Copyright Policy Proposals

[WilliamFS]

NOTE:
- This text has been reviewed in light of the results of the copyright duration polls carried out a few weeks ago.
- This is still a preliminary version and may be substantially edited (in aspects of language and presentation) for the final version of the manifesto -- I therefore ask members to focus on policy proposals primarely, rather than form.



Introduction
Copyright was created to benefit society by encouraging creation.
Copyright imposes a limited-term monopoly on works (which is against the public interest), in order to provide an incentive for people to create (which is in the public interest). Copyright is only ever a good bargain for society when the results of it which are in the public interest outweigh the compromises it requires against the public interest. Unfortunately, the bargain seems to have become unbalanced: the term of copyright is far too long, and laws imposing DRM prevent the creation of innovative new business models. The Pirate Party intends to redress the balance. To make cultural expressions and knowledge freer benefits the whole of society. Today’s copyright law is actively counter-productive to these purposes because it limits both the creation of, and access to, cultural expressions.
A patent is an officially sanctioned monopoly on a (supposedly) useful idea. Like copyrights, patents impose a limited-term monopoly on the work (which is against the public interest), in order to provide an incentive for people to create works (which is in the public interest). And like copyrights, the bargain has become unbalanced. Monopolies harm society, as they lead to price-hikes and large hidden costs for citizens. Large corporations diligently race to hold patents they can use against smaller competitors to prevent them from competing on equal terms. Monopolies do not to adjust prices and terms to the market, but rather raise prices and set lopsided terms on usage and licensing. We want to protect the public interest against damaging and unnecessary monopoly situations.


Copyrights and our culture
When copyrights were originally introduced, they regulated the right of a creator to be recognized as the creator and offered a time-limited monopoly with a relatively short duration, which used to be much less than life, after which the work became public domain. From the second half of the twentieth century onwards, and in recent years particularly, these monopolies have been extended. They now apply to a wide variety of works, for ever longer durations, and including more and more restrictions, reducing the public domain and our commonly shared heritage in ever decreasing circles.
Economic and technological developments have pushed copyright law way out of balance so that it gives unfair advantages for a few large market players at the expense of consumers, creators and society at large. Millions of classical songs, movies and books are held hostage in the vaults of huge media corporations, not wanted enough by their focus groups to re-publish but potentially too profitable to release. We want to free our cultural heritage and make them accessible to all, whenever that is possible and as soon as that is possible, before time withers away the celluloid of the old movie reels or other physical materials where this heritage is stored.

Ideas, knowledge and information are by nature non-exclusive and their common value lies in their inherent ability to be shared and spread.

We dispute claims that copyright is a necessary basis for cultural development. We point to the works of composers like Handel and Mendelssohn; to writers like Dickens and Shakespeare; and to the rise of free software as evidence that copyright is not a necessary foundation for artistic and technological advancement in any age.

We are concerned about the abuse of the language, particularly with regard to the word "property". We are suspicious of use of the phrase "intellectual property" to refer to copyright, patents and trademark as these things are legal constructs and not otherwise scarce. We agree with Richard Stallman's take on the phrase, that it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion."
Trademarks are primarily useful as consumer protection device. As such, we support the use of trademarks and do not suggest any changes in relation to them. We also support and do not propose changes to the right of attribution.
What we want to reform are commercial copyrights and patents. The basic notion of copyrights was always to find a fair balance between conflicting commercial interests. Today this balance is lost and needs to be regained. We say that copyrights need to be restored to their origins. Laws must be altered to regulate only commercial use and copying of protected works. To share copies, or otherwise spread or use works for non-profit uses, must never be illegal since such fair use benefits all of society.
We propose a reduction in duration of commercial copyright protection (the monopoly to create copies of a work for commercial purposes) to five years initially, with an option to register one extension for a further five years, resulting in a maximum of ten years counted from the publication of the work.

We want to create a fair and balanced copyright.

All non-commercial gathering, use, processing and distribution of culture shall be explicitly permitted, including format-shifting, time-shifting, and the making of backups.
Technologies limiting people's legal rights to copy and use information or culture, digital restrictions (DRM), if used, should display clear warnings to inform purchasers of this fact. Technologies which allow digital restrictions to be circumvented will equally be permitted.
Contractual agreements such as End User Licence Agreements (EULAs) implemented to prevent such legal distribution of information shall be declared null and void. Non-commercial distribution of published culture, information or knowledge – with the clear exception of personal data – must not be limited or punished. As a logical conclusion of this, we oppose blank media taxes.

