It is currently
fashionable to talk about reform of copyright. The US Register of
Copyrights, the EU Commissioner for the Digital Economy &
Society, the Canadian Government, High Court Judge Sir Richard
Arnold, the Pirate Party, and other commentators too numerous to
mention individually, have all advanced the need for reform of this
most complicated of the various IP disciplines. Some might argue that
Patent law and the systems which regulate it are just as complicated
(and as confusing to the layman?), but they are epitomes of clarity and
common sense when compared to the current state of copyright, with
its related and neighbouring rights, its sui generis lookalikes, huge
areas of incompatible jurisprudence and barely token comity between
nations, and a general disagreement over the fundamental purpose of
copyright. Is the purpose of copyright utilitarian as suggested in
the American Constitution ("to promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries") or the introduction to the Statute of Anne
"for the encouragement of learned men to compose and write
useful books ..", or is it a system to protect works of the
mind (oeuvres de l'esprit) principally for the benefit of the author (the droit d'auteur)?
One look at the dozen or so EU Directives on the subject shows
how muddled things become when the two approaches are combined with a
view to 'harmonising' copyright law. If a camel is a horse designed
by a committee, then copyright is a computer game designed by an itinerant troop
of macaque monkeys with their heads stuck in buckets.
My dictionary defines
the verb reform thus: "make or become better by the removal of
faults and errors; abolish or cure an abuse or malpractice".
However worthy the intentions of those mentioned in the preceding
paragraph, I suggest that whatever the outcome(s) of the various
initiatives, reform will not be one of them. All we will achieve is
more bells and whistles, along with the odd aardvark and possibly two
nuns on a bicycle.
The attempts at reform
are doomed for two principal reasons. First, we are tied up in a
macramé of international treaties and agreements which bind us too
tightly to make the radical changes which are truly necessary.
Secondly, there are numerous vested interests ranging from big
business to collecting societies and a myriad of other players who
will resist anything which they perceive as detrimental to their
business models. One has only to look at the recent
judicial review
in the UK which resulted the already enacted exception for private
copying being overturned to see how strong is the opposition to
change. This judicial review was mounted by the same music industry
which for years had publicly acknowledged that it would not take
action against people who wished to format shift music which they
legitimately owned, and which concerns an activity which nearly impossible
to police anyway. These two impediments mean that a rational
assessment of the problems, let alone a blueprint to rectify them,
will not even be attempted.
At the heart of both
the utilitarian copyright approach and the
droit d'auteur is the
concept of the author - the person who creates. The word is
universally used in laws and treaties to denote the person who is to
benefit from the rights accorded in return for his or her mental and
creative efforts. Yet it is rarely acknowledged that the world of
copyright involves far more non-authors than it does authors. These
non-authors include, publishers, literary agents, copyright collecting
societies, multi-national record and film companies, art galleries,
photo libraries and licensees of various types and so on, all of whom take
their cut, without adding intrinsic value to the actual work
itself; they are the facilitators but they are not creatives in the
sense that the author is. But when it comes to deciding the term of
copyright and thus the overall income potential, the idea of the
penniless struggling artist devoid of any other means of earning a
living or of supporting his family is conjured up to explain why
copyright should act not only as his pension plan, but also that of
his grandchildren too. No-one mentions that by extending the
copyright protection for Mickey Mouse, thousands of employees keep
their jobs at Disneyworld. The entire reason put forward by the EU (or
EC as it then was) for extending the copyright term from fifty to70
years after the death of the author was that people in Europe were
now living longer. It was never quite explained why 20 extra years
was appropriate when, between 1950 and 2000, average life expectancy
amongst West Europeans only rose by about 3 years (from c 75 to c 78 years
of age) - arguably this figure has gone down since the accession of
the East European member states. At least when a
similar extension was
being contemplated in the USA, it was openly acknowledged that the
driving force behind such changes were the large business interests
such as the Disney Corporation. That is not to say that the meme of
the struggling artist and his dependants was not also deployed, hence
the informal name of the Act was the Sonny Bono Term Extension Act,
even though the less reverential name was the Mickey Mouse Copyright
Act. And more to the point, such arguments entirely fail to take
into account that the rights in the majority of exploited works are
owned by companies and not the individuals who created them, either
by virtue of the authors being employees or because in most cases in
order to publish their works they have assigned copyright to the
publisher. It is true that in the latter case, the author and his
heirs retain an entitlement to royalties in exchange for such
agreements, but in reality it is the companies which reap the lion's
share of the profits of exploitation, not the author.
