What is the copyright law, how is it evolved, and can we have a better one? What can we do meanwhile, before changing it, to reduce the harms of this existing law? These are the questions which I will try to cover in this post.
In previous posts we went over the software issues and discussed how using/developing free (libre) software is an ideal we need for our freedom (philosophy) and also it is made possible by some developers (practicality). We also argued how harmful it is to use/develop non-free computer programs. For software, I talked about copyleft idea and how copyright law only comes handy when trying to use copyleft licenses to promote free (libre) software. Because freedoms 0, 1, 2, 3 are necessary, copyright law cannot and must not restrict users on how they use their software (I am assuming it is Free Software).
Now we change gears, and try to answer the questions about other works such as scientific papers or art works, some uses of which are restricted by the copyright law. We will see how implementing the copyright law enforcement, in a crude way, has become unpractical and a danger to our privacy. Basically you have to watch everyone’s computer to see if they are copying your work illegally. And to achieve this goal you are creating much bigger issues than the copying ‘issue’, if you can call it an issue at all.
I am publishing this post on May 6th, the day against DRM (@DayAgainstDRM). DRM, to be more precise, stands for “Digital Restrictions Management” or simply “Digital Handcuffs”. Please check defectivebydesign.org to find out more.
Introduction to Copyright Law
This video by CGP Grey is a good start if you have not been exposed to the history of the copyright law. This video also mentions so called Micky Mouse copyright act which happened in 1998 and extended the copyright terms in the US. It is not hard to see that this law was bought and pushed by companies like Disney. Funnily, it extended the copyright law for past works. This means that it wants to motivate the artists or authors in the past! With the physics we know today, this is not possible in this universe.
In short, the claim of the copyright law is “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. In simpler words, the copyright law is there to motivate the authors and artists to do and publish more works and its final goal is to benefit the public, including authors and non-authors. Remember that this is a restrictive law; enforced by a governmental system. Ideally speaking, we, as a society, give some extra rights to the authors and artists, for everyone’s benefit. People, or lawmakers chosen by them, must think about two different dimensions of these extra rights. Namely, time length (aka term) and breadth (aka extent):
— How long these extra rights will last?
— Which uses of the works can be controlled by the copyright holder?
And optimize them in order to maximize the benefit for the public. We will call these extra rights, the copyright law.
The next question one might ask is, which works are considered copyright-able and shall we use the same law for all these works? Shall we use the same copyright law for a computer program, a painting, and a scientific paper? Isn’t it better to specifically address different works with different terms and extents in copyright law? We will try to think about this question too.
So I said copyright law began to exist to motivate the authors and artists. Although this was and still must be the only first principle which exists in any argument, the discourse, sometimes, get shifted toward ownership and private property. Any argument that tries to use private property ideas for copy-able works misses a clear but overlooked difference. This difference is the reason why we have copyright law to begin with, and why the word copy exists. Basically copy-able work is a work I can copy without you loosing your copy. But any meaningful definition of private property does not have that feature. “If I steal your bicycle, you have to take the bus. But if I just copy it, there is one for each of us.”. See [7.1] below for more on this.
So what are the arguments in favor of increasing the term or the extent of the copyright law? To make the point clear that the copyright law and the way one thinks about it is not trivial, let me list a few points which people raise in defending today’s copyright law,
B1. [ownership and using private ‘property’ rules for ideas]
I worked on something and I ‘created’ it and it’s mine. Why should anyone copy my work?
This reasoning is emotional and oversimplified. The reality is more complicated. When someone poses this or a similar argument, first I remind them that their work is based on all the education they got or similar ideas they have seen throughout their lives. This video explains it better than words. Moreover, I remind them that they published the work. They had the option to keep the work unpublished and no one would copy it. But to encourage them to publish, yes, society gives them a limited power by copyright law.
