Fighting the Copyright Ratchet Racket

Copyright is nominally a compact between public and creator. A government-backed, time-limited monopoly on their works is offered to artists as an incentive to create. Initially, that limited time was 14 years, renewable to 28. Since then, the period has only ever been extended, never reduced - call it the copyright ratchet racket.

On Open Enterprise blog.

The Copyright Ratchet Racket Explained

I and many others have noted how changes in copyright law only ever work in one direction: to *increase* copyright's term and to give greater powers to copyright holders. In effect, it's a ratchet. But until now, I've not seen a good explanation of what's driving all this (although I had a pretty good idea). The motor behind the ratchet (assuming such mixed metaphors are permitted) is harmonisation:

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.

...

From a linguistic perspective, harmonization suggests a voluntary coordination that the parties to an agreement will be held to the same, core standards and will be working under the same rules. Ideally, each country’s intellectual property laws should have similar weight and effect where harmonization occurs.

But in reality, harmonization of intellectual property laws is different. The term has become a euphemism for the global, one-sided spread of United States’ intellectual property laws. One could argue that under the guise of harmonization, intellectual property law has become America’s chief 21st century export. In the harmonization model, U.S. intellectual property law effectively becomes the world’s de facto intellectual property law, effectively overriding the voluntary coordination principle that should be inherent through the Berne Convention.

This is a fantastic post, with useful links, that fleshes out the following basic argument:

The dismissal of voluntary coordination occurs because the U.S. leverages its economic power to force other countries to adopt U.S. copyright law in lieu of their own if the U.S. thinks the foreign country’s laws are insufficient to protect American intellectual property. It is a “carrot and stick” approach: If a foreign country wants to do business with the U.S. (or get U.S. support to enter into the World Trade Organization), it must adopt U.S. copyright standards and codify them into their statutes.

For most foreign countries, this quid pro quo has become the price of doing business with the U.S. On the other hand, it is unusual that the U.S. would agree to agree to another country’s intellectual property regimen: It doesn’t have to. Therefore, harmonization really is doublespeak for a worldwide adoption of the American intellectual property standard.

Indispensable reading for anyone who cares about the global copyright racket - and that should mean anyone who is online, since the tricks used to bolster copyright around the world will have a profound effect on ordinary users there, as the current UK Digital Economy bill makes all-too plain.

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Copyright: An Open Letter for Closed Minds

Another impressive line-up of mega-academics denouncing the lack of logic for the proposed copyright extension currently being considered in the EU (I'll be writing about this again soon). Here's Rufus Pollock's intro, setting this open letter in a historical context:

The letter, of which I was a signatory, is focused on the change in the UK government’s position (from one of opposition to a term extension to, it appears, one of allowing an extension “perhaps to 70 years”). However, it is noteworthy that this is only one in a long line long line of well-nigh universal opposition among scholars to this proposal to extend copyright term.

For example, last April a joint letter was sent to the Commission signed by more than 30 of the most eminent European (and a few US) economists who have worked on intellectual property issues (including several Nobel prize winners, the Presidents of the EEA and RES, etc). The letter made very clear that term extension was considered to be a serious mistake (you can find a cached copy of this letter online here). More recently — only two weeks ago — the main European centres of IP law issued a statement (addendum) reiterating their concerns and calling for a rejection of the current proposal.

Despite this well-nigh universal opposition from IP experts the Commission put forward a proposal last July to extend term from 50 to 95 years (retrospectively as well as prospectively). That proposal is now in the final stages of its consideration by the European Parliament and Council. We can only hope that they will understand the basic point that an extension of the form proposed must inevitably to more harm than good to the welfare of the EU and should therefore be opposed.

Do read the letter too: the intellectual anger at this stupidity is palpable.

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UK Sticks with 70 Years for Music Copyright

Cold comfort, but the UK government is being more sensible than most others on the sound copyright extension:

David Lammy, the U.K. minister of state for intellectual property, has reaffirmed the British government's position on term extension by refusing to accept the European Parliament's legal affairs committee ruling on a 95-year copyright term for music recordings.

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In a statement, Lammy effectively reiterated that support for a 70-year term for music recordings. The European ruling will ultimately be voted on by the Council of Ministers, in which Germany and France are supporters of the 95-year term.

