Copyright Talk

The new Copyright Alliance is undergoing some scrutiny. With membership seemingly composed of all sides of the copyright issue - also known as all types of stakeholders - it’s hard to get a handle on exactly where the group is planning to go. The Alliance took offense to a story linking it a policy position on radio, both traditional and internet, performance royalty fees, and went to great pains to explain that is no policy position - yet - on that or any other specific issue.

On it’s website it lists seven principals. The one that bears the most watching is this: “To promote the progress of science and creativity, as enumerated in the U.S. Constitution, by upholding and strengthening copyright law and preventing its diminishment”

With a membership as diverse as theirs appears to be, it will be difficult to take positions on some copyright policy issues. But it still seems like the Alliance must be stockpiling all that heavy artillery for something. The most interesting thing to me is the presence of several sports leagues among the membership. The NCAA, NBA, and MLB all hold extremely valuable intellectual property. For most of it, a strong education campaign on the do’s and don’ts of reproducing team logos, etc would probably be of great benefit. But they would derive at least as much, if not greater benefit, from copyright changes related to the filming and publishing of their games. And even so, sports leagues, although they derive much of their revenue from intellectual property, are definitely not traditional author/distributor copyright stakeholders.

I received the following comment on another blog I write for teachers, from reader Redkudu:
“Just an item of interest: I recently received permission from the YA magazine Cicada to use one of their stories in the classroom. You might remember that a resource you posted a while back helped me format the request.

They said they were pleased to allow me permission, and re-iterated the terms I’d laid out in the letter: 30 class copies, no student gets personal copy, no student work based on the story to be published, rights granted for one year only. It was a really fascinating process, and I’m glad I went through it - partly because I like knowing I went through the appropriate channels, and partly because I can now use the letter as an example for when I teach about copyright and plagiarism. ”

Just another example of how the system works.

Copyleft is a term used in the software development community. It started as a rebellion, of sorts, by programmers who wanted a shared community of software, developed by the community, and free fro all to tinker with and modify.

Ironically, the very copyrigt system that these programmers felt needed to be discarded is the one that allows them to accomplish their goal. So it makes a good example of the strength of our basic copyright scheme.

An author of a work automatically owns the copyright to it. The author has the right to decide where, when and how that work is used.

If the author wants other people, any people, to use the work without having to ask permission and without having to pay, the work can be placed in the public domain. Public domain works are owned by the public, so no permissions are needed to use the work and no royalties or other payments need to be paid to an owner.

The software programmers didn’t quite like this approach, because when a public domain work is sufficiently modified so as to become a new work, a new copyright attaches - and the new owner might not put the new work back into the public domain. The programmers wanted the software to continue to be accessible and to continue to be modified in all its subsequent forms.

So they came up with a copyright license that gives automatic permission to any person to do anything with the software, so long as any derivative work continues to be licensed under this free access policy. A person who modified a free access piece of software and then held it as proprietary property available only upon purchase would be violating the original license, and therefor subject to copyright infringement claims.

The programmers called their copyright license a “copyleft.” As far as I can tell, this was primarily as a statement against what they felt was a restrictive copyright system.

Ironically, the copyright system allowed them to accomplish their goals.

Copyright is not the villain.

Carol Burnett filed a lawsuit last March against 20th Century Fox over it’s TV show “Family Guy” for copyright infringement for using her charwoman character and a snip of music in an episode of the show without permission. Fox says the segment was only 18 seconds long and they were therefore surprised by the complaint.

Friday, a judge in Los Angeles dismissed the suit, which means Ms. Burnett will not get to make her arguments as to why the show illegally infringed her copyright. The judge plans to issue a written ruling later which will tell us exactly why the suit was dismissed. A dismissal is usually for reasons other than lack of merit, so this does not necessarily mean that Fox was in the right with what they did. It just means something was wrong with the suit - probably in a procedural sense - and that it won’t get to go forward. That is speculation on my part, however, until we see the actual written ruling.

The Smoking Gun has published a copy of the original complaint, which goes into some detail, and they have also helpfully posted the “Family Guy” clip in question at their website.

The question is not whether or not the clip is funny, but whether they needed permission to do what they did.

The newly formed Copyright Alliance has the potential to be a heavy player in the policy debate on copyright issues.

The coalition includes a fairly broad spectrum of industry and commercial entities, but judging from the little information available on their website, I expect their positions to be largely aimed at increasing terms, increasing use of DRM technology, and decreasing fair use exceptions.

