Public Knowledge Pushes Five Point Plan For Copyright Reform

from the will-it-matter? dept

The folks over at Public Knowledge have officially unveiled their plan for copyright reform, focusing on five key areas:

  1. strengthen fair use, including reforming outrageously high statutory damages, which deter innovation and creativity;
  2. reform the DMCA to permit circumvention of digital locks for lawful purposes;
  3. update the limitations and exceptions to copyright protection to better conform with how digital technologies work;
  4. provide recourse for people and companies who are recklessly accused of copyright infringement and who are recklessly sent improper DMCA take-down notices; and
  5. streamline arcane music licensing laws to encourage new and better business models for selling music.

Good stuff all around, though I’m not sure why statutory damages are dumped in with fair use, when it seems like they could be separate discussions entirely.

I think it’s great that Public Knowledge is pushing this (with the assistance, apparently, of the Stanford Cyberlaw Clinic and the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law), though of course the chances of this actually getting anywhere seem slim. But, as a conversation starter on an important topic, it’s a good first step.

So even if the chances of it going anywhere are slim, I’d love to hear from defenders of current copyright law the reasons why any of these particular reforms don’t make sense.

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Comments on “Public Knowledge Pushes Five Point Plan For Copyright Reform”

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49 Comments
Anonymous Coward says:

Re: Re: Re:

I would go for a slightly more complex system, but with shorter terms.

(1) Absolute prohibition on any copying for the first two years. Individuals may copy or share for personal use any time thereafter. Absolute prohibition on resale or selling any derivative work.

(2) Commercial (anything associated with selling, even if the work helps sell another work or service) copyright terms are as follows:

(a) Movies – 3 years
(b) Recorded Music – 5 years
(c) Software – 5 years
(d) Written works, except software – 10 years; with payment of a fee you get 10 more years. The copyright office is to establish a database with copyright extension fees (make them high). If your written work is not in the copyright database after ten years, it is public domain.

mobiGeek (profile) says:

Re: Re: Re: Re:

What about selling resources propped up on derivative works? Say I make a mashup and sell t-shirts associated with the mashup?

Or what if I sell tickets for a concert where I perform the mashup?

Or what if I sell my time to someone (or some company) to create the mashup in the first place?

What if I am giving my derivative away, completely for free, at a church picnic that costs $5 to get into?

What if I am giving my derivative away, completely for free, at a mall opening?

The term “selling any derivative work” is simply too ambiguous.

Anonymous Coward says:

EMI Puts Abbey Road Studios Up for Sale

http://online.wsj.com/article/SB10001424052748704804204575068963554333850.html

Troubled music company EMI Group PLC is talking to potential buyers for Abbey Road Studios, the hallowed London facility where the Beatles did most of their recording, according to a person familiar with the matter.

The talks are the latest sign of distress at the world’s No. 4 music business, which has floundered since being acquired in a 2007 leveraged buyout by private-equity firm Terra Firma Capital Partners Ltd.

fogbugzd (profile) says:

Shift the burden of proof

False claim of copyright should itself be a serious crime. There have been too many cases where publishers continue to claim copyright which has clearly expired, and in some cases claiming copyright when they have no rights at all. We have seen a lot of cases where copyright claims have been filed or threatened as a form of legalized extortion.

The burden of proof in copyright cases should be shifted. The person claiming copyright should have to show clear and explicit copying. Right now the deck is stacked in favor of the person claiming copyright.

Most of the gray areas (such as songs that sort of sound like they might possibly have been inspired by a musical theme in older song) do not hurt the copyright holder. In fact in most cases they represent the type of creativity and innovation that copyright is supposed to encourage.

Anonymous Coward says:

Re: Shift the burden of proof

This is why I promote the three strikes law. Well, my version of the three strikes law differs from the RIAA’s et Al.

Here is my version

Finally, you (the EMI) should be SEVERELY PUNISHED for your attempts to hinder the progress in violation of the constitution. Punished enough to prevent you from EVER doing so again and hopefully enough to cause you to almost go out of business.

