2006-01-14

Copyright Reform, First Draft

At this point things aren't well organized. Just a list of items. At some point I'll make a new post once I have sufficient changes collected and stop editing this one. I'll edit it to add a link at that point.

  1. The intent of this law is support a diverse field of artistic works. The intent is not to prevent the use or distribution of such works. (XXX or to be used as corporate leverage?)
  2. This law shall not impose any effects or restrictions on works not of direct artistic intent, or who's practical necessity exceeds that of the artistic intent. This includes (but is not limited to) any legal documents, data collections, specifications of interactions(XXX), XXX.
    1. A specification of interaction is defined as a work explaining the size, behavior, or other property of a subject of interaction, as necessary for it to be used or interacted with.
    2. Subjects of interaction include (for example) physical objects (such as a bolt), processes, software protocols, formats or other interfaces.
  3. This law shall only apply to the expression of the work, not to the abstract concept underlying it.
  4. An entity in posession of a work shall be permitted to do anything(XXX) necessary to display or make personal or private use of the work. This includes redistribution of altered forms (such as translations) to other posessors of the work when they are not otherwise readily available.
  5. Upon receiving a work an entity shall be obligated, if they wish to duplicate it (other than otherwise permitted in this law), they shall be obligated to acquire a license from the author.
  6. If an entity has possessed a work for atleast five years the author shall be obligated to provide, as an option to the licensee, a flat fee of 50% of revenues relevent to the duplication (XXX or selling of the duplication?) with no other restrictions. It is not expected that all such licenses shall have appreciable revenue.
  7. If an entity has possessed a work for atleast ten years they are no longer obligated to obtain a license and may duplicate the work without restriction.
  8. No contract shall restrict an entity from duplicating or distributing a work for more than fifteen years after they first received it. Attempts to do so shall be deemed null and void (XXX).
  9. Within fifteen years of first receiving a work an entity is obligated to accurately inform the receiver of any duplicates as to the identity of the author, to the best of their ability.
  10. XXX I need something involving advertising. Using a character to advertise your work should be protected for longer than the normal terms. [Update] First 20 years consider the work to be an endorsement of the author, and as such any use of the work that operates as endorsement require the author's consent. XXX is there a specific law I should reference here?
  11. [Update] XXX Need a way for publically distributed materials to revert to the earliest date of distribution. Maybe private as well? Is there already common law on this?
  12. [Update] XXX I think the “upon receiving the work” dates are too complicated. Too many different people with different dates. Instead I'd prefer “public dissemination” (aka publishing) or something of the sort to be the primary date, with an extra 5 years for an “upon receiving the work” fallback.
  13. [Update] XXX The identity aspects should perhaps be expanded to rewrite trademark laws as well. There's essentially two purposes to identity laws. One is to ensure a consumer gets the product they expect (this is what current trademark laws do and it's essentially to make fraud less ambiguous.) The other is allowing consumers to locate the author of a work and support them (i.e. by buying merchandise or other works.) Notably lacking is a desire to give the author fame.

19 comments:

jto said...

#2 presents a big obstacle to me. Even more so than with other instances of legislating intent, the distinction is not cleanly decideable. Besides which I don't quite see why artists should get more protections than textbook writers, for example.

Adam Olsen said...

If a textbook contains art then the author is an artist, by definition. If it doesn't contain art then copyright is the wrong law to "protect" them. In any case a textbook author does not necessarily need any help as wikipedia-style collaborative projects may be viable.

My understanding of the Canadian Charter of Rights and Freedoms and the Oaks Test is that, if a less harmful (to constitutional rights) alternative is available, then the current law is unacceptable.

In any case I object to the term "protection". Author's have no constitutional rights that are being attacked. Rather, copyright is a form of welfare linked to an activity that is believed to benefit society.

jto said...

If a textbook contains art then the author is an artist, by definition.

That contradicts what your post says: that the book isn't art if its "practical necessity exceeds that of the artistic intent".


My understanding of the Canadian Charter of Rights and Freedoms and the Oaks Test is that, if a less harmful (to constitutional rights) alternative is available, then the current law is unacceptable.

