Seeing the Consequences of Copyright

[This is an editorial we submitted to the New York Times. They didn't print it, alas — don't worry, we'll keep trying with other pieces — but we still think its message is important, so we're publishing it here.]

In the last weeks of 2012, Dr. Oliver Sacks published a memorable essay in the New York Times Book Review, "Reading the Fine Print", about how fewer and fewer books are being made available in large-print editions, and how this matters more and more to him as his vision deteriorates.

Let's stop to ask: Why are they not available? Who or what, exactly, is behind this scarcity?

Sacks's essay does not contain the word "copyright". He looks everywhere else, attributing the decline of large-print editions to the rise of audiobooks (which he dislikes because they are a less engaging experience) and of digital reading devices like the Nook and the Kindle (which are difficult for him to use). After visiting the ravaged large-print section of the Strand bookstore in New York, he writes: "I came out frustrated, and furious: did publishers think the visually impaired were intellectually impaired too?"

This is the closest he comes to identifying the real cause of the problem, a cause entirely of our own making. If there is a ready demand for large-print books — and there is — then what can the explanation be, in a free market, for the steadily shrinking supply?

The answer, of course, is that we do not have a free market in books. We have a monopoly-controlled market: if the copyright holder decides not to offer a large-print edition, then those who need such an edition are out of luck. It does not matter that the readers would happily subsidize the print runs themselves, Kickstarter-style; it does not matter that many smaller and specialty publishers would gladly step into the gap to supply what the big players have decided isn't worth the effort; it does not matter that on-demand print services would eagerly make large-print texts available in an instant, bound and ready to ship, if only they were allowed to. The system we use now does not permit any of these bottom-up solutions to happen at sustainable scale, because in a world where we've just built a gigantic, globe-spanning, low-cost copying machine — the Internet — we have also elected to keep, and indeed tighten, a monopolistic distribution system originally designed to regulate printing presses in the late seventeenth century.

That word "monopoly" shouldn't be controversial. We're used to hearing it about things like liquor distributorships in pliant jurisdictions, or energy utilities that successfully legislate competition out of the way. But if the word applies to anything, it surely applies to copyright: a government-enforced right to be the sole supplier of a text, song, etc, including the right to dictate which formats and which distribution channels copies and variants may circulate in. You'd think we'd be fairly cautious in handing out such a power, but instead in recent decades the monopoly lobby (to be fair, the sound recording and movie industries took the lead, more than the book publishers) have gotten it extended far beyond its original scope, both in terms of its per-work duration and of its censoring powers.

Once you start to see it as a policy choice, rather than as a law of nature — the latter being how that lobby would prefer you to think of it — all sorts of phenomena begin to look different. It's not just about large-print editions. Do you have any idea how many translations are suppressed because rights cannot be negotiated? How many audio books are not recorded because the sole rights-holder couldn't be interested enough to do it themselves, yet is still willing to prevent anyone else from doing it? Did you know that neither the FDA nor private-sector patient protection organizations can review crucial software code in medical devices, because the manufacturers assert copyright and refuse to circulate the code?

For that matter, should George Lucas be the only person in the world who can make Star Wars movies, no matter how badly he botches them? The issue is not that Lucas shouldn't be free to make any movie he wants, it's that the pernicious nature of monopoly, and of the "get permission first" culture it creates, means there is not true competition in the market: no one else is free to try and do better.

The industry's response to this would be, as it has been for centuries, that it is the only way to pay authors. This is laughable. The system was not designed to pay authors and mostly does a lousy job of that. It was really designed to subsidize, and to a lesser degree regulate, distributors, which it accomplishes very well — otherwise they would not argue so regularly and noisily for its expansion.

There's no shortage of concrete recommendations to improve the situation. My organization is but one of many calling for us to step back from the brink and return to treating culture as something people don't need permission to participate in. For starters: bring back registration requirements and renewals; require a fee to maintain a monopoly license; distinguish attribution law from copying law (their current conflation is both the result and the servant of the monopolist's cause); do away with retroactive extensions, retroactively; shorten copyright terms; etc.

But what we need first is a fundamental change in how we think about copyright. It is not a natural law, nor is it even rooted in the common-law doctrine of property ownership. It is a monopoly created by statute, with only the purposes and powers given to it by statute. If it's not doing what most people want it to do, we can and should fix it, without sentimental and historically suspect notions that a three-century old industrial regulation is somehow the shield of the artist. Indeed, the current system hurts artists perhaps most of all.

