The Case for Copyright Reform (13 page)

Moral Rights Unchanged

We propose no changes at all to the moral right of the author to be
recognized as the author. If you make something, you have the right to be
identified as the author of what you made.

This part of copyright is completely uncontroversial. In fact, good
etiquette on the net is often more strict on the subject than any copyright
legislation.

Bloggers tend to give credit and link back to sources in a way that far
exceeds any legal requirement. There are several reasons for this. It makes
your blog more trustworthy if you link to sources so that readers can check the
background if they want to. It makes the people you link to happy, so they will
get more likely to link back to your own blog on some occasion, and perhaps
increase traffic. These are good, practical reasons why it makes sense out of
pure self-interest for a blogger to be much more generous with giving credit
than any law requires.

But there is also the basic human feeling that if you found something
that was interesting to you, you want to give something back by showing your
appreciation. This is just human nature, and a very positive aspect of it.

The right to be recognized as the author is under no threat on the
Internet, and we propose no changes to this part of the copyright legislation.

Free Non-Commercial Sharing

Trying to stop or reduce file sharing through ever harsher legal
enforcement doesn’t work. File sharing continues to grow exponentially, no
matter what repressive means governments are introducing.

If you think it would be good if all illegal file sharing disappeared,
please feel free think so (even if the Pirate Party and others disagree). But
that does not alter the fact. Limiting file sharing with laws and punishments
doesn’t work. More of the same won’t either. File sharing is here to stay, like
it or not.

We should keep copyright, but limit it to when there is commercial
intent. All non-commercial copying and use, such as file sharing, should be
legalized. We can add this as a limitation in the copyright legislation, in
full compliance with the international treaties like the
Berne
Convention
and
WIPO
Copyright Treaty
(WCT).

In Chapter 3, we saw how the attempts to enforce today’s ban on file
sharing is threatening fundamental rights in the EU and elsewhere, which would
be an unacceptable solution even if it worked, which it doesn’t, or if the
cultural sector was in fact dying, which it isn’t.

In Chapter 5, we saw that the artists and the cultural sector as a whole
are doing fine despite file sharing (or perhaps thanks to it), so there is no
real problem to be solved.

The key to finding a better way for Europe is to separate commercial use
from non-commercial.

If copyright is brought back to only cover commercial activities, it
will present no major problems to society. There are some adjustments to be
made (in particular the unreasonably long protection times), but there are no
problems in principle to enforce copyright for commercial purposes.

The reason is very simple. The principle of “follow the money” is enough
to enable the authorities to keep track of commercial activities. If an
entrepreneur wants to make money the very first thing he has to do is to tell
as many people as possible what he has to offer. But if he is offering something
illegal, the police will get to hear about it before he has had the time to
attract any larger circle of customers. No further restrictions on fundamental
rights are necessary. The control systems that are already in place for other
reasons are enough to keep track of commercial activities.

But where do you draw the line between commercial and non-commercial?

It is true that there is a gray zone between commercial and
non-commercial activities, but this is a problem that the courts have already
solved many times in different areas.

We already have a number of different laws that make a distinction
between commercial and non-commercial intent, including copyright legislation
as it exists today. This is a good thing, since it means that the courts have
already established a praxis for determining what is commercial or not.

If you need a detailed answer as to exactly where to draw the line, you
should ask a copyright lawyer (and pay 300 euros per hour). This is about how
courts interpret the current legislation, and there the lawyers are the
experts.

But generally speaking, the line between commercial and non-commercial
intent is roughly where you would expect it to be. If you as a private person
have a blog without any ads, it’s non-commercial. If you get a few euros per
month from Google Ads, your blog is probably still non-commercial, since it is
a limited amount of money and your primary purpose with the blog is not to earn
money from it. But if it is a big blog that generates substantial income from
ads, it probably crosses the line and becomes commercial.

There are a number of copyright licenses, including the
Creative Commons
Attribution-NonCommercial License
, that make use of this already existing
definition.

Even if it is true that drawing the line can sometimes be a problem, it
has already been solved in a reasonable way.

20 Years Of Commercial Monopoly

Much of today’s entertainment industry is built on the commercial
exclusivity on copyrighted works, and we want to preserve this. But today’s
protection times – life plus 70 years – are absurd. No investor
would even look at a business case where the time to pay-back was that long.

We want to shorten the protection time to something that is reasonable
from both society’s and an investor’s point of view, and propose 20 years from
publication.

And we want to have the same protection term for all kinds of works.

Wouldn’t it make sense to have different protection times for different
kinds of works?

