Canadian Copyright Consultation – Cory’s feedback
September 7th, 2009Submission to the Canadian Copyright Consultation
Cory Doctorow - doctorow@craphound.com - 4 September 2009
Republished with permission.
0. Table of Contents
1. Introduction
2. DRM, anti-circumvention, competition and artists’ rights
3. Network access and due process
4. Regulation and the public interest
5. Conclusion
I am Cory Doctorow, a native-born, proud Canadian citizen, presently living in London, England. I am an internationally recognized expert on copyright in the digital age. I have previously been employed as the European Director of the US civil liberties group Electronic Frontier Foundation (eff.org), in which capacity I served as an NGO delegate to the United Nations World Intellectual Property Organisation (WIPO), as well as serving on Digital Rights Management (DRM) standards committees at the European Digital Video Broadcasters’ forum (DVB), and OASIS, as well as participating in consultations for UN agencies such as UNCTAD, the International Telecommunications Union, etc. I have lectured on the subject at the Central European University in Budapest, Cambridge, Harvard, MIT, Simon Fraser, Portland State University, Wayne State University, Kansas State University, the University of California at Berkeley and Irvine, Yale, and other institutions. In 2006/7 I served as the inaugural Canada-US Fulbright Chair in Public Diplomacy at the University of Southern California in Los Angeles.
I am a fellow of the Electronic Frontier Foundation and of the Annenberg Center at USC, the co-founder of the British digital rights organisation Open Rights Group (ORG), and a World Economic Forum Young Global Leader. I am a visiting scholar at the University of Waterloo and at the UK Open University. I have written on this subject for The Globe and Mail, the CBC, Popular Science, Wired, Harvard Business Review, Information Week, the New York Times, and other periodicals, and I presently have regular columns on the subject for Make Magazine, the Guardian newspaper, and Publishers Weekly, Locus Magazine, the leading trade magazine for the science fiction industry.
I am also a copyright holder and creator. I have published four novels to date (including the New York Times bestseller LITTLE BROTHER, which has been translated into 16 languages), with two more written and awaiting publication in 2009/2010 from Tor (US/Canada) and HarperCollins (UK/Commonwealth). I have published two volumes of short fiction (a third is pending), a graphic novel, and a book of essays on copyright and related subjects, called CONTENT (Tachyon, 2008). I was the co-editor of the TESSERACTS 11 collection of Canadian short science fiction, and my writing has won numerous awards, including the Sunburst Award for Best Canadian Science Fiction Book, several Locus Awards, the Golden Duck Award (given by young adult librarians), and the Ontario Library Association’s White Pine Award.
I am also a successful entrepreneur. My first company, OpenCola (a software company that I co-founded in 1999) was sold to OpenText, Inc in 2003; I am presently co-owner/editor of Boing Boing (boingboing.net) is a daily blog with more than 3,000,000 regular unique readers. It is a profitable business based on the creation and dissemination of copyrighted works, and it is hosted on Canadian servers at 151 Front Street in Toronto.
This submission to the Consultation consists largely of excerpts adapted from earlier works, since I have already written extensively on these subjects. I have footnoted each work with the URL where it can be retrieved in full. Practically all of my writing is available for free, non-commercial downloading, sharing and remixing, a strategy that I have pursued in order to maximise my income and my artistic satisfaction.
2. DRM, anti-circumvention, competition and artists’ rights
Some industry representatives have advocated for a US-style anti-circumvention regime for Technical Protection Measured (TPMs, also called Digital Rights Management systems or DRMs). They argue that these will preserve creators’ rights. The 1998 US Digital Millennium Copyright Act and the various EUCD implementations in Europe have failed to deliver on this promise. Rather, they have tipped the balance in favour of TPM vendors at the expense of rightsholders and creators.
This is because anti-circumvention regimes that prohibit all circumvention — regardless of whether it is for a lawful purpose — give tremendous lock-in power to DRM vendors. For example, songs sold through the iTunes Store with Apple’s DRM on it could not be played on devices created by Apple’s rivals, even if the record-labels authorised listeners and device vendors to do this, because while the labels controlled the copyright in the works, this did not give them the right to unlock the DRM Apple had put on their music.