The problem is
compounded when the principles one applies to individual author or
artist then get transferred to the so-called neighbouring rights. Why
is the making of a film treated like the writing of a book, when in
reality it has more in common with building an aeroplane? Why does
the person who makes the arrangements for a recording to be made
equate to the composer of the symphony? Why is an actor's performance
on stage worthy of protection for 50 years, but an athlete's
performance on the track is not worthy of any exploitation rights,
despite the fact that the latter's endeavours at an international
level like the Olympics probably have equal or increased economic
value? In the current climate, 'reform' of copyright would see the
athlete or footballer being added to the long list of neighbours to
copyright, instead of the more rational stance of completely divorcing
performer's rights from the concept of droit d'auteur.
There isn't space here,
or patience enough amongst the long suffering readership to examine
each and every flaw, defect, abuse and malpractice by which copyright
law has become burdened. Suffice it say that when the only tool in
your tool box is a hammer, all your problems are seen as nails. This
approach just will not do when we have a problem comprised of screws,
finely balanced Swiss watches, priceless porcelain and lot of small
children who are orphans.
My first proposal would
be to split the area over which 'Copyright' currently extends, into
discrete parcels which are not inter-dependent and which cannot then
be put side by side in order to ratchet up the benefits to one area
by reference to another unrelated area. On this basis the argument
for increasing the term of protection for a phonogram would need to
be argued on its own individual merits, not by reference to an
entirely different area of artistic endeavour. This should be taken
further within the groups of similar works. For instance, having
accepted over fifty years ago that we needed something called design
right, isn't about time there were clearer boundaries between that
right and certain artistic creations which fall within copyright? No
work should be able to fall into both categories. Similarly, greater
distinction needs to be created between the 'work' and the authorised
reproduction or copy of it. For example the manuscript and the book.
In that way different approaches can be applied to things like the
term of copyright. This approach already exists to a degree in UK law
where there is a (much shorter) copyright in a published edition, which is separate
from the author's general rights, but the same distinction is lost
when the duration of protection for a sound recording now approaches that of the song. By separating the manufactured embodiment of the work from
the underlying work we can address the anomaly of a large
corporation's asset (say a movie or a work made by an employee in the
course of his/her employment) having its term based arbitrarily on
the lifetime of some individual. The US approach of giving a fixed
term to material created under work-for-hire conditions is much more
practical and fairer, although the actual term applied in the USA (95
years following publication or 120 years after creation) is absurdly
excessive.
This approach of
separating works into different categories and then applying
different conditions within the categories could then be used much
more equitably to suit the type of work and its potential for
exploitation. For example, a provision such as the
Artist's Resale Right - whether you think it is a good thing or not - is something
specific to certain kinds of artistic work. It has no corresponding
application to, say, a work of literature or of music. In theory it
is there to compensate for the fact that an artist's original work
(as a single one-off object) can only be exploited to a fairly
limited extent. But this sort of exceptional treatment points up the
need for less, rather than more, of a 'one size fits all' approach.
With this segregated approach it becomes easier to define, for
example, what originality might mean for each specific genre within a
sub group, such as photographs on the one hand and sculptures on the
other, within the overall class of artistic works. To take another
example, computer programs are currently treated as literary works,
although they have virtually no commonality with true literary
works. These days they aren't even written on paper, but are
generated digitally with sets of automated tools to assist the
programmer or coder. Few computer programs are likely to have an
economic life beyond about 10 years, with an absolute maximum of
about 25 years, and so a lifetime plus 70 years is a ridiculous term
of protection to apply to them. In neither utilitarian nor droit
d'auteur terms can such a period of protection be described as
logical or justified. In many respects computer programs have much
more in common with the sort of processes and methods covered by
patent law. And given the close inter-relationship between hardware
and software (consider the many recent disputes over APIs and the
like) there would be much merit in putting both in the same area of
IP protection.
If further anomalous
examples were needed, let's look at architecture. An architect may
well be 'an artist' but he could equally well just be an engineer who
produces functional buildings like warehouses. Yet whatever the
finished building looks like or is used for, its physical appearance
is protected for the same lifetime + 70 years as a painting by David
Hockney. The architect gets his fee and moves on; he and his heirs
don't get about one hundred years worth of royalties, and the
opportunities for any other sort of exploitation (the film of the
building? the graphic novel of the building?) are
extremely limited. He doesn't even get exclusive rights over
photographic reproductions of his building unless it's located in one
of a handful of European countries which
protect the panorama.
And I won't even begin to look at how the moral rights (the
droit
d'integrité) of the architect should be applied when an owner of a
building wishes to alter or demolish it.
My second proposal
would be to de-commission, or at least reduce to an advisory
status, many of the existing international treaties on copyright.
