Manifesto: Why I think we need non-commercial copyright

[Duke]

Firstly, I must stress that this is just my personal opinion and isn't in any way conditional on me supporting the party. It is, however, something that I feel fairly strongly about, and having to argue publicly for it might be problematic. My opinion on this has come from discussions with musicians, authors, photographers etc. on various news websites.

Copyright should not apply to commercial use only.
I therefore encourage all members to vote against the first section in the current copyright policy.

I am a pirate. I support copyright. I will now try to explain why this isn't a contradiction.

Copyright is a compromise. It is across between a tax and a monopoly. It is an evil, but, for now, a necessary evil. The problem we face today is that the current copyright law (and the new version proposed by the DEB) no longer serves the function of the original Statute of Anne (which is worth a read for anyone interested in copyright or law).

A history of copyright
Copyright was established to protect creators from publishers and booksellers. Prior to copyright, the printing press created a skew in the production of books. An author might take years writing something, and personally making copies would take a long time. A publishing house with some printing presses had the resources to quickly make and distribute many copies. As you can imagine, without copyright the author was in trouble - once the manuscript was released in any form, the publishers could quickly flood the market with books and take all the profits.

Copyright put a stop to this by giving the author control over the "information" that makes up the book. Obviously, back then, they didn't have to worry about whether information counted as property and what was actually owned; the information could only really exist in a "dead-tree" format, so that was all that need to be covered. Copyright meant that any publisher or bookseller distributing or creating books without the appropriate permission could be fined (one penny per page) and the offending books were to be forfeited to the copyright owner who was instructed to "forthwith Damask and make Waste-Paper of them".

The Statute of Anne has one particularly interesting provision; it has a section whereby any member of the public who feels that a bookseller or publisher is pricing a book too high can go to one of several officials (various Lords, Bishops and the Vice-Chancellors of Oxbridge) to complain. They then had the power to force the bookseller to reduce the price if they deemed that it should be lower, and this could be done retroactively. It isn't surprising that this section disappeared in later acts. The initial duration of copyright was set at 14 years which was deemed long enough for an author to have enough copies created and sold to those who might want it (and presumably, distributed overseas which would have taken a while). All existing works were given 21-year initial copyright.

About 20 years after the Statute of Anne (in the 1730s) there was the first major push to extend the duration of copyright. This did not come from the authors, though. The average author was quite happy with the current copyright. The lobbying came (as it still does) from the publishers. Naturally they didn't want anyone to be able to sell the books they had made to sell, so they campaigned in the courts and through lobbying to have copyright extended. One pamphlet from the time (a quote found on Wikipedia I must confess) summed up the problem quite well. It noted that the effect of increasing copyright duration as the publishers demanded would, in effect "be establishing a perpetual monopoly, a thing deservedly odious in the eye of the law; it will be a great cramp to trade, a discouragement to learning, no benefit to authors, but a general tax on the public; and all this only to increase the private gain of booksellers." In hindsight, quite an astute observations.

Obviously the publishers won. Over the next 300 years several new copyright laws came along (among others, in 1842, 1911, 1956, 1988 - the current basis for copyright law, and 1995) and gradually extended copyright and gave more power to the publishers at the expense of the authors. Most recently, Clause 42 of the Digital Economy Bill takes away the requirement that a publisher gets permission from a creator before copying or distributing their work - the DEB contains the beginnings of the end for copyright and for this reason (although they may not understand exactly why) many creators are strongly opposing the bill (in particular within the photography sector). We should oppose the Digital Economy Bill not because we want to oppose copyright but because we want to protect it.

Non-commercial copyright
Non-commercial copyright is, in theory, in the Statute of Anne. In practice, though, there was no real way of infringing copyright on a non-commercial scale and being caught. In fact, aside from putting an end to the notion of indefinite "common law copyright" (and thus creating the public domain) it is unlikely that the average citizen would have had much interaction with copyright or much opportunity to infringe it. This changed over the second half of the 20th century, when suddenly it was possible for ordinary citizens to quickly create copies of material (and we're on to "home-taping killing your industry of choice"). In my opinion, this is why (along with several key cornerstones of copyright law, such as the concept of ownership of information) it was never properly examined or debated. The CDPA 1988 (yes, I practically have that page bookmarked) has very limited restrictions or definitions on the punishments for non-commercial infringement and, to my knowledge, there have been no full trials of this. It has never been properly examined or tested in the UK. This, in my opinion, is why the publishing industries are so keen on "technical measures" as a form of punishment. Once you go into "financial measures", they run the risk of having to justify the numbers they come up with and a judge realising that the 'cost' of such infringement is remarkably small (probably closer to the original 1p per page fine). "Technical measures" are suitably hard-to-quantify that arguing they are disproportionate to a judge who still uses a typewriter could be tricky.

