ARCHIVED — John Bayko

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

---

Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

---

Submission from John Bayko received on September 26 2001 via e-mail

Subject: Comments - government of Canada Copyright

PDF Version

Comments - Government of Canada Copyright Reform
c/o Intellectual Property Policy Directorate
Industry Canada
235 Queen Street
5th Floor West
Ottawa, Ontario
K1A 0H5

I had planned to submit these comments before September 15, 2001, but I fell ill before I could finish them in time. I’m submitting them anyway in hopes that they might be useful.

Commercial media copyright issues.

I’d like to begin with the topic of commercial and corporate copyright, since I believe their concerns are among the driving influences behind many proposed copyright changes. The goal of laws is often said to strike a balance between two or more interests, but in reality, that balance is not maintained because the sides and the environment which they exist in keep changing. The strongest side tends to tip the balance towards itself.

In the case of copyright issues, there are some strong interests which have depended on certain situations which allowed certain business models to be very profitable and give leverage to influence changes to laws. The music recording industry is one example, but there are others. Some of this issue was covered in a speech by recording artist Courtney Love:

http://www.holemusic.com/speech/

Although probably one-sided, it does bring up some interesting points:

First is that the majority of the cost of most media of this type is not from manufacturing or royalties paid to the artists, but in the production and promotion costs. Although much of the money does pass through the artists, it can be viewed as creative accounting, as most of it returns to the recording company. For example, recording companies may require a completed song to be re-recorded or remixed using their facilities, and charging the artists for the service. Situations such as this are covered in this Toronto Sun article:

http://www.canoe.ca/DunlopAwards/js111900.html

Technology is creating situations where individuals can use low-cost home computers to record and mix songs, reducing much of the production costs and the need for recording company services. This is not a copyright issue, but is a technological threat to an existing business model.

Another point is that the distribution is typically controlled by the same companies. My personal observation is that music stores recently have cut down drastically on the variety of music available. Most stores used to have clearance bins for unsold records or tapes, but those have disappeared as part of new inventory systems in which only music which is likely to be sold is stocked.

Although retailers are not directly owned or controlled by recording companies, there is opportunity for close cooperation in terms of promotion, price, and availability. An example may include agreements to heavily stock newer albums at the expense of older ones, with the guarantee of buying back unsold stock – since the cost of production is a small fraction of the cost of a CD, this is a relatively small expense for the recording companies, but with large payoff in increased sales. The production cost is typically under one dollar, while the price is closer to $15 (CAD), meaning the sale of 1 CD can potentially cover an overstock of fourteen unsold copies.

This in itself is not necessarily a problem. Magazine publishers almost always offer to buy back unsold copies, because the publicity of the magazine’s presence on a newsstand outweighs the smaller cost of buying back unsold stock. However in the case of music sales, the combination of promotional factors, and the desire to reduce inventory of unpromoted music has produced over the past few years a bottleneck which prevents a variety of artists from distribution, and makes it difficult for consumers to find less-popular music, at least based on my own experience.

This bottleneck depends on the ability to control the copying of music. This use of copyright isn’t itself a problem, but it’s part of the interaction between two interests which does not serve consumers. And there are still music stores which specialize in providing a wide selection of music to customers. However, these are less convenient because there are fewer of them. The Thursday, September 6, 2001 issue of the Globe and Mail presents a survey of users who download digital songs. This survey indicates that a largest number of the users only want to “borrow” the music (like from a library, not wanting long-term ownership and so not wanting to pay the full price), or are looking for songs that are not provided through the traditional distribution system, both which are issues of convenience.

This, I believe, is at the core of consumers wanting alternatives to the mainstream distribution channels. Because the mainstream channels are immensely profitable to those who control them, there is essentially no incentive to change them.

The manufacture of CDs is a large undertaking, rarely used for quantities fewer than several thousand. This means that copyright violations can be relatively easily tracked down and stopped. In other words, the limits of the technology allowed the relatively easy enforcement of copyright. However the Internet and high-quality compressed music formats are eliminating technological barriers, allowing CDs to be created individually, or eliminating the need for them altogether. This has enabled alternative distribution channels to be created which better serve the desires of consumers, despite the preference for the profitable status quo by retailers and copyright-holders.

