Maybe if we stopped saying “copy” everywhere we’d find a way to fix copyright?
- Why is a song that I play digitally or a book I read electronically subject to extensive controls that are not considered appropriate to physical records or books? It’s because they are subject to licenses that can’t be applied by the seller to the physical works.
- Why can those licences be imposed on digital works? Because the use of digital works is considered subject to copyright, whereas the use of physical works is not because of a legal doctrine called “copyright exhaustion”.
- Why is that? Because the act of instantiating the work for use has been described as “copying”, allowing the rules surrounding copyright to be used as a threat to back up arbitrary license terms controlling use.
When I buy a physical work, the act of selling it “exhausts” all the control over normal enjoyment of it that arises out of copyright and the entity who created it no longer has a say on how I enjoy it – they can’t demand I accept a license as a condition of use. But with a digital work, because each act of instantiation-for-use is called “copying” rather than some other name analogous with the physical world like “playing” or “wrapping” or “inserting”, we’ve created a hook for the idea that a new act controlled by copyright law has taken place after the first sale of the work.
The control of the work is thus never considered exhausted and the copyright administrators are able to absolutely and indefinitely control use, including uses that save backups, uses that involve networks, uses that involve passing the work to a friend temporarily or to anyone permanently, uses that enrich society without endangering the author. All uses you’d naturally expect from something you had bought.
This control over those enjoying and using cultural works was neither precedented nor anticipated by legislators, so the basic law involved includes no attempts to balance the needs of society and of creators of works where digital works are concerned. Instead, the only limit on the controls imposed on users is the imagination of the businesses administering copyrights. The focus of that imagination is naturally the maximisation of income and control, even to the extent of creating scarcity artificially where it does not otherwise arise, so that the maximum number of control points exist for monetisation.
But even worse, the penalties the law provides for breaching those fanciful licenses are also unbalanced. They’re intended to punish people who unlawfully mass-manufacture, not those whose cultural enjoyment breaches some unreasonable-but-legal license. As a result they unjustly — but legally — apply overwhelmingly disproportionate punishments to ordinary citizens.
The licenses so devised are complex beyond the understanding of the untrained, they include arbitrary terms and restrictions, they are frequently and arbitrarily changed. All of these dimensions happen without any need to balance the needs of culture or citizens, since neither is a stakeholder for the copyright administrator. There’s no backlash because there’s little expectation of enforcement; all the same, automated enforcement is becoming increasingly common. When a market is controlled by unrestrained licensing rather than by statute that’s a clear DNA marker for malaise.
So where did we go wrong? We mistakenly allowed the technical term for moving bits between buffers to be assumed to be equivalent to the term used by authors and other makers for creating a new original work for sale. They simply aren’t the same act, and the laws that have accidentally bled from mass production into cultural enjoyment are simply not fit for that purpose – how could they be? We used the word “copy” when we should not, and no-one foresaw the problem it would cause
Back To Basics
Could we go back and fix things? Could we choose to explicitly exclude from copyright control the electronic analogues of the acts of cultural enjoyment that used to be unregulated in the world before digital? It would be a big ask.
But maybe it could work, if we had a will. Of course, the accidental winners of our collective misapplication of the word “copy” would complain, but maybe this is a starting point we should consider. My modest proposal: ban the word “copy” from copyright law and re-design it with synonyms for the actual acts being controlled.
(Another version was published in Computerworld UK on 7 March 2013)