Broad Coalition Of Public And Private Interests Call For Objective Data & Research Concerning Copyright Reform

from the good-to-see dept

Mon, May 6th 2013 9:59am — Mike Masnick

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 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 enablers of and impediments to voluntary licensing transactions in copyrighted works, research would 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.
With respect to the enforcement challenges, 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.
In assessing the balance between copyright protection and the statutory exceptions and limitations to copyright research could help determine

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.
Eventually, research will help inform decisions about key aspects of copyright policy, including

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.

The 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.

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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Ninja (profile), 6 May 2013 @ 9:15am

Oh, the public is being allowed in? The cynical in me says it's just for show. When things come to fruition we'll see more of the same and more of the MAFIAA dictating the rules. And eternal copyright terms in homeopathic doses.
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Zakida Paul (profile), 6 May 2013 @ 10:12am

Re:
Or it will be largely ignored like the Hargreaves report. It's one thing to have a consultation but another entirely to actually implement what it recommends.
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out_of_the_blue, 6 May 2013 @ 10:35am

Paper "doesn't have any answers yet", eh?
WELL, let's see what the Masnick has for a position on copyright! -- All I have to do is copy/paste from my previous writings, chop out a little to focus. -- Here goes:

http://www.techdirt.com/articles/20130121/14473121743/global-hackathons-prepared-to-carry-f orward-work-aaron-swartz.shtml#c377
Where Mike sez:
I think that the current system is broken and does not promote the progress, as it should do. I think that I don't know what the *proper* solution is, and I don't think anyone does, because we simply don't have enough data or experience to know. We know what doesn't work, but we don't know what might work better. That's why I've always encouraged more exploration and the ability to experiment.

This will upset you, of course, because it's not a hard and fast position of "copyright must be x."

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 Masnick (profile), Aug 11th, 2012 @ 12:45am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

>>> I will answer all of your questions to the absolute best of my abilities, but please first answer mine: Why is piracy not OK? Simple, direct question deserves a simple, direct answer. Thanks.

It's not okay because I don't think it's okay. You're asking a moral question. There is no answer to a moral question other than "that's what I believe." I don't think it's right to ignore the wishes of a content creator.

But that, of course, is entirely separate from what that content creator can do to deal with the fact that many (perhaps most) others have a different moral view on the issue.

Arguing over morals is a waste of time, because it doesn't move the discussion forward.

That's why I don't focus on moral questions, but practical questions. You, apparently, prefer not to do that sort of thing. It makes for silly grandstanding, but nothing useful.

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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Rikuo (profile), 6 May 2013 @ 10:47am

Re: Paper "doesn't have any answers yet", eh?
Once again, for the umpteenth time, there is no such thing as Absolute Morality. You view it as moral for a person to be able to control all uses of a piece of content. I view it as grossly immoral. Why is your view automatically the "correct" morality? Why not mine?
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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Not an Electronic Rodent (profile), 6 May 2013 @ 10:50am

So far...
Yeah, that all sounds great but there's a long way to go and plenty of opportunity for the **AA et al to bri... uh... "contribute" to the study. Thus, I suspect some of the eventual answers will look like this:

�how the expenses involved in creative expression and distribution differ across sectors and the role of copyright in generating revenues to offset those expenses;
"Copyright is the only possible way of generating revenue! We need MORE copyright!"
�
�under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity;
They aren't! See answer above

�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;
infringers 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.

�the extent of problems involving orphan works (whose owners cannot be identified), user-generated content, and collaborative and iterative works;
There is no problem if we just assume the megacorp with the "best" claim to whatever it is owns it

�what are successful arrangements for managing transaction costs;
Assume every use ever attracts a large flat fee then its simple

�changes in transaction costs with new technological and business developments.
None, megacorps should be able to legally require whatever fee they think they can get away with no matter what the circumstances
�how much is spent by governments and private parties on copyright enforcement;
Not enough by government too much by private parties
�the results of enforcement efforts in terms of compensation, prevention, education, and deterrence;
Fantastic, brilliant, couldn't be better... would be 100% effective if only we had MORE!
�how the effectiveness of enforcement efforts is changing with the expansion of digital networks;
Yay! Megaupload died! Must be great

�the relative vulnerability of different business models to infringement;
The only viable model is the current one
and
�the costs and benefits of fair use exceptions and the Digital Millennium Copyright Act (DMCA) safe harbors.
Costs tons with no benefit, we should remove them all and charge for EVERYTHING

And on and on and on... *sigh*
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Anonymous Coward, 6 May 2013 @ 10:54am

Re: Paper "doesn't have any answers yet", eh?
And I must conclude that you have WAY too much tine on your hands.
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Anonymous Coward, 6 May 2013 @ 10:58am

Re: Paper "doesn't have any answers yet", eh?
You know in some cultures it used to be morally ok to marry 12 year old girls and fuck little boys? Copyright law isn't there to enforce your morals it's "To promote the Progress of Science and useful Arts". So let's make sure it's doing that instead of caring about some crazy internet loon's moral stance on the matter.
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Ninja (profile), 6 May 2013 @ 11:04am

Re: Paper "doesn't have any answers yet", eh?
Now, I spent an hour or so reading and analyzing Mike's "position".

