[NCUC-DISCUSS] The Surprising History of Copyright and The Promise of a Post-Copyright World

[Dan Krimm]

In between the censorship origins and the present, there was a revolt in
Britain in the 1600's.  (Philosopher John Locke was a prominent member of
it.)  The copyright statute expired and was not immediately replaced, not
for several years (roughly a decade?).

The compromise was to understand that there *was* creative value that was
not being expressed in a working market (what modern economists call
"positive externalities"), and there was a legitimate justification for
some sort of property rights to accrue to creative work, in order that
*society* should have such work created in proportion to its actual demand.
(Without such rights, the market would under-provision such work.  In
short, the market would fail.)

However the new paradigm put forth in the Statute of Anne put the creators
(authors) first, not the publishers.  Also, there were limits placed on
these rights, both in terms of time limits (so as to ultimately create a
valuable public domain), and in terms of exceptions to the rights (when
they collide with rights to free expression, etc. -- i.e., leading to
concepts such as fair use and fair dealing).  This was the origin of the
principle of balance in copyright.

That is the paradigm we struggle to maintain these days with regard to
balance of rights.  Maximalists are not satisfied with balance.  They want
one-sided dominance.  We must not allow that to happen.

At the same time, I would not personally support outright abolition of
copyright unless pure maximalism (permanent rights with no exceptions) were
literally the only other option provided to us.  I speak as a creator (one
of my other hats): music composer, performer, producer.  If not for rabid
ideology and dysfunctional politics, I am convinced it would be possible to
come to a reasonable middle position on balance of rights that makes sense
in the digital era (hint: relax the idea of *control* over duplication and
focus more on *revenue* from service models that need not control
duplication -- more about the performance rights that emerged out of the
copyright tradition, less about the initial origins in
duplication/distribution control).

I am not in favor of a post-copyright world.  I believe it *is* possible to
fix it without discarding it entirely.  But perhaps the term should be
changed, since it's no longer really about "copy" rights anymore.  It's
more basically about *remuneration* rights, and remuneration can come from
sources other than control over duplication/distribution, but still in a
market context rather than a government subsidy.

Dan

PS:  It should be noted, most of the IP-related issues at ICANN are not
related to copyright.  They address mostly trademark rights, which are
different, and in the US those rights even derive from a different part of
the Constitution.


--
Any opinions expressed in this message are those of the author alone and do
not necessarily reflect any position of the author's employer.




At 12:34 AM +0300 7/8/13, Alex Gakuru wrote:
>....excerpts....
>
>....
>
>The first copyright law was a censorship law. It was not about protecting
>the rights of authors, or encouraging them to produce new works. Authors'
>rights were in little danger in sixteenth-century England, and the recent
>arrival of the printing press (the world's first copying machine) was if
>anything energizing to writers. So energizing, in fact, that the English
>government grew concerned about too many works being produced, not too
>few. The new technology was making seditious reading material widely
>available for the first time, and the government urgently needed to
>control the flood of printed matter, censorship being as legitimate an
>administrative function then as building roads.
>
>The method the government chose was to establish a guild of private-sector
>censors, the London Company of Stationers, whose profits would depend on
>how well they performed their function. The Stationers were granted a
>royal monopoly over all printing in England, old works as well as new, in
>return for keeping a strict eye on what was printed. Their charter gave
>them not only exclusive right to print, but also the right to search out
>and confiscate unauthorized presses and books, and even to burn illegally
>printed books. No book could be printed until it was entered in the
>company's Register, and no work could be added to the Register until it
>had passed the crown's censor, or had been self-censored by the
>Stationers. The Company of Stationers became, in effect, the government's
>private, for-profit information police force.
>.....
>
>The arrival of the Internet fundamentally changed this equation. It has
>become cliché to say that the Internet is as revolutionary a development
>as the printing press, and it is. But it is revolutionary in a different
>way. The printing press may have made it possible to turn one book into a
>thousand books, but those books still had to travel from the press into
>the hands of readers. Physical books were not only the medium in which the
>content was consumed, they were also the medium in which it was
>transported to the consumer. Thus, a publisher's total expense was
>proportional to the number of copies distributed. In such a situation, it
>is reasonable to ask that each user bear a portion of the costs of
>distribution. Each user is, after all, more or less responsible for her
>particular quantum of expense. If the book (or record) is in her hands, it
>must have gotten there somehow, which in turn means someone spent money to
>get it there. Divide those expenses by the number of copies, add in some
>amount for profit, and you arrive, roughly speaking, at the book's price.
>
>But today, the medium over which content is distributed can be unrelated
>to the medium in which it is ultimately consumed. The data can be sent
>over a wire, at essentially no cost, and the user can print up a copy at
>her own expense, and at whatever quality she can afford, on the other end
><http://questioncopyright.org/promise#7>[7]. Furthermore, it is no longer
>important to possess the master; in fact, the concept of the master copy
>itself is obsolete. To make a perfect copy of a printed work is actually
>quite hard, although making a corrupt or abridged copy is very easy.
>Meanwhile, to make a perfect copy of a digital work is trivially easy -
>it's making an imperfect copy that requires extra effort.
>
>....
>
><http://questioncopyright.org/promise>http://questioncopyright.org/promise
>
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