The Future of Copyright

Last updated: April 18, 2019
There’s a copyright/piracy issue that drives me to distraction: the overhyping of online piracy of movies, music and books. Yes, it happens. Frequently. It is a problem. But it is not nearly the problem that its proponents claim. Particularly for books. On April 5, 2019, the U.K. the Society of Authors (the counterpart to the Authors Guild in the U.S.) sent an open letter to the U.K. secretary of state. It quotes a recent report (PDF) that argues that a sixth of ebooks read online in the UK in 2017 were pirated. Piracy, one author writes, is “an offense against moral justice.” Of course they want the government “to take action against the blight of online book piracy.”
Meanwhile I discovered an excellent post (from 2016) called “The Problem with Ebook Piracy Spam.” The author, Jonathan Bailey, writes:
Try this experiment. Go to Amazon and pull up any book, any book at all as long as it has been out for at least a few months. Then, search for the title of that book (in quotes) and add either “download”, “PDF”, “epub” or a similar second term.
He goes on to explain that while you’ll usually find lots of results that links to sites purporting to offer a free download of that title, if you visit them you’ll find that they are scams of one kind or another, and that there is no ebook to be found.
My point is not that ebook piracy doesn’t exist. Only that it’s hugely overhyped to near hysteria. That creates a distraction, and worse, a distrust by authors of online marketing, which is counter to their interests.
Tim O’Reilly, an author, publisher, and technologist, and a great friend to the publishing industry, wrote the definitive essay on how to think about online piracy. Among his observations: “Obscurity is a far greater threat to authors and creative artists than piracy.” It’s a must-read if you want to think more broadly about this debate.
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The main essay on this page was written in 2013, and the links updated in 2019.

The Future of Copyright

1. The web ignited the issue of copyright like never before in the history of publishing. It has become a minefield both for content creators and web publishers.

2. Most U.S. court decisions are favoring existing copyright holders. Web publishers are being held liable for their actions, even in cases where third-parties are posting content to their sites.

3. A range of new legislation is changing the copyright rules, most prominently, in the United States.

4. A wide range of solutions have been, and continue to be proposed, to address these conflicts. One solution of particular interest is Lawrence Lessig’s Creative Commons approach — it’s flexible and is gaining significant adoption (including on this site).

5. The topic of “rights and permissions” is at the heart of the practice of controlling and accessing copyright. Digital systems that address rights and permissions are essential for large content producers and consumers.

6. DRM — Digital Rights Management — is in part a practice, but more so a variety of technologies that can be embedded in content to restrict through software how content is used and reused. Hackers love the challenge of defeating each new DRM scheme as it appears; few DRM schemes remain unbroken. There is a slowly-increasing belief that DRM will not succeed in protecting content and therefore the copyright challenge requires new and different business models.

Overview of the Future of Copyright

One issue, which at first glance appeared to have settled into a restful sleep, has come back directly into the crossfire of all publishers. The issue is copyright. It is having a much greater direct impact on web publishers than on print publishers, although print publishers are very much caught in the crossfire. Indeed it is causing increasingly sleep-deprived nights for nearly all content creators, most significantly, from the music, film and television industries.

In the early days of the web it was a devil-may-care free-for-all, riding under John Perry Barlow’s cry that “information wants to be free” (although, according to Wikipedia, “information wants to be free’ was originally pronounced by Stewart Brand at the first Hackers’ Conference in 1984. Barlow’s 1994 essay, The Economy of Ideas broke new ground in the debate. In 1996 Barlow wrote A Declaration of the Independence of Cyberspace another key document in the copyright battle of minds.

This seemed like a possible dream until the larger content companies realized that there was income available from content on the web, significant income, and that there were copyright issues to dispute about who really owned the rights to publish this content on the web (was it the publisher or the author/creator — early contracts never envisaged the problem). But most significantly, publishers of all kinds realized that they had to control how their content was distributed on the web, and the most direct way to assert control was via copyright laws. The courts have been kept very busy!