Do you agree it is better to make it much shorter than waiting them die plus 70 years, or 90 years after first publication, before anyone being able to copy their work? This is assuming the companies like Disney wouldn’t lobby to increase 90 years to maybe 120 years in 2018. These numbers come from the first publication of the character Steamboat Willie (Mickey Mouse) by Walt Disney in 1928 (1928 + 90 = 2018). Just a side note. Often people raise the point, rather emotionally, that Walt Disney was really creative and so on. I am not saying he wasn’t, and I believe he was an innovator. I enjoyed learning the techniques he introduced for making animations at the time. Anyway, I am not claiming that we can not or must not encourage and help these people to work. On the contrary, we are trying to find a better solution; either a better copyright law or to reach a social agreement which renders copyright law almost obsolete.
B2. People will destroy the decent works by writing or making cheap rip-offs. For example, Disney must hold all the rights for the Micky Mouse picture otherwise people will destroy this part of our culture. I think this is more clear to be false. There are counterexamples to this argument that already happened. You see, with today’s copyright law, Shakespeare wouldn’t have permission to write some of his works, which we consider them not being cheap rip-offs but great contributions to our literature.
B3. But lowering the copyright term and breadth might cause big companies not to be able to make high budget works. Let us agree that saving some high budget works, like some Hollywood movies (though they exaggerate the numbers), does not worth giving up our freedoms or not fight to get it back. But is this argument true? Are we going to lose them? I think the answer is no, or at best it’s highly questionable. You see, most (if not all) of these works get most of the money in first 10 years after the release. Of course, this is not enough to say let’s change the copyright term to 10 years, but it suggests that lowering copyright term to 10 years might not stop us watching high-budget movies after all.
Now to show that the matter at hand is not trivial and we should seek for better solutions, let me pose couple of questions which are related to the consequences of today’s copyright law or the way it is enforced. Do you agree that it is better if some companies does not easily store the data and keep a database, accessible by government, of who watched/read/listened to what/when/where so people can consume/produce/get educated more privately? Do you agree that instead of calling people ‘pirates’ if they share your work, and instead of asking people not to copy your work, asking them to copy and share your work as much as possible, and pay you directly if they enjoy and want to help for more work, is a better alternative these days? Before dismissing this as utopic, please study the ideas around crowd-sourcing and how, hopefully, they might become the main way of supporting authors and artists. If you agree or at least have doubts about these questions, let’s continue.
The main point of this introduction is the following: there are consequences for the existing copyright law that are harming us in much greater scale than some benefits which might not even exist. To achieve the gains above, if there is any, the price paid by society is not tolerable. These big aforementioned companies, using execution of copyright law as an excuse, are causing our society much bigger harms. To name a few I can recall, designing DRM systems (aka digital handcuffs) and creating the power to know and control what we read, listen, and watch; the power of surveillance over internet connections; the excuses for censoring our internet and pushing all these SOPA, PIPA, … BS; all the bad things about non-free software (aka proprietary software) that we have discussed about; etc. So copyright law and its enforcement in the existent form is problematic, impractical, and a threat to our privacy and freedom. Our society has complexities, specially the market, law, and technology. I don’t think anyone, unless really pessimistic, could foresee that these will be the consequences of the copyright law, or copyright law can be used as an excuse for this massive surveillance, digital handcuffs, and so on. So to move forward, we should study the consequences and either change the law or change our socioeconomic behavior, making the law irrelevant.
RMS talks about “Copyright vs Community”
There is a talk done by Richard Stallman (RMS), with the subject “Copyright vs Community”. This talk is licensed under CC BY-ND 3.0 (Creative Commons Attribution-NoDerives 3.0). I will explain the work briefly, quoting verbatim. My own words will be [enclosed by brackets]. You can get this talk from here,
Copyright vs. Community Location: The University of Nottingham, Nottingham, United Kingdom Date: March 11, 2013 By: Richard Stallman Video Files: Ogg/Theora (1.9GB), WebM (1.7GB) This recording is licensed under the Creative Commons Attribution-No Derivative Works 3.0 license.
