A copyright policy for our digital society
We must pursue the debate on copyright, reconcile market and community, and create a policy that works for our digital society.
People have retold the stories of others for as long as we have had language. They have copied the documents of others for as long as we have had the alphabet. Mankind has handled copies naturally since the first conversations and the onset of civilisation. People have always pretended whether tacitly or explicitly to be the creators of things invented by others, either knowing the name of the original author, or being inspired by collective memory. For thousands of years, people have conveyed and translated works of others, either loosely adapting them, or faithfully copying them — until distribution became mechanical and then digital.
Copyright is at the cutting-edge of the digital revolution
Twenty years ago, the world was becoming increasingly interconnected. Ten years ago, people were interacting and sharing ideas quickly, accessing an abundance of content, joining virtual and global communities, and trying out new business models. That was the context of copyright. Now, societal challenges are breaking out at the cutting-edge of the digital revolution. They expand exponentially, scratch problems with greater complexity, and address issues with a higher purpose. This is now the context of copyright.
Now, privacy, fake news, harmful content, censorship, media addiction, monopoly, deny of democracy or energy consumption demand answers. Patterns of human interactions are being dramatically transformed. Verbal one-to-one conversations among natural persons are being progressively replaced by digital and hyperlinked one-to-many conversations among natural persons and incorporated organisations. Now, policymakers want to fix what is moving and propose the Articles 11 and 13 of a new directive on copyright — testing therapies at the light of an incomplete diagnostic.
Transformed human interactions impose a re-examination of fundamental rights. See what happened over the last 50 years. In 1962, Jane and John were in their kitchen. They spoke about “Return to Sender”, Elvis’ latest song. John wanted to buy the single. Jane lent him her loyalty card. John went to the high street. That was their natural interaction, not a communication to the public. In 2018, Emily, Ariana’s fan, is on her smartphone. She texts her group of friends and attaches the link to “No Tears Left to Cry” hosted by Vevo. Rob, Emily’s friend who never heard about Ariana, clicks on the link, watches the video, and posts a comment on YouTube. This is their natural interaction. Is it really a communication to the public? Jane and John spoke. That was their way. That was family. The high street was neighbourhood and community. That were fundamental rights. Emily and Rob text, link, click and post. That is their way. That is family. The web is neighbourhood and community. That are fundamental rights, aren’t they?
Copyright is an interaction issue at the frontier of an unknown territory, a state where no single organisation has all the answers. Trying to address societal challenges in their previous contexts is doomed to failure. Trying to solve the copyright conundrum in our globalised knowledge community with methods inherited from the national industrial productions of records and newspapers will not succeed. Copyright must be discussed in a wider framework of rights.
Wicked problems require selfless holistic approaches
Copyright is a conflict between two moral forces: the citizen’s right to access content and the author’s right to be remunerated. Securing both at the same time is a problem — a wicked problem according to Horst Rittel. Wicked problems have neither definitive formulation nor definitive solution. A wicked problem is the symptom of another problem. The solving process of a wicked problem is unique. Solutions to wicked problems are only better or worse and have unforeseeable consequences. More than 300 years of evidences, collected during the never-ending search for a solution to the copyright problem, qualify its nature: it is wicked.
People dealing with wicked problems work in an area of tension between diverging interests, within which they must make abstraction of their own ideals. Policymakers and stakeholders approaching the future of copyright in the digital era without making abstraction of their particular concerns will waste their energy and the time of others, and paradoxically not serve their own interests. This will be the case at all levels: technology solutions, business models, and policy.
To contain the wicked copyright problem, we must solve the problem of which the copyright problem is the symptom. Root cause analysis is in demand; ubiquity, scarcity, disintermediation and obsolescence of business models come to mind. Anything else would be nothing more than a plaster cast on a wooden leg. And, to solve this wicked problem responsibly, we must explore eventual consequences of contemplated solutions via scenarios and other forecasting techniques. We do not want to throw the baby out with the bathwater.
Drafting a copyright policy for our digital society will need to go beyond productive interactions in the digital economy and will have to consider social relationships in the digital community. We have the vision. It is formulated in Article 27 of the Universal Declaration of Human Rights. What we now need is the political leadership — focused on the greater good of arts, culture and science for the benefit of all users and authors — to unite the different stakeholders of the creative ecosystems towards practicable solutions. “Towards” because copyright is a target moving on the trajectory of civilisation.
