We've discussed some interesting things happening down in Brazil when it comes to copyright. First, we've looked a few times at how the super popular technobrega music industry has thrived by embracing giving away music and using that to build up fame and business models based on selling scarcities -- such as live shows. But, perhaps more interesting has been the ongoing proposals for new copyright laws in Brazil. For example, there was the decision to buck the trend in many places and not have a notice and takedown provision like the DMCA, but only have content get taken down with a court order -- a position that shows significantly more respect for free speech rights. Separately, one recently proposed draft amazingly included penalties for hindering fair use or the public domain.
It's almost as if folks in Brazil have actually noticed how poorly set up most of the rest of the world's copyright laws are.
Last month, Brazil allowed public comment submissions on copyright, and apparently at the last minute, a large group of artists groups and consumer rights groups put together a proposal to "end" the "war on copying" (found via IP Watch). Basically, the plan has a few parts, but the big one is the idea of legalizing non-commercial file sharing in exchange for a broadband levy of 3 Reais -- or about $1.74 US. That's certainly a hell of a lot cheaper than most proposals out there.
That said... while I appreciate getting rid of "the war on copying," I do think there are some serious problems with a proposal like this. Copyright levies tend to have serious unintended consequences. They create large bureaucracies, where money collection and distribution is not always done fairly. In fact, they often tend to favor bigger name artists over smaller artists, and just having the bureaucracy creates overhead that goes to the bureaucracy, rather than the artists. On top of that, it takes away incentive for consumers to support artists directly through other creative business models, because they feel that they "already paid," via the levy. So, as it stands, I don't think this is a great solution, but it's at least a hell of a lot better than copyright law most other places -- and it's great to see a focus on actually getting past the old "copy wars."
We recently wrote about comic book writer Mark Waid's supposedly controversial keynote speech at the Harvey Awards, where he talked about copyright, the public domain and learning to embrace file sharing. Beyond the general controversy, a lot of people apparently misinterpreted his talk to be anti-copyright and anti-making money (we get that a lot around here too). So he's now posted a written out version of his talk that seeks to clarify many of his points (thanks to Robert Ring for sending this in). It's a great read, and hits on many of the points that we normally talk about here. Specifically, copyright is supposed to benefit the public and that file sharing isn't going away, so you're better off embracing it and using it to your advantage, rather than whining about it. Nice to see more people recognizing this. It also has a great line:
culture is more important than copyright
I'm trying to understand anyone who would disagree with this statement, but so often we hear people say that they have to defend their copyrights "on principle," even if not defending them is better for culture. But the key point of his article is that fearing file sharing and attacking it doesn't help. It doesn't stop it from happening and it provides no real advantage to those doing the attacking. So he suggests it's time to figure out ways to turn it into an opportunity:
Like it or not, downloading is here. Torrents and filesharing are here. That's not going away. I'm not here to attack it or defend it--I'm not going to change anyone's mind either way, and everyone in America at this point has anecdotal evidence "proving" how it hurts or helps the medium--but I am here to say it isn't going away--and fear of it, fear of filesharing, fear of illegal downloading, fear of how the internet changes publishing in the 21st century, that's a legitimate fear, because we're all worried about putting food on the table and leaving a legacy for our children, but we're using our energy on something we can't stop, because filesharing is not going away.
And I'll tell you why. It's not because people "like stealing." It's because the greatest societal change in the last five years is that we are entering an era of sharing. Twitter and YouTube and Facebook--they're all about sharing. Sharing links, sharing photographs, sending some video of some cat doing something stupid--that's the era we're entering. And whether or not you're sharing things that technically aren't yours to share, whether or not you're angry because you see this as a "generation of entitlement," that's not the issue--the issue is, it's happening, and the internet's ability to reward sharing has reignited this concept that the public domain has cultural value. And I understand if you are morally outraged about it and you believe to your core that an entire generation is criminal and they're taking food off your table, I respect that.
