This month, the Chefs take a request (one that has arrived in the in-box more than once). The answers are long, complicated, and in some cases surprising.
“What is the future of copyright?”
Without any further ado, here are some interesting answers from many perspectives. Remember, if you have a topic you’d like us to tackle, please email us.
Joe Esposito: This is one of those Big Questions that is designed to get us all to sit up straight and pay attention. I hope you will forgive me if I slouch in the back row, as I don’t believe it is an important question. Copyright will go on and on, like those laws that (allegedly) are still on the books banning the wearing of hoop skirts, but copyright will become less and less relevant. This is not because the advocates of open access or free information will prevail but because fixed content will give way to dynamic texts. You can’t pirate a moving target, so there will be little need to copyright it either. I wrote about this way back in 2003 in “The Processed Book.” My view is twofold. First, the properties of digital texts lend themselves to all kinds of flexible actions, including regular updating. Second, something that does not make economic sense disappears. Fixed texts will disappear because they can be too easily pirated or called to some higher purpose by funding bodies and anti-IP activists. Since this will make it increasingly hard to monetize these assets, investment in such assets will decline. Amazingly, this is a hard concept for some people to grasp. They would have it that a restaurant continues to thrive in the absence of paying customers because of the long line at the free soup kitchen that is run out of the back door. So if fixed texts disappear, what will replace them? Texts that are variable in nature, adapting to new information or the mobility of the user or the time of day or the weather — these dynamic texts would be very hard to pirate. Think for a moment about what it would mean to pirate Google Maps. Which one do you steal? What do you do with one map? Don’t you want the whole service that sits behind it? This is where the plasticity of digital text becomes important, as it creates obstacles to piracy by allowing the primary content to be mutated in numerous ways. The good news here is that the visionary publishers that begin to work in this way will be spared the need to fight with their customers over DRM, nor will they have to employ a phalanx of litigators to harass those that want to stick their hands in the soup. Their investments will move from creating a finished good to developing networks that embody that good. Those networks will change over time, often over a short time, stymieing those who want to set up shop on their own with other people’s works or who simply want a free ride. The bad news is that this shift will be painful for those of us who like a fixed text (curl up with Jane Austen or P.G. Wodehouse) and value the preservation of the cultural record. How do you preserve a record that is still playing?
Words are flowing out like
Endless rain into a paper cup
They slither wildly as they slip away across the universe.
Kent Anderson: Copyright seems both more important than ever and more irrelevant. It’s increasingly irrelevant because of the land of pointers — why do I need to steal a work when I can get nearly as much equity from it by pointing at it? However, the land of pointers also makes the source content more valuable, so that condition of equipoise isn’t permanent. And that’s when copyright can matter more than ever. For instance, the Rebecca Black song “Friday” seemed like a viral hit with little at stake. However, a copyright fight quickly ensued — over composition rights, derivative merchandise (ringtones, for instance), and royalties. Ultimately, the video was removed from YouTube. Copyright seems to not matter until it really matters, and this condition will likely become more pronounced as the whipsaw nature of the new self-accelerating information universe becomes dominant. Unfortunately, misunderstandings about copyright are pervasive, from educated people confusing “copyright” with “trademark” (e.g., “They need to copyright their name”) to a lack of appreciation for some of the technicalities that make copyright work. For scholarly publishers, copyright is a tool to protect the integrity of the finished work while releasing authors from the obligations of monitoring and registration. For some, this is controversial because they feel publishers are taking an author’s work rather than serving the author as an agent or steward. Like this controversy, and no matter whether copyright is more or less important in the future, it’s bound to be wildly misunderstood or misinterpreted on a regular basis — which seems to be its most enduring quality.
Rick Anderson: Is copyright going to change? Of course; it has already. In the digital environment the very notion of what constitutes a document has changed, and with it the notion of what constitutes a copy. But how will it change, and how much? The answer to both of those questions, obviously and boringly, is “it depends.” Some of the things it will depend on include such unpredictable factors as the emergence or re-emergence of targeted legislative initiatives (SOPA, PIPA, RWA, etc.) or of broader legislation designed to settle such newly vexed questions as the status of orphan works. But perhaps even more disruptive for the scholarly communication environment would be a trend amongst universities in the direction of “work for hire” policies. Traditionally — and unlike most corporate entities — academe has allowed its employees to retain copyright in the books and articles they write in the course of their work. (While this isn’t universally the case, it’s generally so.) It doesn’t seem likely that this will change substantially in the near future, but the growing interest in campus-wide open access (OA) mandates or policies has naturally entailed some reexamination of the traditional laissez-faire approach to copyright on campuses: one way to ensure that research performed on campus will be published in OA outlets is to assert campus ownership of locally-produced writing. Five years ago, I would have said confidently that such a development was very unlikely; I’m less certain of that now, after multiple campus conversations during which the topic has come up repeatedly. Such a change would inevitably entail a mixture of good and bad consequences, but at the very least it would be highly disruptive to the status quo.