We want to create a cultural commons.


Computer Software
Reducing copyright duration means that computer software will also begin to leave copyright, which is new in our experience since software has only recently begun to be created, and with present copyright durations would never become freely available while still being useful.

Effect on the General Public License
This will however place open source free software at a disadvantage to proprietary software, as once copyright has expired, the source code may be taken and incorporated into proprietary programs. However, it will not be possible to incorporate programs released without source code into free software, even when copyright has expired.

Limitation of EULAs
We will limit the effective duration of End User License Agreements for software, insofar as they are valid under existing legislation, to the period of copyright. After this point they will automatically become null and void.

Provision of source code
We will encourage distributors of programs to release source code, so that the program becomes entirely free to use or modify once their copyright expires. All software programs released with source code will automatically receive the full ten years of commercial copyright protection; programs released only as closed binaries, without source code, will receive a maximum of five years commercial protection, without the possibility of extension.

In this way, open software released with source code will be protected from being incorporated in closed work, without reciprocal provision of source code, for ten years; and proprietary vendors may equally benefit from the same period of commercial monopoly protection by choosing to release source code, or may forgo the additional five years if they choose to keep the source code secret.

Patents and private monopolies harm society
Patents have many damaging effects. Pharmaceutical patents are responsible for human deaths from diseases for which medication could have been afforded, research priorities are skewed, and patents cause unnecessarily high and rising cost of medicines in richer parts of the world.
Patents on life and genes, like patented crops, lead to unreasonable and harmful consequences. Software patents retard technological development and constitute a serious threat against small- and medium-sized businesses in the information technology sector.
Patents are said to encourage innovation by protecting inventors and investors in new inventions and manufacturing methods. In reality, patents are increasingly used by large corporations to hinder smaller companies from competing on equal terms. Instead of encouraging innovation, patents are being used as "mine fields" when waging war against others, often patents the owner has no plans on developing further themselves.
We believe patents can actively stifle innovation and the creation of new knowledge. Looking at all business areas that are not patentable it is clear that patents are frequently simply not needed - the market forces derived from being first-to-market are quite sufficient for fostering innovation. Corporations can compete fairly with natural advantages like innovative designs, customer benefits, pricing and quality, instead of with a state-awarded monopoly on knowledge, and not having to pay small armies of patent lawyers will free resources that can be used for creating real innovation and improve products at a faster rate, benefiting us all in the end.

We want to review patents, and gradually abolish most patents except where limited protection in exchange for disclosure of physical inventions or apparatus can be justified to support inventors.

Apart from abusing patents, large corporations attempt to create monopolies by other means. By keeping information on things like file formats and interfaces secret, they try to create vendor lock-in, thereby limiting competition with a blatant disregard for the value of a free and fair market. This practice leads directly to higher prices and a lower rate of innovation.

Private monopolies are generally harmful, therefore will be regulated and as limited as is possible and practical.

Public sector provision of information
Whenever the publicly funded sector produces information directly, that information must be made available in an open file format, under licensing which allows our citizens to use it without payment. For example, output produced by the BBC, and also Ordnance Survey maps fall within this requirement. All publicly funded academic research must be made available in Open Access journals.

Information procured at public expense should be available to all citizens.

Whenever the publicly funded sector procures information systems, open source software available free of cost will be the preferred licensing model, which procurement officers will be authorised to use without further ado. If proprietary software is required then authorisation and justification for why no existing open source program is suitable must be specified before the costs and restrictions of proprietary software are accepted.

Costs and restrictions of closed proprietary software and technology, for public use and benefit, will be restricted to the minimum necessary for the purpose required.

--

[AndrewTindall]

In regards to that last part about public provision - could we suggest that if any bespoke software is to be developed for public sector use, it must be released Open Source / Under GPL? This would address issues like the recent case of Royal Mail sending C&Ds to the company that developed a Postcode Search API without paying for a licence, despite society having already paid once for it via tax, which had a knock-on affect on other services such as JobCentrePlus.

[M2Ys4U]

In regards to that last part about public provision - could we suggest that if any bespoke software is to be developed for public sector use, it must be released Open Source / Under GPL? This would address issues like the recent case of Royal Mail sending C&Ds to the company that developed a Postcode Search API without paying for a licence, despite society having already paid once for it via tax, which had a knock-on affect on other services such as JobCentrePlus.

The GPL is not often the best license to use. Specifying "any OSI-approved license" should be, IMHO, the best way forward.

[AndrewTindall]

True. But you get what I was getting at.

