It is extraordinary how copyright has turned from an obscure, dusty corner of the law to one of the flashpoints of the digital age. The reason is simple. Copyright is an intellectual *monopoly*, and like all monopolies tries to limit access to a given good. But limiting access to digital goods is a forlorn hope: as Bruce Schneier expressed it so memorably, trying to make digital files uncopiable is like trying to make water not wet. The battle over copyright is therefore a manifestation of a far deeper struggle between two ways of looking at the world: one based on scarce analogue objects, the other on abundant digital ones.
This tension is reflected in the opening paragraphs of a “Reflection Document” from the European Commission entitled “Creative Content in a European Digital Single Market: Challenges for the Future” [.pdf]:
Copyright is the basis for creativity. It is one of the cornerstones of Europe's cultural heritage, and of a culturally diverse and economically vibrant creative content sector. In Europe, the cultural and creative sectors (from published content such as books, newspapers and magazines via musical works and sound recordings, to films, video on demand and video games) generates a turnover of more than € 650 billion annually, contributes to 2.6% of the EU's GDP and employs more than 3% of the EU work force. European Policymakers therefore have the responsibility to protect copyright, including in an evolving economic and technological environment.
At the same time, the growing importance of the Internet and of digitisation technologies is opening up new possibilities for distributing creative content online. This technological development opens the door for consumers to access to creative content online wherever they are and wherever they go in the EU's internal market. The availability of high quality creative content can be a key driver in the take-up of new technologies, in particular broadband internet, digital television and mobile communication. The convergence between content sectors and new communications technologies is blurring boundaries between previously distinct markets. New technologies can bring content to new audiences. The online distribution of creative content in the EU has the potential to create more choice and diversity for consumers, new business models for commercial users and more sustainable growth for rightholders.
The paper aims “to start a reflection and broad debate about the possible European responses to these challenges”. In particular, “all interested parties are invited to comment on the ideas raised in this reflection paper”:
Please submit your comments by 5 January 2010 in electronic format. All submissions will be published on the Commission’s website unless otherwise requested. Confidential contributions should be clearly labelled at the top of the first page. Should you want to add a cover letter please do so in a separate document. In case your comments exceed four pages, please provide an executive summary.
The paper itself offers a thorough, if rather skewed, review of the copyright landscape. As I've done before, I've included below my submission to the consultation process. Although there's only a few days left to do so (apologies for not raising this sooner), I would urge you to write your own comments, however brief. I've done this in the past and been surprised by how few submissions there turn out to be. This means that each one carries a surprising weight, and offers a useful counterbalance to the contributions from well-paid industry lobby groups. If we don't do this, we will get the European copyright laws they want and that by default we deserve.
I find it interesting and indicative that the reflection paper begins with the statement “Copyright is the basis for creativity.” When we think of European creativity, we might think of Shakespeare, or Goethe or Racine; or perhaps Michelangelo, da Vinci or Rembrandt; in the field of music names such as Bach, Mozart and Beethoven would be obvious ones. And yet these examples of creativity – supreme creativity, indeed – were all produced at a time when there was no copyright. So, manifestly, copyright is *not* the basis for creativity: it is something that has been added afterwards, largely because powerful people wanted to turn creativity into commerce.
Against that background, I think it is vital for the European Commission to keep in mind the fact that simply making copyright “stronger” will not automatically make Europe's creativity greater. I would also urge the European Commission to remember that copyright is a time-limited, state-granted *monopoly*: like all monopolies, it is about reducing people's freedom. It is therefore generally – and rightly – recognised that monopolies are not desirable things, and should be avoided where possible. So the general tenor of any revision of European Copyright should be to *reduce* it, not extend its monopolistic reach.
An alternative way of putting this is that users' rights need to be increased, and the reflection paper addresses this point in considering a Community Copyright law:
“Unification of EU copyright by regulation could also restore the balance between rights and exceptions – a balance that is currently skewed by the fact that the harmonisation directives mandate basic economic rights, but merely permit certain exceptions and limitations. A regulation could provide that rights and exceptions are afforded the same degree of harmonisation.”
This is crucially important, since previous copyright changes have always tended to diminish the rights of users in favour of rightsholders (typically large media companies, and often foreign-owned to boot). It is worth reflecting on the fact that when the term of copyright has been altered, it has only ever been changed in one direction: upward. This constant ratchet means that the compact between the public and copyright holder – that the latter will place copyrighted material in the public domain after a limited period of monopolistic protection – has been broken repeatedly.
Over the last few decades, works that should have been in the public domain are constantly swept up by extended copyright terms, which means that the rightsholders are being given extended monopolies but the public receives nothing in return (there is no evidence whatsoever that extended terms have any effect on creativity: nobody decides to write something simply because their heirs will receive an extra decade or two of an intellectual monopoly).
Again, this means that copyright needs to be recalibrated in favour of the end-user, not the rightsholders. This is not just some abstract legal point - there is a very real need for this, as the reflection document points out: “the growing importance of the Internet and of digitisation technologies is opening up new possibilities for distributing creative content online.” But this is not only about *distribution*: perhaps the most important change wrought by the arrival of the Internet in the area of content is that millions – soon billions – of ordinary people have themselves become creators, albeit of a new kind. For society – and the economy – to derive the full benefit of this new creativity, copyright laws fully suited to this new situation are required.
In particular, this means that citizens need more rights to take and use online materials for follow-on creation, which can then be taken and used in its turn by others for the same purpose. If the laws are not adapted, one of two things will happen. People will do it anyway – just as they are sharing files online despite increasingly Draconian legislation – which simply weakens the rule of law in Europe; or else Europe will fall behind other, more forward-looking economies that are able to tap this huge welling-up of user-generated digital content.
For all these reasons, I urge the European Commission to seize the present opportunity to remake copyright laws for the digital age, rebalancing them by granting far greater rights to users, and allowing a new period of European creativity to flourish as a result.