In this talk, RMS starts with introducing free software and the four freedoms (beginning to 7′) and he brings the question, if it is possible to apply these freedom rules to other published works and how this can be a meaningful question. He gives us a decent introduction to the history of the copyright law and explains its purpose, and how its term evolved to become what it is now (7′ to 25′). He then explains how the breadth of the law is evolved and how digital handcuffs or digital restriction management (DRM) systems are used nowadays to restrict the public, with quite a few examples (25′ to 58′). He then proposes a new system of copyright (58′ to 1:19′) where the term is reduced to 10 years and the breadth of the law concerns the category of the work. He defines three categories with different laws for each,
First, “The works that you use to do practical jobs”. Examples include recipes, software programs, educational works, referential works, text fonts. For this category, people must be able to practice all four freedoms.
Second, “The works that represent what certain people think”. Examples include academic journal papers and talks. These works must be cited so that it is clear who did the work. Of course, sharing them must be legal (non-commercially redistributing the exact copies). How about modifying? Modifying is a bit tricky. RMS uses the idea of ND or no derivatives for these works. Though accepts in scientific works this might not be necessary.
[I think you must be careful about citing people. I am sure you are familiar with ethics. In basic science, seems to me that ideas are more clear and modifying can be done in a certain extent. But in other works you must be much more careful. Legally or ethically, this connects to plagiarism and it is a separate issue. I think, legally or ethically, plagiarism does not need to, and better not, be connected to the copyright law.
How about commercial distribution? This one can be determined by the author of a work. I think we don’t need journals, or we must have only non-profit ones, for the sake of our libraries.
Fortunately in physics and math people are using arXiv.org. And the fact that it works perfectly is an evidence that we don’t need hefty priced journal bills for our libraries. Unfortunately, specially in fields other than physics, journals are making monopolies and still draining budgets of our libraries. I think I am safe to say that it has become almost instinctive understanding how valuable our libraries are. See the posts by Timothy Gowers. Seems like journals are using the same price tag compared to the times before internet. This means they are getting paid for things they are not doing anymore but no one wants to start to change this bureaucratic and budget-related problem.
Before internet, the journals were useful for publishing. They were the only way to spread the academic knowledge. Now this task is taken care of by internet and no one thinks uploading some files on internet is a big deal. But journals are doing two more jobs, you might say. One is the editorial work and next is finding referees for a paper. The referees do the job without any charges, and finding referees and not paying them is a simple task that a computer program might be able to do. The editorial work is worth thinking about. I think the main editorial work is done by the academics themselves and journals only do the superficial works (aesthetic and language issues). But when journals make billions of dollars profit each year, one must stop to think. This is a huge price for such simple tasks, and more importantly our libraries are paying for it! And if you are not a member of a library who can afford these journal’s price tag, you have to pay ridiculous amount to access a digital copy of a paper.
The solution I suggest is to look at arXiv.org, join movements such as this one, and demand the existing journals to change their models or quickly reduce their price tags for our libraries. Finally, all these journals should become non-profit, or get extinct. Or come up with new profitable ideas which does not involve draining library budgets and stopping knowledge spread for nothing.]
Third, “There are artistic and entertainment works”
Examples include movies, music, and fiction.
Finally, he proposes two more ways that we can support our artists (1:29′ to 1:38′). At the end of the talk, he introduces gnu.org and fsf.org for more information and how we can help Free Software Foundation. There is an auction and QA after the talk. This is an illuminating talk. One of the main things RMS always insists upon is to legalize sharing, meaning “non-commercially redistributing exact copies”, for any work, no matter if it is a piece of art, a scientific paper, or a computer program. Specially if you think otherwise, please consider enjoying this talk.
Free Culture written by Lawrence Lessig
Another illuminating work is the book “Free Culture” written by Lawrence Lessig. He lists so many real life examples. In each example you can see how the copyright law or the patent law power, in the hands of big corporations, is harming the society. If you find the ideas above unintuitive, consider picking up this book. The pdf version is licensed under CC BY-NC, which you can get from here or here. You can also listen to it from here.
