the toys for their kids or clothing or go to concerts; whatever…… money in the ‘artists’ pockets one way or the other. The days of the artists getting rich off 1 decent album are coming to a close – they will have to accept lower pay.. oh darn, imagine a life with only $1,000,000 a year income… darn.. the average person in the USA makes about $26,000…. so blow us for not crying.
“Unfortunately we are likely to find writers, artists and composers among those minorities.”
This may be horribly obvious but they ARE IN THE MINORITY for pete’s sake! The MAJORITY are the people getting sued – the downloaders – the same people that are the freaking customers and do you think they’re going to buy a product they have not tried???? um, no. We’re done doing that, welcome to 2005…. this isn’t new, and it isn’t changing… Welcome to our reality.
Just my 10 cents.
_-Jile-_
February 25th, 2005 at 1:29 pm
YES!