But moral outrage is often how we deal with fear. It's a false sense of empowerment in the face of fear.
Great stuff. Definitely go read the whole thing. He also mentions that he's got some plans in place for how he's going to embrace things like BitTorrent and run some interesting experiments. He points out that they're experiments, and there's no guarantee they'll work, but he wants to step forward and at least try to embrace it. This is great to hear, and I look forward to seeing what kind of experiments he runs.
Mark Waid's keynote speech at the Harvey Awards at Baltimore Comics Con last night started by pointing out that copyright was all about putting work into the public domain, rather than preserving it for company ownership, and the concept of public domain should be embraced again. That illegal downloading is inevitable leading to a new culture of sharing. Lines such as "culture is more important than copyright" and "there are more ideas in one week at your comic shop than three years in Hollywood."
The report at Bleeding Cool does note that not everyone in attendance was pleased with Waid's talk, with Sergio Aragones apparently confronting Waid about his talk, declaring that "you don't just give your work away," and getting into a bit of a heated argument before Waid walked away.
Assuming these reports are accurate, it looks like Aragones totally missed the point of Waid's talk. No one's saying that you "just" give your work away. Those of us who have been writing about this stuff for a while are talking about creating larger communities and business models that include giving stuff away as a part of that effort. Trying to simplify it down to "oh just give it away, huh?" is wrong and misleading. Besides, note that Aragones seems to have missed the key factual points in Waid's talk: which is that copyright has always been about putting works into the public domain. It's too bad some people just react so negatively to factual portrayals of copyright law that they lash out at the messenger.
Update: Some of the other reports on the talk suggest that Waid and Aragones "hugged it out" after their confrontation, and that Aragones' complaint is that "free" devalues work. This is a common, if misguided point. The value of the work remains the same. The problem is when you confuse price and value. Price gets driven by the real demands of the market, but is not the same as value. Waid's point is that you can't fight what's happening, so why not embrace it -- a message we obviously believe strongly in here.
I was recently chatting with Will Page, the chief economist for PRS, whom we've interviewed before (and will be interviewing again soon) about his recent trip to South Africa, and he sent over a document put forth by SAMRO, the South African music rights organization, speaking out against a new copyright bill (pdf) in South Africa that would take certain aspects of "traditional knowledge" and put it under copyright. Yes, it's an attempt to remove works from the public domain, and protect them with copyright. This concept isn't new. We've seen plenty of other countries put copyright or copyright-like protections over traditional knowledge in an attempt to either block others from using it, or to try to exploit it commercially. For example, we recently discussed an attempt by Kenya to do something similar, just a few countries over.
My first reaction was to be surprised. After all, when was the last time you saw a music collection group support the public domain or the idea of widespread shared culture? Hell, in the US, we have ASCAP telling us that things like Creative Commons are dangerous and must be fought. However, the more you look at it, the more I understand where they're coming from. There are three potential reasons. First, is that modern musicians -- of course -- pull tremendous inspiration from the public domain, and locking that up would directly harm the musicians that SAMRO represents. Second, chances are the new copyright on "traditional knowledge" wouldn't also create a collections opportunity. Third, it's made clear in the article that the concerns aren't so much with the idea of locking up traditional knowledge, just that it would get lumped in with existing copyright law. The specific fear is that this will create problems for existing copyright coverage. In fact, SAMRO does seem okay with locking up traditional knowledge if done in some other manner, separate from copyright. So, it's not quite as "enlightened" as it might first appear. Still, it is nice to see an industry organization at least recognize that a public domain is important and that copyrights are monopoly rights (something many like to deny, for no clear reason).