There should be a three strikes law. First strike, a million dollars to everyone you tried to extort. Second attempt to hinder the progress, 25 percent of your assets should be auctioned away. Third strike, you go out of business by force and your C_O’s and managing directors get jailed for 5 years.

http://www.techdirt.com/articles/20100215/1235058169.shtml

So what do you think of my proposed three strikes law against bogus DMCA takedowns?

NAMELESS.ONE says:

creat your own lobbyiest today

hey everybody if they bribe er lobby politicians maybe we need to start doing the same OH BOY think of it in the usa if every person gave 1$
thats 300 million to bribe you mister politician are you going to do now what we want if we give you a yacht, your own island and a golden golf cart with diamond golf clubs?
and we also demand copyrigh terms down to 14 years so people are not SOOO FRAKING LAZY

ethorad (profile) says:

Re: Re: My 5 oint plan or copyright and patents.

I disagree here. Why should the ownership of copyright not be treated like any other asset – such as a building, or equity? In each case it’s an asset that can be used to generate an income. If the artist wants to capitalise their future royalty income stream they should be free to sell their copyright (also if you prevent reassigning copyright someone will come up with a clever financial product that does the same thing, so why stand in the way?)

As a separate point, they shouldn’t be allowed to reclaim them back – unless there was an explicit clause in the original sale agreement stating that. After all, if I sell you a house you’d be a bit annoyed if I turned up a few years later and demanded it back again.

Jon Renaut (profile) says:

Re: Re: Re: My 5 oint plan or copyright and patents.

I agree – we need to be able to transfer rights. For example, what if an artist creates a work and is hit by a bus the next day? The spouse and children of the author should be able to enjoy the benefits of the limited monopoly.

The real problem is extension. To extend the copyright, you should have to make substantial changes. Fixing a typo doesn’t mean a new copyright. To balance things out, set a standard for extending the copyright. If you change it by X amount, you get a new copyright. But that means that changing by X is a totally new work, so anything that’s X+1 is transformative fair use, and is legal for anyone to do.

Anonymous Coward says:

Re: Re: Re:2 My 5 oint plan or copyright and patents.

I disagree. If a salesman gets hit by a bus, his spouse and children won’t be getting a cheque every month, so I see no reason why the spouse and children of an author should.

Copyright should not be transferable, but rights holders should be able to license it to others, while still keeping the power and having the ability to pull out of the contract if they want to.

Jon Renaut (profile) says:

Re: Re: Re:3 My 5 oint plan or copyright and patents.

Fair enough, but the spouse and children will still get pending commission checks, right?

If copyright is meant to promote creation, then there has to be some sort of guarantee that it doesn’t just up and disappear. The same benefits aren’t extended to salesmen because no one ever thought there needed to be a legal incentive for people to sell.

ethorad (profile) says:

Re: Re: Re:3 My 5 oint plan or copyright and patents.

Agree that they should be able to licence it to others, just don’t see why they shouldn’t be able to transfer it. After all, if you allow licencing what’s to stop people writing licencing agreements that run for the length of the copyright with no/very penal early termination clauses? Would have the same effect as transferring.

If the holder wants to:
– sell completely (ie sell the freeholding on a building)
– licence for a long period (ie sell a leaseholding)
– licence for a short period with termination clauses (ie monthly/yearly rental)
there shouldn’t be anything to stop them, as any barriers will only be circumvented and we’ll spend our time with increasingly arcane laws aroud what is and isn’t allowed in agreements.

Karl (profile) says:

Re: Re: Re: My 5 oint plan or copyright and patents.

I’ve pointed this out before, but Thomas Jefferson made it pretty explicit that copyrights should NOT be treated like any other asset:

Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

Having said that – I don’t believe people should have to apply for a copyright. “Poor man’s copyrights” have been used for decades to prevent music labels from ripping off artists. (Sometimes successfully.)

It would however be a good idea for copyrights to be non-transferable, but only licensed.

And, of course, to make them last for a much lesser time. Copyrights were never meant to be an income generator for your grandkids. If you made money from your work, they’ll inherit that, no need to rob the public of what’s rightfully theirs just to have an additional income for your descendants.