[Andy_R]

I think it may be very useful to try and boil the long text above down to just its proposals. As I understand it, the concrete proposals from the working group are (in essence):

1) Copyright to apply to commercial exploitation only.

2) Copyright duration to be reduced to 5 years for closed source software.

3) Copyright duration to be reduced to 10 years for open source software.

4) All other copyrights durations to be reduced to 5 years with an optional 5 year renewal.

5) A 'government health waring' on products containing DRM technology.

6) Voiding of EULAs that attempt to get round the above points.

7) No blank media taxes.

8) Abolition of 'most' patents.

9) Information procured at public expense should be available to all citizens.

10) Government to switch to open source software 'where practical'.

[AndrewTindall]

Ah. number 9 could be interpreted in such a way as to breach privacy, as tax information, terror suspect info, etc. would technically be "procured at public expense" and thus have to be made public. Although it would be nonsensical to conclude this was intended, ambiguity should be as far removed as reasonably possible.

[Monk]

I would also like to add abolition of all patents. Mainly I'm interested in saving people's lives in the world of medicine, and ending software bizarreness where someone holds a patent on the instruction code I can run on my computer at home.

[Duke]

Ah. number 9 could be interpreted in such a way as to breach privacy, as tax information, terror suspect info, etc. would technically be "procured at public expense" and thus have to be made public. Although it would be nonsensical to conclude this was intended, ambiguity should be as far removed as reasonably possible.

I guess it comes down to how easy it is to remove the ambiguity; obviously it could specify "apart from information covered by the Data Protection Act or sensitive for commercial, military or security reasons" - but then this would still be open to interpretation; these days it seems possible to restrict almost anything for "reasons of national security".

As for issues with the patent system; that is covered in more detail in the full manifesto - "Abolition of 'most' patents" is probably enough for the summary.

On the subject of EULAs, isn't there some concern already about their legality? With suggestions of whether it is legal to force such an agreement on a product after the product has been purchased - or even the existence of programs that bypass the little "I agree" button thus allowing software to be installed without agreeing to the EULA.

[JohnB]

What we want to reform are commercial copyrights and patents. The basic notion of copyrights was always to find a fair balance between conflicting commercial interests. Today this balance is lost and needs to be regained. We say that copyrights need to be restored to their origins.

I have a bit of a doubt here, with the statement about what is being balanced. In all the drafts discussed so far, the idea of restoring the balance is mentioned a few times, and expressed in different ways, here it is being stated as being entirely about balancing conflicting commercial interests, but in the rest of the document it talks about commercial monopoly as an incentive to encourage creation:

Copyright was created to benefit society by encouraging creation. Copyright imposes a limited-term monopoly on works (which is against the public interest), in order to provide an incentive for people to create (which is in the public interest).

very much in the spirit of the Statute of Anne (the Encouragement of Learning Act!) and of the US constitutional provision for copyright:

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.

in other words that the commercial monopoly is the mechanism by which we encourage creation, and it isn't right to describe the basis of copyright as "balancing conflicting commercial interests", rather it's a balance between encouraging creativity by allowing a commercial incentive, and stifling it by allowing a too excessive monopoly.

The "short form" intro/summary on the working group draft (originally lifted from the Swedish policy" puts it very much better:

The official aim of the copyright system has always been to find a balance in order to promote culture being created and spread.

So I would be very much happier with that, than saying "... always to find a fair balance between conflicting commercial interests." which is really saying something significantly different, and loses the connection to the overall benefit from encouraging creativity.

[JohnB]

Ah. number 9 could be interpreted in such a way as to breach privacy, as tax information, terror suspect info, etc. would technically be "procured at public expense" and thus have to be made public. Although it would be nonsensical to conclude this was intended, ambiguity should be as far removed as reasonably possible.

I guess it comes down to how easy it is to remove the ambiguity; obviously it could specify "apart from information covered by the Data Protection Act or sensitive for commercial, military or security reasons" - but then this would still be open to interpretation; these days it seems possible to restrict almost anything for "reasons of national security".

The intent seems clear, that we mean information which is in some way being published/made available, but which is being restricted from free access (e.g. licensing fees, or other restrictions) from free use by our citizens, who have in fact already paid for it and should be free to make use of it, and I myself would even say not only non-commercially but in any way our citizens desire, including using it commercially in their business endeavours. Things like the post code database, ordnance survey map data, BBC output, publicly funded university research etc. Note that also doesn't necessarily preclude the idea of licensing/charging foreign businesses/individuals, who haven't directly paid already for it. Although presumably if we're true to our other principles we wouldn't care about individual non-commercial use wherever they live/whatever citizenship they have, only about foreign commercial use.