There are several arguments for legalising non-commercial infringement, many of which have been posted on our wiki. It is my opinion that the points there tend to focus for legalising; I could respond directly to them, but I will try to stick to my own points against.

Paying creators
Essentially, copyright exists to enable creators to be paid for their work that has no physical value. Initially, this was an issue between authors and publishers because that was the only stage where there wasn't a physical object. Now, physical objects are obsolete when it comes to most forms of art (books, music, film). The problem is that the "information" that the artist has created has little or no real financial "worth" (as opposed to cultural "value"). Copyright (and patent) law grants the creator a brief monopoly on their "idea" in order to get a suitable return. Creators need to live. It then becomes a balancing act on duration, with the author's income vs public interest. This is something we will be settling elsewhere in the copyright policy (with a 10-year duration). While there are other ways of remunerating creators for their work, at the moment it is my opinion that too many business models, both for companies and individuals rely on getting money directly from citizens in return for their work. Abandoning non-commercial copyright is too big a step too soon.

While musicians might be able to survive in such an environment, it should be clear that a lack of n/c copyright will cause serious problems for TV industries, (book) authors, magazine writers, composers, professional photographers, software developers and every other case where you as an individual pay (either directly or through viewing adverts) a creator to experience their work. While the Open Source movement may be growing, it is worth nothing that legalising n/c file-sharing will make it very hard for anyone to sell software (including computer games - where there is little or no 'commercial' application). It is hypocritical of us to complain about the many "unintended consequences" of the DEB and then lobby for an end to non-commercial copyright.

It is my opinion that non-commercial copyright should remain an unlawful act. What should change (or rather, be more clearly defined) is the punishment for doing so. Something closer to an "on-the-spot fine" of no more than 5 times the product's minimum value if purchased legitimately for infringement would, in my opinion, be appropriate (obviously if something wasn't available legally, 5 x 0 = 0 and no fine could be made). No extra powers would be given to copyright owners to obtain evidence and with no restrictions on technologies that allow drm to be bypassed (and restrictions on drm) - which is included elsewhere in our manifesto - this would make file-sharing unlawful, but effectively as "safe" as it is today (or 10 years ago). The publishing industries would have to focus more on drawing consumers (which pirates are) to their legitimate sources, rather than driving them away from the unlawful ones.

Summary
I feel that a combination of a much shorter copyright duration (far closer to the original), a war on DRM, legalising format-shifting and clearer (and proportionate) punishments are enough to justify maintaining non-commercial copyright. I fear that once we take that extra step of removing this, we risk losing the potential support of many groups who would otherwise support us. With non-commercial copyright everyone outside the publishing industry should be on our side and it becomes our task to show them this. Without non-commercial copyright, we become just another extremist group with impracticable wishes.

[PeterBrett]

A very well-thought-out analysis. Thanks Duke!

[cc]

My thoughts exactly. Cheers Duke.

[samgower]

Creators need to live.

A reasonable argument, but the only one there is against legalisation non-commercial sharing, and it is easily rebutted. It is demonstrable in most if not all cases that creators can earn money (sometimes more than they would otherwise) from ways other than a monopoly on a particular arrangement of images or sounds.

While there are other ways of remunerating creators for their work, at the moment it is my opinion that too many business models, both for companies and individuals rely on getting money directly from citizens in return for their work. Abandoning non-commercial copyright is too big a step too soon.

I recognise that an immediate change of copyright will create a bubble-bursting effect, but we are not advocating that the change be done overnight. Furthermore, it is not realistic to think that everyone will instantly switch to P2P. Remember, around 40% of the population does not have broadband and still relies on physical media. Methods like iTunes and Spotify ensure speed and quality of service.

While musicians might be able to survive in such an environment, it should be clear that a lack of n/c copyright will cause serious problems for TV industries, (book) authors, magazine writers, composers, professional photographers, software developers and every other case where you as an individual pay (either directly or through viewing adverts) a creator to experience their work. While the Open Source movement may be growing, it is worth nothing that legalising n/c file-sharing will make it very hard for anyone to sell software (including computer games - where there is little or no 'commercial' application). It is hypocritical of us to complain about the many "unintended consequences" of the DEB and then lobby for an end to non-commercial copyright.

There's a long list of things here. I'll try dealing with them in turn.

Television
Television has always and will always rely on either the public sector or advertising for its money. This will not change. In fact, non-commercial sharing practically guarantees higher ratings, and thus higher advertising revenue. Yes, adverts are cut out of P2P versions of television shows, but they are less likely to be if the programmes were distributed straight from the source (first mover advantage means that the original distribution would have the most seeds, discouraging downloads from edited sources). A brilliant real world example of this model in action is Revision 3.

