Role of IPRs in Open Innovation – the case against copyright

I gave a presentation at the British Library on 29th November 2011 (#OIBL) – here is a written down version of that presentation.

The key point I made was that Open Innovation benefits greatly from properly functioning Intellectual Property Rights.

My particular focus was on copyright, which I believe is broken up to the point that it currently prevents or hinders Open Innovation, and is becoming an impediment to creativity and innovation.

The first observation is that the copyright system is quite broken. We have established a system of “thought crime” reminiscent of George Orwell’s “1984” in our failed efforts to prevent copyright infringement.

When I reproduce a copyright-protected picture (say, a drawing of Tintin) with the intent to develop my own business, I’m liable to imprisonment of between 3 months and 3 years, and a fine of up to € 100,000. And if I repeat that thought crime, those numbers can double.

So why are we doing this? Why are we locking away the product of our collective innovation and creativity behind the bars of a thought crime system? Why is it illegal to use someone else’s content, depending on the purpose for which you use it?

The answer is actually quite absurd, specifically when applied to 95% of all copyrighted material (which includes my earlier example of a Tintin drawing): the reason is to promote the creativity of authors. Now, Hergé, the creator of Tintin, unfortunately passed away in 1983. So how does threatening me with a jail sentence of up to six years in 2011 promote Hergé’s creativity?

And it gets more absurd after that, because, while it is clear that the copyright infringement criminalization has no moral or logical justification, it also simply does not work.

The music industry provides a good example: its revenues have dropped of a cliff, and there is no prospect of recovery. The same forces are at work for film, video games and e-books.

So, we have a draconian system of thought crime, that is illogical and unjustified, and does not work in practice.

And that is not a good situation, at many levels, including the principle of respect for the rule of law.

But most importantly for this blog, we need a properly functioning copyright system. It would be of great benefit to systems like Open Innovation – any collaborative system greatly benefits from clear rules about who owns what, who can do what, as well as the general acceptance of such rules. That is currently, patently, not the case for copyright.

So, copyright is broke, and needs fixing.

In order to know how we can fix it, we first need to understand why it is broken.

Is it broken because of piracy? I don’t think so. The “pirates” are the messengers, showing by their behavior that copyright is broken. They didn’t break it, they just show us it’s broken.

Moreover, pointing the finger at other people’s “bad behavior” has very little credibility when it comes to analyzing why something doesn’t work. It’s an intellectually lazy attitude, and almost always misses the key points.

“If only other people would change their behavior…” No, it’s just not sufficient as an explanation.

I think the key elements in understanding why copyright is broken, can be found in its origin.

Copyright, as we still know it today, was created by the Berne Convention on the protection of literary and artistic work. The first signed version of that Convention dates from 1886. That’s 125 years ago.

To give an idea, that’s the year in which a Mr. Benz in Germany was granted his first patent on an automobile car, when the Spanish Empire abolished slavery in its Cuban colony, when Coca-Cola first came onto the market, and when the first linotype printing press was invented, paving the way for cheap mass publication of newspapers.

And that far away origin is, in my view, still responsible for the major flaws we see in today’s copyright system. I will highlight what I think are the five most important ones.

First, copyright assumes that innovation and creativity are individual, singular activities. It’s what the lawyers call “a clean room environment” in which innovation takes place. Unaffected by any other information or influence. Except, of course, it doesn’t exist.

No-one works in a vacuum, no-one invents or creates from scratch. The Beatles, among the greatest song-writers of the 20th century, always clearly acknowledged they were “stealing”, as they themselves called it. It wasn’t really stealing of course; it was sharing, and acknowledging the truth.

Certainly in an Open Innovation environment, the concept that the default system are single individuals coming up with these brilliant ideas that need individualized protection, is quite simply inappropriate, and unfit for purpose. We need to recognize the inherent multi-layered and composite character of any innovation or creativity. “Standing on the shoulders of giants”, what we see all around us, should be our guiding principle, rather than the lone (mad?) genius, a figment of our collective imagination.