Fine with me. I don't see a constitutional right to freeload, though.

Suppose a student wants to make a verbatim copy of an entire textbook (from a friend, say). He has a right to "freedom of thought, belief, opinion and expression, including freedom of the press" and so on, granted. But does it really extend to copying a whole textbook (which he may or may not even have read) for free, against the will of its author? Seriously, that falls under "freedom of expression"?


[C]opyright is a form of welfare linked to an activity that is believed to benefit society.

Admittedly copyright is not a constitutional right. Nor is it a natural right; it requires significant government enforcement. And let's accept for a moment that a person has no moral right to even a small fraction of the fruits of her own labor.

Then the argument becomes: you don't think writing practical books benefits society?

The best textbooks I've read are several orders of magnitude better than the best Wikipedia articles I've read--and I speak as a huge, huge fan of Wikipedia, and an occasional contributor.

What would textbook authors do if they couldn't profitably write books? Well, they'd teach, I guess. And some small circle of students would benefit from their insights--if they happen to be good teachers. For the rest of us, there'd be whatever books Wikipedia manages to produce. You could even buy them at a bookstore.

I dunno, man. I like what copyright has done. I mean, really like it.

I read all the time.


In any case a textbook author does not necessarily need any help as wikipedia-style collaborative projects may be viable.

Well, that's the question, isn't it. They may. Or they may not. Time will tell. I support a system that encourages both models.

I think copyright helps authors spend more time doing what they do best: creating content (both artistic and practical). I think it works without curbing anyone's freedom of expression. That is, copyright doesn't prevent ideas from spreading. Just the opposite.

Patent law is a different kettle of fish: patents often explicitly, by design, stand in the way of free competition and the spread of new ideas.

Adam Olsen said...

That contradicts what your post says: that the book isn't art if its "practical necessity exceeds that of the artistic intent".

Doh, good point. I can say my intent with that phrase wasn't to eliminate textbooks en masse, so the wording would have to be altered to prevent that.

Fine with me. I don't see a constitutional right to freeload, though.

Suppose a student wants to make a verbatim copy of an entire textbook (from a friend, say). He has a right to "freedom of thought, belief, opinion and expression, including freedom of the press" and so on, granted. But does it really extend to copying a whole textbook (which he may or may not even have read) for free, against the will of its author? Seriously, that falls under "freedom of expression"?


Absolutely. The only limitation is that it must be balanced against other needs. The Oaks Test is key in doing this.

Admittedly copyright is not a constitutional right. Nor is it a natural right; it requires significant government enforcement. And let's accept for a moment that a person has no moral right to even a small fraction of the fruits of her own labor.

Then the argument becomes: you don't think writing practical books benefits society?

The best textbooks I've read are several orders of magnitude better than the best Wikipedia articles I've read--and I speak as a huge, huge fan of Wikipedia, and an occasional contributor.

What would textbook authors do if they couldn't profitably write books? Well, they'd teach, I guess. And some small circle of students would benefit from their insights--if they happen to be good teachers. For the rest of us, there'd be whatever books Wikipedia manages to produce. You could even buy them at a bookstore.

I dunno, man. I like what copyright has done. I mean, really like it.

I read all the time.


I do think society benefits from writing books, a great deal in fact. I don't want to remove copyright, I want to change copyright, to improve.

What you suggest is already the case. There's a great deal of scientific works created by professors who can't make a living off of it. The university presses get a good amount of outside funding just to keep going.

Copyright has already failed them.

Well, that's the question, isn't it. They may. Or they may not. Time will tell. I support a system that encourages both models.

I think copyright helps authors spend more time doing what they do best: creating content (both artistic and practical). I think it works without curbing anyone's freedom of expression. That is, copyright doesn't prevent ideas from spreading. Just the opposite.


Those professor authors I mentioned? Most of that stuff I'd like to read, but I have no convenient way to do so. My local library doesn't carry much of that stuff, it's too obscure.