Rosedale (profile) says:

Fair Use and Statutory damages.

I think the two should be put together. Because the extremely high statutory damages could equally defeat fair use. If fair use were better defined, but infringing copyright could net millions in damages than fair use is essentially meaningless. I wouldn’t risk it. The risk outweighs the reward. Think of all the businesses that have been sued out of existence even though they had a strong fair use argument. Most of this is due to fighting it in the courts, and the risk of losing and paying the price.

So yea I think they should be put together. Lowering damages encourages fair use. Of course the AA’s won’t want that, but that is a different story 😉

Jupiter says:

Copyright renewal

I’d like to see the copyright renewed every five years, but the cost for renewal grows exponentially, so that corporations only have an incentive to renew their most profitable works, and an incentive to keep them profitable.

$1 – $10 – $100 – $1,000 – $10,000 – $100,000 – $1,000,000 after 35 years. Yeah, the Beatles might still be worth it.

PRMan (profile) says:

Re: Copyright renewal

I’d like to see the copyright renewed every five years, but the cost for renewal grows exponentially, so that corporations only have an incentive to renew their most profitable works, and an incentive to keep them profitable.

$1 – $10 – $100 – $1,000 – $10,000 – $100,000 – $1,000,000 after 35 years. Yeah, the Beatles might still be worth it.

This is BRILLIANT! If it’s worth it, you’ll do it. Otherwise forget it. Anyone can afford $1 to protect something important for 5 years.

And this ACTUALLY promotes the arts, since when it becomes unprofitable to hold an old work, you had better get a new one quick!

nasch (profile) says:

Re: Re:

I think the term is the most problematic. Shorten the term to something reasonable, and the rest of the problems automatically get less severe, even problems we haven’t foreseen yet. No other single fix could simultaneously lessen every (I think, at least most) copyright problems the way shorter terms would.

With that said, I certainly would not argue that derivative works is not a major problem. And if I understand correctly, one not even created by Congress, but by the courts.

Karl (profile) says:

More reform

1. Reducing the length of copyrighted works should be on the agenda. There’s no sane reason that copyrights should last longer than trademarks.

2. Limit the damages from infringement to either:
a) The profit made from the infringers, and/or
b) Profit losses from the content creators – but only those profits proven by the copyright holders to have been lost by that specific infringement. If copyright holders cannot prove unequivocally that the infringement cost them sales, without leading to others, then they get nothing.

The first would rule out non-commercial infringement, and the second would rule out the outrageous damages in e.g. the Tannenbaum case.

Karl (profile) says:

Re: More reform

Forgot to mention:

As of 2006, there actually are quite a few exemptions from the DMCA’s anti-circumvention clause, including “orphaned” technology and educational use. One of them was even added specifically because of the Sony rootkit debacle:
Anti-circumvention exemptions (Wikipedia)

This should theoretically do away with one of the major negatives of DRM: that if your supplier goes out of business, or changes its protection scheme, your copy is useless. I don’t think it’s ever been tested in court, though.

Karl (profile) says:

Re: More reform

As I sat here thinking about the possibilities of opening a fair subscription service, I realized there is one other, major point that they’re not addressing:

Resale rights.

In all copyright-applicable industries, you have a right to resell the product you paid for – whether it’s a CD, book, or DVD. If we are to view digital copies as “products” in any sense, there has to be a mechanism that makes resale possible. Since you can already do this with software, it makes sense that you should be able to do it with MP3’s that you legally purchased.

Richard (profile) says:

Publics domain

I ‘d like to add:

Anyone who creates a derivative work from a public domain work should only be allowed to claim copyright if they make their public domain source material freely (in the Stallman sense) available.

e.g. Someone who translates a public domain work into another language must simultaneously make the original available, unencumbered by technical measures and at a fee that covers their costs plus 7% and no more.

Karl (profile) says:

Re: Public domain

The GPL already has this in it, and various versions of Creative Commons have this as an option. If you use GPL or CC works in the way that you describe, you can in fact be sued for copyright violation. The FSF has done this in the past.