There are signs that the dam is starting to break. Recently, a researcher with the Republican Study Committee circulated a position paper [1] that said nothing more shocking than what I've said above: that copyright is a monopoly-based policy, that it should ideally be shaped toward the public good with all assumptions on the table for inspection, that such reconsideration has not yet happened, and that a party that wants to be in tune with younger voters and with future trends would do well to start looking at the issue with fresh eyes. Such is the strength of the Hollywood lobby that those ideas would have been unthinkable for a major party researcher to produce even a few years ago. Apparently they are still pretty edgy, because the position paper was immediately disavowed by the RSC and the researcher, Derek Khanna, was fired shortly thereafter. But he was right, and I hope Oliver Sacks is reading a large-print version of his paper right now.



[1] We originally referred to Derek Khanna's paper for the Republican Study Committee as a "draft", but since then have learned that it was not merely a draft — it was a finalized position paper, later retracted. Techdirt has more about the incident, and Khanna's paper itself is here: Three Myths about Copyright Law and Where to Start to Fix It.

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Make Art, Not Law.

Nina Paley looking jazzy

QCO Artist-in-Residence Nina Paley's interview with at Baixa Cultura, conducted by email with journalist and photographer André Solnik. The English below is the original; Baixa Cultura translated Nina's answers.

1. When your interest on free culture has begun?

For a long time I thought copyright terms were too long and the law could use reform, but I didn't really understand Free Culture until October 2008, after months on the film festival circuit with my then-illegal feature Sita Sings the Blues. Free Culture was too audacious a concept for me to think about clearly until then. One morning I finally got it — freeing my work would be better for the work — and I spent the next half-year preparing for a Free, legal release of SSTB. That finally happened in March 2009, when I finally cleared all the necessary (and bullshit) licenses at a cost of about $70,000 to myself.

2. Tell me in short why artists should free their work. Is it a good choice for both renowned and new artists?

From my article How To Free Your Work:

Why should you Free your work? To make it as easy as possible for people to share your work — as easy as possible for your work to reach eyeballs and ears and minds — to reach an audience. And to make it as easy as possible for audience support — including money — to reach you.... Copy restrictions place a barrier between you, the artist, and most forms of support. By removing the barriers of copyright, you make it possible to receive money and other kinds of support from your audience, both directly and through distributors, thereby increasing your chances of success.

3. Creative Commons has recently released the final draft of the version 4.0 of its licenses. What changes would you like to see? Do you think CC should keep on supporting the nonfree licenses?

Yes, CC should stop supporting the non-free licenses. What kind of "commons" is that?

4. Although they are probably the most known alternatives to more restrictive ones, they still remain unpopular compared to the “all rights reserved“. Why is that? Do you reckon people get confused by the many possibilities given by the CC licenses?

Most people who use CC licenses don't understand what the different licenses mean; they just call all of them "Creative Commons" as if that means anything. CC's modular system was a good idea, I see it as an experiment that was worth doing. But the results are in: it didn't work. What we have now are a mess of incompatible licenses, most of which fail to contribute to any real "commons," and an increase of confusion and misinformation.

You can't really blame Creative Commons though — the problem is copyright law. Nothing can fix it at this point. Even CC-0, a valorous attempt to opt out of copyright, doesn't work in practice, as my experience with the Film Board of Canada showed — even after placing SSTB under CC-0, their lawyers refused to accept it was really Public Domain, and made me sign a release anyway, just to allow one of their filmmakers to refer to it. I will be saddled forever with permissions paperwork even with CC-0. I'll probably keep using CC-0, of course, but I have no expectation it will work as it's supposed to.

5. The BY-NC-SA license, although nonfree, it’s pretty popular. Why do you think so? What are the main issues about licensing a work using it?

People are high-minded when they choose the -NC restriction, but it accomplishes exactly the opposite of their ideals. They want to "protect" their works from abusive exploitation from big corporate players. They don't realize those big corporate players LOVE the -NC clause, because it's a commercial monopoly. Big corporate players are all set up to deal with commercial monopolies: they have licensing departments and lawyers. It's the big corporate players who can afford to license your -NC works. It's your peers, small players with no legal departments and limited resources, who can't. The -NC clause screws over your fellow artists and small players, while favoring big corporations.