So a certain amount of kudos is due. But not much.

Talking of Rights and Wrongs...

...one of the bigger wrongs in the field of copyright is the proposed extension for sound recordings. I've written extensively about why this is nuts, but have pretty much given up hope that we'll see any rational decisions here.

Fortunately, the indispensable and irrepressible Open Rights Group (fighting the Closed Wrongs Group, presumably), has not, and has not issued the following call to arms:

How you can help the campaign:

1) Come to an event on 27 January in the European Parliament in Brussels to hear academics, musicians and activists discuss the Directive with a roundtable of MEPs.

2) Invite your MEP to attend the 27 January event on your behalf (you can get their contact details here: UK residents; Other EU residents)

3) Invite your MEP to sign the Sound Copyright petition

4) Ask your MEP to watch the Open Rights Group’s cartoon “How copyright term extension in Sound Recordings actually works”

See the original post for full details and links.

Good for Gowers

When the Gowers Review on intellectual monopolies came out almost exactly two years ago, it was remarkable for its eminently sensible approach, which was rigorously based on hard-headed economics. One of its key recommendations was the following....

On Open Enterprise blog.

The BBC Blows it Again

More incisive reporting from the BBC - not. This time, it concerns the move to extend performers' copyright from 50 to 70 years. The UK Government - to its credit - is resisting, because it makes no sense economically: copyright is meant to encourage *new* creation, not reward existing work.

Increasing the copyright term will cannot encourage people who have already created (absent time machines), offers marginal additional incentive to those who might create, but represents a massive loss for the public domain. Alas, the musicians - and the BBC - don't seem to get this:

A video message on behalf of 38,000 UK musicians has been sent to Gordon Brown urging him to back an extension of their copyright protection.

The musicians, many of whom have worked with major artists, say they risk losing their income under current laws.

The BBC has sunk to new depths of sloppy reporting by failing even to mention why there might be another side to this story - choosing, instead, to peddle the musicians' sob-story:

"The amount of revenue that's been brought into this country by these people is quite staggering. Now we require the government to help us out a little bit and show perhaps a bit of gratitude."

He added: "Instead they choose to kick us in the face and ignore our campaign to extend the copyright for these people and their estate."

Copyright = Monopoly: UK Government

Blimey, it must be Porcine Aerobatics Week or something. Here's the UK IPO - the official keeper of things "eye-pea" - on the European Commission’s proposal to extend the term of copyright protection:

Minister of Intellectual Property Baroness Delyth Morgan said,

"Because copyright represents a monopoly we need to be very clear that the circumstances justify an extension. We will therefore need to consider these proposals carefully to understand how they would work and what the benefits are likely to be."

Kudos, Baronness: you grok it. But wait, there's more:

"I would like to hear what the public thinks about this and would urge all those who have an interest in these proposals to make sure their voice is heard and to contact the UK-IPO by the end of August."

Thanks for the request. You know what to do, Brits:

If you have any comments on the proposal you are invited to contact Barbara Squires at Termextension@ipo.gov.uk by the end of August.

(Via IPKat.)

UK Copyright Extension Alert

Even though the Gowers Review comprehensively trashed the idea of extending copyright for sound recordings, zombie-like it's back as a Private Member's Bill. The indispensable Open Rights Group has more and tells you what do about it. Hint: it involves writing to your MP:

What can you say to persuade your MP to show up to the Commons on a Friday? Perhaps you might point out that all the economic evidence points against term extension. Or that every other UK citizen is expected to contribute to their pension out of income earned in their working life. Or that retrospectively extending copyright term won’t encourage Elvis Presley to record any more new tracks. Or that if governments continue to draft intellectual property legislation on behalf of special interest groups, it will only further erode the respect that ordinary citizens have for the letter of the law.

Is Sarko Uxorious?

You can't help wondering whether Sarkozy's chanteuse missus had something to do with this one:

Taking a position contrary to that of the British Government, the French President is to fight for an extension to the 50-year period under which musical recordings are protected by European copyright.

Particularly annoying is this comment:

Mr Sarkozy, who loads his iPod with Hallyday and Elvis for his jogs in the Bois de Boulogne, will make copyright extension a priority for France's six-month turn in the European Union presidency, which starts in July.

Christine Albanel, the Culture Minister, has already asked the European Commission to do the groundwork.