Record labels have long been concerned over the amount of control exerted by big-box retailers such as WalMart. But imagine if, in addition to having control over what inventory they carry, the big box stores also carried their books in such a way that they could only be shelved on WalMart shelves, they could only be read in WalMart lamps, running WalMart light bulbs. Imagine the lock-in to your customers and the lack of control over your destiny that you have signed up with if this is the path you pursue. Well, this is in fact what you get when you sell DRM’d eBooks or DRM’d music — in order to play back that DRM format, in order carry, manipulate or convert that DRM format, you have to license the DRM. The company that controls licensing for the DRM controls your business. [2-1]
We are seeing a reprise of the iTunes situation now with ebooks, through Amazon’s leading Kindle device (Amazon won’t disclose what the DRM in its device is and is not capable of, not even to publishers, nor will they allow publishers to alter their terms of service so that their copyrights can be sold to the public on terms that allows moving ebooks to rival devices) and with audiobooks, through Amazon’s Audible division (which requires DRM and contractual terms prohibiting format-shifting to rival devices, even when rightsholders object), who are the sole supplier of audiobooks to the iTunes Store and are the leading distributor of audiobooks.
Copyright is a powerful weapon, and it grows more powerful every day, as lawmakers extend its reach and strength. Funny thing about powerful weapons, though: Unless you know how to use them, they make lousy equalizers. As they say in self-defense courses, “Any weapon you don’t know how to use belongs to your opponent.”
Recording artists get an extra 45 years of copyright, and it’s promptly taken from them by the all-powerful record labels, who then use it to strengthen their power by extending their grasp over distribution channels. Authors are given the right to control indexing of their works, and it’s promptly scooped up by Google, who can use it to prevent competitors from giving authors a better deal. [2-2]
Anti-circumvention rules create the risk of adding a para-copyright that accrues to technology providers at the expense of rightsholders. Anytime someone puts a lock on something you own, against your wishes, and doesn’t give you the key, they’re not doing it for your benefit. [2-3]
DRMs are not capable of respecting copyright’s limitations and exceptions. For example, a limitation that allows visually impaired people and those who support them to convert books to assistive formats inevitably comes into conflict with DRM, which doesn’t have any way to measure the eyesight of the person attempting to convert a work. Even thornier is the problem of exceptions that hinge on matters that require judgement, such as whether the use is part of a work of “legitimate criticism.” These kinds of problems routinely perplex high court judges around the world — they can hardly be determined by a piece of software.
DRMs can create a system of private law that prohibits certain uses otherwise permitted by copyright — because achieving these uses requires circumvention of a DRM, prohibited by anti-circumvention rules — and thus it can unfairly bind on rightsholders and law-abiding users of information, including those who are themselves creators. However, DRM has been a total, catastrophic failure when it comes to stopping scofflaws from making illegal copies. Security scholars and practitioners agree that DRM represents a technical impossibility (the exception, of course, are the security professionals who work for DRM vendors).
Cryptography — secret writing — is the practice of keeping secrets. It involves three parties: a sender, a receiver and an attacker (actually, there can be more attackers, senders and recipients, but let’s keep this simple). We usually call these people Alice, Bob and Carol.
Let’s say we’re in the days of the Caesar, the Gallic War. You need to send messages back and forth to your generals, and you’d prefer that the enemy doesn’t get hold of them. You can rely on the idea that anyone who intercepts your message is probably illiterate, but that’s a tough bet to stake your empire on. You can put your messages into the hands of reliable messengers who’ll chew them up and swallow them if captured — but that doesn’t help you if Brad Pitt and his men in skirts skewer him with an arrow before he knows what’s hit him.
So you encipher your message with something like ROT-13, where every character is rotated halfway through the alphabet. They used to do this with non-worksafe material on Usenet, back when anyone on Usenet cared about work-safe-ness — A would become N, B is O, C is P, and so forth. To decipher, you just add 13 more, so N goes to A, O to B yadda yadda.
Well, this is pretty lame: as soon as anyone figures out your algorithm, your secret is gone.
So if you’re Caesar, you spend a lot of time worrying about keeping the existence of your messengers and their payloads secret. Get that? You’re Augustus and you need to send a message to Brad without Caceous (a word I’m reliably informed means “cheese-like, or pertaining to cheese”) getting his hands on it. You give the message to Diatomaceous, the fleetest runner in the empire, and you encipher it with ROT-13 and send him out of the garrison in the pitchest hour of the night, making sure no one knows that you’ve sent it out. Caceous has spies everywhere, in the garrison and staked out on the road, and if one of them puts an arrow through Diatomaceous, they’ll have their hands on the message, and then if they figure out the cipher, you’re b0rked. So the existence of the message is a secret. The cipher is a secret. The ciphertext is a secret. That’s a lot of secrets, and the more secrets you’ve got, the less secure you are, especially if any of those secrets are shared. Shared secrets aren’t really all that secret any longer.
