The European Commission has opened a public
consultation on the review of the EU copyright rules, open to all
stakeholders. Their questionnaire is a bit lengthy, but fortunately, according
to the Quadrature du Net (a French
advocacy group for Internet freedom), you can also answer
with a free-form text. So I did just that, taking it as an opportunity to
write down some things I would like to see change in the EU copyright
legislation. My answer is now published
among the 4213 (!) user replies.
What I propose here is my moderate program for copyright reform. My
actual views are a bit more extreme, and, within an idealized model of society,
I am not entirely sure that copyright is a good thing altogether, in the longer
term. Yet this is not a program for an idealized world, but concrete action
steps which I feel should be taken as soon as possible to cut down on current
copyright legislation's most blatant excesses, so as to reestablish a minimum
amount of equilibrum between the interest of right holders and those of the
general public.
Yet, I have obviously no hope that this letter will have any impact, because
my view are so distant from current EU copyright policies. I would nevertheless
like to invite you, dear reader, to submit your opinion to the consultation,
while there is time (the deadline is Wednesday, March 5th), even though it feels
a bit like you are writing a letter to Father Christmas. Not telling the
European Commission about your views, and not giving them the opportunity to
ignore them, will limit your right to complain legitimately about what they are
doing on copyright issues.
This being said, here are the concrete changes which I suggested. This Web
version includes hyperlinks and corrections to the original text.
Copyright term reduction
I understand copyright as a balance struck between society's desire to
use, distribute, adapt upon and perform creative works, and the
necessity to incentivize creators by granting them a temporary monopoly
over some rights on their work.
Current European legislation protects the rights of authors until
seventy
years after their death. This is disproportionate: such a long duration is
certainly not required to encourage or sustain any reasonable form of creation,
whereas society is substantially missing out on the opportunity to benefit from
many works of art over this long period.
The only explanation I can see to the current state of affairs is that
it was achieved through organized lobbying by right holders, which faced
little resistance: because the general public does not know about the
public domain or
realize its importance, and because the organizations which attempt to protect
it have a comparatively small economic weight.
I would therefore be in favor of restricting the duration of copyright
in European member states, in all circumstances, to no more than 25
years after publication, performance or broadcast.
Since the Berne
convention, there are no formalities required to assert copyright over your
work; so that, for works with no known or reachable right holder, one must
assume by default that the work is protected. Hence, the public's use of the
work is limited to protect the monopoly of an absentee right holder: one cannot
republish, digitize, adapt upon the work, for fear that the right holder may
later resurface and sue for damages.
I am not in favor of introducing mandatory registration formalities for
copyright, as I fear they would penalize the less-organized forms of
creation (street art, amateur artists, etc.) who would probably not
follow them.
However, I believe that, once the creator of a work has ceased to
distribute it (out of print books, unmaintained software, etc.), and it
has been impossible to contact them for some period of time, copyright
protections on the work should lapse. The rationale would be analogous to that
of acquisitive
prescription: the right holder has shown insufficient motivation to exercise
their exclusive rights.
In particular, reappropriation of unavailable works in a
for-profit fashion, such as the French ReLIRE, do not serve the public
interest.
No protection for public organisms
If a work has been created by employees of European Union member states
or European institutions during the course of their duties, it should not
enjoy any copyright protection. The reason for this is that there is no
need to incentivize or finance such creation, and as this is the best
regime to allow the public to benefit from such works created using
public money.
This would have many positive effects. As a first example, this would
encourage the dissemination of publicly financed research, and ensure
that copyright cannot be leveraged by academic publishers to restrict
the transmission of scientific knowledge to the general public who
indirectly paid for it. Hence, this would contribute to the decline of
closed-access scientific venues, which would help decrease the
proportion of public research money spent on subscription fees.
As a second example, this would ensure that open data efforts from public
organisms must remain really open. This would not not prohibit the sale of
extended datasets so that the cost of publishing open data is covered by those
who make use of it, but it would ensure that copyright cannot be used as a
weapon to limit the further redistribution of such datasets, as could be
attempted by short-sighted organisms in a foolish attempt to reap easy profits
at the public's ultimate expense.
Digital rights management
Digital rights
management (DRM) are a set of technologies to limit the
copying of digital content in an effort to enforce copyright. Works
burdened with DRM usually require specific software, operating system,
hardware (sometimes from a specific manufacturer), in order to be
consumed. Further, some such technologies require the user to remain in
contact with the right holder's server to authorize every use of
content, so that the works become unusable once technical intermediaries
discontinue the service or remain out of business.
