Broad Coalition Of Public And Private Interests Call For Objective Data & Research Concerning Copyright Reform
from the good-to-see dept
One of the key things that has been a major concern to us for many, many years is how much of copyright policy tends to be driven by faith-based claims about what must be best (often this falls into the "more must be better" category), rather than any objective analytical look at actual data and evidence. We were encouraged when the UK's Hargreave's Report did start to look at some objective data when it sought to understand how best to reform copyright in the UK. And we've been hearing encouraging things out of Australia as well. With copyright reform back on the table in the US, and Congress seemingly open to the discussion, having reality-based policy discussions will be more important than ever.That's why it's actually quite encouraging to see a new report from the US National Research Council that has begun the process of calling for more objective data to inform the upcoming copyright reform debate. You can get the full PDF via the National Academies Press for free. They have an embedding widget which we've placed below as well, though it uses Flash, which is a bit annoying. The effort was funded by a broad coalition of organizations with a variety of different views on the issue, so it's not limited to just one particular view. For example, you've got copyright maximalist organizations like the MPAA and the BSA, but also Google and Pam Samuelson, who tend to take a different view on the appropriate level of copyright protection. There is also support from a number of different government and private foundations, including the National Science Foundation, the Alfred P. Sloan Foundation and the Ford Foundation.
The committee who put together this particular work also has a wide range of viewpoints covered, including Mitch Singer from Sony Pictures, former federal judge Marilyn Hall Patel who presided over the case against Napster, Chris Sprigman (law professor who wrote The Knockoff Economy: How Imitation Sparks Innovation and who has been featured prominently on Techdirt in the past) among a number of other big names with various viewpoints.
While the paper itself doesn't have any answers yet, it does highlight the key questions that we should be trying to answer, and indicates the beginnings of some research being done in that direction, with the likelihood of more to follow. I am a little annoyed that they still refer to things like the public's rights to access and use content as "exceptions" to copyright, because that feels unfairly limiting, but overall the direction of the work is quite encouraging. Here's a list of some of the initial questions they note it would be good to answer, if possible, which gives you an idea of the research areas they're interested in supporting and encouraging:
With respect to changing incentives for creators, distributors, and users, research could help determineThe paper itself points to the concerns raised over things like SOPA and ACTA as reason to have a more empirical based approach to copyright reform, which is a good sign (and goes against those who insist that the SOPA protests had no real impact). The report goes into a lot more details, including a number of other important research topics as well.With respect to the enablers of and impediments to voluntary licensing transactions in copyrighted works, research would help determine
- how the expenses involved in creative expression and distribution differ across sectors and the role of copyright in generating revenues to offset those expenses;
- under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity;
- the motivations of various types of users and potential users of creative works, including both infringers and lawful users; the effects of enhanced enforcement remedies on promoting creativity, technological innovation, and freedom of expression; and
- how the costs of distributing creative content are affected by social media and other new technologies.
With respect to the enforcement challenges, research could help determine
- the significance of transaction costs as barriers to utilization of copyrighted works;
- the extent of problems involving orphan works (whose owners cannot be identified), user-generated content, and collaborative and iterative works;
- what are successful arrangements for managing transaction costs;
- the roles of public and private institutions in facilitating licensing;
- the relationship of transaction costs to legal rules such as compulsory licenses; and
- changes in transaction costs with new technological and business developments.
In assessing the balance between copyright protection and the statutory exceptions and limitations to copyright research could help determine
- how much is spent by governments and private parties on copyright enforcement;
- against whom enforcement efforts are targeted and what remedies are sought and granted;
- the results of enforcement efforts in terms of compensation, prevention, education, and deterrence;
- how the effectiveness of enforcement efforts is changing with the expansion of digital networks;
- the costs and benefits of current enforcement methods vis-a-vis those associated with proposed new enforcement methods;
- the relative vulnerability of different business models to infringement; and
- the costs and benefits of fair use exceptions and the Digital Millennium Copyright Act (DMCA) safe harbors.
Eventually, research will help inform decisions about key aspects of copyright policy, including
- the costs and benefits of copyright exceptions and limitations in terms of the economic outputs and welfare effects of those individuals, businesses, educational institutions, and other entities that rely on them;
- how copyright and the various categories of limits and exceptions interact with innovative and/or disruptive technologies and platforms; and
- what adverse effects, if any, exceptions and limitations have on copyright holders and their potential to generate economic outputs and welfare effects.
- the appropriate scope of copyright protection;
- the optimal duration of the copyright term;
- the best arrangements for correcting market imperfections that inhibit voluntary licensing;
- appropriate safe harbors and fair use exceptions to copyright;
- effective enforcement remedies for infringing use and the best arrangements for correcting deficiencies in enforcement mechanisms;
- the advisability of reintroducing a formal registration requirement; and
- the advantages and disadvantages of reshaping the copyright regime with different rules for different media.
