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Article from Issue 200/2017
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It's not enough to tinker with copyright rules; the whole concept needs reviewing for the digital age.

Opinion

Copyright Needs Radical Reform

Copyright is back in the news in Europe. In the UK, the Digital Economy Bill proposes to increase the maximum prison sentence for online copyright infringement to 10 years. Meanwhile, an extensive modernization of copyright for the EU is also in progress, with a goal of making the treatment of copyright the same across Europe, especially in relation to digital media.

None of the proposals I have seen address the most significant issue we face today: Copyright was never meant to apply to things you and I routinely do. It was a law made in the context of the end of general censorship and the rise of the printing press. It was intended to protect the weak from the powerful and the powerful from each other. It never applied to people who read printed works – only to those who printed them. That's why the penalties associated with infringement are so disproportionate; they are meant to influence magnates, not minnows.

We've seen the immense harm that's resulted from the semantic sleight of hand that justifies the violation of our rights because the phrases "war on drugs" and "war on terror" includes the word "war." A similar, more cunning sleight of mind observes that every enjoyment of a work in the digital age requires a "copy." Use of that word is taken to mean copyright law applies, and thus a license is required by the consumer to waive the monopoly that copyright grants.

In turn, those licenses are used as a control point at which to impose extensive contractual terms, in which anything goes. Those terms can prevent sharing; limit which devices can be used to handle the work; restrict how often or how long access is allowed; extend control beyond the duration for which a license is actually required; and so on.

Applied to printer cartridges or coffee capsules, those contracts – keyed, remember, on a need for a copyright license – restrict who we can buy supplies from, who can mend our stuff, and who we can pass it on to. That could seriously impact the dynamics of the emerging, connected economy by, for example, chilling open source development, criminalizing competitors to established businesses, and robbing citizens of the tools to maintain both transparency and privacy.

That's a disaster for the digital age. Whereas book publishers' control of what you did with their books under the original intent of copyright ended at the point of purchase, the convention that manipulating digital bits means "making a copy" has become an excuse for the imposition of abusive licenses by middle men on the individual. Whereas originally copyright was about how works were created and distributed, today people believe copyright is about the way works are enjoyed, and that belief has led to a self-perpetuating spiral into the abyss of control. Radical reform is overdue.

Radical means "from the roots upwards." My call is for copyright to be reinterpreted for the connected era. That's not a call to eliminate copyright, which I think is too extreme a remedy. But use of copyright today far exceeds the ways the framers of copyright law ever imagined it would be used. The social contract upon which it is based – the exchange of temporary monopoly among distributors for protection of both the creator and ultimate enjoyer of the work – remains valid. But it needs recasting for an age where every citizen is a peer, rather than in an age of controlling hubs and passive spokes. One great start would be to stop treating the instantiation of data in device memory as a "copy" for example.

To be clear, I am not an advocate of a world where no one respects anyone else's rights. For example, I prefer to simply avoid music and movies that I am only able to access illegally. But the unvarnished reptilian selfishness of the music industry (and others) is pushing the copyright agenda too far away from the interests of society. It's time for radical reform, not just readjustment of the broken legacy.

The Author

Simon Phipps is a board member of the Open Source Initiative, the Open Rights Group, and The Document Foundation (makers of LibreOffice).

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