That seems not hard to remove the ambiguity, though, surely all we need to do is be clear that we are referring to anything currently being released/made available as Crown Copyright (or normal copyright), and which was procured at public expense, belongs to all of us and that our citizens may not be restricted from making use of it. As with trademarks, AFAIK we are equally not proposing any changes to e.g. the Data Protection Act, the Obscene Publications Act, perhaps not even the Official Secrets Act (or if we are, not because of copyright issues, but freedom issues)?

EDIT: Relevant to this, Guardian campaign free our data and also Ordnance Survey, and South Africa's free data model?

[VJ]

I think it may be very useful to try and boil the long text above down to just its proposals. As I understand it, the concrete proposals from the working group are (in essence):

2) Copyright duration to be reduced to 5 years for closed source software.

3) Copyright duration to be reduced to 10 years for open source software.

There was a lot of opposition to treating FOSS in a special way here on the forums. I agree with all the policy proposals except these two. Can someone explain why FOSS should get separate, special, treatment? After all if I write a book and release it under a cc-by-sa licence I don't get this special extension despite contributing to free culture.

Indeed why are we treating software differently to other copyright at all?

[AndrewTindall]

I think it may be very useful to try and boil the long text above down to just its proposals. As I understand it, the concrete proposals from the working group are (in essence):

2) Copyright duration to be reduced to 5 years for closed source software.

3) Copyright duration to be reduced to 10 years for open source software.

There was a lot of opposition to treating FOSS in a special way here on the forums. I agree with all the policy proposals except these two. Can someone explain why FOSS should get separate, special, treatment? After all if I write a book and release it under a cc-by-sa licence I don't get this special extension despite contributing to free culture.

Indeed why are we treating software differently to other copyright at all?

I believe it to be related to the fact that many open source licences rely on copyright of at least 10 years to be workable, which is higher than we, and most pirate parties, are proposing as a baseline.

[VJ]

I think it may be very useful to try and boil the long text above down to just its proposals. As I understand it, the concrete proposals from the working group are (in essence):

2) Copyright duration to be reduced to 5 years for closed source software.

3) Copyright duration to be reduced to 10 years for open source software.

There was a lot of opposition to treating FOSS in a special way here on the forums. I agree with all the policy proposals except these two. Can someone explain why FOSS should get separate, special, treatment? After all if I write a book and release it under a cc-by-sa licence I don't get this special extension despite contributing to free culture.

Indeed why are we treating software differently to other copyright at all?

I believe it to be related to the fact that many open source licences rely on copyright of at least 10 years to be workable, which is higher than we, and most pirate parties, are proposing as a baseline.

That explains the 10yr term for FOSS (effectively giving them their 5 yr extension for free) but why only 5 years for closed source software when every other medium gets 5+5?

[JohnB]

let me perhaps add a couple of points to this, as clarification...
(some snips made for brevity, hope I didn't screw up the quoting too badly!)

There was a lot of opposition to treating FOSS in a special way here on the forums. I agree with all the policy proposals except these two. Can someone explain why FOSS should get separate, special, treatment? After all if I write a book and release it under a cc-by-sa licence I don't get this special extension despite contributing to free culture.

(1) To be very clear here:
FOSS is not getting separate, special treatment,it was recognised both within the policy working group and also as you point out within the membership that it was important to avoid that, and the proposal here is written with that intention.

The special treatment is for software released with source code, whatever licensing is used. Therefore, software may be released under proprietary licensing, and still benefit from 10 year protection, gaining the longer legal protection and legal monopoly in exchange for the gift to society that it will become free software when copyright expires. Existing open source licenses of course qualify automatically, because they already grant that (and maybe additional freedoms even during the period of copyright), the policy proposal is intended to encourage (but not force) any distributor to consider making their source code available, whatever license they use, in exchange for a limited additional protection. Carrot rather than stick, and very much in line with the whole ethos/reasoning for giving any kind of copyright monopoly.

(2) Why is software different?
Because when binary software is released, it is being released, but in a way it's also not being released, or only partially so, if source code is not provided. It is not the same as a book, music, or any other kind of work, and that presents a serious problem once the copyright expires, because the freedoms that would be available with any other kind of work (to reuse, redevelop, rework, etc) are not fully available without source code.