The history of copyright is a fascinating one, well worth studying to gain context on copyright issues today. There’s no shortage of information on the web related to the subject. Start with the Wikipedia entry and move on from there.

It’s really fairly straightforward: authors (not publishers) were offered a modicum of economic protection in relation to their creative effort, as a simple incentive for creative folks to create.

But the distribution of content soon fell into the hands of publishers (as later would filmmaking, music production etc.). It soon became clear that the real costs associated with a creative endeavor were (1) the physical production of the work and (2) its distribution. Slowly but surely copyright began to be the right of the producer/distributor rather than the author. The author merely licensed his or her work to a producer, and generally received a fairly paltry royalty in return.

The end game on this proposition was producers (such as Walt Disney or Harlequin Books) simply hiring talented people, paying them a fee, and retaining all rights and revenue.

After extensive lobbying pressure from major copyright hoarders like The Walt Disney Corporation, copyright is now in place for the original lifetime of the creator/author, plus 70 years.

The only folks who think this is a good idea is the holders of lucrative copyright franchises, and the politicians who were successfully lobbied on their claims. There is no basis in fact, in law or in practice to support this muzzling of creative voices.

Similar to today’s herniated patent legislation, copyright law now inhibits creativity, particularly on the web, rather than encouraging it, at this crucial moment in the web’s development.

This is a major concern for all publishers, and particular those who, perhaps more casually, post pre-published material to the web.

With these many concerns, I decided to make this website accessible via the Creative Commons copyright: “Creative Commons is a new system, built within current copyright law, that allows you to share your creations with others and use music, movies, images, and text online that’s been marked with a Creative Commons license.”

The license which I’m granting this entire site under a Creative Commons license is as follows:

Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial 3.0 Unported License.

This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

For more information, see http://creativecommons.org/

 

Copyright References

1. Copyright and Technology

My colleague Bill Rosenblatt has a blog, Copyright and Technology, that goes broad and deep on copyright issues facing music, movies and publishing, both in the U.S. and abroad.

2. Lawrence Lessig

http://lessig.org/

Who would have thought that copyright law could produce a superstar? Professor Lessig is the man! I believe he has done more than most of his colleagues thrown together to help us understand where the real challenges lie when copyright meets the Internet. He doesn’t just ponder the topic or write about it: he takes very constructive and deliberate action. Here’s Lessig’s bio from his site:

“Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School, and a Professor at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

“Professor Lessig represented web site operator Eric Eldred in the ground-breaking case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act. He has won numerous awards, including the Free Software Foundation’s Freedom Award, and was named one of Scientific American’s Top 50 Visionaries, for arguing “against interpretations of copyright that could stifle innovation and discourse online.”

“Professor Lessig is the author of Free Culture (2004), The Future of Ideas (2001), Code and Other Laws of Cyberspace (1999) and Code 2.0 (2006). He chairs the Creative Commons project, and serves on the board of the Free Software Foundation, the Electronic Frontier Foundation, the Public Library of Science, and Public Knowledge. He is also a columnist for Wired.

“Professor Lessig earned a BA in economics and a BS in management from the University of Pennsylvania, an MA in philosophy from Cambridge, and a JD from Yale.

“Professor Lessig teaches and writes in the areas of constitutional law, contracts, and the law of cyberspace.”

3. Lawrence Lessig’s Supreme Showdown by Steven Levy is a 2002 profile of Lessig and his activities: good background on a man fighting for the future of publishing.

4. Professor Michael Geist is a law professor at the University of Ottawa. He is Canada’s top public authority on copyright, and is respected internationally in the field.

His comprehensive website is a major destination for information on copyright and the Internet both from the Canadian and the international perspective.

5. The Music Publishers of America (MPA) provides a Copyright Resource Center which includes its “step-by-step guide” for publisher/copyright information “to locate a piece of music, or to obtain the necessary permission to perform or arrange it.” This involves searching three separate association databases and then filling out a form. Available forms include that handy one used to “inquire about fees and legal authorization to photocopy out-of-print music.”