World After Capital: Copyright (Informational Freedom)

This post is by Continuations by Albert Wenger from Continuations by Albert Wenger

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NOTE: I have been posting excerpts from my book World After Capital. Currently we are on the Informational Freedom section and the last week’s post was on being represented by a bot. Today looks at the rolling back copyright.

Limiting the Limits to Sharing and Creating

Once we have fought back geographical and prioritization limits and have bots in place so that all users can meaningfully control their own interactions with the global knowledge network, we still come up against limits that restrict which information you can share and what you can create based on how you obtained the information. We’ll first look at copyright and patent laws and suggest policies for reducing how much these limit the knowledge loop. Then we’ll turn to confidentiality and privacy laws.

Earlier I remarked how expensive it was to make a copy of a book when human beings literally had to copy it letter at a time. Eventually we invented the printing press, and after that movable type. Together the two provided for much faster and cheaper reproduction of information. Even back then, governments and also the church saw this as a threat to their authority. In England, the Licensing of the Press Act of 1662 predated modern attempts to censor the web by more than 300 years: if you operated a printing press and wanted the right to make copies, you needed the government’s approval [97]. You received it in exchange for agreeing to censor content critical of the government or that ran counter to church teachings. And that’s the origin of copyright. It is the right to make copies in return for agreeing to censorship.

Over time, as economies grew and publishing companies emerged as business enterprises, copyright became commercially meaningful, less as an instrument of government control and more as a source of profit. The logic runs like this: “If I have the copyright to a specific material, then you cannot make copies of it, which means that I essentially have a monopoly in providing this content. I am the only one allowed to produce and sell copies of it.”

Legitimating this shift was the idea that in order to get content produced in the first place, incentives needed to exist for the creators of content, just as incentives needed to exist for people to create tangible or material goods. If you own your factory, then you will invest in it because you get to keep the benefits from those improvements. Similarly, the thinking goes, if you are working on a book, you should own the book so that you have an incentive to write it in the first place and improve it over time through revisions.

Over time the holders of copyrights have worked to strengthen their claims and extend their reach. For instance, with the passing of The Copyright Act of 1976, the requirement to register a copyright was removed. Instead, if you created content you automatically had copyright in it [98]. Then in 1998 with passage of the Copyright Term Extension Act, the years for which you had a copyright were extended from 50 to 70 years beyond the life of the author. This became known as the “Mickey Mouse Protection Act,” because Disney had lobbied the hardest for it, having built a very large and profitable business based on protected content, and mindful that a number of its copyrights were slated to expire [99].

More recently, copyright lobbying has attempted to interfere with the publication of content on the Internet through legislation such as PIPA and SOPA, and more recently the TPP. In these latest expansion attempts, the conflict between copyright and the digital knowledge loop becomes especially clear. Copyright severely limits what you can do with content, essentially down to consuming the content. It dramatically curtails your ability to share it and create other works that use some or all of the content. Some of the more extreme examples include takedowns of videos from YouTube that used the Happy Birthday song, which, yes, was copyrighted until recently.

From a societal standpoint, given digital technology, it is never optimal to prevent someone from listening to a song or watching a baseball game once the content exists. Since the marginal cost of accessing it is zero, the world is better off if that person gets just a little bit of enjoyment from that content. And if that person turns out to be inspired and write an amazing poem that millions read, well then the world is a lot better off.

Now, you might say, it’s all well and good that the marginal cost for making a copy is zero, but what about all the fixed and variable cost that goes into making content? If all content were to be free, then where would the money come from for producing any of it? Don’t we need copyright to give people the incentive to produce content in the first place?

Some degree of copyright is probably needed, especially for large-scale projects such as movies. Society may have an interest in seeing $100 million blockbuster films being made, and it may be that nobody will make them if, in the absence of copyright protection, they aren’t economically viable. Yet here the protections should be fairly limited (for instance, you shouldn’t be able to take down an entire site or service just because it happens to contain a link to a pirated stream of your movie). More generally, I believe copyright can be dramatically reduced in its scope and made much more costly to obtain and maintain. The only automatic right accruing to content should be one of attribution. The reservation of additional rights should require a registration fee, because you are asking for content to be removed from the digital knowledge loop.