The entire basis of copyright is a mechanism to prevent thought spreading. The hope is that there will be enough pressure against it that it will spread anyway, and provide a living to the author in the process, but I think that's the exception rather than the rule.

It hopes it be a net gain, but even that isn't good enough. The Oaks Test sets the bar far higher than that, and I don't think copyright comes anywhere near it.

Patent law is a different kettle of fish: patents often explicitly, by design, stand in the way of free competition and the spread of new ideas.

Seems like a rather arbitrary distinction to me. Patents prevent the free expression of thoughts and ideas, hoping this will provide the original creator of an idea with an income and thus the ability to create more ideas. It hopes to be a net gain.. and fails.

Adam Olsen said...

Just to clarify, Groklaw has an article titled Digital Copyright Issues in Academic Publishing which has some numbers. It seems that in the US there isn't a huge amount of government funding, but in Canada (where I live) there is. 20%-30% of the costs are from university support, and "of the remaining actual sales income, more than half (and possibly as much as 75%) must come from either academics or students doing research or institutions like libraries".

That's a pretty small amount left that comes from the normal copyright economy.

jto said...

I read your updates, a few thoughts--

Item #6 - Should've mentioned this before--I can't tell what this means at all. Can "entity" be a company? Does "possess a work" mean, like, owning any single physical copy of a book, or owning the rights to print it? Does "duplication" refer to a particular copy, or all copies? What does "licensee" mean?

Item #10 - Does trademark law not work for this? I have no problem with trademarks lasting forever, since (a) there is an actual legal requirement that the trademark serve only to identify--it can't be anything with a functional purpose; (b) it serves the goal of fraud prevention better than expiring trademarks; (c) companies would just have to invent new trademarks at the end of the 20 years anyway, which is just a pain for everyone.

Item #13 - All three (fraud prevention, brand loyalty, fame) are very closely related. I think government should aim to prevent fraud; the other two are nice side effects.

jto said...

jto: Patent law is a different kettle of fish: patents often explicitly, by design, stand in the way of free competition and the spread of new ideas.

adam olsen: Seems like a rather arbitrary distinction to me. Patents prevent the free expression of thoughts and ideas, hoping this will provide the original creator of an idea with an income and thus the ability to create more ideas. It hopes to be a net gain.. and fails.

It is a difference of degree, not kind; but the difference is tremendous.

Copyright does not prevent the free expression of thoughts and ideas. It prevents the free copying of particular works. The ideas contained in those works are not "protected" by copyright, and the great thing about language is, there are many, many other ways of expressing those ideas. One author's copyright does not infringe on another author's freedom to write what he likes, even in the same field, even on the exact same topic.

An especially bad patent can stop an industry in its tracks for 17 years (by U.S. law, anyway). Copyright can't do anything remotely like that.

I am not sure where I stand on patents, but they are a very different animal from copyright in practice.

jto said...

jto: Seriously, that [copying a textbook because you don't want to pay for it] falls under "freedom of expression"?

adam olsen: Absolutely. The only limitation is that it must be balanced against other needs. The Oaks Test is key in doing this.

Help me understand whose rights are at stake here. As I see it, there are three parties: the author, the student, and society at large.

I think your view is that the student's freedom of expression is impinged by preventing him from making the copy. I think that comes from an excessively programmer-minded view of "expression", namely that expression == output. In this particular case, copying the book is more a form of input. Bluntly, the student is not expressing any ideas by copying the book. He's saving himself $75.99.

Another view is that the student's freedoms are impinged by preventing him from conveniently reading the book. This would be an awfully aggressive reading of "freedom".

I can also imagine an objection that society's freedoms of thought, belief, and opinion are impinged when an author is allowed to control dissemination of her work. But the author is not allowed to control the spread of ideas in her work--just the paragraphs and chapters. (Anyway, my argument is precisely that the existing copyright system has a tremendous positive value to society, in precisely the area supposedly being restricted.)

jto said...

adam olsen: I do think society benefits from writing books, a great deal in fact. I don't want to remove copyright, I want to change copyright, to improve.