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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beech, 6 May 2013 @ 11:10am

Re: Paper
From an economic standpoint, morals don't matter. Supply, demand, how the real world works. what your ethics arbitray say are irrelevant to the economic side of this discussion
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Mike Masnick (profile), 6 May 2013 @ 11:11am

Re: So far...
Yeah, that all sounds great but there's a long way to go and plenty of opportunity for the **AA et al to bri... uh... "contribute" to the study. Thus, I suspect some of the eventual answers will look like this:

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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Ed C., 6 May 2013 @ 11:11am

Re: Paper "doesn't have any answers yet", eh?
No blue, giving more legal protections to copyright holders--who are usually NOT the creators--requires taking away more usage rights from everyone else. For the average users to continue using works in ways that were once legal, but are now forbidden, they must become a "pirate". Expanding copyright as a means of stopping infringement only creates more infringement!
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Anonymous Coward, 6 May 2013 @ 11:24am

Re: Re: So far...
Pirate Mike�� the Google Shill� is right guys, let's keep it civil.
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cpt kangarooski, 6 May 2013 @ 11:28am

Re: Paper "doesn't have any answers yet", eh?
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.

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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Ninja (profile), 6 May 2013 @ 11:43am

Re: Re: So far...
Agreed. But I think they will try to derail the whole thing to fall back into what he just said. Whether they'll be successful or not is another story. And I am optimistic enough to believe they will not be even near 100% able to do so.
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Not an Electronic Rodent (profile), 6 May 2013 @ 12:01pm

Re: Re: So far...
The entire point of the project was to look for *empirical* evidence to answer each of those questions.
It is to be feverently hoped that empirical has something to do with the eventual report but past evidence suggests cynicism at least leads to lack of dissapointment... and it'll be a pleasant suprise if it actually stays objective enough to be swept under the rug instead.
Remember the Sir Humphrey Rule:
"Never commission a report unless you know in advance what it will conlude"
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Ruben, 6 May 2013 @ 12:04pm

Re: Re: Paper "doesn't have any answers yet", eh?
The best part about blue's comments is how he almost never responds to those who reply.

It's like he knows he's wrong.
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Anonymous Coward, 6 May 2013 @ 12:06pm

"Incentives", "licensing transaction" and to a lesser degree "enforcement challenges" should be somewhat possible to give some relevant empirical pointers on and it is fantastic to see a broad group actually wanting science in this area of feelings.

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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Rikuo (profile), 6 May 2013 @ 12:11pm

Re: Re: Re: Paper "doesn't have any answers yet", eh?
Yeah. They constantly pepper Mike, especially true of AJ, with demands that he answer a question, but almost never answer one of mine.

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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Ruben, 6 May 2013 @ 12:21pm

Re: Re: Re: Re: Paper "doesn't have any answers yet", eh?
Seriously, the hypocrisy is blinding. For all their want to "discuss the issues by their merits", they seem quite content to run home when someone exposes flaws in their logic or otherwise refutes them.
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Ed C., 6 May 2013 @ 2:06pm

Even creators are users too
We are all users of the works of others. Even when we become creators, we never stop being users. Creators complain that works must be protected because creation is so expensive. Sometimes this it's a mater of time in learning an instrument and writing a composition, or raw materials such a clay or paints, thus they claim their works must be strongly protected to protect the cost of that investment. But sometimes the cost is purely from the usage of the works of others. Whether it's using software to compose and record a song or photos to texture the walls of a dungeon-trolling RPG, the act of creation directly involves using work of someone else as well, and that cost is passed on to their users.

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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The Real Michael, 6 May 2013 @ 2:54pm

I sense a false sense of security
Don't get your hopes up. Our government doesn't exactly have a sterling track record with regards to copyright reform.
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Anonymous Coward, 6 May 2013 @ 3:08pm

it doesn't matter how much data there is or how many studies have been done if they have been financed by a particular body (the MPAA etc are fond of funding studies and then expect the results to be as they want) and therefore reflect answers that are bias in one direction. also, regardless of the number of points 'to be looked at', the entertainment industries are going to sit at the table, banging fists and shouting the loudest, drowning out as much as possible any and all views other than it's own. that will lead to a situation that is almost identical to what we have now. those and other industries think they have the right to everything and the right to forget all about 'the sciences and useful arts' and that copyright is a God given right to them. the public right is what copyright was designed to cater for and the public must be included from the start of discussions and negotiations, not tagged on the end as an after thought, just because they have to be!!
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Beech, 6 May 2013 @ 3:08pm

What I want to know is how are they going to study how anything works better than anything else. Copyright law is more or less homogenous across the globe, thanks mainly to US. How could you possibly study what would work better? "Dear Mr. Artist, if you only had a monopoly on your art for life +20, do you think you would do more art, or less art?"

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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Anonymous Coward, 6 May 2013 @ 3:38pm

Funny how Mike "Evidence-Based Reality" Masnick pumps out some of the stupidest faith-based FUD there is and then runs away like a total fucking coward when called out for his bullshit. What are you so scared of, Mike? Can't you be bothered to discuss issues on the merits?
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AC Unknown, 6 May 2013 @ 6:02pm

Re:
AJ, just go away. It's obvious that nothing Mike says will ever satisfy your ever-insatiable need to demand answers from him. So, do him (and your own psyche) a favor, and leave this site and never return.
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nasch (profile), 6 May 2013 @ 6:18pm

Re: Re: Paper "doesn't have any answers yet", eh?
And I must conclude that you have WAY too much tine on your hands.

Maybe he should switch to a three tined fork?
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nasch (profile), 6 May 2013 @ 6:21pm

Re: Re: Re: So far...
it'll be a pleasant suprise if it actually stays objective enough to be swept under the rug instead.

Lol, you know you're a cynic when that's what you're hoping for!
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JMT (profile), 6 May 2013 @ 7:31pm

Re: Paper "doesn't have any answers yet", eh?
"Mike refuses to acknowledge the moral basis of copyright."

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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Anonymous Howard (profile), 7 May 2013 @ 6:10am

Re: Re: Re: Re: Re: Paper "doesn't have any answers yet", eh?
You confuse hypocrisy with trolling.
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