There Can Be No 'Balance' In The Entirely Unbalanced System Of Copyright

from the find-something-better dept

For many years now, I've argued against the idea of calling for "balance" in copyright law -- because I don't think it makes much sense. In articles from 2007, 2009 and 2011, I argued that by focusing on "balance" -- as many critics of copyright law do today -- we make a huge mistake. Arguing for balance is setting up the system as a zero-sum game where each trade-off involves a winner and a loser. But history has shown that not to be the case. It is not a zero sum game, and things that might make one side think they're "losing" might actually make them better off (take the VCR for example -- which the movie industry insisted was a horrible abuse of copyright law... until it became the key reason why the industry thrived).

Now, following the postponement of the Africa IP Forum, which came about, in large part, due to civil society groups arguing that the event wasn't "balanced" enough, lawyer Alan Story has put together an altogether brilliant condemnation of the talk of "balance" in copyright law, arguing that it is impossible to balance a fundamentally unbalanced system. Much of his attack isn't necessarily on the concept of copyright law itself, but on the nature of the Berne Convention, on which (tragically) much of modern copyright law is based. There's so much in Story's writeup that is worth reading that I recommend you go check out the whole thing, but here are just a few snippets and some commentary.

Every one of the central principles or elements of copyright is one-sided and unbalanced, that is, they favour the owners of copyrighted goods..... The main elements of copyright include the ideology that the world’s knowledge and creations should be owned as private property, that they should be traded as commodities in global capitalist markets, that copyright owners should have exclusive rights, that fair dealing /fair use principles mean what is fair to owners, that creativity will dry up without the incentive of copyright, that there are no alternatives to copyright, that spreading copyright regimes (and the stricter the better) benefits the whole world, and a few other foundational principles and justifications of this Western legal and philosophical export to the global South. Take away these principles and you know longer have copyright. Conversely, accept these principles and you have accepted 98% of the story that WIPO and the US Department of Commerce will be disseminating in Cape Town when their re-scheduled IP summit is held. All that is required, they suggest, is some fine-tuning, a bit of ‘tweaking’ around the edges of the remaining 2%.

Story argues that the entire system is based around giving a ton of power and control to the copyright holder (who, he notes repeatedly, is very rarely the content creator). A system "balanced" between the rights of "users" and "creators" would actually contain, you know, some rights for users:

If you have an hour or two in the next few days, read through Berne, clause by clause, and keep a running tally of: a) how many rights are guaranteed and mandatory to the users of copyright in every Berne Convention country? ; b) how many rights are guaranteed to the owners of copyright? The answer to question a) is very brief. Other than what is included in Article 10 (1) of Berne, namely, the right to use quotations already available to the public, there is not a single mandatory right that all users in the world possess, and even this narrow right is qualified. This is another reason why some of us believe that not only is the international copyright system grossly unbalanced, but it is also unbalanceable.

He also hits on a key point that many have talked about in regards to the fact that nearly all creativity builds on the works of others. That's a recognition that users are creators so separating out "rights of users" vs "rights of creators" ignores the reality that nearly everyone falls into both camps:

To pit the interests and rights of users against those of authors (again used as a term to designate all creators, whether composers, sculptors, or video game developers) is also a serious mistake. It is based on binary formulation which suggests that users of copyrighted materials are not also creators and that creators of copyright materials are not also users. To return to the same sentence quoted in point 3) above, where else do creators get the requisite tools for their work other than from ‘education, research and access to information’?

Story also points out a specific problem under Berne, in that beyond the fact that it doesn't actually establish any real rights for users -- just for copyright holders -- it makes the system even worse (significantly worse) by merely setting "minimums," with mandatory floors. That means that copyright generally can only be ratcheted up, not down.

The question of duration of copyright provides us with one easily-grasped example. The Berne Convention states that member countries must, at a minimum, establish a copyright term of life of the author, plus a minimum of another 50 years. As is sometimes not appreciated, this already is a very long period of time; it means that a pop song written this year by a 25-year-old songwriter could still be restricted by copyright in the year 2112. Yet it is perfectly legal for a country to extend its copyright term to life of the author, plus 100 years, which would restrict the same song until 2152. This is what Mexico has done. Or the copyright term could be raised until it was forever, minus one day. Consider what would have been situation if Egyptian government had gone ahead with its announced plan of 2008 to use copyright law to protect its pyramids as cultural property. The Egyptian term of copyright would then have become life of the author, plus 5000 years. Absurd? Yes. Perfectly legal, however, under the Berne Convention. Conversely, if a country decided to reduce its term to simply life of the author, which would still often leave a term of 30 to 40 years or even longer, such a law could result in that country being expelled from the Berne Union as well as the World Trade Organisation. Moreover, copyright owners might complain future years of royalty payments had been lost due to term reduction and claim their private property had been taken without compensation. Such a circumstance shows the impossibility of balance.

