The quest for fair copyright.

1. Introduction

This document contains an outline of what is required for a fair copyright system. It is not directly based on any existing system, but of course it takes many ingredients from the Berne convention and copyright law as it is in the USA since those 2 are relevant for the large majority of copyrighted works in this world.

Copyright in different forms has existed for a long time. In late mideval times copyright was basiclly managed by the printers guild, noone outside that group was allowd to print, and they kept strict controls over who was allowed to enter the group. The equivalent to copyright at that time was infinite in time and was not linked to the author in any way.

In the 1700s the first modern forms of copyright came into existance, most notably the basics for modern USA copyrigth laws date from that time. The provisions for allowing for copyright as well as its first implmentations in law contain a response on 'mideval' forms of copyright. It does this in 2 ways: First of all, there is a direct link to the author of a work and copyright on that work. Second, copyright expires after a limited time. Instead of serving to protect the interests of a specific profession, it was intended to serve the interests of the public and the creators of works.

It is good to realize there are parts of the world where traditionally the concept of copyright is simply unknown. This includes a substantial part of the 'far east', ie: China and the region south of it. (this is mostly important for showing that copyright is not such a universal concept as some try to make us believe, and is also not a 'atural right' in any form. It is a deal between society and creative people in that society where the creative people get a chance to profit from their works, and society gets those workx as part of the common heritage (public domain) after a while.

The deal described here sounds fair, doesn't it? society gives protection to people whp create new works of art so those people can profit from their work, and in exchange, society gets ownership over those works after the artist profited from it for a reasonable amount of time.

In my opinion the concept is fair, but the way it works out today is not. In the rest of this document I will first define the exact purposes and limitations of copyright, and then show what the problems are today. Finally, I will propose a way to solve thse problems while still giving artists a decent way to profit from their work.

2. The purpose of copyright

The purpose of copyright is to stimulate production of arts in any form, including but not limited to books, music and video recordings and computer programs.

This stimulation is provided by means of a deal between an artist and the society (s)he lives in. This deal comes down to the following: Society guarantees the artist will have a limited time in which (s)he is the only one who decides on publication and distribution of the work, and laws are created to protect the artist. The other side of the deal is that once this time has passed, society will obtain the work as part of the public domain. This is supposedly a win win deal. The artists can profit from ther work and in the end sociey gains by enriching its heritage.

3. The limitations of copyright

In order for copyright to forfill its purpose, it needs to provide long enough protection to artists to make it worthwhile to make works of art, yet it has to ensure that the public domain sin't filled by things that lost their use or value way before they enter it.
Also, the protection provided must ensure penalties that are proportional to the damage done, without damaging the value of the works. This is a problem because the value of a work of art is for a substantial part based on emotional things, and when people start believing an artist is hurting potential customers, people are likely to devaluate the work of that artist.
Also, the buyer of a work of art has to be able to make some use of it, ie, actually be able to watch the contents of a video recording. The limitations on how a 'user' can use such things must be reasonable.

So, limits are in how long copyright lasts, what rights are granted to the buyer of a copyrighter work, and in what penalty will actually cause a positive effect regarding the purposes of copyright.

4. Our history

I think most people are aware of the human habbit of filling musea with works of art.. Of course that serves both a commercial and a public interest, people want to see those works badly enough to pay the entry fee, and it gives people a chance to see important works of art from current and past times. Often an important work of art becomes part of the national herritage of a country after some time, and as such becomes a part of the shared history of the society living in that country.

For this to happen, it is important that works of art can be preserved. Preservation of works of art can be very easy or very difficult depending on the nature of the work.

5. Different media

Many works of art require some kind of medium, being it the stone a statue is made of, the paper a book is printed on, or the cd that contains an audio recording.

In modern times, many works of art are mass distributed using digital media. There are some real advantages to digital media, both to distributors and consumers of mass distributed works. For the distributor advantages include:

o Cheap production
o Easy quality verification
o Easy to make customized versions without extreme costs

For the consumer advantages include:

o Superior quality possible
o No quality reduction over time
o Possibility to create a perfect backup to deal with loss of, or damage to the original copy.

In the early 90s it became feasable to distribute works without needing any physical media, they could be distributed using the internet. Till that time, most distribution of works on digital media was done by using physical media because it was simply not feasable to transfer the huge amounts of data involved.

Whenever a new medium turns up, it will cause a substantial change to the older media used for distributing the same kind of works.

This was very evident when the printing press was invented, there are discussions from that time about how that put writers out of work (most people involved in copy-writing books were monks, but never mind) and it was seen as a big issue by architects for example.

It is clear from what happened after the phonograph was invented, slowly music was getting experienced more at home by playing a record instead of going to a live performance. Traditionally the artist was also the medium, that changed into the phonograph/record being the medium. A huge collapse of small theatres and other places that depend on people visiting for live performances was the result.

This simply means that a new medium accepted by the public is gonna be the medium of choice for distribution, regardless of what distributors think. Anyone who doesn't play the game will be left out over time.

6. A realistic term for copyright expiration

As discussed before, copyright should expire after a while so the works can go to the punlic domain. This is a very important part of copyright, it is why the deal is fair to society and it is needed for preserving our history.

A reasonable expiration term is not easy to set because it depends for a large part on the type of work and the primary distribution media.

For example, an olld fashioned book printed on paper will last for a long time. Its contents may stay relevant for a very long time, and as a result a reasonably long term for experation makes sense. On the other end of the spectrum we find computer software that usually is not relevant anymore after a decade (there are exceptions of course) Also, software is distributed on media that usually do not last very long. Because of those 2 things copyright expiration term for software should be rather short.

The first thing to do here is to make it the responsibility of the copyright holder to ensure the works will be available after expiration of the copyright, and will be available in an unencumbered form.

If they do not want this responsibility, the copyright term should be short enough to guarantee that the work is still accessable. In case of software that would result in a maximum copyright term of 10 years.

What I propose is this:

1. automatic (unregistered) copyright.

Expiration will be 8 years after first publication.

2. registered copyright.

Will come with a requirement to store a copy for safekeeping and to provide the means to make that copy usable after expiration. Expiration term should be 15 years, and can be extended twice to a maximum of 45 years if the copyright is held by the author, or once to a maximum of 30 years if the copyright is not held by the author.

7. Reasonable use of copyrighted works

The user of a copyrighted work should have reasonable usage rights.
Those rights should at least include:

o Possibility to ensure access to the works.
o Possibility to 'convert' the work to a media format that is better suited for use.
o Possibility to duplicate the work for private use (ie, copy a cd for use in the car) without any additional fees.

8. Content versus medium

A consumer either buys a product or obtains a license.
Because of the nature of copyrighted material, many producers have reasoned that a consumer obtains a license, and I believe this to be a valid way of looking at this, however, obtaining a licence to a copyrighted work applies to the work, not to whatever medium it is on.

This means that it should not be allowed to create media that attempt to enforce using the content with specific equipment or media only. (so, no content encryption or 'copy protected' cds)
This is especially important to guarantee access after expiration, and could be used to remove the requirement for a distributor to guarantee availability of the content after expiration.

(C) Copyright 2003/2004 Bart van Leeuwen
Verbatim copying and distribution of this entire article is permitted in any medium, provided this notice is preserved.

This document will become public domain on january 1st 2011.

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