What you suggest is already the case. There's a great deal of scientific works created by professors who can't make a living off of it. The university presses get a good amount of outside funding just to keep going.

Copyright has already failed them.


Okay then. How is your improved version of copyright better for these guys?

Adam Olsen said...

Item #6 - Should've mentioned this before--I can't tell what this means at all. Can "entity" be a company? Does "possess a work" mean, like, owning any single physical copy of a book, or owning the rights to print it? Does "duplication" refer to a particular copy, or all copies? What does "licensee" mean?

It includes companies, and a single physical copy is sufficient.

The idea is that, for instance, if a third-party book manufactuer can produce at lower costs than the original manufacturer then they should be able to. They still have to offer a substantial portion of their revenue to the author.

This doesn't prevent them from obtaining a different license with less than 50% of the revenue. Effectively it creates a grace period so that third-party manufacturers don't jump on it immediately after the exclusive period expires.

Item #10 - Does trademark law not work for this? I have no problem with trademarks lasting forever, since (a) there is an actual legal requirement that the trademark serve only to identify--it can't be anything with a functional purpose; (b) it serves the goal of fraud prevention better than expiring trademarks; (c) companies would just have to invent new trademarks at the end of the 20 years anyway, which is just a pain for everyone.

This is complementary to trademark law (and ideally would be merged with trademark law.)

As far as I understand trademarks only apply to businesses and brand names. You can trademark Harry Potter the book series, but not Harry Potter the character. I'm sure there's plenty of characters in the book you could use for advertising without invoking trademark law.

Item #13 - All three (fraud prevention, brand loyalty, fame) are very closely related. I think government should aim to prevent fraud; the other two are nice side effects.

"All three"? I only mentioned fraud prevention and allowing the author to be supported. I'd consider brand loyalty to be a subset of fraud preventing. Fame, well we can create that plenty well without laws to encourage it. ;)

Adam Olsen said...

I am not sure where I stand on patents, but they are a very different animal from copyright in practice.

Essentially I agree, although I'd phrase it like this:

Copyright prevents me from acquiring knowledge that has already been expressed. Patents prevent it from being expressed in the first place.

I have seen no clear evidence that patents are necessary at all. The suggestion that they are necessary for innovation in some fields is baseless, since (to the best of my knowledge) there's a signifigant amount of government funding to encourage innovation anyway.

Adam Olsen said...

jto: Seriously, that [copying a textbook because you don't want to pay for it] falls under "freedom of expression"?

adam olsen: Absolutely. The only limitation is that it must be balanced against other needs. The Oaks Test is key in doing this.

jto: Help me understand whose rights are at stake here. As I see it, there are three parties: the author, the student, and society at large.

I think your view is that the student's freedom of expression is impinged by preventing him from making the copy. I think that comes from an excessively programmer-minded view of "expression", namely that expression == output. In this particular case, copying the book is more a form of input. Bluntly, the student is not expressing any ideas by copying the book. He's saving himself $75.99.

Another view is that the student's freedoms are impinged by preventing him from conveniently reading the book. This would be an awfully aggressive reading of "freedom".

I can also imagine an objection that society's freedoms of thought, belief, and opinion are impinged when an author is allowed to control dissemination of her work. But the author is not allowed to control the spread of ideas in her work--just the paragraphs and chapters. (Anyway, my argument is precisely that the existing copyright system has a tremendous positive value to society, in precisely the area supposedly being restricted.)


Canadian Charter of Rights Decisions Digest - SECTION 2(b)

"2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;"

Noticably lacking is a requirement for unique expression. I do agree that it's ambiguous. I can't say how a judge would interpret it. However, I do know that on numerous occasions it has directly prevented me from gaining knowledge.

An expression of an idea embodies the idea is expresses. If the expression wasn't as signifigant as the idea the expression wouldn't need protection.

Anyway, I don't think there's any contradiction in having tremendous benefit while simultaneously having tremendous harm. I want to minimize the harm, but maintain as much of the benefit as possible.

Adam Olsen said...

adam olsen: I do think society benefits from writing books, a great deal in fact. I don't want to remove copyright, I want to change copyright, to improve.