Plenty of old school classical music is in the public domain, obviously (hell, many of the most famous pieces were created in an era before copyright). But, of course, the copyright on the composition is only one issue. The actual sound recordings made by orchestras gets a separate copyright, and those are probably locked up for ages. However, it appears some classical music archivists are trying to do something about this. The EFF points us to the news that Musopen has set up a Kickstarter page to raise money "to hire an internationally renown orchestra to record and release the rights to: the Beethoven, Brahms, Sibelius, and Tchaikovsky symphonies." That is, if they can raise the money necessary ($11,000), they'll hire an orchestra, record those public domain symphonies and then release the copyright on the sound recordings to the public domain as well. Definitely seems like a worthy cause for classical music lovers, though, it also serves as a reminder of the difficulty of actually getting works into the public domain these days.
In the past, we've pointed to the excellent (and useful) public domain tracker from Cornell, which helps you determine whether or not a work is in the public domain. In the past, I've generally focused on the top part of the chart, and forgot the ridiculous situation with sound recordings, which gets very little attention when it comes to copyright discussions. Basically, due to a quirk in the way US copyright law was constructed, sound recordings made prior to 1972 are treated quite differently than other works. I was reminded of this, thanks to Glyn Moody, pointing me to a discussion on an archivists' mailing list about the trouble of using World War I music. As copyright law stands today, works (in the non-sound recording division) published prior to 1923 are in the public domain. But that's not true for sound recordings:
The bad news is that no sound recording made before 1972 has federal copyright protection. They are instead protected by state common law copyrights, and will not enter the public domain until in most cases 1 January 2049, regardless of when they were recorded. .... Note that state protection is afforded even to European recordings, most of which enter the public domain in their home country after 50 years.
Understanding why this is really does highlight just how screwed up copyright law has become in this country, and how far it's come from its origins. That same discussion points people to Peter Jaszi's (a true expert on copyright and fair use) recent paper on pre-1972 sound recordings, where he details the history of all of this. In part, it's due to the fact that Congress did not include sound recordings in the 1909 Copyright Act. It's actually quite important to understand why they did not do so:
Although Congress subjected federal copyright protection to an
overhaul by enacting the 1909 Copyright Act, it still failed to grant
statutory copyright protection to sound recordings. Despite efforts
by some members of Congress to raise the issue of sound recordings,
the final bill declined to extend protection. Indeed, the report
released with the Copyright Act expressly stated that Congress did
not intend to protect sound recordings: "It is not the intention of the
committee to extend the right of copyright to the mechanical reproductions
themselves, but only to give the composer or copyright
proprietor the control, in accordance with the provisions of the bill,
of the manufacture and use of such devices." According to one commentator,
Congress had two principal concerns about sound recordings,
leading it to decline to protect them. First, Congress wondered
about the constitutional validity of such protection. The Constitution
allows Congress to protect "writings," and Congress was uncertain
as to whether a sound recording could constitute a writing.
Second, Congress worried that allowing producers to exclusively
control both the musical notation and the sound recording could
lead to the creation of a music monopoly.
That seems like an important paragraph to show to folks who insist that copyright on sound recordings must obviously be covered by copyright and/or that it's a "natural right" to include sound recordings under copyright. Clearly, even Congress felt it was likely to be unconstitutional for quite some time.
Congress (under tremendous pressure from exactly who you would imagine) finally added protection to sound recordings in 1972, but in the meantime, some states had passed local laws to deal with unauthorized copying and distribution of sound recordings. While Federal Copyright law in the 70s was designed to totally pre-empt state copyright laws, a court ruling in Goldstein v. California (over bootlegging) found otherwise -- and said that state laws did apply to sound recordings published prior to 1972. The different state laws vary quite a bit, and apparently a bunch of them do exempt personal use from those laws.
But, either way, because of this little quirk of history, where Congress mostly believed that sound recordings could not be subject to copyright on a Constitutional basis, many such works are effectively locked up for much, much long than they would be if under federal copyright law.
