Monday, May 7, 2007

Copyright and Bedouins: Part II: Copyright

Defining Copyright
Copyright is, at its most general, the "right to copy", as Wikipedia so eloquently puts it. In the U.S. (and many countries (pdf) that have accepted the Berne Convention), copyright defines a length of time during which the author of a work, be it photography, music, literature, etc., retains the rights to copying and use of that work. Under the Berne Convention, copyright is automatic — as soon as you create something, you own the copyright for some length of time. How long depends on the country; the Berne Convention defines a 50 year minimum (25 years for photography). Additionally, included in restrictions on the original work are restrictions on close derivatives; mimicry that isn't exempted (such as satire) is disallowed under a basic copyright.

The original goal of copyright is to increase the incentive for production of creative works. Without copyright, writing a book becomes a labor of love (or hate, depending upon the author), rather than a means of making money. Copyright prevents someone else from reading a book, copying it, and selling it themselves, with no profit to the original author. However, it's often unreasonable to require that an author be responsible for publication, marketing, and distribution of every book. Copyright can therefore be transferred (in whole or part) to others. A work can also be licensed for use in more specific ways. For instance, a musician can contractually transfer the whole copyright for an album to a record company in return for a guarantee of some amount of money per album sale (royalties). A record company can license a song for use in a movie for some fee; the movie producer doesn't own the copyright, but they're allowed a limited usage of the copyrighted work.

There are some exceptions to copyright. As mentioned above, satire is often considered outside the realm of pure mimicry. There are other examples of "compulsory licenses" that allow some use of copyrighted works. The Berne Convention allows exceptions to copyright where the exception will not interfere "unreasonably" with the desired use by the rights holder. In the U.S., this includes "fair use" and compulsory licensing. Fair use basically follows the Berne three-step test. For instance, non-profit educational use of a clip from a movie that doesn't detract from the revenue of the copyright holder is generally considered fair use. Compulsory licensing, on the other hand, means that if you cannot find the copyright holder for a work, you can just pay a filing fee to the copyright office and use that work until such time as the copyright holder comes forward. This allows some use of orphaned works although it generally only applies to music and television broadcasts. In the U.S., there are also compulsory licenses for webcasting/broadcasting music. The fee (plus the hassle) set by the copyright office determines in large part how much recording companies charge for licensing songs for radio play since stations can either choose to license from the record company or through the copyright office.

Re-defining Copyright
Copyright law, originally designed to protect a creator's ability to make a profit, has been thoroughly co-opted by corporate interests. A key turning point was the extension of copyrights under the Copyright Term Extension Act, a.k.a. the Mickey Mouse Protection Act; it added another 20 years onto the length of a copyright after the author's death to provide a total of 75 or 95 years depending on whether the copyright was personal or corporate. The act was in large part lobbied for by Disney, but there are many that claim it's beneficial. Detractors point out that the only people making money off these longer-term copyrights are those that are wildly successful and generally corporate (i.e. Mickey Mouse).

More recently, the DMCA (Digital Millennium Copyright Act) has been sticking it to fair use, almost nullifying it in some cases. Passed in 1998 at the behest of the movie and recording industries, it's the same sort of knee-jerk failure to cope exhibited when there were strong efforts to ban VCR players as illegal instruments of bypassing copyright. Among other things, it prevents even attempts to circumvent copy protection. For instance, DVDs are encrypted in a way that made it impossible for companies that were not provided the decryption scheme by the recording industry to play movies without actively breaking the law. Some Norwegian kid went and broke the encryption anyway and released the means to do so to the Internet. However, it's illegal (under the DMCA) to use this software even for personal backups, basically preventing fair use copying of DVDs. Even if the copy-protection scheme is trivial — say the movie is recorded backwards — it is still illegal to circumvent it. There's no expiration either; so all DVDs are effectively copyrighted forever, which is in violation of the spirit (if not the letter) of the Constitution, which gives Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The DMCA does do one good thing: it absolves internet service providers from responsibility for copyright-infringing actions of their users. They must notify the users in question, and remove the offending material if there is no response, but they are not legally liable for its appearance in the first place. This is accomplished by means of a DMCA Takedown Notice. A particularly interesting case right now involves a demonstration by a law professor (Wendy Seltzer) in which she's posted on YouTube a 30-second clip of an NFL game in an educational, fair-use context. So far, the chronology is thus:
  1. The NFL sent a takedown notice to YouTube (who complied, removing the clip), possibly generated automatically by a program run specifically to detect and send notices for copyright violations.
  2. Wendy Seltzer sent a counternotice (generated automatically, hah!) basically pointing out that it was a fair-use clip. YouTube put the clip back up.
  3. The NFL sent another notice (in probable violation of the DMCA), and YouTube took down the clip again.
  4. Seltzer sent another counternotice, and the clip is back up.
For further exciting details, see Wendy Seltzer's DMCA fiasco archive.

Re-redefining Copyright (Creative Commons)
A standard "All Rights Reserved" copyright is very strict; it literally means that (outside of fair use) the author must be asked permission for every use of their content. Until somewhat recently, the only way to allow wider usage (e.g. for derivations (remixed music), non-commercial, or even complete usage with attribution) was to get a lawyer to write a custom contract or to make an informal and legally sketchy agreement. Creative Commons is an organization that has developed a set of legally thorough contracts that "give you the ability to dictate how others may exercise your copyright rights." (CcWiki FAQ) In effect, Creative Commons is extending copyright to allow easier publishing of material that doesn't need to be completely protected.

A basic set of pre-built licenses exists that can be chosen based on your needs. The core set of Creative Commons licenses all require attribution of the source of a work, but allow you to mix-and-match additional clauses. Non-commercial licenses require that your work or derivations not be used commercially. Share Alike licenses require that any use of your work be shared under the same license as the original. No Derivatives licenses allow use of your work, but only as long as the content is not modified. Additional information about these licenses can be found here.

Creative Commons licenses now apply to a vast amount of work. I mentioned previously that Flickr hosts over 30 million images for use in the public domain; these are being shared under various flavors of Creative Commons licenses. Flickr actually allows you to pick your license type as you upload your photos. Music, video, photos, software, and even books have been licensed for use (and reuse) under Creative Commons.

One especially interesting feature of Creative Commons licenses is that they're machine-readable. This means that a piece of software can easily determine what it's allowed to do with a given work. The example I keep using when trying to explain this is that of a screensaver that pulls pictures from a photo-hosting site like Flickr. Suppose you have a screensaver for sale that shows neato-keen pictures from Flickr and blends them together in interesting ways. Rather than having to individually contact all the Flickr users with pictures you want, you can design your screensaver software to automatically search for only pictures that are licensed for commercial, derivative use. Your piece of software is thus entering a contract with the creators of those pictures, but no human interaction is necessary, either by you, the user of your screensaver, or the creator of the pictures. Thus begins the trend towards software agents negotiating (legally binding) deals, which I'll imagine further in a later post.

Post scriptum:

By waiting long enough to post this article, I've actually lucked into a great example. Creative Commons has recently made the national news in relation to the upcoming US presidential debate. MSNBC hosted the recent debates for the Presidential Primary, but only posted the content online with commercials and an extremely limiting license that, among other things, disallowed "internet use". (See various blog posts.) For the upcoming June debates, both Barack Obama and John Edwards endorsed a proposal that the debates be released under a Creative Commons license. CNN has apparently agreed to do so for all the presidential debates they host.

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