Time passes, stuff happens, and then Tesla invents the radio and Marconi takes credit for it. This is both good news and bad news for crypto: on the one hand, your messages can get to anywhere with a receiver and an antenna, which is great for the brave fifth columnists working behind the enemy lines. On the other hand, anyone with an antenna can listen in on the message, which means that it’s no longer practical to keep the existence of the message a secret. Any time Adolf sends a message to Berlin, he can assume Churchill overhears it.
Which is OK, because now we have computers — big, bulky primitive mechanical computers, but computers still. Computers are machines for rearranging numbers, and so scientists on both sides engage in a fiendish competition to invent the most cleverest method they can for rearranging numerically represented text so that the other side can’t unscramble it. The existence of the message isn’t a secret anymore, but the cipher is.
But this is still too many secrets. If Bobby intercepts one of Adolf’s Enigma machines, he can give Churchill all kinds of intelligence. I mean, this was good news for Churchill and us, but bad news for Adolf. And at the end of the day, it’s bad news for anyone who wants to keep a secret.
Enter keys: a cipher that uses a key is still more secure. Even if the cipher is disclosed, even if the ciphertext is intercepted, without the key (or a break), the message is secret. Post-war, this is doubly important as we begin to realize what I think of as Schneier’s Law: “any person can invent a security system so clever that she or he can’t think of how to break it.” This means that the only experimental methodology for discovering if you’ve made mistakes in your cipher is to tell all the smart people you can about it and ask them to think of ways to break it. Without this critical step, you’ll eventually end up living in a fool’s paradise, where your attacker has broken your cipher ages ago and is quietly decrypting all her intercepts of your messages, snickering at you.
Best of all, there’s only one secret: the key. And with dual-key crypto it becomes a lot easier for Alice and Bob to keep their keys secret from Carol, even if they’ve never met. So long as Alice and Bob can keep their keys secret, they can assume that Carol won’t gain access to their cleartext messages, even though she has access to the cipher and the ciphertext. Conveniently enough, the keys are the shortest and simplest of the secrets, too: hence even easier to keep away from Carol. Hooray for Bob and Alice.
Now, let’s apply this to DRM.
In DRM, the attacker is *also the recipient*. It’s not Alice and Bob and Carol, it’s just Alice and Bob. Alice sells Bob a DVD. She sells Bob a DVD player. The DVD has a movie on it — say, Pirates of the Caribbean — and it’s enciphered with an algorithm called CSS — Content Scrambling System. The DVD player has a CSS un-scrambler.
Now, let’s take stock of what’s a secret here: the cipher is well-known. The ciphertext is most assuredly in enemy hands, arrr. So what? As long as the key is secret from the attacker, we’re golden.
But there’s the rub. Alice wants Bob to buy Pirates of the Caribbean from her. Bob will only buy Pirates of the Caribbean if he can descramble the CSS-encrypted VOB — video object — on his DVD player. Otherwise, the disc is only useful to Bob as a drinks-coaster. So Alice has to provide Bob — the attacker — with the key, the cipher and the ciphertext.
Hilarity ensues.
DRM systems are usually broken in minutes, sometimes days. Rarely, months. It’s not because the people who think them up are stupid. It’s not because the people who break them are smart. It’s not because there’s a flaw in the algorithms. At the end of the day, all DRM systems share a common vulnerability: they provide their attackers with ciphertext, the cipher and the key. At this point, the secret isn’t a secret anymore. [2-4]
Despite all this, some members of the entertainment industry continue to insist on the need for an anti-circumvention regime. It won’t work, but at least we can avert the majority of the harms that have arisen from anti-circumvention laws abroad through a system of limitations and exceptions to anti-circumvention that explicitly allow the creation, dissemination and use of circumvention tools for otherwise lawful purposes (format shifting, private copying, conversion to assistive formats). DRM advocates say that they want to “protect copyright” — a circumvention ban that prohibited only circumventions that result in copyright violations does just that. And circumvention bans that prohibit circumvention for otherwise lawful uses don’t “protect copyright” — they create private laws that extend copyright at the public’s expense and, ultimately, the expense of artists and rightsholders.
[2-1: Address to the Tools of Change Conference, New York, February 2009 http://blip.tv/file/1996369]
[2-2: Internet ©rapshoot: How Internet Gatekeepers Stifle Progress, Internet Evolution, 18 June 2009]
[2-3: Ibid]
[2-4: Microsoft Research DRM talk, June 17, 2004]
3. Network access and due process
In 1996, the WIPO Copyright Treaties instituted a system of “streamlined” copyright enforcement — the takedown regime that allows rightsholders to have allegedly infringing material removed from the Internet without having to prove infringement in a court. This system was widely implemented and was an abject failure on two fronts.