David Crotty: Short answer? More of the same, as the stalemate continues. We’re in a strange period, one where rapid technological progress is outstripping our ability to legislate things fairly. We have two essentially opposing forces whose efforts seem to cancel one another out, leaving things in a continuing state of limbo. On the one hand you have the content creators and the industries that exist around them. They want to be paid for their work and want to maximize those earnings. On the other hand there’s a growing irrational culture of content addiction. I say “addiction” because there seems to be no better word to describe the entitlement behind the demands that all content must be made available at the time, in the format, and at the price a consumer wants it. These aren’t unreasonable demands, they’re the basis of finding a workable business model. If you can’t meet customer demands, your business fails. But it falls into the realm of the junkie when those demands are followed with the rationalization that, if the content isn’t available, then one is “forced” to obtain it illegally.
As Andy Inhatko writes, this is indicative of a truly amazing sense of entitlement. In what other business is this attitude even thinkable? Is content creation and distribution truly different? Or is this just a quirk of technology, a practice that exists because we can infringe copyright so casually? If one could get away as easily without paying one’s doctor or mechanic, one’s grocer or office supply store, would the same sense of entitlement exist there?
There are certainly business opportunities being missed here, but they’re not as simple and obvious as many assume. Factor in the loss of industry control that happened for music with the shift to iTunes and the ongoing loss of control the publishing industry is encountering with Amazon, and you can understand why progress is slower than many would like. Content creators can move rapidly to fulfill customer demand, but do so at the risk of dismantling their long-term survival. And even where content has been made immediately available at a reasonable price, filesharing still continues. Copyright law is made by government, and government is more likely to side with those they see as significantly contributing to the economy. And the concrete contributions (both in the form of employment, taxes paid, and campaign contributions made) by the content industry speak louder than the voices supporting the public domain and fair use. The value of artistic freedom to remix and reuse is a difficult concept to quantify for lawmakers. As such, we’ll probably see more heavy-handed and technologically ignorant SOPA/PIPA-style proposals come to the fore. These don’t really help the situation though, as they’re quickly routed around by new technologies. Each court decision, each new law seems to only briefly have an effect, and then the next wave of technologies renders it meaningless.
Our copyright laws are, without a doubt, out of date, many written for a pre-digital era. We do need to bring law up-to-date with society and technology, but this is a difficult process, as the law proceeds slowly and technology is advancing at an increasingly rapid pace. A law written in the Napster era is outdated in the BitTorrent era and will seem even more irrelevant in the mobile post-PC era. Will the pace of rapid change eventually stabilize? Or is this the way things are going to continue, forcing us to always play catch-up? Is it worth waiting for societal norms to be established before legislating?
I can’t answer those questions, but there are some reasonable changes to be made that benefit all agendas. Creating a better copyright registry, a place where one can find rightsholders to seek permission, would be of great use. And finding a solution to the orphan works problem may not be as difficult as it seems. I’d like to see a revival of Lawrence Lessig’s approach to copyright and orphan works that failed to garner support in Congress. Essentially, the plan makes all works protected by copyright for 50 years. At that point, if the work is still being exploited, the copyright holder pays a minimal fee to renew. The work stays under copyright as long as someone is willing to pay that fee to protect it. If not, it enters the public domain. This seems a fair way of protecting the rights of creators and stimulating economic activity around works while at the same time contributing to the public domain and our cultural heritage, opening up huge numbers of works for new, creative uses. The ship may have already sailed on this particular piece of legislation, but I’d like to see more thinking along these lines come into play. And it seems the perfect answer to the controversy that’s still brewing over Google’s book scanning program.