Let’s see what happens.

According to U.S. Dept. of Labor’s Occupational Employment Survey for
2001, musicians and singers make an average yearly income of about
$45,900. In that average are the superstars who make tens of millions a year, so I would guess that far more musicians make less than the average than make more.

I mention this because I think it’s important to remember when the debate over song and performance royalties comes up. There are some musicians who make so much money that it seems unseemly to quibble about royalties. But for most musicians, it is as serious a salary issue as the office worker who expects overtime for working one evening.

Congress is still studying proposed legislation to reduce the new royalty rates for web broadcasters (internet radio) announced by the Copyright Royalty Board recently. But just last week, at the request of the House Judiciary Committee, SoundExchange, the royalty collection agency, has made an offer to small webcasters that would essentially extend the previous royalty rates to them until 2010. SoundExchanges press release explains the offer.

A group called SaveNetRadio, representing webcasters, has criticized the offer, claiming it is designed to keep small webcasters small. Also read the Washington Times story here.

The debate over webcasters has been and will continue to be heated. Webcasting offers an alternative to the high cost and limited availability of radio stations for individuals who want to program radio. Those small webcast/radio alternatives in turn offer an accessible outlet for independent musicians who are essentially locked out of the increasingly centrally programmed radio stations. And that diversity of programming offers alternatives to millions of listeners who now have access to a huge variety of programming chosen by thousands of different programmers, and not just the ten or so radio broadcast stations in their town - most of which are programmed by the same person who programs the stations in all the neighboring towns as well.

But at the same time, it’s important to not lose sight of the fact that the music played on all these stations, both radio and internet, represents the work product of many people. Songwriters and performers who are trying to make a living must get paid somewhere along the way. We have not yet reached a concensus on the best way to do that.

Copyright covers creative works fixed in a medium. Patent covers inventions.
Copyright protection extends for the life of the author, plus 50 or more years, depending on when the copyright was obtained (the law changed in 1995, in what is often referred to as the Disney law). Patent protection, on the other hand, lasts about twenty years. Period. The thinking is that the twenty year period would allow the inventor enough exclusive marketing and sales time to recoup the development costs and to make a little profit. After that, the public good demanded that the invention be available for all. You see the effects of the patent limitation in the periodic appearance of new generic drugs, and the sudden proliferation a few years ago of products incorporating the very spiffy invention previously sold exclusively under the brand name Velcro.

But Copyright protection lasts much longer. Any idea as to why?

Libraries are facing some challenges as the information in their collections expands far beyond traditional books. Much of that information now comes with limited licenses and digital rights management technology, requiring librarians to develop new management processes to keep the information flowing. Librarians know all this already. But keeping up with what they need to know can be the biggest challenge of all. So you might want to check out this web seminar presented by the American Library Association on June 1. Although the seminar does have a registration fee, the good news is that registration is per site, so you can include as many people as can view from your location for the same fee. It’s worth checking out to see if it may have something of value to you.

The concept of copyright, that is, the right of the author to control their work, whether for economic or other reasons, has been around for a very long time. But it has always engendered some controversy. Controversy did not spring up fresh as a result of the internet. However, what is different now versus at any other time in copyright history, is that the average person is now part of the debate.

I do not believe the internet has changed anything fundamental to copyright. But the internet and digital technology has changed the amount of information in its original form that is available to every single person in the world, and it has changed the ability of any individual person to copy that material. That is a change of huge magnitude, one that has brought the word copyright and its basic concepts into the consciousness of millions of people who previously would have viewed it a “legalese” that was barely relevant to them.

As a result, the debate on the concept of copyright itself has taken on new life. On one side, we have large media outlets who are pushing for longer protection terms, greater penalties, more restrictions on the technological ability to copy material. On another side, we have intellectuals and developers who push for fewer protections in all those areas ( a list of some of the major thinkers on this side is here). On another side we have the individuals authors, who are mostly not in a position to argue anything. And on yet another side, we have consumers, who just want to know what they can do and hope that it turns out to be reasonably easy to understand.

Creative Commons is a non-profit organization set up to provide tools to help authors who want people to have some right to use their work without asking permission each time, and to help users find works that have pre-granted permission to use it in various ways. Their literature talks about how easy and wonderful getting permission to use things is when the user and author talk directly, without those pesky “intermediaries.” Intermediary, as used by Creative Commons, seems to mostly mean “attorney.”

