Rethinking Copyright

Why Some Issues Must be Addressed Now And Some Do Not An Essay for the Modern Poland Foundations Contest The Future of Copyright
The two sides of the current disputes over copyright are relatively clear: Content owners on the one hand demand stronger tools to halt piracy on the internet, while consumers deem the current copyright law outdated and call for more loose regulations. Both parties tend to utilize values of mankind such as freedom and rightfully acquired property. It is obvious, however, that both parties have monetary interest in the outcome: Consumers, who dream of a cultural Eden of free content and IP owners, who wish to make more profit out of their assets. Therefore, some skepticism towards both sides seems to be appropriate. Another observation that can be made is that there is one value both sides like to argue with: Innovation. Content owners naturally argue that copyright laws and their enforcement are necessary to give artists incentives to create works. On the other side it is argued that this protection hinders other works that derive from the original one such as remixes. Since copyright has always been justified with the purpose of stimulation creation, this seems to be a good benchmark rethinking copyright. when divided between the public domain and right holders. To shorten these terms again would be only adequate. This would be of advantage for customers without hurting artists position. The biggest loser in this scenario are content publishers, businesses that are not only the biggest lobbyists on the content holders side, but also employers of thousands of people. To prevent mass layoffs, a reasonable compromise must be found that preserves interests of both sides. Alteration of Works Another aspect that does not support innovation is overly strict protection against alteration of works. To name an example that is common YouTube practice: Who does it harm if clips of famous movies are dubbed with different voices in order to create parodies and other comical works? Seeing such a twominute clip will not discourage anybody from watching the respective movie in the cinema. Therefore, such alterations should be allowed. In situations where a newly created work actually is in competition with the original, like often the case with remixes of

Protection Terms The most striking unconformity with this purpose is the fact that copyright is typically granted until 70 years after the death of the artist to their children. As Goldman recognized over thirty years ago, any post mortem protection cannot be justified by incenting creation:1 It must be doubted that any author, songwriter or filmmaker will refrain from creating when they are told that after their death, no one will be able to make money with their work. On the contrary, children of artists might even lose the financial appeal of being creative. So why, one might ask himself, has the protection timespan in European countries been lengthened, recently far over the 50 years period stipulated by TRIPS and the Bern Convention2, while music and films grow out of fashion more rapidly than ever? Consumers are right to think that they never received what they were promised when IP was
1 Paul Goldstein, COPYRIGHT, PATENT, TRADEMARK AND RELATED STATE DOCTRINES, 2nd edition, 10 (1980) TRIPS Art 12, Bern Convention Art 7

songs, it is justified to let the creator of the original simply have a share of the remixers revenue by granting him mandatory license fees. The bigger the competition between those two works and the more use was made of the original work, the higher they should be. DRM and Copyright Exclusions A third challenge on nowadays copyright laws is to ensure that consumers can in fact make use of their rights emerging from exceptions of exclusive rights: Often state law provides that persons may make copies of works for their private use, but technical copy protection, so called digital rights management (DRM) makes it impossible for them to actually do so. This clearly undermines the purpose of such provisions. Therefore, clear regulations limiting the possibility of using DRM for works that are distributed among consumers are of need. Of course this bears challenges of technical nature within, as it is hard to limit DRM to illegal copying only. The Wild Wild Web There is of course one issue that will not be resolved by changing the law in the way suggested above: Internet piracy. It is evident that it is not right that people make virtually millions of dollars by hosting platforms for illegally distributed content.3 Heavy
3 See e. g. Kevin J. OBrien, Founder of Shuttered Web Site Sought Limelight,N.Y. Times, January 20, 2012

weapons such as the very controversial ACTA could of course control piracy to some extent. However, they give states surveillance instruments which misuse would be fatal; a price that is not worth to pay. However, some trends suggest that this might be less of a problem in the future: The utilization of the world wide web has been compared to the first encounter of the wild west.4 Similar, it will take some time until right holders find ways to protect their property and frequent judgements indicate that they will do so. 5 Apart from such legal instruments, right holders frequently chose business methods that allows them to make money in other ways than selling their content: Lady Gaga and Co. sing on Youtube for their share of the revenue created by commercials, the South Park website allows consumers to watch episodes (including advertisement) for free, just like the newest music video of the Gorillaz, which openly advertises Converse shoes; the list goes on. Along with a growing sensitization of judicial systems for such matters, such official and legal online offers will be the most effective weapon against piracy: As the huge success in the US of platforms like Netflix shows, consumers rather even pay monthly fees than
4 5 Christoph Meinel interviewed by Till Schwarze, "Das Jeder-darf-alles-Prinzip ist falsch", Die Zeit, April 2, 2012 e.g. GEMA vs Youtube, Landesgericht Hamburg, April 20 (still appealable)

clicking themselves through a jungle of pop-up ads on often also unreliable illegal platforms. As a conclusion, it can be said that, yes indeed copyright has to be redesigned to handle the challenges of todays society. Provisions about alteration of works and protection periods as well as technical copy protection clearly need to be rethought. However, this need for change is not unlimited: Today, too drastic measures in one way or the other are utterly inappropriate. Or, as Ronald Schild put it rather trenchantly, when asked which is the best remedy against piracy: Ignore it.6

The Author: Julian Ring is studying Law at the University of Vienna

This work is published under the CC BY-SA 3.0 license. Homepage of the contest: http://indiegogo.com/Future-of-Copyright 6 Ronald Schild, Das beste Mittel gegen Piraterie: Ignorieren!, Brsenblatt, March 9 2012