Revision 3 are a wildly successful television company that only distributes through the internet, be downloaded/streaming from their server, YouTube or by P2P. They deal with mostly informational shows, particularly focused on technology and geek culture, although they now have a wide range of comedy shows too, including stand-up and a sitcom. Far from feeling the pressure during the recession like traditional media companies, Revision 3 has actually expanded continuously over the last three or so years. Their model is simple: more downloads (from any source) means more viewers, more viewers means higher ad rates, higher ad rates means more profit.

Books
This is an interesting one. Unlike film and music, there's no 'performance' aspect of a book. Most of them can't sell merchandise, although you certainly can with some books. What about advertising? Probably wouldn't go down well. I would argue that the future of books lies in physical copies (yes, dead trees) and digital sales.

Why will physical copies still persist, at least for now? The fact of the matter is that even in a world of mobile devices with e-ink screens and wireless connectivity, people still want to hold books and turn pages. Ask them why they prefer paper, and they can't tell you, they just do, it feels right. Will the same be true in a generation or two? Who knows. Perhaps we will have to look at the issue again then (in fact, I'm sure we will). For now, authors can reach a wide audience by allowing their books to be shared digitally, and make more money when a significant number of those translate into physical sales. Case in point, Cory Doctorow, although there are plenty of other examples.

And what about the digital side? While P2P can provide new, large things with great abundance, older things (even just a few months old) and smaller things tend not to be so popular. You may be able to get the latest John LeCarre book from The Pirate Bay in a few days (or perhaps hours) after release, but don't count on getting that obscure book you're looking for that only had one printing a few decades ago. I would absolutely buy a digital copy of a book I could not find by any other means, and I'm sure others would too. Maybe I'd share it, but if it's that rare, perhaps nobody else would want to copy it from me. I would also happily sign up to a subscription service if it meant I could instantly get any book, at any time, anywhere on a wireless e-reader.

Magazines
One word: blogs. See Engadget, Perez Hilton, Techdirt, Huffington Post, etc. Another word: aggregation. See Digg, Reddit, etc.

Magazines and newspapers have seen a relatively steady transference over to the network, and I expect that this will continue with varying degrees of success. I also expect the market to shift from newspapers/magazines to journalists and aggregators (which may or may not be edited by people, machines or some combination of the two). Admittedly, how these people will be paid is up in the air, but there are various models emerging and this is undoubtedly an exciting time for journalism of all forms. We should watch this space with keen interest and reanalyse our policy once things really begin go fall into place.

Software
When you buy software, you're not so much buying the software than you are the promise of support that goes along with it. I bought my Mac not only in the knowledge that it was a phenomenal machine running some of the best software in the world, but also that I could ring-up Apple at any time if something went horribly wrong, and that I would be guaranteed swift, high-quality updates for years to come. I paid a lot for both the hardware and software, but it was well worth it for the safety net.

If I could, would I have downloaded it for free? Maybe. But I would be limited in what I could do with it, not only because of whatever DRM measures it could have installed, but also because I could only use it for non-commercial purposes. If I wanted to use the software to help with my job, I'd be breaking the law. If I wanted to start a business with the help of the software, I'd be breaking the law. If I sold something on ebay, I'd be breaking the law. 'Non-commercial' means that they can't use it to make money in any way.

In any case, we are moving steadily towards a 'cloud computing' structure. Perhaps our current concept of software as something you run on your computer will become less clear-cut in the future, and certainly this is already happening for games. You can pirate a copy of World of Warcraft, but who cares, you've got to pay the subscription fee anyway. Halo 3 is only barely a single player game, it was clearly made to be multiplayer, reliant on Xbox Live. Xbox Live Arcade and various other internet software stores, including Steam and the iPhone App Store, are incredibly popular and still growing (although I am concerned that consoles/devices are generally linked to only one store).

The Other Things
I'm going to have to declare my ignorance of composition and photography. However, it seems to me that composers/songwriters and photographers rarely target the consumer market anyway, so perhaps this isn't a major problem.

It is my opinion that non-commercial copyright should remain an unlawful act. What should change (or rather, be more clearly defined) is the punishment for doing so. Something closer to an "on-the-spot fine" of no more than 5 times the product's minimum value if purchased legitimately for infringement would, in my opinion, be appropriate (obviously if something wasn't available legally, 5 x 0 = 0 and no fine could be made). No extra powers would be given to copyright owners to obtain evidence and with no restrictions on technologies that allow drm to be bypassed (and restrictions on drm) - which is included elsewhere in our manifesto - this would make file-sharing unlawful, but effectively as "safe" as it is today (or 10 years ago). The publishing industries would have to focus more on drawing consumers (which pirates are) to their legitimate sources, rather than driving them away from the unlawful ones.

The major flaw with this is that there would be no encouragement to move from free infringing services to non-free non-infringing ones. Nobody would even get fined, because there would be no way of finding out who did what. The distribution industry would still die a long, extended and painful death, but nothing would take its place.

[samgower]

Moved to Copyright and Patents policy forum.