If you visited Google on Saturday, you may have noticed that the logo looked like the following:
As happens regularly, Google had chosen to redesign its logo to mark a certain day. In this case, July 24, 1860 is the birthday of famous and influential Czech artist Alphonse Mucha and Google decided to memorialize Mucha with a logo designed in his style. Nothing special there, of course. But it got lots of people looking up Mucha, and one of our readers (who prefers to remain anonymous), quickly came across this recent interview with John Mucha, Alphonse's grandson, and the head of The Mucha Foundation, which "manages the legacy" of Alphonse Mucha, and helped set up the Mucha Museum in Prague a few years back. But what struck the reader was the following part of the interview:
I was reading that the copyright has expired on Mucha's works. What does that mean in practical terms? Does it mean that anybody can, I don't know, create a mouse pad with his images on it?
"It means that the rights are in the public domain, with two exceptions. Exception one are works that have not yet been photographed or seen. And there are quite a few of those. There, once we photograph them or we make the images available, those images have their own copyright.
"The other exception is, we have the biggest and possibly best quality archive of all the images. Because these images were created within the last five years with the latest technology, they all have their own copyright of 75 years.
That sounded wrong to our reader, who questioned how that could make sense, seeing as Mucha has been dead for over 71 years. Now, I'm certainly no expert on Czech copyright law, so anyone out there who is an expert, feel free to chime in. But I'm assuming that the situation is similar to one that we discussed a year ago. In the US, thanks to Bridgeman vs. Corel, it is mostly believed that a photograph of a copyrighted work does not receive a new copyright (technically, it only applies in the court where the ruling was made, but the ruling has been followed by other US courts as well). However, in Europe, I believe the question is more or less unsettled -- so many claim that a photograph of a work can itself get a new copyright.
This seems silly, if you think about it. Copyright is supposed to cover the creative work added. Photographs, in general, are given copyright protection on the basis of the idea that the composition involved some creative choices (framing, lighting, aiming, etc.). In fact, the copyright is technically supposed to just cover those creative choices. A direct photograph of an artwork involves no such creative questions. However, as it is "unsettled" law in Europe, then some like to claim that photographs of artwork create brand new copyrights. That seems to be what the younger Mucha is claiming here, though assuming this issue hasn't clearly been settled in the Czech Republic (and I can find no detailed info either way), then such a "new" copyright on a work so old could, conceivably, be challenged.
Brazil has been a very interesting country to watch lately. In the past, we've seen that a lack of safe harbor laws resulted in Brazilian courts regularly blaming 3rd parties for actions of others, but in the last few months, it looks like Brazil has decided to really clean up its laws -- and is doing so in a very smart and forward-looking manner. The first part, we mentioned a couple months ago, involved setting up much smarter safe harbors than the US currently has. Rather than US-style "notice-and-takedown" (which creates serious free expression problems), Brazil went with a "notice-and-notice" setup, that let an accused party respond before their content gets taken down. Isn't due process grand?
But in a move that may be even more significant, Michael Geist writes about Brazil's newly proposed copyright laws that includes penalties and sanctions for hindering fair use or the public domain through the use of digital locks or DRM of any kind. In the past, we've asked anyone to explain why it makes sense to make circumvention of DRM for non-infringing purposes illegal, and no one gave us a good answer. Yet, the US DMCA makes it illegal -- and Canada's current copyright reform bill would do the same.
What's especially surprising about Brazil's approach isn't just that it's allowing non-infringing circumvention (which, alone, would be nice to see), but that it's actually adding sanctions and punishment for those who block fair use or use of public domain works through digital locks:
The same sanction applies, without prejudice to other sanctions set forth by law, to whom, through whatever means:
a) hinders or prevents the uses allowed by arts. 46, 47 and 48 of this Act [which addresses limitations to copyright including fair dealing]; or
b) hinders or prevents the free use of works, broadcast transmissions and phonograms which have fallen into the public domain.
Breaking DRM for infringing purposes is still very much illegal, but what Brazil is saying here is that locking up the public domain, or blocking fair use will not be tolerated. I cannot fathom who could possibly be against such a proposal, but I imagine we'll start to hear twisted arguments against it pretty quickly.
