February 2003
Copyright for the future

Copyright for the future:

Copyright in various forms has again been high profile this year as a significant factor for the future of media in the US, particularly with reference to the Internet but also in general terms as the US Supreme Court last month upheld the right of the US Congress to extend copyright (through the 1998 "Bono" law, named after the late California Republican Representative Sonny Bono).

The ruling was made by a 7-2 majority with the dissent coming from Justices John Paul Stevens and Stephen Breyer, with the latter saying he thought the court was "failing to protect the public interest in free access to the products of inventive and artistic genius."

The actual ruling was on the rights of Congress to pass the laws and related to a case brought by Eric Eldred who said the copyright extension unfairly limited what he could make available on a public - and not for profit - web library he runs.

Because he lost, thousand of books and music sheets that are out of print have effectively been buried as have many audio and video recordings of legitimate interest to scholars and the public with the main benefit being to the financial interests of some very large US media corporations; We go along with the comments of Breyer.

A historical recap.

As a first step, it should be noted that US Copyright originally ran only for a period of 14 years and the intent was to strike a reasonable balance between the benefit to society in general of the free flow of ideas and the reasonable interests of authors; it has subsequently been repeatedly lengthened by the US Congress so that it now stands at 95 years for Corporations, or 70 years after the death of an author.

This extension has been made by Congress against a background of ferocious lobbying by industries that stand to benefit, led in particular by Recording Industries Association of America (RIAA) and the Movie Producers' Association of America (MPAA), and it would not be unreasonable to say that in other terms and countries many of the people defending the extension would describe similar actions as corrupt.

We agree; we think in this particular area the US legislature has been corrupted although we can see why the Supreme Court ruled that it had the right to pass such legislation.

Where we would like to go now

We fully accept that in the current US situation, going back on the above decision is a pipe dream but note that decisions for Europe and other parts of the world are still pending so hope that some different views may yet prevail elsewhere.

That does not stop our having a reasonable pipe dream, both for printed and audio and visual works. In particular we think the balance needs to be changed so that Internet publishing of content, albeit in low quality so as to allow research and assessment, is much less restricted than at present, thus keeping work available to the public.

In particular, our view is that the Internet has significantly changed the balance in terms of allowing distribution for low-quality browsing - of value to scholars and the general public - without affecting the commercial distribution of high quality commercial versions of a work (Can the RIAA or MPAA seriously make a case that the ability to assess a work in poor audio quality or on a small computer window will really affect the sales of a CD or HDTV quality commercial version of a work?)

We have tried to strike a balance, therefore, between what we think should be freely available in the public domain and allowing reasonable rewards for individual and group/corporate efforts in creating and developing works of various kinds.

For the individual author, we have more sympathy than the corporation in that he or she is often at the beck and call of the giants in that they often cannot afford to publish works themselves; at the same time, they do not benefit from their work being unavailable. We would also note that in practical terms, the value of a work is often negligible should a corporate copyright owner decide not to republish or keep the work available whilst a suitable small-fee system could potentially keep a work alive and provide a reward for them.

An author's reasonable rights.

We would suggest an author or the author's heirs retain the benefits of copyright for a period of 50 years after his or her death (as before the Bono extension); at the same time, for the public benefit, should the work be out of publication for a period of five years, all rights sold to any publisher or Corporation should automatically die and any non-profit organization should be able to a acquire the non-exclusive right to publish the work at any period during the work's remaining copyright at an advance fee for any year equal to the average annual payment the author has received over the previous ten years (if the work has been in publication that long) or for the number of years it has been in publication prior to that five years.

This would be an incentive to continue to make works available to the public and yet provide some benefit to the author for less popular creations in which there is still a limited interest.

A Corporation's reasonable rights.

In the case of a corporation, its interest in a work is financial and we would adjudge that material that it has not been profitable to make available to the public for five years should be considered forfeit. To prevent price gouging where the potential market is small but has a real need of the work (as with some material of interest to academics), the maximum price allowable should be twice that at which the material was first offered for sale and any breach of this rule should automatically lead to total loss of any copyright claim over the work or, in the case of something like software, of any development from it.

As regards the maximum period, we take the view that the potential benefit to the public of having access to material of historical record on a non-commercial basis is such that the current period is far too long.

We would therefore take the view that material where the content rather than the technical quality is of such interest should go out of copyright after 14 years - the original US copyright period for non-commercial Internet distribution of what we would term low-technical quality copies (i.e. audio visual material could be published in a non-recordable format such as current streaming video and audio and print material in plain text or low-quality JPEG-type format).

To protect the interest of the copyright holder, we would see it as quite reasonable to insist that such distribution should be required to carry details of the publisher with links to an appropriate site where a purchase of the high-quality copy (be it of a video, audio recording or published print work) could be made; we suspect this might well actually boost the income of many media companies.

We would particularly see it of value that a copy of all material, (as happens with books published in the UK, where a copy has to go the British Library) should have to be made available to a national public archive to ensure that a society can ensure a proper historical record is available to later generations.

Thereafter copyright in any sense would be of a maximum 50 years from the creation of the work, again with some caveats to prohibit the extension of copyright through making minor modifications backed up with the potential loss of all copyright in a work should such an extension be challenged and found to be wanting.

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