Fighting the Copyright Ratchet Racket

Copyright is nominally a compact between public and creator. A government-backed, time-limited monopoly on their works is offered to artists as an incentive to create. Initially, that limited time was 14 years, renewable to 28. Since then, the...

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Copyright is nominally a compact between public and creator. A government-backed, time-limited monopoly on their works is offered to artists as an incentive to create. Initially, that limited time was 14 years, renewable to 28. Since then, the period has only ever been extended, never reduced – call it the copyright ratchet racket.

And yet it seems highly unlikely that many creators ever thought: I won't create today because I only receive an intellectual monopoly lasting x years, but if you make that monopoly endure another 20 then I will. A creator might want to have monopoly protection for a reasonable length of time, but there is simply no added incentive to create when an already considerable term is extended yet further.

But there is a very real loss every time copyright is extended: the public domain is diminished, because works that would have entered it are held back. In other words, the original quid pro quo of copyright is not fulfilled, and every one of us loses out by virtue of this impoverishment of the public domain, which belongs to us all.

In fact, it's even worse: by making these copyright extensions retrospective, they actually remove works that are already in the public domain. As a result, works created using them quite legally suddenly become illegal – an extraordinary, and frankly outrageous state of affairs. It shows that not content with keeping works out of the public domain after the original agreed period of copyright has run its course, this kind of maximalism actively steals from the existing public domain.

Of course, "stealing" is what the content industries routinely claim those sharing files engage in. But that is not stealing, it's infringement; nothing is taken away from anyone. Removing works from the public domain, by contrast, is truly "stealing": something that we all collectively possessed – the right to use those works as we wished – has been taken from us. Where sharing a file creates more intellectual wealth, retrospective copyright extensive impoverishes all but a few copyright holders.

Indeed, the only people to benefit from these term extensions are the companies that often end up as the owners of those time-limited monopolies. Since they, unlike people, are effectively immortal, adding to the copyright term adds to the value of that monopoly (although strangely they never seem to give any of that magically acquired value to the original creators.) Hence the constant lobbying that goes on to extend copyright in all its forms.

And now they're at it again:

In 2009 Open Rights Group campaigned heavily against a proposed Directive aimed at extending the term of copyright protection for sound recordings from 50 to 70 years. The Directive flew in the face of all the credible evidence.

Despite this the proposal passed the European Parliament on April 23 2009 after heavy lobbying from rights holders – another example of the yawning chasm between evidence and copyright policy. This week, the plans are back in front of the European Council and may soon become law.

Quite why it is back is symptomatic of the deeper problems with copyright – and politics:

There's a typically complicated story behind this European decision making process. Since 2009 the Directive has been stuck in the European Council because a number of countries – forming a ‘blocking minority' - opposed the plans. One of those Denmark. These last weeks it has emerged that they have switched positions, again after they were lobbied heavily by rights holders, and now support the Directive. That means that if the Council accept the proposal as it was passed by the European Parliament, there is little that will stop this going through.

However, there is something that can stop this, as Pirate MEP Christian Engström explains:

According to Rule 59 of the Rules of Procedure of the European Parliament, the parliament can reopen a dossier that is still in first reading if a new parliament has been elected since the first reading position was adopted. Since a new European Parliament was elected in June 2009, this is the case.

If 40 or more MEPs (Members of the European Parliament) ask for it, the proposal for a renewed referral will be put to the vote in plenary.

If we get a majority there, the President (speaker) of the Parliament shall ask the Commission to refer its proposal again to the parliament. This means that the dossier is open again, and we can have a full discussion about the subject matter.

So basically, we need to write to our MEPs requesting them to support the following text:

Request for RENEWED REFERRAL to Parliament

pursuant to Rule 59 of the Rules of Procedure

of the proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights (COM0464 – C6-0281/2008 – 2008/0157(COD)).

Getting 40 signatures across the EU shouldn't be that hard, so please consider writing to your MEP to add to the momentum behind the call. This will also alert them to the key issues at stake if it does come to a vote in plenary.

As usual, I included here my letter, which I have sent to my MEPs using WriteToThem:

I am writing to you to ask you to support the following:

"Request for RENEWED REFERRAL to Parliament

pursuant to Rule 59 of the Rules of Procedure

of the proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 2006/116/EC of the European Parliament and of the Council on the term of protection of copyright and related rights (COM0464 – C6-0281/2008 – 2008/0157(COD))."

This would allow a full debate on an important issue.

It is increasingly clear that extending copyright does not achieve the goals its proponents have always claimed in the past. It does not encourage artists to create more – no musician will suddenly start producing new works thanks to an extra 20 years of copyright protection in the distant future.

Moreover, increasing the term of copyright for sound recordings does not even guarantee musicians increased income, as a joint academic statement, signed by 80 eminent academics, including several Nobel Laureates, explained:

"Performers are not the real beneficiaries of the proposal. Record companies are. This is because performers on existing recordings will have assigned their rights to record companies, and the proposal applies the terms of such agreements to the proposed extension of term. So, the chief beneficiaries of extension are the owners of large back-catalogues of rights, going back more than 50 years. Almost all of these rights are in the hands of only four multinational companies: Universal, Sony BMG, Warner Music and EMI. They benefit because some of their most popular recordings can continue to be sold and licensed without competition."

That same statement (available from http://www.cippm.org.uk/downloads/Term%20Statement%2027_10_08.pdf) summarises the effects of the proposed copyright extension thus:

"While the Commission makes much of the need to support poor session musicians the simple fact is that the majority of the gains will go either to large multinational corporations (the big four labels who have large back catalogues) or the minority of highly successful performers (or, as is more likely, to their estates). By contrast the costs, particularly the deadweight losses from reduced access, will fall on average and poorer-than-average EU citizens. As such, it would be hard to find a starker example of special interest legislation than this proposal."

It's important to emphasise that those "deadweight losses" are no mere theoretical loss: in the digital age, there is the potential to make culture available to everyone with an Internet connection. The only barrier is copyright law. Extending copyright term for sound recordings will deprive the public domain – and hence ordinary citizens – of huge amounts of creativity that they could otherwise enjoy and re-use to create new works that will invigorate European culture.

For these reasons, I urge you to add your name to the request for a debate and vote in plenary of this important matter.

Follow me @glynmoody on Twitter or identi.ca.

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