Warning: this one is depressing if you believe in the public domain. You may recall that last year, a district court made a very important ruling on what appeared to be a minor part of copyright law. The "Golan" case asked a simple question: once something is officially in the public domain, can Congress pull it out and put it back under copyright? The situation came about because of (yet another) trade agreement that pulled certain foreign works out of the public domain. A district court had initially said that this move did not violate the law, but the appeals court sent it back, saying that the lower court had not analyzed the First Amendment issue, and whether this was a case where the inherent conflict between the First Amendment and copyright law went too far to the side of copyright by violating the "traditional contours of copyright law." Getting a second crack at this, the district court got it right -- and was the first court to point out that massively expanded copyright law can, in fact, violate the First Amendment.
But, of course, it couldn't last.
On Monday, the appeals court reversed the lower court's ruling and said there's no problem with the First Amendment because copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a "substantial or important government interest." But that makes no sense. The whole point of the First Amendment was to protect citizens' interestsagainst situations where the government's interests went against citizens' interests. It should never make sense to judge a First Amendment claim on whether the government has "substantial or important" interests.
On top of that, the court basically said "Congress knows best" on this issue. Again, this seems to go against the entire point of the First Amendment and the important judicial protections of the First Amendment. The whole point of court oversight of Congress is because Congress doesn't always know best. But here, the court has no problem deferring entirely to Congress:
This
deferential standard is warranted for two important reasons. First, Congress is
"far better equipped" as an institution "to amass and evaluate the vast amounts of
data bearing upon the legislative questions." ... Second, we owe Congress "an additional measure of deference out of
respect for its authority to exercise the legislative power."
Except, as has been shown time and time again on copyright issues, Congress has done a terrible job amassing any data to support its continued and unstoppable expansion of copyright law. Just within the past few months we've seen the GAO -- which is supposed to make sure that Congress is properly applying data -- admit that Congress is flat out ignoring the actual evidence and agreeing with bogus studies from a few industries that is not backed up with any actual evidence.
Most worrying of all? The court says that it should keep out of this discussion because it involves international relations and international treaties. See why you should be scared to death of ACTA? The courts are effectively admitting that once you get these "international obligations" in place, the courts should mostly stay out of the discussion, even if it violates the basic tenets of US law. That's downright scary. The court gives a lip service defense to this, saying that it can still review international agreements to make sure they abide by the First Amendment... but... for the most part, it'll just defer to Congress.
Next up? The court actually relies on testimony about "losses" from an RIAA official as well as someone from the IIPA (a lobbying group made up of the RIAA, MPAA and other similar organizations):
In particular, American works were unprotected in several foreign countries, to
the detriment of the United States' interests.... statement of Jason S. Berman,
Chairman and CEO of the Recording Industry Association of America... :"[T]here
are vastly more US works currently unprotected in foreign markets than foreign
ones here, and the economic consequences of [granting retroactive copyright
protection] are dramatically in favor of US industries.").... By some estimates,
billions of dollars were being lost each year because foreign countries were not
providing copyright protections to American works that were in the public domain
abroad.... (statement of Eric Smith, Executive Director and General
Counsel of the International Intellectual Property Alliance) ("Literally billions of
dollars have been and will be lost every year by U.S. authors, producers and
publishers because of the failure of many of our trading partners to protect U.S.
works which were created prior to the date the U.S. established copyright
relations with that country, or, for other reasons, these works have fallen
prematurely out of copyright in that country.").
These are the same studies that the GAO -- whose actual job it is to analyze these reports -- dismissed as junk science. This is exactly where the courts should step in and note that Congress is not doing its job and is doing serious harm at the behest of a few small industry interests. What a travesty that this court couldn't see that.
And, of course, the court continues to rely on clearly biased individuals who had a clear agenda, rather than a factual basis for their positions. It even quotes Jack Valenti's ridiculous claim that if the US removed foreign works from the public domain, that suddenly China and Russia would start respecting US copyright.