On the surface, Creative Commons and it’s pre-written boilerplate licenses seem like a fine idea. But I’ve been puzzling since it’s inception in 2004 over what it actually does that is new and different and useful. After all, any copyright owner has always had the ability to set out blanket grants of rights in the copyright notice placed on the work. And attorneys don’t make decisions for their clients, they merely make sure, as best they can, that the actual decision their client wants to make is carried out in the way they want. Sometimes a deal is reached, sometimes it’s not, but that’s based on the decisions of the parties, not the attorneys.

Anyway, so if authors and users can already talk, and if authors can already grant blanket permissions in advance, what is the point of having Creative Commons? Creative Commons itself clearly says that it is not a replacement for or an alternative to copyright.

I finally arrived at this, although my thinking may change. I believe Creative Commons is primarily useful as a new type of marketing model. They provide another database for authors works to appear in, another way for potential users to discover that they exist. The hook for users is that all the items they find can be reproduced or modified without having to take any more steps to locate and negotiate with the author. That’s a good hook for users. For authors, the only real benefit I can see is that additional potential visibility in the database.

I’ll end with this - Creative Commons IS NOT a rebellious attempt to free authors from the chains of copyright. More importantly, using a creative commons license DOES NOT mean your work will be used any more than it would be used if you didn’t have the creative commons license. But for some authors, it may be a good marketing decision for them to put some of their works under a creative commons license.

The law of copyright gives the author of a work the right to determine, with a few exceptions, when and how their work can be used. An author can give permission, or withhold it, for almost anything they want.

In an attempt to make the process of requesting and giving permission easier, the non-profit group Creative Commons developed a series of standardized licenses - or written permissions - and a symbol to be placed next to the copyright symbol that allows authors to give notice of blanket permissions that they have made available for the use of their work. When you see the Creative Commons notice on a work, you can go to the website and look up the license available for that particular work.

Creative Commons has developed this short video to explain their concept.

Tomorrow I’ll have some thoughts on the Creative Commons project.

Alberto Gonzalez’ proposed copyright legislation has drawn quite a bit of ink from commentators. Most of it is of the “can you believe this guy?” variety, based on some very broad expansions in the criminal provisions and some seemingly not very well thought oddball provisions. One such oddball provision is a notification requirement that would have Homeland Security telling the RIAA when pirated CDs are imported (or attempted to be imported). No other organization or copyright holder is to be notified. And why is Homeland Security involved in copyright issues in the first place?

Anyway, since this proposal originates from the executive branch, it must have a congressional sponsor before it can actually be introduced for consideration by Congress. As of this date, there is no sponsor. I’m very surprised that this was trotted out publicly without having all the players lined up.

It looks as if this was drafted hastily, and released publicly in haste. Perhaps for the purpose of distracting from the other debate Gonzalez is the subject of?

The Department of Justice and the Bush Administration are proposing enhanced criminal statutes for enforcement of copyright infringment, according to a speech given yesterday by US Attorney General Alberto Gonzalez to the U.S. Chamber of Commerce Coalition Against Counterfeiting and Piracy.

One of the changes is the creation of the crime of attempted infringement. Our criminal system is full of “attempted” crimes, based on the premise, I guess, that if you’re not a very good criminal and don’t actually get the job done, you’re still a danger to society and should be put away. But copyright law has always required “actual’ infringment before penalties kick in.

The proposed bill also stengthens restitution and forfeiture provisions.

According to a source quoted in a C/Net story, the chair of the House Judiciary committee has indicated that he will be proposing his own legislation on similar issues this session.

Similar legislation was proposed last session and went nowhere, so it remains to be seen if this issue will catch a wave this year, but the debate is certainly welcome.

MySpace announced on Friday that they are launching new tools to better control the unauthorized posting of copyrighted material. Their press release is here. MySpace already has a policy of rremoving material upon receipt of notice from the copyright owner, but the new tools will allow MySpace to tag that material and prevent it from being uploaded again to the site, either by the same user or anyone else.

Critics of the tool have pointed out that without a human being involved in the decision making, some legitimate uses may not be allowed.

The irony for me is that the whole point of MySpace is human connection and interaction on a large scale. Tom, one of the founders, even remains personally involved, to the extent possible, in the community as a regular user. But the very success of the model is causing more and more automation and therefore less human interaction. MySpace has well over a million users - management of that many users requires more and more automated systems. It follows the development pattern of other human societies, but the difference is that this is not a true society, it’s a company. So that means no government by the people, for the people,and a civilized debate over states rights versus centralized government.

It’s an interesting sociological laboratory.