You can't have "balance" when the entire system is set up strongly to benefit one particular group. And the thing is, that "group" is rarely actually the creators. Again, Story provides some details:

As for the supposed rights which the copyright system gives to musicians in disputes with recording companies, consider what happened to two leading musicians of the past century. If, as already mentioned, Bob Marley (1945-1981), called the ‘Third World’s first pop superstar’ (Wenner), was unable to hold onto the copyright to many of his best known songs, what chance does the so-called average musician have? Or how about what happened to the path-breaking US bebop jazz pianist Thelonius Monk (1917-1982) who signed a long-term recording in 1962 with Columbia Records, a major recording label at the time. When the contract was over in 1970, Monk amazingly owed Columbia more than US$100,000. Copyright did not help Monk much.

There's a lot more in the article and, if you haven't done so already, I really encourage you to read the whole thing. Story is arguing something slightly different than my argument against balance, but the two arguments are related. My argument is that balance only belongs in a system where you have a zero-sum game and giving one side something automatically means another side gets less. If you have a non-zero sum game, then the goal should never be about finding the balance, but about finding the "maxima" -- the point on the curve that provides the most benefits. If you actually believe the (US-defined) purpose of copyright law to be to "promote the progress" then it seems that should be the goal.

However, what Story is arguing is that the entire system of copyright was never set up to be a balance at all, but rather as a system to grant powers to copyright holders against everyone else -- and that the Berne Convention, in particular, is particularly nefarious in how this is set up. I don't think our arguments contradict each other, but are merely just two different ways of noting that copyright law today is not about balance at all, and focusing on balance is a mistake, and doesn't really help the situation. Like Story, I'd urge even those pushing for copyright reform to avoid the use of "balance" in discussing copyright law, because you're already playing into the wrong framework.

Filed Under: balance, berne, copyright, history, one-sided

Could Bolivia Opt-Out Of Berne And WIPO And Forge A New Path On Copyright?

from the that-would-take-guts dept

One of the biggest problems we have with copyright policy today is the simple fact that it's almost entirely "faith-based," with no real evidence showing that current copyright laws benefit society. In fact, most specific studies show the opposite -- that copyright laws, as they exist today, tend to do more harm than good (except, potentially for middlemen). That's why international agreements that lock in certain forms of copyright law around the globe are so problematic. They don't allow countries to experiment with different types of copyright law to see if they work better. That, of course, is one reason why ACTA is so troubling. However, before ACTA there were other such international agreements, such as WIPO and, most famously, the Berne Convention.

The Berne Convention rules have massively expanded the scope of copyright law around the globe -- for example, it's the Berne Convention that says copyright should be automatically applied on new works, rather than requiring registration. The WIPO Copyright Treaty more or less tried to update the century-old Berne rules for the modern age, and (of course) did so by expanding the rules even further. Nearly all the countries in the world have agreed to both of these faith-based agreements, blocking off the ability to experiment to see if different (or no) copyright rules might be better. Merely mentioning the idea of a different form of copyright law (or no copyright law) will quickly bring out defenders of the status quo pointing to our "international obligations" -- which is the universal dodge from copyright system defenders who don't want to discuss how copyright law might react to being changed.

So what would it take for a country to actually opt-out of WIPO and Berne? A hell of a lot of guts, I imagine. The diplomatic pressure to stay in those agreements would be tremendous. In fact, I can't recall ever hearing of countries seriously thinking about opting out of either. Which is why I was so interested to see Amelia Adersdotter point to a recent panel discussion at the CopySouth event held in Brazil, where a Bolivian musician active in these issues suggested that Bolivia might actually consider leaving Berne and WIPO (link is a Google translation of the original).

The speaker, Juan Carlos Cordero, used to work for the local collection society in Bolivia, and has worked on various groups studying the impact of intellectual property. He notes that Bolivia's new constitution actually goes against many old international treaties, and that the country seems willing to not be tied down by such agreements if they're not in the best interests of the country.

It's not clear that anyone in the Bolivian government is really thinking of dropping out of Berne or WIPO, or what would actually happen if they did. But given how rare it is for anyone to even suggest a country dropping out of Berne/WIPO, this seemed worth noting.

Filed Under: berne, bolivia, copyright, wipo