“Today, whole swaths of the recording catalogue of the 1950s and 1960s, representing a significant part of the national pop heritage, are falling progressively into the public domain,” she said.

What this neglects to take into account is the fact that falling into the public domain is a gain for the public - and hence the actual moment when it becomes part of the "national pop heritage" - and that the gain vastly outweighs any minimal effect it has on ageing rockers' royalties. Unfortunately, with this action, as with others (including the "three strikes and you're out" approach to fighting filesharing), Sarkozy shows himself to be an old man - however young his new wife may be.

(Copyright) Darkness Visible

The benighted policy of extending copyright terms again and again is made visible in a nice graphic accompanying this post:

The term of copyright has steadily expanded under U.S. law. The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term (subject to certain conditions) of fourteen years. The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection. Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years. The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years. Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years.

What's wrong with this picture?

The Supreme Court has held that legislative trick constitutional, notwithstanding copyright’s policy implied aim of stimulating new authorship—not simply rewarding extant authors.

Willy Nilly, Ageing Rocker Gets With It

Sir Cliff Richard, Tony's bosom pal, was one of the leading, er, lights in the effort to extend the sound copyright to a mere 95 years, instead of the current 50. Happily, that failed, but it's nonetheless surprising to see the music of the said musical knight being used for a nice bit of innovative thinking from EMI, one of the few music companies that seems to get it:

Benefiting from one of the first new digital directions from the new owners of EMI, from today, his latest album Love, The Album, goes for sale via online pre-order at £7.99 - with the price dropping the more fans make the purchase. The collection has a floor minimum of £3.99 and, no matter when a customer pre-ordered, they'll only pay the lowest final price.

The End of the Copyright Ratchet/Racket?

Will this response from the UK Department for Culture, Media and Sport go down in history as the great turning point for copyright, when the constant extension ratchet was halted and eventually reversed?

Maybe I'm an incurably optimist, but I have to say I was pretty impressed by the generally sane tone of this document after years of industry-driven exaggeration about "piracy" and such-like. The best demonstration of this comes right at the end, where the earlier proposal by the House of Commons Culture Committee to extend the term of copyright in sound recordings is discussed. Here's what the report has to say:

The Government appreciates the work of the Committee and the deliberation it has given to this subject. As the Committee noted,the independent Gowers Review also considered this issue in detail and recommended that the European Commission retain a term of protection for sound recordings and performers of 50 years. The Review undertook a detailed analysis of all the arguments put forward,including the moral arguments regarding the treatment of performers. It concluded that an extension would not benefit the majority of performers,most of whom have contractual relationships requiring their royalties be paid back to the record label. It also concluded that an extension would have a negative impact on the balance of trade and that it would not increase incentives to create new works.Furthermore,it considered not just the impact on the music industry but on the economy as a whole,and concluded that an extension would lead to increased costs to industry,such as those who use music – whether to provide ambience in a shop or restaurant or for TV or radio broadcasting – and to consumers who would have to pay royalties for longer. In reaching such conclusions,the Review took account of the question of parity with other countries such as the US,and concluded that,although royalties were payable for longer there,the total amount was likely to be similar – or possibly less – as there were fewer revenue streams available under the US system.

This is doubly important, because it will have important knock-on effects beyond the UK. As Becky Hogge of the Open Rights Groups rightly points out:

This is significant, since the UK government is likely to have a disproportionately loud voice on this issue both because it is home to the most lucrative recording industry in Europe and because it has taken the time to review this issue in detail.

So we have the prospect of Europe following the UK's lead in halting the constant copyright extension. This, in its turn, will help to put a brake on such copyright extensions around the world, since there will no longer be the argument that "eveyone else is doing it, we must follow suit". Maybe it's too much to hope that in due course copyright terms will start to be reduced - but then, as I said, I'm an incurable optimist.

How Daft Can You Get?

Let me count the ways:

David Cameron has pledged to extend copyright on music to 70 years - in exchange for an effort by music bosses to curb violent music and imagery.

What on earth has one got to do with the other? How will "music bosses" "curb" this stuff? What happens if they "curb" only some of it? Or if only some of them curb it? Do they all get an extension to 63 and a bit years? Or do some get any extension to 70, but the others not? Talk about hare-brained....