This may appear naive given that what the world needs is greater
comity rather than less in the era of the internet. But my reason is
simple. By hanging onto outdated monoliths such as the Berne
Convention, we create excuses for those who oppose copyright reform
to take the 'do nothing' approach. An example of this is the
ALAI response to the Court of Justice of the European Union's finding in
the
Svensson case. One of their major objections was that the CJEU
had created the concept of a 'new public' which might need to be
examined when considering if making available a protected work via a
link on the internet constituted infringement. ALAI laid great
emphasis on the fact that the most recent (1971) version of the Berne
Convention made no provision for a sub-set of the public as a whole,
and thus the CJEU was not entitled to conjure it up. I suspect that
the main reason why the Berne Convention has not been revised for 44
years, when previously it was revised roughly every 20 years, is that
it is now seen as too all embracing and inflexible, and that more tailored
agreements such as the WIPO Performances and Phonograms Treaty or
TRIPS are the way to define common principles between nations.
However every international agreement which ties the hands of the
reformers is to be regretted. It is hardly the case that Berne or the
Universal Copyright Convention or the WIPO Copyright Treaty (to name
but three of the more significant treaties) have actually achieved a
closely matched world of copyright law. On the one hand we have the
EU desperately trying to meld together the
droit d'auteur approach
with the Anglo-Saxon utilitarian approach, all in the
name of harmony of the marketplace, yet this results in Directives so
imprecise that the same question can get several references to the
CJEU before clarity is achieved (for instance,
Svensson, Bestwater and now
GS Media v Sanoma). And on the other hand we have the
USA forging its own idiosyncratic view of copyright (with virtually no
acknowledgement of moral rights) and imposing their world view upon
other nations by means of multilateral trade treaties such as
TPP.
Some have seen the way
to reforming and harmonising copyright within the EU being through
the CJEU. Can CJEU operate effectively in this role? Probably
not, and in any case, that should not be the preferred method, lacking as it does any democratic mandate. The CJEU is not a true court of appeal, but rather a forum for seeking
clarification. In that role it can’t really effect reform, and at
best it may assist harmonisation. But if the underlying law (as found
in the Directives) is faulty, the CJEU is helpless to sort this out.
The court is supposed to be dealing with principles rather than
trying the specific facts in each case, although inevitably many of its
judgments do reflect the facts in the case which lead to the
referral.
A good example of this the Art&Allposters v Stichting Pictoright (c-419/13) case. Because the court needed to consider the
technical issues involved whereby the image on some posters printed
on paper was transferred to canvas, and whether the exhaustion of
rights doctrine should or should not apply to this process, the
resulting judgment was fact-related. However because they weren’t
asked to, the court didn’t look at the more fundamental issue of
whether copyright subsisted in the posters in the first place. As the
posters were reproductions of long out of copyright works of art,
would they have passed the originality test as being oeuvres de
l'esprit? Perhaps ALAI would have preferred it if the court
had sought guidance from Article 2 (as amended by the Paris
Additional Act) of the original Berne Convention of 1886: "It
is understood that an authorised photograph of a protected work of
art shall enjoy legal protection [...] for the same period as the
principal right of reproduction of the work subsists [...]" . (this section has been withdrawn - see comment No 3 by Juris)
Because there is no end
to the list of the things which need fixing in the law of copyright,
there might be no end to this polemic. But fortunately this auteur's
esprit is craving a coffee, and since the first of April is too far
away to hold this article over until then, I might as well make it
into a paper dart and see how far down the garden it will fly, for
all the effect it will have on the push for real reform, anywhere,
ever.
Symposium - ‘Harmonising European Intermediary Liability in Copyright’. The Institute for Information Law (IViR) of the University of Amsterdam is organising a one-day academic symposium on European intermediary liability on 14 January 2017: In view of the new EU copyright reform package, the symposium will examine the issues surrounding intermediary liability in copyright in Europe, including the extent of duties and remedies which are appropriate to impose on intermediaries and the conditions to govern these. Moving beyond the current safe harbour regime, it will explore avenues towards the adoption of a substantive European system. Spaces are limited and registration is required – see here for more details.
Getty Images: Getty Images has had a copyright case dismissed without prejudice. Previously covered here by the 1709 Blog, Getty had threatened photographer Carol Highsmith via License Compliance Services (LCS) for copyright licence infringement. Ironically the image in question was one of Highsmith’s own - she had donated it to the Library of Congress, and Getty and its affiliates were subsequently discovered to have made available more than 18,000 of her other photographs. Highsmith responded with a copyright claim of statutory damages of almost $500m. These claims were, however, recently dismissed in a New York District Court, along with other claims that Getty and LCS had charged licensing fees and collected settlements from purported infringers for images they had no right to represent.
