Want to Change German Copyright Law?

Of course you do - and here's your big chance. Dirk Riehle is not only the Professor for Open Source Software at the Friedrich-Alexander-University of Erlangen-Nürnberg (Germany orders these things better than we do), but he is also part of an...

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Of course you do – and here's your big chance. Dirk Riehle is not only the Professor for Open Source Software at the Friedrich-Alexander-University of Erlangen-Nürnberg (Germany orders these things better than we do), but he is also part of an expert council advising a "multilateral commission instituted by the German parliament to discuss and make recommendations on, well, Internet and digital society."

Specifically he is looking at revisions to German copyright law, and being an open source-y chap he is soliciting views and ideas from everyone, which is jolly kind of him. He rightly points out that maybe a glance at existing German copyright law would be a good idea before letting rip. The closing date for comments on the blog post is the beginning of next week.

As usual, I've included below my thoughts on the questions, which are extremely interesting (the questions, that is, not my thoughts):

Is the Internet changing the production of creative goods? Should we change copyright law ("Urheberrecht" in German) accordingly? In what ways should we change copyright law? How to better accommodate the changing roles of users and creators?

The Internet is bringing about the biggest change in the production of creative goods since the invention of the printing press. Copyright must change because it is fundamentally at odds with the Internet. Copyright is about controlling scarcity, the Internet about engendering abundance.

The effect of bringing these two together can be seen most clearly in the music industry, where copies of mp3 files circulate completely freely, despite increasingly Draconian laws aimed at halting their spread. If copyright is not changed, it will simply be ignored by a generation that has grown up on the Internet and takes sharing of all digital artefacts as a given.

Clearly, copyright law needs to be relaxed in many areas. For example, it should be permissible to share and re-use any digital content for non-commercial purposes – and ideally for commercial purposes too. The former is already happening, so this would just be a recognition of everyday reality; the latter would be more bold, but would correspond to provisions in the GNU GPL that allow anyone to use the software.

Article 6 of the European Copyright Directive needs to be removed, since it is already blocks fair use/fair dealing of copyright materials, and its continued existence would nullify any modernisation of copyright law. In addition, the term of copyright needs to be restored to its original 14 years: the rise of rapidly-changing technologies like the Internet means that shorter, not longer terms are appropriate, and so there are good grounds for reducing it even further (including to zero.)

Should we change the goals of copyright law due to the Internet and digital society? (Note: The previous question assumed set goals; this question wants to know if we should change those goals.) Specifically, is there a conflict between access to information and creative potential of a society?

There is no conflict between the access to information and the creative potential of society. On the contrary, they are deeply intertwined, thanks to the Internet. The greater the access to information, the greater the creativity that will result. Clearly, though, the limiting situation – making all knowledge freely available – does imply a radical restructuring of the creative industries. Their current failure to accept this is the cause of their decline in relevance, and the rise of new ways of meeting the every-growing hunger for access to knowledge through alternative channels.

Assuming changes in copyright law, can they be handled effectively on a national level? (Examples of possible changes are provider liability or blanket compensation for copyright holders.) Or, is European or even global action necessary? What changes can be handled sufficiently on a national level?

The natural level for these changes to be handled is at the European level because of the way European legislation needs to be taken account of. Ideally, it would happen at the global level, but given the strength of backward-looking and archaic media companies in the US, this is unlikely. It may not happen at the European level for the same reason, and if that is the case then these kinds of fundamental shifts are likely to take place in countries like Brazil and India, which are already beginning to appreciate that traditional Western intellectual monopolies like copyright only serve to entrench Western power over their economies and societies yet further.

Sooner or later they will realise there is little incentive for them to acquiesce in US/Western demands for longer copyright terms or more punitive measures against unauthorised sharing of copyright materials. This only weakens their indigenous industries, causes net outflows of capital, and maintains their dependence on the West for key areas of knowledge and for strategic technologies.

Please name specific technologies that might prove disruptive to the current copyright law and that should be considered in recommendations by the commission. An example for such a disruptive technology might be (the increase in) video streaming.

Every single digital technology, from mp3s, the Internet, p2p networks, encryption and open source is profoundly disruptive to current copyright law. Indeed, the only way for copyright law to continue to exist in its present form would be for all of these digital technologies to be forbidden. In some senses, ACTA is a step along that road, but even its most foolish elements will be insufficient to check the by-now unstoppable global urge to share digital files.

The questions above are specifically about copyright law. What other intellectual property laws are or should be affected by current societal changes (relevant to this commission) that we should be thinking about? An example might be software patents.

The same profound changes that will rewrite – or route around – copyright will also impact software patents. Software is now so central to the digital world that it is unacceptable to allow any one company or individual to hold an exclusionary monopoly on any of its key elements.

This has always been a problem with software patents – the fact that often they cannot be invented/coded around – and that was why the original decision to exclude software from patentable matter in the European Patent Convention was the right one (along with the fact that software patents are patents on algorithms, which are simply mathematics, which means that software patents are patents on pure knowledge.)

Using the weasel words "as such" to allow software patents in by the back door was one of the most foolish decisions taken by European courts, and must be reversed; if it isn't, the entire digital realm will grind to halt, caught up in the inevitable and pullulating software patent thickets. It is enough to observe the current round of suits and countersuits in the world of smartphones to see that this situation threatens the continuing progress and diffusion of technologies that increasingly lie at the heart of modern life.

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