What you suggest is already the case. There's a great deal of scientific works created by professors who can't make a living off of it. The university presses get a good amount of outside funding just to keep going.

Copyright has already failed them.


jto: Okay then. How is your improved version of copyright better for these guys?

Those hundreds of papers they read before writing their own paper or doing an experiment? Easily available once the 5 year exclusive period expires. The authors of those papers each read hundreds of papers as well, again easily available. The student experimenting with something and having an odd result, they could get the paper that explains why it happens.

It removes a tremendous bureaucratic barrier to scientific advancement.

jto said...

[Item #6] The idea is that, for instance, if a third-party book manufactuer can produce at lower costs than the original manufacturer then they should be able to. [...]

Okay, that makes sense. It's the wording that had me confused. The impression I got was: "...the author shall be obligated to provide, [if the licensee wants it], a flat fee of 50% of revenues..."

More later.

Adam Olsen said...

Yeah, the wording needs work. I tried to do it in legalese but it still needs many eyes to refine it.

Another thing I haven't detailed enough is "fair use". Things such as quoting (or paraphrasing!) should be explicitly permitted, or atleast specific enough that a judge can extrapolate what "fair use" is. Also need to make sure such a clause sets the minimum of what is fair use, not a maximum.

jto said...

As far as I understand trademarks only apply to businesses and brand names [not fictional characters]

I'm still not entirely understanding. A consequence of this, it would seem, is that you could make an Austin Powers movie at 10 years out, but you couldn't use the character Austin Powers in the ads until 20 years out.

jto: Item #13 - All three (fraud prevention, brand loyalty, fame) are very closely related. [...]

adam olsen: "All three"? I only mentioned fraud prevention and allowing the author to be supported.

My reading was, "One is to ensure..." == fraud prevention. "The other is to allow customers..." == brand loyalty. "Notably lacking..." == fame.

I'd consider brand loyalty to be a subset of fraud preventing.

Yeah, I don't think we disagree on this enough to worry about it any more.

jto said...

20%-30% of the costs are from university support, and "of the remaining actual sales income, more than half (and possibly as much as 75%) must come from either academics or students doing research or institutions like libraries".

That's a pretty small amount left that comes from the normal copyright economy.


Well... I am reluctant to wade in here, because your proposal would have a tremendous impact on tons of people, of which academics would probably be affected least. Oh well, here goes.

The article you cite also says, "Academic publishing generally serves niche markets which are inherently unprofitable." As a consequence, copyright won't matter much to these markets anyway in the end. University presses arose out of necessity; there was no other reasonable way to get faculty work published. This has changed. Already it's very common for scholars to "pre-print" articles on arXiv and/or to post free copies of their papers on their own web sites. The open access movement is in full swing. The question institutions are pondering is not whether they should allow researchers to publish university-funded work freely, but whether they should require it. And increasingly their answer is yes.

In a decade or two, I expect essentially all unprofitable academic work will be freely accessible. Under current law, the change will be voluntary. But it will happen whether your change is enacted or not, and it will go much farther than your "expires in 10 years" proposal.

jto said...

jto: How is your improved version of copyright better for these guys [academics in unprofitable fields]?

adam olsen: It removes a tremendous bureaucratic barrier to scientific advancement.

Maybe, but this is going away for new works regardless. If you also want to "liberate" older academic works in these unprofitable areas, you can do that with a much less disruptive change to copyright.

Adam Olsen said...

adam olsen: As far as I understand trademarks only apply to businesses and brand names [not fictional characters]

jto: I'm still not entirely understanding. A consequence of this, it would seem, is that you could make an Austin Powers movie at 10 years out, but you couldn't use the character Austin Powers in the ads until 20 years out.

That's the idea. It would probably need to be applied even further though - having Austin Powers as a major character might be an endorsement of the movie.

How to word that properly and finding all the problems would be a major pain though.

jto: The open access movement is in full swing.

I was not aware there was such a movement. I agree now that my changes would be largely irrelvent to scientific publishing.