First, it was a failure because it failed to secure the public’s right to due process and presented an attractive nuisance to those who would censor their critics. All a would-be censor needs to do to make pages vanish from the Internet is to present himself as an aggrieved rightsholder, whereupon the risk-averse web-hosting provider makes the pages disappear, because to do otherwise is to become liable should the charge turn out to be real. The real-world abuses of takedown are numerous and well-known (e.g., Church of Scientology takedowns against critics; Diebold’s takedowns against people who published a whistleblower memo detailing the technical flaws in its e-voting systems), and mischievous scholars such as the Oxford Internet Institute have shown that ISPs can be made to take down copies of works clearly in the public domain, such as John Stuart Mill’s 1869 text ON LIBERTY. These and many others are detailed on the Chilling Effects project at chillingeffects.org.
But takedown was also a failure because it did not stop infringing material from being readily downloaded online. In the beginning, this was because determined infringers could upload copies of workers faster than rightsholders could remove them (this has prompted calls for automated infringement-detection software, something that no one apart from infringement detector vendors believe is possible, infringement being infinitely harder to detect than, say, spam, and we are nowhere near having working spam-detectors). But swiftly this problem was overtaken by P2P distribution of copyrighted works. Takedown has no effect against P2P, since takedown only requires that ISPs expeditiously remove putatively infringing material from their own servers.
This has prompted calls for a “notice-and-termination” regime (also called “graduated response” and “three strikes”), proposals for which have been floated in New Zealand, Ireland, France, Spain, the EU, the Anti Counterfeiting Trade Agreement, and the US Congress. The idea is to give rightsholders access to a similarly “streamlined” process by which they can demand the disconnection of accused infringers from the Internet without the accused having a day in court.
This is a bad idea. Here’s a Swiftian proposal that illustrates why:
Let’s permanently cut off the internet access of any company that sends out three erroneous copyright notices. Three strikes and you’re out.
Having been disconnected, your customers can only find out about your product offerings by ringing you up and asking, or by requesting a printed brochure. Perhaps you could give all your salespeople fax machines so they can fax urgent information up and down the supply chain. And there’s always the phone – just make sure you’ve got a bunch of phone books in the office, because you’ll never Google another phone number.
You see, the big copyright companies – record labels, broadcasters, film studios, software companies – are lobbying in the halls of power around the world for a three strikes rule for copyright infringers. They want to oblige internet service providers (ISPs) to sever the broadband links of any customer who has been thrice accused of downloading infringing material, and to oblige web-hosting companies to terminate the accounts of anyone accused of sticking infringing material on a web server three times.
They’re not even proposing that this punishment should be reserved for convicted infringers. It’s not as though internet access is something important right?
In the past week, I’ve only used the internet to contact my employers around the world, my MP in the UK, to participate in a European Commission expert proceeding, to find out why my infant daughter has broken out in tiny pink polka-dots, to communicate with a government whistle-blower who wants to know if I can help publish evidence of official corruption, to provide references for one former student (and follow-up advice to another), book my plane tickets, access my banking records, navigate the new Home Office immigration rules governing my visa, wire money to help pay for the headstone for my great uncle’s grave in Russia, and to send several Father’s Day cards (and receive some of my own).
The internet is only that wire that delivers freedom of speech, freedom of assembly, and freedom of the press in a single connection. It’s only vital to the livelihood, social lives, health, civic engagement, education and leisure of hundreds of millions of people (and growing every day).
This trivial bit of kit is so unimportant that it’s only natural that we equip the companies that brought us Police Academy 11, Windows Vista, Milli Vanilli and Celebrity Dancing With the Stars with wire-cutters that allow them to disconnect anyone in the country on their own say-so, without proving a solitary act of wrongdoing.
But if that magic wire is indeed so trivial, they won’t mind if we hold them to the same standard, right? The sloppy, trigger-happy litigants who sue dead people and children, who accused a laser printer of downloading the new Indiana Jones movie, who say that proof of wrongdoing is too much to ask for – if these firms believe that being disconnected from the internet is such a trivial annoyance, they should be willing to put up with the same minor irritation at corporate HQ and the satellite offices, right? [3-1]
[3-1: Warning to all copyright enforcers: Three strikes and you're out, The Guardian, 1 July 2008]
4. Regulation and the public interest
The idea that copyright confers the exclusive right to control copying, performance, adaptation, and general use of a creative work is a polite fiction that has been mostly harmless throughout its brief history, but which has been laid bare by the Internet, and the disjoint is showing.