This part of the post deals with the solutions we have at hand to step forward, even before fixing the existing copyright law. Of course, the first solution comes to any mind is ‘civilized disobedience’, i.e. disobeying the law, if a law is unjust. There is a famous quote from Martin Luther King, Jr.: “One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”. Although, we have seen by consequences, that the law is unjust and not serving the public, but let me stop here and not consider this as the main solution. I think I can serve myself and my society better being outside the jail rather than inside. So let’s get to a less radical solution, namely using properly designed licenses for our own works. If you study for maybe few hours abut Creative Commons licenses, you will know which licenses are the best to use for each work that you are publishing. And you only have to learn this matter once. I will provide a solution here; more specifically, when to use which license for what work. These are my thoughts, but they, more or less, show the framework of thinking. You can see how they are connected to the ideas we talked about in the previous sections of this post.
The main licenses I will consider here are GNU licenses and Creative Commons licenses.
My general advice is to use,
— GNU General Public License (GNU GPL): for software,
— GNU Free Documentation License (GNU FDL): for software documentations or manuals,
— Creative Commons Attribution-ShareAlike (CC BY-SA): for educational and scientific research works,
— Creative Commons Attribution-NoDerivatives (CC BY-ND): for stating opinions and subjective works, maybe some scientific works,
— Creative Commons Attribution-NonCommercial-NoDerivatives (CC BY-NC-ND): for artistic and entertainment works.
So Creative Commons (CC) licenses come with certain flags as general guidelines that how your work can be used by others. If you are unfamiliar with Creative Commons this video can serve as a quick introduction (You can use SMplayer or youtube-dl). Or simply go to https://creativecommons.org/choose/ and try it for yourself. Briefly, Attribution (BY) stands for appropriate credit. ShareAlike (SA) flag makes the license a copyleft license, promoting the free culture. NonCommercial (NC) flag does not let people to use your work for any commercial means and usually they have to contact you if they want to do so. NoDerivatives means others cannot distribute modified versions of your work. Let me also mention CC0 which using it means you put your work in the public domain. Of course, in the context of law, the terms above are defined much more accurately. In the following, I will try to elaborate a bit more on educational and artistic works.
Please try your best to avoid using NC flag for educational works, as much as possible. Educational works should be free (libre). Just a reminder, NC flag means no one is allowed to use your work for commercial purposes. This is a hassle for education. There is nothing wrong in using a work in a commercial work, as long as it stays free (libre).
You might say, acceptably, I want to get my share of the money, if someone is making money using my work. Alright, this is not unreasonable. First try your best to get the money you need or want through other means. Try finding supporters, crowd funding, asking for donations, joining a community of educators supported by tax (like universities), or other means first. If all of these failed (happens rarely), I suggest you to use conditional licensing system. Use CC BY-SA-NC by default (as you were doing), but also use CC BY-SA with clearly stating the specific price, and make it easy for everyone to find, contact, or pay you. This way of thinking will decrease the hassle in making free (libre) education a reality (a big, but accessible, and maybe right in the corner dream for humankind).
How about artistic and entertainment works? It depends on the work, but let me give you my thoughts. There are people way ahead of me or this blog post, and producing artistic works with CC BY, CC BY-SA, or other CC licenses already. You can see a few examples here. But let me talk a little bit on this matter. First please make sure that you keep a copy of all your work with raw files, accessible to you at any moment. You might wanna share it with others, other than publishing the final version.
Now, for publication, you can use CC BY-ND-NC by default. This frees people to share (non-commercially distribute exact copies of) your work, without worrying about today’s copyright law. Think about sharing as a natural human right or civil right with today’s technology; this is a good way of thinking. Read the previous parts of this post if you still have doubts about sharing being good, easy, and right and war on sharing being nasty, draconian, and impractical. Back to the CC BY-ND-NC, this license helps more people to appreciate your work and protects the integrity of your work. For any other use, people will contact you. If you want people to freely modify your work take out ND flag. And if you don’t mind people using your work commercially take out NC flag. If you have a publisher, demand this as strong as you can. Ask people for help. Shout! Don’t let the publisher tie you with chains of its greed, or lure you with future empty promises of making you a star. You can also try to become independent by asking for donations or crowd-sourcing a work. Insist and state clearly that any work you have done and will do will be by default CC BY-ND-NC, stating what you consider commercial use if necessary. For example sharing your work in the Facebook-like centralized networks will bring money to Facebook-like companies using advertisement and data-collecting. I learned this issue from Destin (SmarterEveryDay) in this video (It’s a YouTube video so you can use SMplayer or youtube-dl.). So, to be more careful, specifically say that no one can use this work in any Facebook-like centralized networks.