One other point that they raise -- which is a key point we've brought up concerning our own Sky is Rising research -- is the need for those who have this data to be much more open about sharing it for the sake of making good overall policy. Since much of the data is considered "proprietary or subject to trade secrecy and privacy protections," the report outlines ways in which the data might be made available "on reasonable terms to qualified investigators." This, alone, would be a huge step forward in looking at many of the key policy questions above. The lack of real data is a huge impediment to being able to create effective policy.
All in all, it's a very good sign that this is underway, as it should really encourage a much more empirically-driven approach to the inevitable upcoming reform process. I hope that the results of future research driven by this particular effort do, in fact, play a role in any future debates on copyright reform. Moving from a faith-based look at copyright to an evidence-based one is a huge step forward, and long overdue.
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Filed Under: copyright, copyright reform, data, evidence
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Paper "doesn't have any answers yet", eh?
http://www.techdirt.com/articles/20130121/14473121743/global-hackathons-prepared-to-carry-f orward-work-aaron-swartz.shtml#c377
Where Mike sez:
Hmm, well, we seem to be staggering along in the real world, meaning people getting income for their work and some protection from piratage, even without the clear and precise perfect solution that academic Mike is holding out for. -- At best, Mike sez he "dunno", a characteristic answer.
At worst, what Mike means by "more exploration and the ability to experiment", can ONLY be in the way of more and more piracy, as it's certain he's not for more legal protections.
Now, I spent an hour or so reading and analyzing Mike's "position". -- He does not support copyright except maybe theoretical. THIS IS KEY (italics added):
http://www.techdirt.com/blog/innovation/articles/20120810/02111919983/entrepreneurs-vcs-tell-whi te-house-to-focus-innovation-rather-than-ip-enforcement.shtml#c986
Mike refuses to acknowledge the moral basis of copyright. He doesn't care who owns a work (by having paid for and created it), he just wants to grift some money from its value.
Clearly IF Mike took the moral view that one's intellectual creations belong solely to one, then the rest follows: he'd believe as I do. But Mike wants file hosts like Megaupload free to operate without regard to pesky moral questions like who paid to make the movies that it distributes, let alone to return any of the income to those producers. I must conclude that Mike favors grifters, then, over producers.
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Re: Paper "doesn't have any answers yet", eh?
Did you not actually read what you quoted from Mike? "more exploration and the ability to experiment"
As in, see what works. See what has the best outcome for everybody, rather than just going "Copyright is moral, everyone who copies is evil, no research required, end of fucking story". Mike here is being an advocate for the scientific method, while you are the advocate for the dogmatic, orthodox faith-based method.
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Re: Paper "doesn't have any answers yet", eh?
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Maybe he should switch to a three tined fork?
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Re: Paper "doesn't have any answers yet", eh?
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Re: Paper "doesn't have any answers yet", eh?
Actually, you've spent months here at techdirt ignoring the articles and plaguing the comments with your idiocy. If you read the articles carefully you'd know by now what are the parts of copyright he supports, what approach he believes to be more appropriate and that he frowns on taking any permanent position without seeing proper data on the table (and it is incredibly hard to get hold of data from the MAFIAA operations).
But your pathological mental disorder has you focusing on out-of-context quotes and imaginary strawmen. A true psychiatric case-study.
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Re: Paper "doesn't have any answers yet", eh?
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Re: Paper "doesn't have any answers yet", eh?
Since when is 'piratage' a word? You mean 'piracy.' PiratAge would make a decent title for a trade magazine, though.
At worst, what Mike means by "more exploration and the ability to experiment", can ONLY be in the way of more and more piracy, as it's certain he's not for more legal protections.
While that's entirely possible -- except that if it's legal, it really isn't piracy -- you didn't quote or cite anything whatsoever to support your claim. I didn't expect better of you, but it's still sad.
Mike refuses to acknowledge the moral basis of copyright
As has been discussed at length before, no such thing. Plus, if copyright were such a compelling idea, you'd be able to argue for it (well, not that you could argue your way out of a wet paper bag) from not only your preferred position of absolute greed, but also from a Lockean perspective, and even a utilitarian one. I view copyright as utilitarian, and I'm perfectly willing to accept stronger copyright than we have now if there is greater utility in doing so. All you have to do is convince me that there is.
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Re: Re: Paper "doesn't have any answers yet", eh?
It's like he knows he's wrong.