Let’s take music as an example. Musical instruments were made as far back as 30,000 years ago, pre-dating any kind of copyright by many millennia. Even the earliest known musical notation, which marks music’s transition from information to knowledge (again, defined as something that can be maintained and passed on by humans over time and distance), is around 3,400 years old [100]. Clearly people made music, composed it, shared it long before copyright existed. In fact, the period during which someone could make a significant amount of money making and then selling recorded music is extraordinarily short, starting with the invention of the gramophone in the 1870s and reaching its heyday in 1999, the year that saw the biggest profits in the music industry [101].

During the thousands of years before this short period, musicians made a living either from live performances or through patronage. If copyrighted music ceased to exist tomorrow, people would still compose, perform, and record music. And musicians would make money from live performances and patronage, just as they did prior to the rise of copyright. Indeed, as Steven Johnson found when he recently examined this issue, that’s already what is happening to some degree: “the decline in recorded-­music revenue has been accompanied by an increase in revenues from live music… Recorded music, then, becomes a kind of marketing expense for the main event of live shows” [102]. Many musicians have voluntarily chosen to give away digital versions of their music. They release tracks for free on Soundcloud or YouTube and raise money to make music from performing live and/or using crowdfunding methods such as Kickstarter and Patreon.

Now imagine a situation where the only automatic right accruing to an intellectual work was one of attribution. Anyone wanting to copy or distribute your song in whole or in part has to credit you. Such attribution can happen digitally at zero marginal cost and does not inhibit any part of the knowledge loop. Attribution imposes no restrictions on learning (making, accessing, distributing copies), on creating derivative works, and on sharing those. Attribution can include reference to who wrote the lyrics, who composed the music, who played which instrument and so on. Attribution can also include where you found this particular piece of music (i.e., giving credit to people who discover music or curate playlists). This practice is already becoming more popular using tools such as the Creative Commons License, or the MIT License often used for attribution in open source software development.

Now, what if you’re Taylor Swift and you don’t want others to be able to use your music without paying you? Well, then you are asking for your music to be removed from the knowledge loop, thus removing all the benefits that loop confers upon society. So you should be paying for that right, which not only represents a loss to society but will be costly to enforce. I don’t know how big the registration fee should be — that’s something that will require further work — but it should be a monthly or annual fee, and when you stop paying it, your work should revert back to possessing attribution-only rights.

Importantly, in order to reserve rights, you should have to register your music with a registry, and some part of the copyright fee would go towards maintenance of these registries. Thanks to blockchain technology, competing registries can exist that all use the same global database. The registries themselves would be free for anyone to search, and registration would involve a prior search to ensure that you are not trying to register someone else’s work. The search could and should be built in a way so that anyone operating a music sharing service, such as Spotify or Soundcloud, can trivially implement compliance to make sure they are not freely sharing music that has reserved rights.

It would even be possible to make the registration fee dependent on how many rights you want to retain. All of this could be modeled after the wildly successful Creative Commons licenses. For instance, your fee might decrease if you allow non-commercial use of your music and also allow others to create derivative works. The fee might increase significantly if you want all your rights reserved. The same or similar systems could be used for all content types, including text, images and video.

Critics might object that the registration I’m proposing imposes a financial burden on creators. It is important to remember the converse: Removing content from the knowledge loop imposes a cost on society. And enforcing this removal, for instance by finding people who are infringing and imposing penalties on them, imposes additional costs on society. For these reasons, asking creators to pay is fair, especially if creators’ economic freedom is already assured by a Universal Basic Income. We have generated so much economic prosperity that nobody needs to be a starving artist anymore!

Universal Basic Income also helps us dismantle another argument frequently wielded in support of excessive copyright: Employment at publishers. The major music labels combined currently employ roughly 17,000 people [103] [104] [105]. When people propose limiting the extent of copyright, others point to the potential loss of these jobs. Never mind that the existence of this employment to some degree reflects the cost to society from having copyright. Owners, managers and employees of music labels are after all not the creators of the music.

Before turning to patents, let me point out one more reason why a return to a system of paid registration of rights makes sense. None of us creates intellectual works in a vacuum. Any author who writes a book has read lots of writing by other people. Any musician has listened to tons of music. Any filmmaker has watched lots of movies. Much of what makes art so enjoyable these days is the vast body of prior art that it draws upon and can explicitly or implicitly reference. There is no “great man” or woman who creates in a vacuum and from scratch. We are all part of the knowledge loop that has already existed for millennia.