DRM is present on a variety of digital contents, such as e-books
(Amazon), video games (Steam), movies (most DVDs), etc. While I respect
the right of manufacturers and right holders to offer such content under
such conditions, it seems paramount to me that customers be aware of the
nature of what they are buying. Right now, the public is not
well-informed about the nature and existence of DRM, and the presence of
DRM is seldom clearly advertised.
I would argue that any creative work on sale should indicate prominently
to the purchaser which equipment is required to read it: software,
hardware from a specific manufacturer, and more generally any technology
that it is an open standard which can be re-implemented by anyone (i.e.,
not requiring the payment of any royalties).
Further, if a creative work is offered in a scrambled form designed to
be unusable without additional keys provided every time the content is
consumed, it should be mandatory to label such offers as "rental" rather
than "sale", as continued enjoyment of the work by the customer depends
on the provider's will to further allow it.
Current European directives, such as Directive
2001/29/EC, have overreaching provisions which prohibit circumventing DRM,
providing technical means to enable it, etc. This often prohibits legitimate
cases of DRM circumvention, such as those required for interoperability.
Prohibiting copyright infringement is sufficient ; no additional protection
should be granted to DRM technologies.
Freedom of panorama
The "freedom of
panorama" exemption restricts the copyright protection of works of art
permanently located in a public place. This exemption exists in some member
countries but not others. European legislation should be harmonized by providing
freedom of panorama in all member states, in its strongest form: there should
not be any copyright protection of works of art permanently located in public
space, as such copyright protection substantially interferes with the public's
right to photograph and film in public space.
Remixing
A huge amount of creativity nowadays is expressed by producing works of
art that current copyright legislation consider to be derivative:
remixes of well-known songs, fan fictions, videos incorporating
sequences of protected video games, etc. The legal status of such works
is entirely unclear, and right holders can leverage this to discourage,
or censor, such creative works.
In my opinion, the need to incentivize creation through copyright does
not justify such restrictions on derivative art forms. Indeed, such
transformation has always been an important factor of creativity (folk
tales, reuse of musical themes, etc.). It is regrettable that copyright
has crept from restrictions on "fixed-form works" to restrictions on
certain derivative uses such as performance and translation, to
eventually impose overbearing theoretical restrictions on any form of
derivative use, which I believe does not reflect the interest of
society.
I believe the scope of copyright protection should be changed so that it
does not impede transformative uses that cannot harm the interests of
the creator. For instance, fan fictions certainly cannot be read as a
substitute to the original book, nor can most remixes replace the
original song, nor playthrough videos act as a substitute to a video
game.
Private sharing
Not-for-profit sharing of copyrighted works between private individuals
is a widespread practice in European member states. It was essentially
uncontroversial in the times where works of art were fixed to a physical
medium (such as books, CDs, etc.), because this made copying unpractical
so that sharing was essentially limited to lending.
For digital works, such practices raise the question of how creators
should be financed. However, prohibiting it altogether, as is currently
done, does not seem sensible: it is disconnected from current practice
and from the public's perception of right and wrong. I am unsure about
whether a middle ground could be found with solutions such as the French
"licence globale"
proposals which propose to finance artistic creation through taxation and
redistribution to creators: indeed, I do not see how to design a scheme of this
kind while ensuring that it finances all artists fairly, including independent
artists not registered to any copyright collection society.
I am nevertheless confident that new ways to finance creation, such as
crowdfunding, will emerge; that the public is aware of the fact that
they need to pay the creators of works they enjoy, and that private
artistic sponsorship will increase as technologies reduce the friction
of online payment. Hence, I would be in favor of a copyright exemption
covering the not-for-profit exchange of creative works between private
individuals, as a solution preferable to the current state of affairs.
Fair agreements between copyright collective
and their members
Copyright is usually held, not by artists, but by copyright collectives
of which they are members. Some of these, such as the French SACEM,
require that their members automatically assign copyright to them on all
their future creative works; terminating one's contract with SACEM is a
lengthy
and complicated process. [Author's note: There seems to be no up-to-date and
reliable information available online about this...]
Such agreements are nothing short of creative servitude; the signer
agrees to the transfer of all the fruits of their creativity, with
little limits, uncertain compensation, for an indeterminate amount of
time. Contracts of this kind should be deemed unfair and considered null
and void.
Transferring preemptively one's copyright on one's future creations
should be impossible except within employment contracts, in which case
this arrangement should be restricted to the hours worked by the
employee; additionally, resignation should always be possible, and all
relevant labour protection laws should apply.