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Oh and AJ? Just in case you read this and then were going to respond with "I don't respond to you Rikuo, you're just Mike on a puppet account" - wouldn't that be exactly what you wanted anyway? If I were Mike, and I'm (me = Mike) responding to you and debating with you and answering questions, isn't that precisely what you were asking for?
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Re: Paper "doesn't have any answers yet", eh?
I imagine Mike refuses to acknowledge the existence of Santa Clause and the Easter Bunny too, for much the same reason.
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So far...
"Copyright is the only possible way of generating revenue! We need MORE copyright!"They aren't! See answer aboveinfringers are dirty thieves, DRM is great and content should be against the law without and artists love to struggle so the more enforcement roadblocks we put in their way the more creativity we have.There is no problem if we just assume the megacorp with the "best" claim to whatever it is owns it Assume every use ever attracts a large flat fee then its simpleNone, megacorps should be able to legally require whatever fee they think they can get away with no matter what the circumstancesNot enough by government too much by private partiesFantastic, brilliant, couldn't be better... would be 100% effective if only we had MORE!Yay! Megaupload died! Must be greatThe only viable model is the current oneCosts tons with no benefit, we should remove them all and charge for EVERYTHING
And on and on and on... *sigh*
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Re: So far...
No need to be so cynical early on. The entire point of the project was to look for *empirical* evidence to answer each of those questions. The answers you gave wouldn't qualify.
Seriously, we shouldn't be so jaded that when people are finally looking for actual evidence-based approaches to understanding the issues that we mock them for it. Let's focus on the opportunity to get it right here.
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Remember the Sir Humphrey Rule:
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Lol, you know you're a cynic when that's what you're hoping for!
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When it comes to "balance between copyright protection and the statutory exceptions and limitations to copyright" and on I must say that I am extremely sceptical about the ambiguity of the primary data and how politicians will read them. I think it is inevitable that these interpretations will be very subjective and open to political religions.
With that said, an empirical approach is imo. the only reasonable way to help inform decision-making and I am scared of how limited the scientific method has been in informing decision-makers so far.
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Even creators are users too
The problem, however, is that the expansion of copyright in the pursuit of protecting those costs is itself making creation more expensive. Things that were once legally considered part of the artistic process is now being called infringement. Years ago, the usage of old photos from a flee market as part of another work such as a collage was totally acceptable, and using another's guitar riff or drum beat was considered an homage. But now, the original photographer or musician can claim infringement and demand payment. In using the original investment in the creation of their works to demand a cut from the value that others get every time their work is used, they are only raising the cost of their own future works by having to pay out more for using the works of others.
This only creates more cost for all creators, not only in terms of actual creation, but in licensing fees and lawyer fees to defend themselves from lawsuits. They then demand that copyright must be expanded further to protect their raising cost of doing business, which is itself due to the expansion of copyright.
One of the few remaining pillars of the original copyright is the the distinction between wholesale copying and incidental reuse. This is necessary because the majority of "inspiration" is not created from whole cloth, but from the subconscious reuse of the works of others. However, it's getting to the point when even the creation of "original" works can still cross the line. For instance, musicians who claim someone had "taken" a riff from their songs had likely "taken" the same rhythm from a prior work, even without consciously being aware of it, and they themselves are unwittingly open to an infringement suit. Though successful claims over minute pieces of other works is mostly in music, other such cases in books and movies get usually get tossed out of court, they are expanding into other works such as computer games as well.
Of course, the original framers of the US copyright understood the importance of balancing the need for compensating creators and maintaining a common culture for all creators and users alike. As the printing press had drastically reduced the incidental cost of reproduction, they foresaw the dangers of over burdensome copyright and set to forestall them by making copyright limited in both scope and duration. Beyond the bounds of copyright, creators were free to reuse or be inspired as they wished. Nowadays, computers and the global internet have cut the incidental cost to almost nothing. Without even the need for physical reproduction, many creators can reduce their cost and recoup their initial investment much faster. The reduction of cost has created an expansion in both the creation and reuse of works. However, with the ever increasing number of works covered under an ever expanding copyright and the ability to source pieces back the original works, the line between inspired and copied will only get blurrier and copyright itself is only going to become completely unsustainable. Copyright doesn't reflect this cost reduction at all. Instead, of adjusting to the real cost of creating works, it only continues to be perpetually inflated with legal and licensing fees. At this rate, the copyright system will totally implode under the weight of its own self-imposed restrictions and expense.
How far do we have to let this go before we realize the original framers of copyright were on the right track all along?
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I sense a false sense of security
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It would be like doing a study on "Defensive mechanisms in animals," but every species of every animal but the platypus has been killed off. Then concluding that looking goofy as hell seems to be working pretty great.
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