The second flaw is that copyright focuses on the author, and not on the work itself. It’s one of the reasons why its duration is measured in years after the death of the author, rather by reference to the work itself. That simply does not make sense in today’s world. Moreover, it is one of the key reasons why most of the 20th century’s creative production is locked away behind the bars of what is called “orphan works”. Works we know or suspect are under copyright, but not quite sure for how long, or who could release them. All of this to “promote creativity”, indeed.

The third flaw is that copyright assumes that technology is static and more or less irrelevant. While already challengeable in 1886, when mass media were invented, it is definitely an absurd assumption today.

Without that assumption, Napster would never have had the impact it actually had, and we would not be plagued by the ridiculous situation that, whenever technology changes, content “owners” expect consumers to pay again for something they already purchased. Anyone who still has a collection of vinyl records, or who saw a Blue Ray version of a DVD they already own, knows exactly what I’m talking about.

Not only peer-to-peer networks, but also developments like machine-generated content (e.g. sports articles) or software written by other software, which fall outside copyright, are clearly challenging the static nature of copyright. Technology does affect copyright, and the way it is created. The Berne Convention does not state explicitly that copyright is the result of “human” creativity – but it clearly implies it. At the time, no non-human creativity was envisaged, though.

The fourth and fifth flaws are connected. The Berne convention assumes that copying is expensive and that distribution channels can be controlled. This is clearly no longer the case, as any person working in Digital Rights Management will confirm, and we should abandon these illusionary concepts.

So, what does this all mean? Is there a solution?

The analysis above is not complete, of course, and there are other issues that play.

Moreover, it is unlikely that any solution would be complete, or enable us to have a system that answers to the needs of all involved.

Copyright is at the crossroads of different, sometimes competing and conflicting interests.

As a society, we should try to and choose the option that benefits the most and damages the least, taken as a whole, and without undue consideration of private interests over and above those of society as a whole.

I think there’s one beginning of a solution that would tackle most of the flaws exposed. Moreover, it would also clearly be of benefit to any system of Open Innovation, or any other collaborative activity that involves copyright.

Every solution must be based on the principle that registration becomes a necessary condition for copyright to exist.

Registration is key.

It clearly identifies the work, and the author. It avoids discussions on who owns what. It creates clarity. It allows for unclaimed work to fall in the public domain, where it can be re-used for the benefit of society as a whole.

In today’s world, where we upload all of our virtual personalities into social media, it must be possible to organize a free or very cheap system of registration for any work that claims copyright.

If you don’t register, it means it’s not important enough to attract copyright. But the current system, which automatically confers a worldwide exclusive monopolistic right on anything anyone creates, until 70 years or more after the author’s dead, is clearly passed its sell-by date.

The registration solution addresses each of the flaws mentioned above. Not necessarily comprehensively or completely, but it does provide for a start of a solution to all of them.

Because, if we want IPRs, and copyrights, to support and enable Open Innovation, we should not only ensure that we can trust each other, but also that we can verify who owns what.

“Trust, but verify” – never thought I would quote Ronald Reagan in a blog on IPRs. But I do agree with him on this.

One thought on “Role of IPRs in Open Innovation – the case against copyright

  1. Juha Saarnio says:

    Thank you, once more, for an insightgful and clear presentation.
    You mention that the current copyright regime is illogical as it really does not cater to the stated goal of ensuring the creativity of the creators.
    But it becomes very logical if we think who the real benefactors are. We should clearly and openly analyse what bodies really benefit from the current situation. After the conclusion of that analysis, we might find ourselves more free of the notion of promoting creativity in the authors.
    As long as the copyright itself is a traded commodity that can be hoarded it will be impossible to break the current system — or, at least, we need a critical mass of creators not willing to relinguish their rights to put up a fair fight.
    The rights registration system is a good proposal, but it really needs creators who retain their rights. It also will soon face conflicting claims that will be hard to arbitrate. Maybe we also need to think how to break free of the web of multiple rights in a single item (how many rights in a single DVD?:)
    Wishing you a creative and joyous new year!

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