That's different to what is with a book, music, even a film, a screenplay, really nearly anything else, where what's released is in some sense "transparent", and has to be, for you to use it all. With software you can use it without being able to "read" it, with anything else what is distributed has to be visible to the recipient in some way (and anything not visible goes beyond what was released), with software the binary does include the entire program in one sense, but at the same time only partially, except if source code is provided.

Indeed why are we treating software differently to other copyright at all?

I believe it to be related to the fact that many open source licences rely on copyright of at least 10 years to be workable, which is higher than we, and most pirate parties, are proposing as a baseline.

That explains the 10yr term for FOSS (effectively giving them their 5 yr extension for free) but why only 5 years for closed source software when every other medium gets 5+5?

There are two reasons I would point out as justification for that:
(1) As indicated, refusing source code is a distinctly unfriendly action to our society, and keeping software closed is one way of implementing technical measures that can be used to avoid the reforms we propose to copyright for everything else (programs can be coded to still require license codes, to have time-bombs, etc, if they are closed) and just being free to reverse-engineer/break that is only a partial answer. So should we reward that at all?

It was also suggested to not grant copyright protection at all except if source code was provided, and expect vendors to rely on such technical measures (and not legal ones) if they choose to go down that "trade secret" type of route; allowing one period of just 5 years is less severe than that, and allows a limited protection, but takes away the possibility of extension, given that the distributor is doing something distinctly hostile to the public benefit that would otherwise result when the copyright expires.

(2) The other reason I can see is that if 10 years was possible for closed programs... Then FOSS (or any software released with source code, but especially FOSS) would be at a disadvantage, which is where the whole question started, unless we gave a longer period than 10 years if source code was released, or did something else. But then we either go back to looking at source code escrow, which didn't get support in the member polls, and has possible practical problems that came up in the discussions, or we're talking about giving longer copyright protection than 10 years, again from the member polls there doesn't seem to be much appetite for longer durations, and we're talking software here, which is something that changes phenomenally quickly... so do we really want to give any more than 10 years to any kind of software?

So in some ways, while I can see criticisms of the present proposal, at the same time in a way it seems to me the "least worst" option of those that have been proposed, at least till now every time I think about any of the alternatives that have come up I can see impacts and consequences that are worse. Anyway I hope the above helps answer how we got to this point, whatever direction we end up taking it forward in.

[VJ]

Thanks for the clarification john, I'm not 100% convinced (though more so than I was), so I'm going to play devil's advocate and pose some more questions. Not all reflect my opinion, but it's important to have answers for when we get asked these.

let me perhaps add a couple of points to this, as clarification...
(some snips made for brevity, hope I didn't screw up the quoting too badly!)

There was a lot of opposition to treating FOSS in a special way here on the forums. I agree with all the policy proposals except these two. Can someone explain why FOSS should get separate, special, treatment? After all if I write a book and release it under a cc-by-sa licence I don't get this special extension despite contributing to free culture.

(1) To be very clear here:
FOSS is not getting separate, special treatment,...The special treatment is for software released with source code,

So we're treating OSS in a special way then. Even if we understand the differences between FOSS and OSS, to the general public this is a distinction without a difference. Especially if non-commercial copyright infringement is being legalized. This policy is effectively saying to commercial operators give your source to your FOSS competitors! i.e. What would stop the non-commercial Open office from using MS Office code once non-commercial infringement is legalized?

(2) Why is software different?
Because when binary software is released, it is being released, but in a way it's also not being released, or only partially so, if source code is not provided. It is not the same as a book, music, or any other kind of work, and that presents a serious problem once the copyright expires, because the freedoms that would be available with any other kind of work (to reuse, redevelop, rework, etc) are not fully available without source code.

We have de-compilers for this very reason. It might be harder, but the people who actually want the source will be able to read it.

Indeed why are we treating software differently to other copyright at all?

I believe it to be related to the fact that many open source licences rely on copyright of at least 10 years to be workable, which is higher than we, and most pirate parties, are proposing as a baseline.

That explains the 10yr term for FOSS (effectively giving them their 5 yr extension for free) but why only 5 years for closed source software when every other medium gets 5+5?

There are two reasons I would point out as justification for that:
[snip]

(2) The other reason I can see is that if 10 years was possible for closed programs... Then FOSS (or any software released with source code, but especially FOSS) would be at a disadvantage

So are we are giving FOSS special treatment then?

... so do we really want to give any more than 10 years to any kind of software?

5+5 (like everything else) isn't more than 10.