Theoretically, if I sell you a copy of one of my novels, I’m conferring upon you a property interest in a lump of atoms — the pages of the book — as well as a license to make some reasonable use of the ethereal ideas embedded upon the page, the copyrighted work.
Copyright started with a dispute between Scottish and English publishers, and the first copyright law, 1709’s Statute of Anne, conferred the exclusive right to publish new editions of a book on the copyright holder. It was a fair competition statute, and it was silent on the rights that the copyright holder had in respect of his customers: the readers. Publishers got a legal tool to fight their competitors, a legal tool that made a distinction between the corpus — a physical book — and the spirit — the novel writ on its pages. But this legal nicety was not “customer-facing.” As far as a reader was concerned, once she bought a book, she got the same rights to it as she got to any other physical object, like a potato or a shovel. Of course, the reader couldn’t print a new edition, but this had as much to do with the realities of technology as it did with the law. Printing presses were rare and expensive: telling a 17th-century reader that he wasn’t allowed to print a new edition of a book you sold him was about as meaningful as telling him he wasn’t allowed to have it laser-etched on the surface of the moon. Publishing books wasn’t something readers did.
Indeed, until the photocopier came along, it was practically impossible for a member of the audience to infringe copyright in a way that would rise to legal notice. Copyright was like a tank-mine, designed only to go off when a publisher or record company or radio station rolled over it. We civilians couldn’t infringe copyright (many thanks to Jamie Boyle for this useful analogy).
It wasn’t the same for commercial users of copyrighted works. For the most part, a radio station that played a record was expected to secure permission to do so (though this permission usually comes in the form of a government-sanctioned blanket license that cuts through all the expense of negotiating in favor of a single monthly payment that covers all radio play). If you shot a movie, you were expected to get permission for the music you put in it. Critically, there are many uses that commercial users never paid for. Most workplaces don’t pay for the music their employees enjoy while they work. An ad agency that produces a demo reel of recent commercials to use as part of a creative briefing to a designer doesn’t pay for this extremely commercial use. A film company whose set-designer clips and copies from magazines and movies to produce a “mood book” never secures permission nor offers compensation for these uses.
Theoretically, the contours of what you may and may not do without permission are covered under a legal doctrine called “fair use,” which sets out the factors a judge can use to weigh the question of whether an infringement should be punished. While fair use is a vital part of the way that works get made and used, it’s very rare for an unauthorized use to get adjudicated on this basis.
No, the realpolitik of unauthorized use is that users are not required to secure permission for uses that the rights holder will never discover. If you put some magazine clippings in your mood book, the magazine publisher will never find out you did so. If you stick a Dilbert cartoon on your office-door, Scott Adams will never know about it.
So while technically the law has allowed rights holders to infinitely discriminate among the offerings they want to make — Special discounts on this book, which may only be read on Wednesdays! This film half-price, if you agree only to show it to people whose names start with D! — practicality has dictated that licenses could only be offered on enforceable terms.
When it comes to retail customers for information goods — readers, listeners, watchers — this whole license abstraction falls flat. No one wants to believe that the book he’s brought home is only partly his, and subject to the terms of a license set out on the flyleaf. You’d be a flaming jackass if you showed up at a con and insisted that your book may not be read aloud, nor photocopied in part and marked up for a writers’ workshop, nor made the subject of a piece of fan-fiction.
At the office, you might get a sweet deal on a coffee machine on the promise that you’ll use a certain brand of coffee, and even sign off on a deal to let the coffee company check in on this from time to time. But no one does this at home. We instinctively and rightly recoil from the idea that our personal, private dealings in our homes should be subject to oversight from some company from whom we’ve bought something. We bought it. It’s ours. Even when we rent things, like cars, we recoil from the idea that Hertz might track our movements, or stick a camera in the steering wheel.
When the Internet and the PC made it possible to sell a lot of purely digital “goods” — software, music, movies and books delivered as pure digits over the wire, without a physical good changing hands, the copyright lawyers groped about for a way to take account of this. It’s in the nature of a computer that it copies what you put on it. A computer is said to be working, and of high quality, in direct proportion to the degree to which it swiftly and accurately copies the information that it is presented with.
The copyright lawyers had a versatile hammer in their toolbox: the copyright license. These licenses had been presented to corporations for years. Frustratingly (for the lawyers), these corporate customers had their own counsel, and real bargaining power, which made it impossible to impose really interesting conditions on them, like limiting the use of a movie such that it couldn’t be fast-forwarded, or preventing the company from letting more than one employee review a journal at a time.