Say, you hate that specific work you did and want to destroy it? Stop, put it in public domain and scratch your name from it if you can. I am sure you are wrong. Even if you cannot scratch your name from it, please let it be. The stronger we make the public domain the easier it is for everyone to learn and make awesome works.
Last but not least, understand the remix concept. Remix is not modifying a work, but using it to create a whole other work. Usually remix goes by “fair use” which is a clause added to the copyright law. But remix must be stated in the law, not raised as a defense if a company sue you because you did a remix. One example which this distinction is relevant is the new economical model implemented on YouTube. If you do remix and use a small piece of a work, automatically, a part of your ad revenue goes to that work. This is because in the law remix is a defense raised (called “fair use”) not a right (freedom). Usually there is no debate on remix and it is clear and uncontroversial that it must be free, but again the law is yet to catch up.
What will happen in the future? Let me try to predict the long term case. Let’s see what people want. They want the freedoms to use and share the works they like, privately. They will be more and more aware of this civil right; how easy it is to practice it and how harmful the policing became. People are aware and will be more aware how valuable and necessary free (libre) educational works, free (libre) scientific works, free (libre) software, … are to them; as easily as understanding free speech as a necessity. Then they will ask the question, if these works are getting enough support? So they will make more reliable crowd funding systems, will use the tax system to support these works better, or will use even better ideas. So eventually this will happen, with no doubt someday someone will shout, “Finally, we took one more step forward for our freedom and revived some lost freedoms! Now, let’s be careful not to lose these again.”. One of my dreams is to watch this process happening (this part is coming true) and saying “It happened. We did it.” before I die (still waiting for this part).
Additional thoughts, links, and references:
[7.1] Confusing Words
Let’s toss out the phrase “intellectual property”. There are quite a few sections in the law, which are not related to each other in any way, the most famous ones being, copyright law, trademark law, and patent law. These laws has been initiated for distinct purposes and work differently. One can get easily confused by grouping all these laws together labeling them with “intellectual property”. It’s almost impossible to say a meaningful statement including this term which is not false. Read this article for details, Did You Say “Intellectual Property”? It’s a Seductive Mirage, written by Richard Stallman (RMS).
On a separate note, use of the word “property” for a published work (music, movie, scientific papers, software, et cetera) is utterly misleading. A published work can be saved as a digital file. This digital file is made from bits of information and it is so different than physical properties that one owns. If you share a music file with your friend, you do not lose the joy of listening to it. But if you lend your headphone to your friend you can not enjoy the headphone till you get it back. By appreciating a song, you are not, in any way, reducing from it. It is not like biting a piece of chocolate, which reduced the amount of chocolate left. This video explains this idea clearly.
Using the word “property”, helps big corporations to translate sharing these works to “theft” or “piracy” of some “property” and make it easier for the public to believe and accept this wrong mindset. The arguments are given in the post. I hope you accept that using the phrase “intellectual property” only causes confusion which helps corporations that are seeking more restrictions on our freedom. There are other confusing words. The words that we use, if chosen improperly, will suggest false analogies, and connect themselves to unrelated things, sometimes without us realizing it.
Remember that trying to find another words instead of “intellectual property” is, more or less, the same mistake. Be more specific and talk about a law for a work or at least a law for collection of really similar works, for example you can talk about copyright law for artistic works. An oversimplified law is a bad law. Humans actually do really different works and laws for each work has its own specific consequences.