Let’s burn down Berne
Or a modest proposal on copyright reform
(the text as prepared for a presentation at Copy Camp 2016, but as usual not delivered as such)
The past century of copyright law has not been a happy one for the free flow of information and most activism in this area has been rearguard action. The very few times the public interest has won the fight with the special interests of the content dinosaurs, it was because the special interests of the telco providers turned out to be slightly more powerful. Copyright maximalism resonates strongly with a political climate that for the time being has a lot of implicit neoliberal assumptions. And I am saying that as someone who used to politically identify himself as a neoliberal.
Moreover, in that past century we have been running in circles. On the Gutenberg Project you can find a Dutch PhtD dissertation from 1910 that covers the copyright debate in the late 19th century and the very early part of the 20th century. And apart from the slightly archaic Dutch in which it has been written, it could easily be from 2010. Most of the arguments from back then are still relevant today. That means that digital technology has not made copyright outdated, it just has laid bare the fundamental errors in its design.
And the source of the design lies in Berne. The Berne Convention has mixed 19th century economic assumptions about distribution of information and author remuneration and set them into stone. Because of that mixture, it has become impossible to debate them in a meaningful way. For example any argument about the obsoleteness of the 19th century publisher model will be answered with moral arguments about author remuneration. With the addition of the so-called three-step-test to the Berne Convention in the late sixties of the 20th century, copyright can only expand. To the point that it has become a cancerous growth that we so far have failed to contain. Right now when we are debating copyright reform, the best we can hope for are additional exceptions, for example a fair delings exception. So let me get this straight: we are restricted in our debate about copyright to a debate on the edges. Not to demean the importance of exceptions and the genuine room for improvement there, the word ‘reform’ should allow for more fundamental questions than that of exceptions. I do not believe we can get the balance right within the confines of that.
The conclusion is inevitable: let’s burn down Berne. And not only for the substantive reasons I have just given, but also because it limits our imagination about what a proper copyright could be. Which makes for an even more un-level playing field in the copyright debate. Because lawmakers have not only a choice between very concrete special interests and nebulous public interests, they have also to choose between a devil they know and a devil they don’t know. We all instinctively abhor vacuums. At least most of us do. Also, it is nice to dream sometimes.
So let’s talk about what a proper, post-Berne should look like.
For starters, it would make the priorities it sets explicit. Do we want to create a right to a living wage that is separate from other workers’ right to such a thing? Are we going for an economically optimal level of creation or do we value cultural, scientific and political discourse more than just quantifiable economic benefits? Most importantly, is this about distribution or about creation?
In my opinion many questions about distribution have been solved by digital technology. The only question is how to fund content curation, but that is not unlike the question of funding creation to begin with. So it only makes sense to decouple distribution rights from creators’ rights.
And we cannot discuss creator’s rights without the question about their income. And to say something heretical: why do we consider professional creators so sacred? Why should a creator be able to control the fruits of his or her labour more than a carpenter can control furniture he or she built and sold? Or a more difficult question, we don’t think that a bad carpenter should be entitled to earn a living wage from woodworking for which there is no demand, but why is saying the same about the arts so politically incorrect?
I do not believe that copyright should solve these fundamental questions about society and equality, because that would mean we are more willing to solve them for creators than for other workers. Creators are not more deserving than others. The sensible approach would be to deal with this issue outside copyright law and to solve this in labour and in contract law. The latter I will get back to later on.
Let’s have a copyright that focuses on that other basic ingredient: the creators and their audiences. Because any question about remuneration becomes a bit academic if there is no audience to begin with. The connection between the creator and the audience of the work is important. So we have one bit we can salvage from the monstrosity that is contemporary copyright: the author’s moral rights. These are largely about the right to be credited and the right to maintain one’s artistic integrity. Whatever that means. Moral rights also have an intrinsic upper ceiling to their duration: your artistic reputation goes out of the window the day you die. I do not know of a concept of an afterlife in which one cares too much about one’s earthly reputation. Just like the dead do not have much in the way of privacy, neither should they have much in the way of moral rights.
Another thing a proper copyright regime would be based on would be the life-cycle of works. There is no point in bickering who gets to capture the value of publications that have a marginal existence any more. The real issue is works that have a longer shelf life than the average of about ten years. So exploitation rights beyond that initial ten years are in all likelihood not justified by arguments for copyright in terms of providing an incentive to create. Therefore copyrights beyond that initial ten years should always revert to the creator, regardless of whom they have been transferred to.
Which also gets me to licensing and transfers of copyrights. Even if you feel we should retain the Berne Convention’s ban on registration requirements, in a digital era in which we can create public registries at almost zero cost, it makes perfect sense to make licensing and transfers contingent on registration requirements. Because then we can know with whom to clear copyrights with in case we have found potential new audiences for the works. We have turned the point in which audiences have become more scarce than new works, so let’s make an audience-centric copyright.
Another one is the defaults of a modernised copyright. It should be permissive and non-exclusive. Exclusivity should be optional. In order not to throw out the baby with the bathwater, exclusivity should still be possible, again through registration. So let’s make CC-BY-SA the default, anything else contingent upon registration. You don’t want people to make derivatives of your work? Register such a wish, otherwise you shouldn’t publish it to begin. Because copyright should be a vehicle for conversation, not for censorship.
But lastly, and most importantly, a proper copyright should have limits on it’s own inevitable expansion. It should mirror the fundamental right to the freedom of expression. Unlike the Berne three-step-test, which puts a burden of proof on society before allowing exceptions to copyright, a modern copyright should acknowledge itself as an exception to freedom of expression. It also should acknowledge the primacy of freedom of expression in every respect and require evidence of its own proportionality on a recurring basis. And yes, certain author’s rights are considered fundamental rights as well, but to the best of my knowledge they have never been defined as much wider than the moral rights. If anything that in itself asks for clarification in the relevant legislation.
So yes, let’s burn down Berne. The Convention, that is.