Regular customers didn’t have lawyers or negotiating leverage. They were a natural for licensing regimes. Have a look at the next click-through “agreement” you’re provided with on purchasing a piece of software or an electronic book or song. The terms set out in those agreements are positively Dickensian in their marvelous idiocy. Sony BMG recently shipped over eight million music CDs with an “agreement” that bound its purchasers to destroy their music if they left the country or had a house-fire, and to promise not to listen to their tunes while at work.
But customers understand property — you bought it, you own it — and they don’t understand copyright. Practically no one understands copyright. I know editors at multibillion-dollar publishing houses who don’t know the difference between copyright and trademark (if you’ve ever heard someone say, “You need to defend a copyright or you lose it,” you’ve found one of these people who confuse copyright and trademark; what’s more, this statement isn’t particularly true of trademark, either). I once got into an argument with a senior Disney TV exec who truly believed that if you re-broadcasted an old program, it was automatically re-copyrighted and got another 95 years of exclusive use (that’s wrong).
So this is where copyright breaks: When copyright lawyers try to treat readers and listeners and viewers as if they were (weak and unlucky) corporations who could be strong-armed into license agreements you wouldn’t wish on a dog. There’s no conceivable world in which people are going to tiptoe around the property they’ve bought and paid for, re-checking their licenses to make sure that they’re abiding by the terms of an agreement they doubtless never read. Why read something if it’s non-negotiable, anyway? [4-1]
“Intellectual property” is one of those ideologically loaded terms that can cause an argument just by being uttered. The term wasn’t in widespread use until the 1960s, when it was adopted by the World Intellectual Property Organization, a trade body that later attained exalted status as a UN agency.
WIPO’s case for using the term is easy to understand: people who’ve “had their property stolen” are a lot more sympathetic in the public imagination than “industrial entities who’ve had the contours of their regulatory monopolies violated”, the latter being the more common way of talking about infringement until the ascendancy of “intellectual property” as a term of art.
Does it matter what we call it? Property, after all, is a useful, well-understood concept in law and custom, the kind of thing that an average person can get his head around without too much thinking.
That’s entirely true – and it’s exactly why the phrase “intellectual property” is, at root, a dangerous euphemism that leads us to all sorts of faulty reasoning about knowledge. Faulty ideas about knowledge are troublesome at the best of times, but they’re deadly to any country trying to make a transition to a “knowledge economy”.
Fundamentally, the stuff we call “intellectual property” is just knowledge – ideas, words, tunes, blueprints, identifiers, secrets, databases. This stuff is similar to property in some ways: it can be valuable, and sometimes you need to invest a lot of money and labour into its development to realise that value.
But it is also dissimilar from property in equally important ways. Most of all, it is not inherently “exclusive”. If you trespass on my flat, I can throw you out (exclude you from my home). If you steal my car, I can take it back (exclude you from my car). But once you know my song, once you read my book, once you see my movie, it leaves my control. Short of a round of electroconvulsive therapy, I can’t get you to un-know the sentences you’ve just read here.
It’s this disconnect that makes the “property” in intellectual property so troublesome. If everyone who came over to my flat physically took a piece of it away with them, it’d drive me bonkers. I’d spend all my time worrying about who crossed the threshold, I’d make them sign all kinds of invasive agreements before they got to use the loo, and so on. And as anyone who has bought a DVD and been forced to sit through an insulting, cack-handed “You wouldn’t steal a car” short film knows, this is exactly the kind of behaviour that property talk inspires when it comes to knowledge.
But there’s plenty of stuff out there that’s valuable even though it’s not property. For example, my daughter was born on February 3, 2008. She’s not my property. But she’s worth quite a lot to me. If you took her from me, the crime wouldn’t be “theft”. If you injured her, it wouldn’t be “trespass to chattels”. We have an entire vocabulary and set of legal concepts to deal with the value that a human life embodies.
What’s more, even though she’s not my property, I still have a legally recognised interest in my daughter. She’s “mine” in some meaningful sense, but she also falls under the purview of many other entities – the governments of the UK and Canada, the NHS, child protection services, even her extended family – they can all lay a claim to some interest in the disposition, treatment and future of my daughter.
Trying to shoehorn knowledge into the “property” metaphor leaves us without the flexibility and nuance that a true knowledge rights regime would have. For example, facts are not copyrightable, so no one can be said to “own” your address, Social Insurance Number or the PIN for your ATM card. Nevertheless, these are all things that you have a strong interest in, and that interest can and should be protected by law.