David Smith: There have been books written on this subject (such as Lawrence Lessig’s excellent “Free Culture”), so two paragraphs is something of a challenge. Rights attach to the creators of “stuff.” Those rights vary, based on the nature of the “stuff.” What can be done with the “stuff” varies based on the norms of a particular culture, the laws in place in the same culture, the market, and the architecture that allows for “stuff” to be created and used. The Internet radically changes every bit of understanding we have on the interplay between those four concepts. This leads to situations where somebody who shares a few Michael Jackson songs online was until very recently looking at the prospect of facing a more severe penalty than the person who ended Jackson’s life. It also leads to the situation where somebody can choose to use their cognitive surplus to create a work and give it away for free. This can lead to further confusion, such as the BBC and certain UK tabloid newspapers deciding that because somebody has distributed a picture “for free, to the public” via Twitter, they don’t have to bother with any of that “securing rights to use” business. Then there’s the very real issue of the creators of “stuff” getting understandably upset when norms of use from the pre-Internet age transform into an uncontrollable wave of rights infringing sharing (law enforcement turned a blind eye to format shifting and home taping but now seeks to monitor your internet usage for possible violations). The market is struggling to figure out how to price and control access to the “stuff” given all the above. And then there’s the issue of what are the legitimate non-infringing uses of rights controlled “stuff.”
And so to Star Trek; a world where replicators make anything on demand and energy abundance has reconfigured society into an information gathering and personal contentment society freed from the burdens of working for monetary recompense. I wonder just who, if anybody, owns the IP rights to “tea, Earl Grey, hot.” Sounds fanciful and silly, doesn’t it? Except, if you read Clay Shirky’s “Cognitive Surplus,” you’ll see a world where people group together to create cultural works of great significance, basically for the sheer fun of it. It’s more than Wikipedia; it’s crowd-sourced, open-sourced 3D printers; programmable CPU’s and operating systems; hacked hardware running modified software; makers standing on the shoulders of giants to show us glimpses of the future. I hope copyright supports that process rather than repressing it. I think copyright needs to be rethought from the ground up. I don’t much like the idea of a world where you can’t do anything novel with the “stuff” you are exposed to, without first making sure that the rights holder is OK with that. Huge seams of culture disappear in that world. But then again, a free for all on the uses of creative works doesn’t do much to enrich the human condition either. I think the concept of proportionality needs to be built into copyright, and also an architecture for types of use and re-use. This should be something we all engage with, because culture belongs to us, and it’s up to us to decide what we do with it.
Ann Michael: Extreme positions always intrigue me. On the one hand they can be an indication of a trend or a movement, and movements almost always need to be extreme to be noticed or get some traction (I will refrain from political examples on both sides of that spectrum!). Copyright, open access, the future of print — all of them have “followers” that take up the extreme case. However, the concepts and movements that survive often seem to resolve into something more moderate before they are supported en masse. It’s either that, or there’s a long and arduous mass education process that results in the extreme not seeming so extreme. One of the two — not always, but mostly.
I can’t imagine a world without any protection of intellectual property. That said, I can’t imagine that it won’t evolve into something more flexible, trackable, and enforceable within the reality of how people share information and how knowledge moves forward. To shift the focus, while there be pirates and scoundrels of all nature out there, I feel as though too many publishers put more focus on enforcing copyright than they do on creating meaningful and compelling user experiences that almost make copyright a moot point. That would be because through user experience they develop a competitive advantage. That experience coupled with quality content, an openness toward partnerships and cooperative arrangements with other information and technology providers, and a continued commitment to staying connected with their users and potential users in my opinion is usually worth far more than posting more guards at the border.
Michael Clarke: While I will not even hazard a guess as to the future of copyright (speculating on anything that involves legislation and international treaty negotiation is dicey at best), what I find interesting, and perhaps directional, are the evolving expectations that surround “fair use.” I recall once upon a time in the 1980s, the record companies hotly pursued hip-hop artists for sampling snippets of recorded music in the creation of new songs (perhaps they still do, or perhaps hip-hop artists simply pay a royalty now — but one hears less about such lawsuits these days). More recently, was the case of the YouTube take-down of the “Hitler Meme” videos, a collection of parodies based on the pinnacle scene from Der Untergang (2004), a German WWII drama revisiting the last 10 days of Adolf Hitler’s life in his underground bunker. Various artists substituted alternate subtitles, thereby showing an enraged Hitler screaming and pounding his fists about the latest Xbox release or Sarah Palin resigning as governor of Alaska. This is an example of both a new spin on “remixes” and an example of the issues involved with individuals posting content to which they do not own the copyright to any number of social and professional networks, including LinkedIn, Twitter, Flickr, YouTube, and in the STM space, Mendeley. In some cases, copyright holders may tolerate such use as it can drive more awareness, traffic, and/or revenue to their properties. In other cases, they may decide that they are net-losers and pursue legal action, ranging from a take-down request to the initiation of the now-abandoned SOPA or PIPA (and to a lesser extent, the Research Works Act). Additionally, there is the issue of indexing the content of others (which requires making a digital copy and caching content even if you don’t actually display that content to others), as best exemplified in the Google Book Search case.