[JohnB]

Thanks for the clarification john, I'm not 100% convinced (though more so than I was), so I'm going to play devil's advocate and pose some more questions. Not all reflect my opinion, but it's important to have answers for when we get asked these.

Well, I hope it helped, if only to explain the route we've been through to arrive at this proposal. Which is by no means set in stone, given that the escrow proposal was effectively shot down, the present proposal is an attempt as much as anything to make a specific proposal for the main (only?) other option so far suggested, to offer a longer protection for providing source, which would therefore become free to use on copyright expiration, and to try to fit it sensibly into what we're proposing in the wider policy. I'm conscious that "Discuss more" and "offer longer protection for source code" were roughly similar in the poll, so we need to continue that discussion.

There was a lot of opposition to treating FOSS in a special way here on the forums. I agree with all the policy proposals except these two. Can someone explain why FOSS should get separate, special, treatment? After all if I write a book and release it under a cc-by-sa licence I don't get this special extension despite contributing to free culture.

So we're treating OSS in a special way then. Even if we understand the differences between FOSS and OSS, to the general public this is a distinction without a difference. Especially if non-commercial copyright infringement is being legalized. This policy is effectively saying to commercial operators give your source to your FOSS competitors! i.e. What would stop the non-commercial Open office from using MS Office code once non-commercial infringement is legalized?

Ok... two things, here. Firstly, a general point to keep in mind when we're discussing what will or won't be infringement... Non-commercial sharing by private individuals, not for profit, will not be infringement. So it won't be infringement any more, but fair use. Ok, so I'm being pedantic, but the use of language makes a real difference to how we present the case, we are not legalising infringement, we are declaring non-commercial individual use to be fair use (because we believe it is).

What would stop FOSS competitors immediately using such code, if released with the binary? Exactly the same thing that stops use of any other material that is distributed (e.g. a book), the legal monopoly right, not the availability. If we look at the main two FOSS licenses, the GPL and the BSD, no-one could incorporate still in-copyright code from a vendor (e.g. from MS-Office, given source code), because both of those do not permit restriction to non-commercial only, and doubtless more restrictive licenses would be incompatible in a number of ways.

Also, an organisation such as Sun, or Canonical, could not release such a thing without a license (irrespective of combining it with incompatible FOSS licenses), as these are commercial organisations; and "commercial" perhaps implies rather more than you might think, even not-for-profit organisations and even charities are still commercially run, and commercially organised... Exactly what we do or don't expect to cover under that rubric, non-commercial, is a good question, and one which I'd suggest should spin off into a separate thread if we want to discuss that.

Therefore, binary+source released under more restrictive licensing would still benefit from 10-year commercial copyright, and would not be handed to FOSS competitors, it would only become freely available and reusable (e.g. in FOSS) 10 years after release. Exactly the same, and the quid-pro-quo given to FOSS, as the expiry of copyright (copyleft) would let FOSS code become reusable by commercial vendors, with or without source code release.

That consequence is the reason for granting longer protection to releases with source, and shorter to that without source, because if it is the same then FOSS code is severely disadvantaged, it can be taken commercial/closed, but closed source remains closed. So... if you take something closed (which could now incorporate FOSS code you didn't develop) you get a shorter protection, unless you "play nice" and also release source code, in which case you get the same extra protection, and your work can't be incorporated in "pure" FOSS or commercially exploited until that expires. There is the benefit, however, that it is available for scrutiny and private/non-commercial use, so anything nasty like time-bombs etc gets a whole lot more difficult.

The intention is to play absolutely fair between the open and closed worlds, and to encourage the provision of source so that code and innovation can be exchanged between those worlds, on the expiry of copyright, where today's strong copyright (and therefore strong copyleft) prevents that entirely.

(2) Why is software different?
Because when binary software is released, it is being released, but in a way it's also not being released, or only partially so, if source code is not provided. It is not the same as a book, music, or any other kind of work, and that presents a serious problem once the copyright expires, because the freedoms that would be available with any other kind of work (to reuse, redevelop, rework, etc) are not fully available without source code.

We have de-compilers for this very reason. It might be harder, but the people who actually want the source will be able to read it.

It's not the same as having source code; even obfuscated source code. Compiling from higher-level language to lower-level language is a one-way process, and while the resulting code operates, it has suffered information loss. There's a real issue here, and being able to disassemble/decompile (which we will allow, irrespective) is not a complete answer.

Indeed why are we treating software differently to other copyright at all?
(2) The other reason I can see is that if 10 years was possible for closed programs... Then FOSS (or any software released with source code, but especially FOSS) would be at a disadvantage

So are we are giving FOSS special treatment then?