There are plenty of creations and facts that fall outside the scope of copyright, trademark, patent and the other rights that make up the hydra of Intellectual Property, from recipes to phone books to “illegal art” like musical mashups. These works are not property – and shouldn’t be treated as such – but for every one of them, there’s an entire ecosystem of people with a legitimate interest in them.
I once heard the WIPO representative for the European association of commercial broadcasters explain that, given all the investment his members had put into recording the ceremony on the 60th anniversary of the Dieppe Raid in the second world war, they should be given the right to own the ceremony, just as they would own a teleplay or any other “creative work”. I immediately asked why the “owners” should be some rich guys with cameras – why not the families of the people who died on the beach? Why not the people who own the beach? Why not the generals who ordered the raid? When it comes to knowledge, “ownership” just doesn’t make sense – lots of people have an interest in the footage of the Dieppe commemoration, but to argue that anyone “owns” it is just nonsensical.
Copyright – with all its quirks, exceptions and carve outs – was, for centuries, a legal regime that attempted to address the unique characteristics of knowledge, rather than pretending to be just another set of rules for the governance of property. The legacy of 40 years of “property talk” is an endless war between intractable positions of ownership, theft and fair dealing.
If we’re going to achieve a lasting peace in the knowledge wars, it’s time to set property aside, time to start recognising that knowledge – valuable, precious, expensive knowledge – isn’t owned. Can’t be owned. The state should regulate our relative interests in the ephemeral realm of thought, but that regulation must be about knowledge, not a clumsy remake of the property system. [4-2]
[4-1: How Copyright Broke, Locus Magazine, September 2006]
[4-2: "Intellectual property" is a silly euphemism, The Guardian, 21 February 2008]
For decades, we’ve treated an “information economy” as an economy based on buying and selling information. And of course the natural implication of an information economy is that the people who produce information need to be able to control its diffusion. You can’t sell something readily that you can’t prohibit access to. If there’s no membrane between the thing that you’re selling and the people you’re selling it to, and they can get it for free, it’s very difficult to sell it, so you need to have some measure of exclusivity. So we conceived of this idea that we would fix the exclusivity problem using technology as-yet undeveloped, and having done that, we could then create a kind of perfect price-discrimination economy based on buying and selling ever-smaller units of information. For example, instead of selling a whole book for five dollars, you could sell the right to read the book on Mondays for one dollar; you could sell a sentence out of the book for three cents; that every single conceivable use could be sold in ever smaller slices until you had the price tag that represented what everyone in the world was willing to pay, and you get this kind of perfect long-tail economy, and it would generate billions and billions.
In order to get this, though, we had a problem to address: there are a lot of people who could just take the information for free and who had no particular incentive to follow a law that prohibited them from doing this, and that was the developing nations; poor nations for whom shovelling their GDP offshore to get access to something that they could just download or copy. This was without historic precedent. The word ‘Yankee’ comes from a Dutch word meaning ‘pirate’, because the Americans for their first 100 years of existence were considered a pirate nation around the world. They followed the tried and true step for bootstrapping yourself into an industrial economy of stealing from other people. They took everyone else’s patents and copyrights and they allowed them to be freely disseminated within American borders. The only thing that enjoyed any kind of patent or copyright protection was stuff produced by Americans. This was also good immigration policy since it encouraged inventors to move to America so they could gain protection from the American government. And it worked very well – in fact it worked so well that eventually America became a net exporter of copyrights. It wasn’t just Charles Dickens complaining that he wasn’t getting royalties for the American sales of his books, it was Mark Twain complaining that he wasn’t getting royalties for the British sales of his books, and it made sense for them to enter into bilateral agreements with countries that imported American copyrights to protect their copyrights.
But this was not the path that we were going to take to get to the information economy. We couldn’t wait for China, for Africa, for the subcontinent to become net exporters of copyrights and patents in order to get the information economy; we needed some other mechanism by which we could lure them into becoming participants in the information economy, and the solution to that was taking down our trade barriers to manufactured goods. And historically the way that industrialised nations have protected themselves from cheap labour in developing nations was by erecting trade barriers, and using tariffs to stop the import of cheap manufactured goods, which is why, for example, for a long time American cars were built in Detroit and not in Japan or China or other countries where labour was cheaper. American labour was so expensive that it was in many ways the most expensive place in the world to build an automobile, and yet the majority of American automobiles were built there, thanks to the trade walls.