Also incredibly frustrating, misleading and inaccurate is a small footnote, which asserts the commonly claimed excuses by the courts for why copyright law does not violate the First Amendment: that the "idea/expression dichotomy" and "fair use" make it so there is no conflict. But what's frustrating in this footnote is that this particular court seems to suggest that so long as copyright doesn't mess with those two things then there's no First Amendment issue with copyright.
We note that copyright includes several "built-in" First Amendment
protections.... The idea/expression dichotomy ensures
that only particular expressions, and not ideas themselves, are subject to
copyright protection.... Additionally, the fair use defense allows individuals to
use expressions contained in a copyrighted work under certain circumstances,
including "criticism, comment, news reporting, teaching . . . scholarship, or
research . . . and even for parody." ... Section
514 does not disturb these traditional, built-in protections, and thus, such
protected speech remains unburdened.
But that's wrong. Dangerously, ridiculously and constitutionally questionably wrong. Just because there are those two "valves" to hopefully keep copyright law from violating the First Amendment (and there are some very, very serious questions about how well either of them actually work), it does not mean that those are the only places where copyright law must be judged under the First Amendment.
In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain. If you have any respect at all for the core notion of copyright -- which was originally supposed to be about getting more works into the public domain -- the idea that you can then take works back out of the public domain is downright ludicrous. It goes beyond being a violation of the basic contours of copyright law. It goes against the very Constitutional principles behind copyright law -- and does so in a way that is a clear violation of the First Amendment.
Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?
All in all this is an incredibly frustrating ruling. It feels like the court didn't actually want to address the admittedly difficult question of how the First Amendment and copyright law come into conflict, so it just punted and said "well Congress knows best, so it's okay." The case will almost certainly be appealed, potentially for an en banc (full appeals court review) or directly to the Supreme Court. So this most certainly is not over yet. But after a reasonable ruling last year to this year's reversal, it's definitely a step backwards for anyone who believes in the importance and sanctity of the public domain.
If you want to be frustrated, read the full decision below:
The Clinton County Historical Glass Negatives Portrait Project has been "diligently identifying, sorting, re-sleeving and generally rediscovering a collection of over 15,000 glass negatives dating back to 1897." They have made a selection of these photos available for purchase as reprints, but they have also put all of the photos behind a copyright gate that requires anyone viewing the photos agree to a ridiculously large block of legalese:
All photographs in this gallery are the property of the Clinton County Historical Association and are protected by the Copyright Law of the United States (Title 17, United States Code) and by the Berne Convention. Reproduction, storage or transmittal by any means, of any image on this web site, whole or in part, is prohibited without express prior written permission. Prints purchased from this gallery may not be reproduced or scanned for any reason and may only be used for personal display. If you wish to publish or reproduce the materials in any physical or digital form or use them for any commercial purpose, including display or Web page use, you must obtain prior written permission from the Clinton County Historical Association.
Reader Luke T. Bush, who submitted the story, astutely asks: "I understand charging for the work of scanning and printing negs but can they claim copyright to prevent copying of the prints?" As ruled in Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191 (S.D.N.Y. 1999), exact photographic copies of works in the public domain cannot be copyrighted. So, the question then extends to whether or not those photos are in the public domain yet. The copyright is owned by the photographer and lasts for life plus 70 years. Since the photos in question were taken from 1901-1905, it is likely that many have already passed into the public domain.
Even if CCHA actually did own the copyright to the photos, they are unnecessarily hamstringing themselves by adding this needless "protection." Not only are the low-resolution scans on their site marred with a digital watermark, but hiding them behind their own particularly restrictive copyright gate also prevents the images from ever being included in a search engine. So, while CCHA has taken the admirable step to saving these photos from obscurity by scanning them, putting them behind this copyright gate effectively re-hides them.
