Monday, February 17, 2014

Copyright 2.0: Interests and Rules

source of the pic
Let us think for a moment about the set of rules which would appear to be appropriate to meet the demands of creators operating along the short route.

1. The Interests.

In the market based model it was essential for creators and even more so for businesses to control and restrict access to works, as the monopoly granted by expansive exclusive rights enabled them to charge whatever price the market would bear.
However, this would not appear to be the goal of creators currently operating along the short route. The great majority of them, be it 9 out of 10 or 95 out of 100, do not make a living out of “sales” of “copies” of their works; they earn their livelihood in another activity or business and devote a portion – often a  very large portion – of their spare time to creating, in a way which may give them a bit of extra income, professional credit and recognition which may have positive spill - over effects in their main line or just fun (or a combination of the three).
Even when the creators operating along the short route are professionally engaged in the creation of works, which is usually not the case, their business model usually is based on income flows different from the sale of copies as such. It would appear that there is a shift whereby even singers and songwriters increasingly rely on performances, tours, endorsements, merchandising and their likes rather than sales of albums and tracks.
This is the business model which the Grateful Dead pioneered, possibly taking a clue from open source software and IBM, and is currently expanding to an increasing number of business. So that the eminent economist Paul Krugmann a few years ago made the case that the demise of reliance on income based on “hard” copies was being generalized and, making his case, quipped that in the long run we will all be the Grateful Dead.
What is important for creators engaged along the short route is, it would appear, that their work can be disseminated as widely as possible, on two conditions: first, that the work is correctly attributed to them, and second, that
the creators may, if they so choose, reserve the right to prevent third parties
to make a commercial profit out of their work unless this is agreed to by the creator herself.

2. The Rules.

If this is so, then what may currently be needed is a new kind of copyright, which we may, if you wish, label Copyright 2.0. I submit that the new system would have four basic features. Old copyright, or Copyright 1.0, would still be available; but it would have to be claimed for by the creator at the onset, e.g. by inserting the old copyright notice, ©, as the US did in the past, before accessing the Berne Convention.
If no notice was given, Copyright 2.0 would apply; and this would give creators just one right, the right to attribution.
The notice could also be added after creation, but then it would only have the effect of giving exclusivity against specified non authorized uses (in particular:
subsequent commercial uses).
The Copyright 1.0 protection given by the original notice could be withdrawn, and may be it should be deemed withdrawn after a specified period of time (e.g. the 14 years of the original copyright protection), unless an extension period (of another 14 years) is specifically requested.
What is the purpose of the exercise I just sketched out? Well, I confess that, even a couple of years after airing this proposal, I am not so totally sure after all that the four features I just described are really what is appropriate for the needs of our societies and their creators.
The point I am making, however, is that thinking along these lines at least allows us to conceptualize how the different sets of rules correspond to the specific needs of the creators who create works along the long and short route. We assumed that Copyright 1.0 should survive; and we may anticipate that this is likely to be resorted to by creators (and businesses) choosing to operate along the long route. Indeed, the ultimate goal is not to displace old copyright, which seems to be alive and well in many situations, but to add to the menu a second possibility, Copyright 2.0, which should be better tailored to the characters of production and distribution of works prevailing in the current digital environment.
This line of reasoning might also help us in asking the next question. Which set of rules would then operate in each given situation? Well, in some way I already replied to this question: creators should opt-in for Copyright 1.0 at the time of the original release of their work; otherwise the new and more flexible Copyright 2.0 would operate as a default set of provisions.
This is why in the past I characterized this approach as “Lessig by default” or, in a less personalized way, “Creative Commons by default”. The idea behind the approach is that the very successful uptake of Creative Commons licenses and other copyleft licenses by creators operating along the short route shows that out there, in the digital prairies and wilderness, there is a very large number indeed of crea tors who prefer to reserve only some rights rather than all rights; and that the time has come for legal systems to recognize this fact of life by creating a regime in which downstream freedom is the rule and a system under which creators may have the option to reserve some rights or, if they like, all the old Copyright 1.0 rights, only if they wish and say so, giving appropriate notice.

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This is an excerpt of "Consume and Share: Making Copyright Fit for the Digital Agenda" by Prof. Marco Ricolfi (2011); under a CC by license.
See the entire paper (with all the footnotes and references) here.

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