So we took down the trade walls, and the deal entered into was, “We’ll let you export any goods that you want to the developed world in exchange for you taking on policies in which you agree to honour the developed world’s copyrights, patents, trademarks, trade secrets and so on.” And this has turned out to be a failure. The countries where this has been successful – where they have successfully bootstrapped themselves into an industrial economy and become the manufacturers for the world have no particular incentives to opt into a policy where they protect American copyrights and patents, or European or Canadian ones, because there’s no particular risk that Europe and Canada and America will stop importing cars and Happy Meal toys and finished steel goods and every other conceivable object that you could imagine if China doesn’t toe the line. They can play the game of brinksmanship very well, and say, “Yes, by all means if you want us to start paying you royalties, you can stop importing all the goods that we manufacture, and start converting all of those executive lofts back into the light factories that they used to be. Let’s see how that works out for you.”
So it turns out the global information economy doesn’t work, but it also doesn’t work domestically, in the developed, because if there’s the potential to copy patents, copyrights and other knowledge goods in the developing world, there’s even more potential to copy it in the developed world. The more information technology you have, the easier it is to copy stuff, and the harder it is to exclude people from copies of stuff. Every time hard drives get more capacious and smaller and cheaper, every time networks get faster and easier to use, every time we start a scheme to teach seniors to go to Google and type ‘batman movie bittorrent’, it gets harder to exclude people from copies of information.
So the idea that we would on the one hand have an IT revolution based on universal access to IT, an ever cheapening pool of IT devices, and universal expertise in IT; but on the other hand that it would be a place where it was harder and harder to copy stuff is just completely broken, and proves itself to be more broken every day.
An information economy based on restricting access to information is as implausible as industrial economy that based on restricting access to machines. The information economy is, in the end, based on universal access to information.
So you have all these new firms popping up where they take advantage of the fact that it’s cheaper than ever to do business together. You have small and nimble media-production houses; you have small and nimble technology production houses; you have independent artists, and you have the delamination of the kind of business that used to be in the business of presenting artists’ work to the public: my editor at my publisher in New York says that people confuse publishing with printing; printing is not really publishing.
These much smaller firms that have much smaller overheads and return higher profits to everyone involved in them. Now this may in fact mean that a firm that’s optimised on spending 300 million dollars producing a film that employs 10,000 people won’t be compatible with the future of the information economy, and it’s likewise true that after the single church was delaminated after Lutheranism that we stopped building giant cathedrals that took several generations of craftsmen to build – but no-one would argue that the Protestant reformation ended religion.
The fact is that when it gets cheaper to start something up, you get more of it, not less of it. The information economy can be a net good for creativity and expression, provided that the copyright system isn’t seen as a means of ensuring that one particular firm maximises the amount of money it makes.
If we had a copyright system that produced one film per year that made a trillion pounds and employed 30,000 people, we wouldn’t call it much of a success. But a system that produced millions of films that in aggregate employed the same number of people that each reached smaller audiences would be a success. Because the point of copyright isn’t to create one film, it’s to maximise cultural participation, it’s to maximise diversity, and it’s to maximise opportunity for you and me and everyone else to get a toehold in that most noble of human endeavours: personal expression and cultural participation.
They may not be mutually exclusive – it may be that there is a place for the $300 million film in the same way that there’s a place for giant casinos today, or in the same way that you have mega-churches being built by evangelical groups. All of these things seem to crop up, even when you undo the one true church, but they stop being the norm; you start to have far diversity in the way that we express ourselves.
If the entertainment industry and other businesses that are fighting the copying of information want to continue to exist – want to have the opportunity to figure out how to reform their business models to fit with the information economy that’s based on more access to information – they have to stop promoting the idea that it’s them or us. They have to stop saying that the only way that films can continue to be made is if those films are made by firms that have the letter of marque from the King that allows them to knock down your door and take away your computer if you’re caught pirating them.
We need to have a balance, a detente, that says to these firms, “You can try to make your living, but you can’t do it at the expense of the system that is delivering all of this public benefit. The Internet doesn’t just copy movies. Beyond that small parochial concern is the Internet’s incredible facility in allowing us to organise ourselves in ways that ennoble the human condition, and if you make it a choice between the Internet and Police Academy sequels, eventually society is going to vote for the Internet, so you can’t make it that choice.”
The fact is, technology giveth, and technology taketh away. The reason that Madonna has switched from a record label to a concert promoter is because a concert promoter’s business is copy-native; the more copies of Madonna records there are floating around in the ether, the higher the ticket price for a Madonna concert goes, and it may be that a new kind of artist earns a new kind of living in the era of the Internet. It’s not the end of art. To the extent that those artists can discover business models that work with the Internet, that don’t insist that the information economy is based on restricting access to information, they have a future. [5-1]
[5-1: Cambridge Business Lecture, 22 July, 2008]
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