Each new wave of technology requires a reassessment of fair use and what artifacts can be legally reused without fees and negotiations, and which cannot. This process naturally pits the interests of mature forms of intellectual property with mature revenue streams against new forms of art and technology. While this is not a new phenomena in the world, and is, in fact, centuries old, it is a phenomena that accelerating as the development of new technologies accelerates. There will be a great deal of reassessment, retrenchment, and legal battle before we reach a period of relative stability on this topic.
7 Thoughts on "Ask the Chefs: "What Is the Future of Copyright?""
I would expect Copyright law to become stronger, tougher, and even more draconian. Disney’s copyright on Snow White will never expire. Essentially nothing will become public domain.
Why? Because copyright laws benefit the people who control the people who write the laws.
On the other hand, technology and free market economics will attack copyright protection with increasing force, so the law makers will react with ever more draconian measures to fend off free market economics and to harvest the benefits of technology largely or solely for their masters.
There is a remote possibility of a rebellion against it. Certainly there is more power in the 99% than there is the 1%, but the 99% are hopeless at getting their act together. Internet helps, but not enough.
There is a even more remote possibility that the powerful with open their eyes. As in “Gee … we fought really hard against VCRs and lost — and the result was that it saved our industry. So maybe we should think differently”.
So much to comment on here. I’ll pick just one key point that might get overlooked: David Crotty’s point that we need a better copyright registry. Bingo! As much an admirer of CCC as I am, CCC is still dependent on rightsholders registering with them and users finding out that rights can be obtained. If I read David correctly, what we really need (which can and probably should include CCC! I’m not trying to undermine CCC!) is a system so transparent and ubiquitous that when a user accesses any content the rights associated with that content are available at a click. (Okay, there needs to be some metadata associated with that content to enable that. Not rocket science. See “identifiers.”) Full disclosure: I was quite involved in the died-a-bornin’ Book Rights Registry project, so I am fully aware of the complexity of the issue. But given the centrality of this issue in our intellectual ecosystem, I don’t think it’s impossible. And it’s NOT BINARY. I’m not talking about “protected: yes or no?” What would be really useful is for that click to show WHAT rights exist, WHAT rights are available, HOW to obtain them if you need to. If such a system existed, it could also provide some very useful information that could, over time, show how different levels of protection/access/use for different types of content tend to lead to which results. (E.g.: more books sold? Ask O’Reilly about that. What kinds of access, if made easily available, will users gladly pay for, if they had a way to do it? No, Apple, I’m not saying you should be that rights registry, as you’ve kinda become for music.)
Cue “Imagine.” . . . Oh, wait, is that song still protected? Maybe I can’t do that. . . .
That’s the sort of direction I was leaning. When you want to follow the rules and legally license someone else’s work for re-use, it’s often difficult to do so, to track down the status of the piece and the rightsholders. This seems something that would benefit everyone–people looking to reuse content would get the information they need, and the rightsholder would make it easier for people to pay them for that reuse.
I think Rick Anderson’s comment about the migration to works-for-hire arrangements for academic authors is very significant and underappreciated by people who follow open access publishing. If the faculty focused on this, university policies concerning copyright and scholarly communications would change rapidly. I believe they would become much more conservative.
I have to disagree with Joe on his prediction that copyright will become irrelevant as we move away from fixed to dynamic texts. That may well happen in some sectors of publishing, but I don’t see it happening anytime soon in academe, whose culture of peer review is going to demand fixed texts for a long time to come (as the failure of Gutenberg-e in this regard demonstrated). Copyright will remain important even as the move toward OA expands and strengthens, at least so long as publishers still have to rely for support from sales of POD editions. What I see happening on the copyright front in the near-term future are two developments: 1) the clarification of the meaning of “transformative use” as more cases involve this as a key concept at the heart of “fair use” (where, in my view, the Ninth and Second Circuit interpretations diverge significantly); and 2) the expansion of compulsory licensing to solve complex problems, like mass digitization.
The future of copyright is taking a good hard look at when and how and if it fulfills it task of “To promote the Progress of Science and useful Arts”.
And to look at the alternatives. If copyright does promote a little bit but with huge waste and negative externalities, then other means of promoting the progress of science and useful arts should be looked at.
Excellent compilation of opinions, but I gravitate to Joe Esposito’s opinion that “fixed content will give way to dynamic texts”. All of the opinions about control and legislation are accurate but I do think that nothing will respond to the real need for reform like the elimination of the problem. Copyright risks being left behind unless all parties act more quickly to adapt to the changing demands of content consumers. And no, academe will not be able to save the beloved institution of peer reviewed fixed text publishing. Information being transformed into knowledge is moving way to fast for us to wait on higher education validate it.