I’m going to publish a number of blogs on the current copyright system. I believe it is fundamentally broken, and needs a major overhaul. This is part 1: what seems to be the problem?
To say that the current copyright system does not function properly is a massive understatement. Unfortunately, this is true both for the technological side of copyright (software) as for content (music, video, books, etc…).
95% of music is downloaded outside copyright (“illegally”). Film and video are going the same way, and ebooks will follow shortly.
Users don’t care that it’s illegal – they no longer accept the legitimacy of the ancient copyright system.
Software is developed by tools, and more and more automatically, thereby no longer fulfilling the requirements of an author and (human) originality.
And although software does contain elements of personal design, it is essentially a technical process, which is the result of technical designs, transformed into code through a process of intense collaboration, for the purpose of achieving a certain function. It was a bad idea to apply copyright to software in the first place, and the system is running into the ground.
Copyright simply does not address the issues of how we create, use, re-create, make evolve and create derivatives of, interact, distribute and consume content and software today.
This is not surprising: copyright is still governed by the Berne Convention, which, at more than a century of age, does not take into account any of the characteristics of the digital age.
It is based on a number of –sometimes-unwritten– assumptions, most of which are no longer true in the digital age:
- it assumes that authors need protection, rather than works. However, today, protection of works is really what is required
- it assumes that, typically, content is created by one person, rather than many. Today, most creative work is collaborative and derivative.
- it assumes that content and technology are created by individual humans, rather than technology itself (e.g. software and texts written by software). More and more software and content is created automatically, through operation of software. Is that really creativity? And if it is, since the marginal cost is zero, should it be protected several decades after the death of the unknowable author?
- it assumes that copying is laborious and expensive. But the effective cost of copying of copyrightable work is, in pretty much most cases, zero.
- it assumes that distribution channels can be controlled. Napster has shown that that is a figment of the imagination. Distribution channels are so many, that it is impossible to control them.
- it assumes that a licensor and licensee must know each other. The Internet no longer requires this.
- it assumes that the original work is more important for creativity than the derivative works. Today, the opposite is true.
- it does not know the concepts “community”, “commons” or copyleft
- it assumes that content keeps market value until well after the death of the author
Moreover, the Berne Convention currently blocks a tremendous amount of content and creativity. Any works under copyright, but not properly assigned (orphan works) are effectively locked away from our society through the Berne Convention, except for those who are willing to take the risk of copyright infringement.
So, we have a system that is clearly seriously broken.
We can wait until 164 governments throughout the world, each lobbied by different stakeholders and industries, all in different parts of technological development and economic cycles, find common ground for a new copyright system that may, if all goes well, properly address the digital age.
We can look at reports, such as the Hargreaves report or the latest reports of the EU commission. We see that these reports, to the extend they are read, accepted or implemented, make remarkably modest changes, and never challenge the fundamentally wrong assumptions that make the Berne Convention pretty unfit for purpose.
We can continue to tinker around the edges of the current system, based on a 19th century understanding of technology.
Or we can start looking at what a new system really should look like.
I’ll be writing about that soon.