The way to avoid abusive exploitation is to use CC-BY-SA, a Share-Alike license without the -NC restriction. This allows your peers to use the work without fear, as long as they keep it Free-as-in-Freedom. Big corporate monopoly players, however, are unwilling to release anything Freely: if they want to use your work, they'll have to negotiate a waiver of the -SA clause. For this they will pay money. It works like a regular licensing deal: for $X you waive the -SA restriction and allow them to re-use the work without contributing to the community. I have had many corporate licensors offer me such contracts, although I didn't sign any because I was such a Free license booster.

The only reason BY-NC-SA is popular is because people really haven't thought it through.

6. Money seems to be one of the main worries artists have when they hear someone saying “free your work“. Is this “fear“ justified? Have you recovered all the money spent in the making of Sita Sings the Blues?

No, this fear is not justified. But your question sure is biased: "Have you recovered all the money spent in the making of Sita Sings the Blues?" As if with copyright I would have! I have made more money with Freeing my work than I ever did with copyright restrictions. Period. Where do people get this idea that putting a © on something will magically generate money? It doesn't. If it did, I would fully support copyright, and be rich. Copyright is a "right to exclude," not a right to make money. You are free to make money without copyright, and you stand a better chance to as well.

7. You have recently announced that SSTB is now in the public domain. Although now you are finally free of burocracy envolving copyright stuff and this action could help your movie to have more visibility, on the other side it could favour restricted modifications of your work (e.g.: a book inspired by SSTB released under “all rights reserved“). How do you weigh these two sides?

Eh, honestly I just don't care any more. Let's just put it out there and see what happens. If something terrible happens because I shared freely, I'll learn from that. But I think it's stupid to worry about what other people do, and try to control it, especially with broken laws. Even Free Share-Alike licenses require copyright law to be enforced, and copyright law is hopelessly broken. I don't want to validate or support it in any way.

Licenses are not going to fix our problems. What is fixing our problems is increasing numbers of people simply ignoring copyright altogether. Instead of trying to get people to pay more attention to the law, as CC does, I'd rather encourage them to ignore the law in favor of focusing on the art. Licenses are the wrong solution. Art is the solution. Make art not law.

8. Are you keen on the free software movement as well? Any of your works was made using free softwares?

I'm attending the 2013 Libre Graphics Meeting in Madrid this year, to discuss building a good Free vector animation tool I can actually use. More in this article, It's 2013. Do You Know Where My Free Vector Animation Software Is?

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Lascaux Cave Painter Descendents to Recover Royalties

Lascaux Cave II: horse etc.

April 1, 2013 - AP.  Lawyers representing the 631 million known descendants of the painters of the famous Lascaux Cave paintings announced today a far-reaching plan to recover royalties from the more than 70 years of modern-era unlicensed reproduction of their ancestors' work.

Said François Fraisant-Pître, who still lives in the area where his family painted aurochs and other fauna later driven extinct by more recent members of his family, "My great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-grandfather understood the investment he was making for us, and it is to honor his memory that we now seek payment of the royalties that he rightfully expected to go to our benefit."

The legal team emphasized that because the paintings were at least 17,000 years old, they could not be sure how many people had made copies in the intervening millennia, and that out of concern not to make any overly broad claims, they were only seeking payment for photographic and other reproductions dating from after the caves' modern discovery in 1940.  "It is possible, of course, that others have entered the caves at various points in history and made use of this art," said lead attorney Belinda Featherstonehaugh, herself a Lascaux descendant along with most of the population of the British Isles. "Of course, if we had any way to identify those infringers with certainty, we would attempt to recover royalties from their descendants today; however, without any reliable way to know who was there, we felt it best to err on the side of caution and discretion."

Featherstonehaugh added that the families would be seeking additional compensatory damages from the estate of Georgia O'Keeffe, whose paintings of deer skulls and antlers from the American Southwest were "clearly derivative, and were made entirely without permission," in the lawyer's words.Lascaux Megaloceros

QuestionCopyright.org Executive Director Karl Fogel, however, criticized the recently announced enforcement effort, saying "This just shows how little has changed in seventeen thousand years.  The descendants may indeed have a valid legal claim, especially with the retroactive copyright term extensions of 7,500 B.C. and again in 600 A.D., plus the dropping of registration requirements at the start of the Holocene interglacial period.  But the suppressive effect this will have on the entire history of Western art is totally unjustifiable."

"These lawyers and their clients," Fogel went on to add "are just complete Neanderthals.  They can't see, or won't acknowledge, how the world has changed, how the economics of distribution have been completely upended by the arrival of the Internet.  They're still stuck in the old model."

 

 

 

 

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