[d@DCC] The battle of the anti-copyright exceptions

[Sydney Weidman]

On Wed, 2004-09-29 at 18:57, Russell McOrmond wrote:

>   I see the controversy as being about two things:
> 
>    i) Royalty based licenses in the password-free part of the Internet.  
> Most of us who have been on the net for a long time believe this is an
> invalid request.  By authorizing a work to be on the password-free part of
> the Internet you are authorizing royalty-free verbatim distribution
> (caches, mirrors, printouts) for any reader, just as by mechanically
> creating a book you are understood as authorizing it to be read an
> unlimited number of times by an unlimited number of readers.
> 

So what motivates anyone's use of Creative Commons license for content
on the public internet? Is it just an empty gesture? Probably not. Is it
done to armour visitors to our websites against future changes to the
law? Is it merely to promote the Creative Commons brand? I think the
reason is that we genuinely expect that the licenses are honoured. I
don't think the copyright board or the committee are thinking about
trivial copying such as caching or mirroring, even if they understood it
correctly. They are thinking about instances of public display for
educational purposes. As a paradigmatic example, imagine a teacher in a
social studies or current affairs class hooking up an LCD projector and
flipping through a few news stories on cbc.ca. This is not merely
caching or mirroring. This is copying which has an impact on the market,
however small. 

Simply dismissing the entire internet as a free-for-all zone in this
regard is to cast doubt upon the value of Creative Commons style
licenses. The CC-Share-Alike and the GPL are both voluntary schemes. No
developer is under any obligation to license their work in any
particular way. If they choose to license their work under the GPL, they
are (potentially) rewarded with assistance from an army of
collaborators. Although I agree with you that charging schools for
access to works of any kind on the public internet is a huge mistake, it
would also be a mistake to simply declare licenses invalid or to lump
all forms of digital copying into the same category as mirroring.

One could argue that the internet is a voluntary scheme, too: if you
don't like it, don't put your stuff there. We have to just accept that
some authors will be mean-spirited. But as long as internet publishing
is easy and achieves some small recognition, most will continue to
participate.

I think your instincts were right to focus on Open Access as a solution.
We should honour the wishes of creators, but create broad, no-cost
exemptions for educational use. I am almost tempted to say "educational
use of any kind" but then there are private, for-profit educational
institutions also. We have to philosophically acknowledge the creators'
rights, but ask them politely to bite the bullet in this case. 

Sometimes when I read the recommendation, it seems to me that it was
largely crafted as a gesture of acknowledgement anyways -- but with a
hook left in for the publishing industry to tweak at its discretion. So
lets compromise the other way, and admit that:

1) yes, all these documents on the internet have value and 
2) yes, we understand that creators' wishes are associated with every
one of those works, but that (as John Lange said more eloquently than I)
3) the social cost of allowing the creators to collect from educational
institutions is higher than the social cost of potentially discouraging
some authors from creating new works or making their existing works
available on the internet.

>   ii) Works with no license are being assumed to be royalty based.  This
> is something I can not believe is being suggested, but is what I
> understand from the letter of the current recommendations. If you don't
> put a license on your work (which is most of my non-software works over
> the years) then it is presumed that you are asking for a royalty and would
> have to "lobby" a copyright collective (or the copyright board) to ensure
> your works were not counted.
> 

I think our chance to have a copyright regime that defaulted to public
domain was done away with some time ago. I'm only going on what I read
in "Free Culture" and not the Canadian legal context, so correct me if I
am wrong. If digital works are to be subject to the same laws as
physical works, we have to suffer with what currently applies in
meatspace. It helps the cause of digital freedom to *not* make the
digital copies a special case. Special cases need extra work to protect
as freedoms or as property, get poorly researched and drafted laws, and
don't have the benefit of balanced copyright tradition behind them.

>   There is a claim that there are legitimate royalty-based works on the
> password-free Internet that were authorized to be there by the copyright
> holder.  This in my mind is false: works are either royalty-free
> (authorized) or infringing (not authorized by copyright holder, and should
> be removed -- not levied).  If a copyright holder put a work on the
> password-free Internet and was expecting a royalty because of its
> distribution, then these copyright holders need to be educated that this
> is not how the password-free Internet works and that they should remove
> their royalty-based works.
> 

Again, here is the Free as in Beer vs Free as in Speech distinction. The
copyright holder or creator of the work may not be expecting payment
(and thus Access Copyright's ploy to collect on their behalf is bogus)
but that doesn't mean they don't care about the fate of their work.

> > I'm opposed even to zero rating, but an argument that someone is
> > over-collecting doesn't make sense when you're saying that it's zero
> > rated. Overstepping the limits of their power, perhaps.
> 
>   Any collection of royalties on the password-free Internet (first part of
> the recommendation) is an over-collection, regardless of what license is
> on the work.  They want to create a bureaucracy that would have to be
> fought against to minimize the over-collection, and thus hide the fact
> that there is no legitimate royalty collection in this category at all.
> 

This I am 100% in agreement with. Don't collect fees. Just acknowledge
whatever rights are necessary to encourage you to produce in this sphere
of communication (moral rights? attribution?) and move on.

>   Here is the PDF version of the Heritage report, mirrored and translated
> to HTML, for all view.  Did the government specifically authorize this
> redistribution?  My answer to the question is: who cares.
> 

I wouldn't say "who cares" rather: we care, but only the smallest amount
possible that still gets your content produced and uploaded. Anything
else is forcing the ballerina to wear sandbags.

>   The problem that created recommendations 4+5 is that legacy copyright
> holders think of the password-free Internet as having 'many copies' of
> their works on it.  I believe this is an entirely wrong way to think of
> it: this should be seen as "one copy" that just happens to physically
> exist on more than one hard disk/computer at the same time.  Either a work
> was authorized to be on the public Internet (IE: every "copy" on hard disk
> is royalty-free and understood as authorized, regardless of what a license
> agreement says), or it was not authorized in which case it should be
> removed (not levied!).
> 

I think whether you count it as one or as many, counting it at all is
only going to benefit bean counters. Counting as one item something as
complex as a written work is like saying the Earth is just an object.
Saying person x owns "token assembly with hash value
AF912714FDDB8127ADC1" doesn't contribute to the wisdom of the ages, yet
it would be enough for them to prove ownership. I think we have to
provide just enough incentive and no more. Obviously, at the time the
internet was born, there was a huge pent-up demand for independent
publishing. Works came into being without the need for royalty-based
incentives. As long as we don't remove that minimal incentive, we will
continue to enjoy rich content on public networks.

>   In order to understand the public Internet they must think of it is "one
> huge book with many readers", some of which use corrective eye glasses
> (IE: format conversion, like PDF to HTML), rather than the way they want
> to think of it which is as many books and many readers, each of which they
> (illegitimately) claim a right to receive a royalty from.
> 

I think that second formulation makes more sense to me -- thinking of
the entire internet as one huge book, rather than each work as a
distinct entity. All the works are interconnected by their history and
idea flow. The boundaries between them are not as solid as they seem. So
in the networked world, with its heterogeneous, hybrid vigour and
distributed, fault-tolerant architecture, ideas live on very little
fertilizer. Children's minds, on the other hand, require all we can give
them.

Damn. Did that sound like I meant kids are stupid? I didn't mean that
:-)

Regards,
Syd


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