For things that are copyright-free and in the public domain (e.g. the movie Carnival of Souls), this is taken care of already. Anyone can sell a DVD of Carnival of Souls, but they cannot claim copyright on the movie itself – you cannot be sued for sharing it.

Anonymous Coward says:

Apparently the Anti-Mike is also an anti-intellectual.
Then again anyone who always takes a contrarian view intentionally, as he always does(and got his hat handed to him on the Grateful Dead thread),really isn’t to be taken seriously. Other than snarkyness and calling people trolls, well that’s about all he does. So to the Anti-Mike if you’re readin this: The above outline by Mike is called a “thought process” it involves actual thought, not just reactionary BS. Just thought you would like to know the difference, as you clearly can’t distinguish it yourself.

LostSailor (profile) says:

Orphaned Works Needs to Be Included.

For the record, as a defender of copyright, I agree with all 5 points, and have suggested all of them at one time or another in comments.

I haven’t read the underlying proposal, so I don’t know how they’ve fleshed out these rather vague ideas, especially number 3.

And I would certainly echo the need someone posted above for adding one more point to deal with “orphaned works.” I know that this issue has already been discussed in Congress, though I don’t recall any proposed legislation, and a reform to copyright law in this area is actually more likely to be passed. This would go quite a long way to addressing one of the most frequent complaints about copyright: works that are no longer commercially available, and cannot be made available because the copyright holder is either unknown or cannot be determined. Think books that have been long out of print or films that are unavailable and in danger of being lost. Also applies to music.

As for reducing the term of copyright, that’s clearly not going to happen anytime soon. These are good first steps in copyright reform, ones that have a decent chance of at least being seriously considered by legislators. If you try to cram changes of copyright term in there, you only severely hurt the chances of moving forward on these first steps.

Gene Cavanaugh (profile) says:

Copyright and IP in general

I totally agree, except that as an IP attorney, I think the entire area of IP is due for an overhaul. I would like to see a serious discussion of the failings of copyright, patents, trademarks, and even trade secrets.
While there might be little chance of making the much needed changes now; we can engage younger people who are still willing to consider change, and as they grow older and take over, they will be influenced to do this.
IP needs to conform with the Constitution, and at this time, none of it does; it is simply a method for the wealthy establishment to slow or stop progress.

Muvaffak Gozaydin says:

copyright ; is that the right word for it ?

48 Comments.
Vow. In any education panel there are not more than 10 comments. That is the reason education as it is today in USA.
My view only for material which can be delivered from internet .
1.- All writers should be paid a fair amount?
2.- Please show me one who says he has been paid fairly today from pubklishers.?
3.- Writers go after publishers for months to have him to publish his books. Publishers have to invest lots of money until book is on the shelves. So he almost kill the writer to reduce the fee he will pay to him.
4.- Then expenses investments starts.
Finding paper, cutting the forest
Buying ink dirting earth
Spend electricy, man power and ink and paper print the
book
Binding the papers more dirth glue
Distribute to whole salers,then books stores., more gas
more CO2 .
Let the books sit in the bookstore until someone buys.
You see publishers spend money money
He gets his rewards after 1 may be 2 years . There is danger of staying on the shelf forever. Wasting the forest .

My Proposal is very very simple and RADICAL:
1.- All books, musics, videoes can be accessed by internet.
2.- Writer , composers etc sets their price.
3.- I suggest $ 5 per book per person per year.
Some writer may claim $ 6 or $ 7 . But not more than
that.
4.- Composers may say $ 1 or 2 or 3 per listening per year.
5.- Videoes can be more expensive.
6.- ONLINE Courses $ 10-20 per semester per person per
course.

Please look up the result. Look up the volume. You will gain from the volume and fairly. If people like your work they will pay you more.

If a book is liked it will be bought by millions. Writer will make lots of money. Be careful there is no investment beforehand. No money wasted.
Google can collect fees very easily from credit cards. Even we do in Turkey. USA should be able to do that.

Google should organise itself very well . It can be done.

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