20 years protection for a computer programs probably has different
implications than 20 years for a piece of music or a film. Wouldn’t it be
better to adapt the protection times according to what is reasonable for
different categories of works?

This is actually what I (Christian Engström) thought myself, until I
discussed it with a friend who agreed completely. When we started talking, we
both agreed that it would be reasonable to have different protection times,
since the markets work so differently.

I, who have a background as a programmer, thought it was quite
reasonable to have a longer protection time for computer programs, since they
quite often continue to be useful long after they were written. Code that I
wrote in 1984-86 still runs in production today, and continues to generate
income for that company. This is something different than a pop song, which at
best is popular for a year or so, before it is forgotten to leave room for new
songs. This is what I felt.

But my friend, who has a background as a musician (but is now a
copyright lawyer, since that is an easier way to make a living), had the
completely opposite opinion. He saw computer programs as something that you
upgrade at least every second or third year. Programs older than that would
have no commercial value, so it ought to be enough with a quite short
protection time for computer programs. Music, on the other hand, could very
often live forever, so the protection time for music ought to be much longer.
This is what he felt.

And this is how it normally is, my friend, who had had similar
discussions with other people, told me. For the kind of works that is closest
to your own heart, you would normally find it reasonable to have a longer
protection time, but shorter for everything else. This is how most people feel,
it appears.

For this reason, we would probably not be able to agree about which
kinds of works should have shorter or longer protection times. In this kind of
discussions, where you are trying to agree on a time limit of x years, it is in
the nature of things that all suggestions for values for x tend to be somewhat
arbitrary and picked out of thin air. Having to come up with different
semi-arbitrary values for each different category of works just makes it more
complicated, and reduces the chances of finding a solution that you can defend
with objective arguments.

But if you look at the issue from an investor’s point of view, things
become different. The music industry may be very different from the computer
software sector, but they have one thing in common. Money is money, regardless
of what sector you choose to invest it in.

When an investor makes the decision to invest in a project in any
industry – it may be music, film, computer programs for the mass market,
or anything else – he will calculate his business case with a certain
time to get a return on his investment. If the project goes according to plan
it is supposed to cover its cost and make a profit within x years. If not, it
is a failure.

x
is always a very small number in this kind of calculations. That
somebody would seriously make a business case for a cultural project where the
time to payback is more than three years, probably never happens. People who
build bridges and nuclear reactors and the like will of course use longer
investment horizons, but outside those industries, business cases that are
longer than three years are very uncommon in business in general.

This is of course even more so in the cultural sector. Who can predict
what will be cool and hip two or three years from now, in such a fast moving
landscape as culture. Most cultural projects are expected to pay for themselves
and make a profit within a year.

By looking at the protection times from an investor’s point of view, we
can justify having the same protection time for all works, even though they are
different. The purpose of the economic exclusivity part of copyright is to
attract investors to the cultural sector. And investors think in the same way
regardless of what they are investing in.

The project should pay for itself and make a profit within one or a few
years, otherwise it is a failure. The small theoretical chance that the work
that you financed turns out to be a timeless classic that continues to generate
revenues for decades is a nice bonus chance for the investor, but nothing that
has a place in a serious business case.

So why 20 years, and not 5 or 3?

Our suggestion for a protection time of 20 years is a pragmatic
compromise. Even if there are sound arguments for why 5 years or even shorter
might be enough from society’s point of view, many people still instinctively
feel that 5 years would be to short, at least in some cases.

And rather than getting bogged down in an unproductive quarrel over what
will always remain at least partly arbitrary numbers, we choose to say 20
years.

The important thing is to get away from today’s protection times of a
human lifetime or more. These long protection times are clearly harmful to
society, since they effectively keep most of our common cultural heritage
locked away even long after the majority of the works have lost all their
commercial value to the rights holder. This is a deadweight loss in economic
terms, and an outrage in cultural ones.

If protection times were reduced to 20 years, this would solve most of
the problem of “the black hole of the 20th century”, and allow librarians and
archivists to start the urgent task of preserving the 20th century works that
are rotting away in archives by digitizing them. 5 or 10 years would be better
from their point of view, but 20 would be okay.

At the same time, 20 years is still enough to support the pleasant (but
very unlikely) dream of creating a major hit that becomes an evergreen that
generates revenues for decades. If your next project strikes gold and suddenly
propels you into the same kind of longlasting fame that Paul McCartney or ABBA
have enjoyed, 20 years will be more than enough for you to become very rich
indeed, and never have to worry about money ever again.