... so do we really want to give any more than 10 years to any kind of software?

5+5 (like everything else) isn't more than 10.

No, we're not giving FOSS special treatment. Goes back to the point above; if it's the same for open and for closed software, (e.g. 5+5. 10, whatever/doesn't matter), then at expiry the FOSS can be immediately incorporated in closed programs, without reciprocal provision, but closed programs cannot be used by FOSS even when copyright expires, not without difficult decompilation and reverse-engineering, and perhaps not practical at all.

So allowing a longer period of control by the author (whether the terms are like the GPL, or like proprietary licensing) is proposed in exchange for providing source code which will eventually become freely reusable (again by either), whereas taking greater control by fiat, by not releasing source, conversely doesn't deserve the same level of legal protection. Hence, if closed software can have up to 10 years... there's an implication that we might have to give even longer to source code releases, out of step with everything else, or go back to the escrow proposal, or something(?).

Hope that helps; it's all quite fiddly to think through, and as you also rightly point out, not that relevant to the "mass market" arguments about e.g. music, books, films, etc. Still, important, however, because if we get it wrong then we have both the proprietary world and the free software world out to get us. Doubtless the proprietary world will hate our policies totally anyway because a vendor like Microsoft wants perpetual copyright so they don't have to compete with older versions of their own software (e.g. MS-Office 97 which would be freely reusable now, as would Windows 2000, and you can do the math for what else).

But we can be ready to answer those questions (Did we really need Office 2008, or Windows Vista/7, or would copyright expiration have driven Microsoft to find more innovative ways to spend those resources?), and we have the opportunity to keep the free software community on-side with pirate politics if we do it right, as they are naturally inclined to a similar viewpoint to us.

[VJ]

I'm not going to carry out debating point by point because it's starting to become unproductive, however there is one point I'd like to pick up because I just happened to think of it today.

it's all quite fiddly to think through, and as you also rightly point out, not that relevant to the "mass market" arguments about e.g. music, books, films, etc.

The problem here is computer games; very mass market so Software copyright will have to be easily explainable weather we like it or not. If the purpose of software is to "promote the useful arts" IMO shorter software copyrights (in relation to others) will have a detrimental effect on games. Companies won't release the source, they'll go back to releasing games on cartridges. Worse, the games they'll release will be crippled and IMO everyone will move to an EA sports model of releasing the same game every year, with only a couple of changes.

Example:
I bought Mario cart for my DS(phat) near it's release (2005), Nintendo are still selling the same game over 5 years on for the DSi(yes, I bought it). Had the above regime been in place the IMO (this is what I'd do if I was Nintendo and only had a 5yr term) the original game would have had fewer tracks and I'd have released Mario cart 2, Mario cart 3 etc. all exactly the same but different tracks. This would hurt the consumer as prices would remain the same so I'd have had to buy multiple games for the same content, no one would really benefit as all maro characters are trademarked, so my cheap knock-off would look like a cheap knock-off. Also I have no way of getting a cartridge other than by asking Nintendo. A 5+5 term gives Nintendo time to release a new platform, and make people buy the fully featured game + bonus retro tracks for the DS++ that finally stopped supporting original DS carts.

[scuzzmonkey]

I'm not going to carry out debating point by point because it's starting to become unproductive, however there is one point I'd like to pick up because I just happened to think of it today.

it's all quite fiddly to think through, and as you also rightly point out, not that relevant to the "mass market" arguments about e.g. music, books, films, etc.

The problem here is computer games; very mass market so Software copyright will have to be easily explainable weather we like it or not. If the purpose of software is to "promote the useful arts" IMO shorter software copyrights (in relation to others) will have a detrimental effect on games. Companies won't release the source, they'll go back to releasing games on cartridges. Worse, the games they'll release will be crippled and IMO everyone will move to an EA sports model of releasing the same game every year, with only a couple of changes.

Example:
I bought Mario cart for my DS(phat) near it's release (2005), Nintendo are still selling the same game over 5 years on for the DSi(yes, I bought it). Had the above regime been in place the IMO (this is what I'd do if I was Nintendo and only had a 5yr term) the original game would have had fewer tracks and I'd have released Mario cart 2, Mario cart 3 etc. all exactly the same but different tracks. This would hurt the consumer as prices would remain the same so I'd have had to buy multiple games for the same content, no one would really benefit as all maro characters are trademarked, so my cheap knock-off would look like a cheap knock-off. Also I have no way of getting a cartridge other than by asking Nintendo. A 5+5 term gives Nintendo time to release a new platform, and make people buy the fully featured game + bonus retro tracks for the DS++ that finally stopped supporting original DS carts.

exactly what I was thinking - but in the realm of MMO's rather than just general games.

Using WoW as an example - that was released (just) over 5 years ago, and with this suggestion the game would be destroyed due to Blizzard not being able to charge fees to access their servers => not hosting them => the game dying.

Honestly, I believe 5 years is far too short for pretty much everything, and really isn't going to win us much (if any) support from the creative industries that have products planned to be used over extended periods of time.

10 makes vastly more sense - especially in the realms of computers due to Moore's Law etc.

[martinbudden]

I think the copyright reform proposals omit to address 5 important areas:

1) Fair use
2) How DRM can constrain fair use
3) Automatic copyright
4) Orphan works
5) Database right

I'll address these in turn:

1) Fair use. Many counties allow "fair use" of copyrighted material. That is there is a statutory right to copy material under copyright for certain recognised purposes. For example under US law:

"the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

Under UK law there is no fair use right. Under UK law there is a much more restricted "fair dealing" right.

I think any reform of UK copyright should legally enshrine fair use. As well as uses quoted above, fair use should include the indexing of copyright material for searching.

2) The Pirate Party's proposals for DRM are fairly weak, namely "digital restrictions (DRM), if used, should display clear warnings to inform purchasers of this fact. Technologies which allow digital restrictions to be circumvented will equally be permitted."

These proposals fail to recognise that DRM can constrain fair use. To give an example: under fair use a teacher could photocopy a poem from a book and distribute to their class. Consider the same poem in an electronic book with DRM - in principle the teacher has a fair use right to copy that poem and distribute it to their class, but if the book's DRM prevents copying then that fair use right has effectively been removed. It is not sufficient to say the the book should have DRM warnings and that circumvention technology should be legal. There is a further requirement that DRM technologies should not be allowed to interfere with fair use rights.

3) Currently under UK law an individual's work is automatically copyright as soon as it is manifest in some physical form (including electronic form). The author does not have to specify it is copyright - it is copyright by default. If the author wishes to place the work in the public domain, then they must explicitly do so (for example by using a creative commons license).

The situation should be reversed. Namely a work should by default be in the public domain and should only be copyright if the author explicitly makes it copyright.

4) The important topic of orphan works is not addressed by the Pirate Party manifesto. Although the problem of orphan works is reduced by a shorter copyright term, it is not eliminated. I've written about orphan works on my blog, see:

http://martinbudden.wordpress.com/2009/09/09/digital-britain-report-and-orphan-works/

In summary: provided a user makes a documented, good faith, diligent but unsuccessful search for the copyright holder of an orphan work, the user is free to use the work. (Of course the terms ‘diligent’ etc need to be defined, but that is a matter of legal detail.) The user is indemnified against prosecution. If the copyright holder resurfaces then they are entitled to a reasonable compensation for use of their work (again the precise legal meaning of ’reasonable compensation’ needs to be defined).

5) Database rights. In European law there is a "database right" - that is there are specific laws on the copying and distribution of information in computer databases over and above the copyright restrictions of the information in a database. For example there are restrictions on copying a database even if the database contains no information that is in itself copyright. Two important examples in the UK are the phone book and the postcode database.

Database rights restrict both the commercial and non-commercial use of non-copyright material. There are no database rights in the US. Database rights should be abolished.

In summary:

1) Fair use should be legally enshrined.
2) DRM should not be allowed to restrict fair use.
3) Works should be by default in the public domain and should only be copyright if the author explicitly asserts copyright.
4) Orphan works should be available for use after a diligent but unsuccessful search for the copyright holder. The copyright holder retains a right to reasonable compensation if they resurface.
5) Database rights should be abolished.

[PeterBrett]

3) Currently under UK law an individual's work is automatically copyright as soon as it is manifest in some physical form (including electronic form). The author does not have to specify it is copyright - it is copyright by default. If the author wishes to place the work in the public domain, then they must explicitly do so (for example by using a creative commons license).

The situation should be reversed. Namely a work should by default be in the public domain and should only be copyright if the author explicitly makes it copyright.

Can you please explain the justification for this? Why is this change needed if non-commercial copying is always permitted?

I don't see how automatic copyright is incompatible with PPUK policies -- indeed, automatic copyright supports exactly the sort of small-scale/independent creative work that we wish to promote, surely?