The dependence of the old system on copyright doesn’t mean that it’s appropriate to make changes to the copyright system to prevent the emergence of new distribution systems. It can be argued that the old system was based on the abuse of copyright, at the expense of both consumers and artists, which is why there is such a desire by people to replace it. If there is reduced need for recording companies to produce and record music due to new software and systems being available to do that job, and no need for distribution because the Internet does it better, their reason for existence largely disappears except for the job of promotion, and it can be argued that promotion is also no longer necessary when anyone can produce a web site and submit it to search engines, again for very little cost.

The main point made by Courtney Love is that recording companies are responsible for the vast majority of the cost of music to consumers, and that it can be almost entirely eliminated, wiping out a multi-billion dollar industry as a side effect – although there are also immense problems with this approach, which still have no technical or social answers.

This is not limited to music – movies and television networks are in a similar position, although the technology to seriously threaten their distribution control is not present yet. The affect on the distribution of textual content is limited by the fact that the most valuable of it is not in digital form, there are different tradeoffs in convenience (books remain a very convenient way of carrying words), and other forms have different value (a large part of copyrighted online text is in the form of news stories, which lose their value rapidly even without artificial controls).

I don’t advocate the elimination of “greedy recording companies”, but want I do want to say is that the problem which they are facing is not a simple one, and there are at present no clear solutions. Unfortunately, while it does not help matters to leave the situation unchanged, far worse in my opinion would be to attempt to use the force of law to freeze the marketplace in an unnatural state. Changes along these lines may be necessary, but should be made with extreme caution, or possibly delayed until the true state of affairs becomes apparent.

The technological changes which are threatening recording companies is similar to the technological changes which created them in the first place. The advent of recording technologies took the control over performances from the artists and gave it to those who were able to record and copy those performances. This devalued live performances and eliminated large segments of the performance industry. This led to changes in laws to try to maintain or restore some rights, but the old business model which depended on the physical presence of performers to deliver the performance was still destroyed by the disruption of new technology, to be replaced by a new one.

To try to artificially freeze the business models which existed before new distribution and production technology would be as problematic as trying to freeze the business models from before recording technology would have been.

Issues listed in “A Framework For Copyright Reform” annex.

Access Issues

The result of initial recording technologies and subsequent copyright laws was that control over the presentation of performances was taken away from the creator, and transferred to those who had the recordings and copyright and ability to distribute it. Generally, the number of distributors is much smaller than the number of consumers or creators, which makes copyright straightforward to administer. However, the new copying and distribution technologies are taking control further from the creators and closer to the consumers, involving a far larger number of people – as much as one distributor per consumer. This makes administration of copyright far more difficult, since it requires tracking a large number of people and transactions.

This does not mean that the copyright laws themselves are too lenient regarding copying of works. It actually suggests the opposite, that attempting to make the laws considerably stricter will not have a fundamental impact on the making of digital copies unless the ability to track them or the people who make them is improved. This is a problem with administration separate from the question of copy rights.

The original problem of recording technology was not dealt with by preserving a performer’s right to control the time and place of every instance of a performance, but by moving to a different model, one which allows others to control the viewing of performances, in return for compensation to the performer. Similarly the new problem of distribution technologies will probably not be solved by trying to maintain current control, but by allowing control of distribution to shift as before, while concentrating more on mechanisms for routine compensation.

The compulsory retransmission of television or radio signal copyright license which already is in place in Canada seems like an effective model which could be applied to more general forms of content. The problem is again administrating or enforcing it, which is likely more a technical issue – a technical problem which may have technical solutions.

As an example, digital files can be “watermarked” by inserting data to indicate their source without affecting what the consumer perceives, and this can be used for tracking usage rights. Although it may be possible for a technical person to remove “digital watermarks”, in an ordinary future environment (where access is not made unusually difficult) there shouldn’t be much incentive to do so. Copyright law may be useful to prohibit tampering with such digital watermarks, but I’ll comment on that in the section on Digital Issues.

The older distribution model of business would likely be replaced by the business of administration, so this change would not destroy an important economic industry, the industry would just transform to fill a new role. The exact form of rights management (limits on what a consumer may do with material) does not need to be specified in advance in law for this to be possible, it can take the form of a “licensing agreement” between producer and consumer.

An example of this is computer software, which can impose a variety of conditions and restrictions on those who purchase copies, which best suit the interests of the copyright owner. Software licenses can require payment based on number of users, type of equipment used, and so on, can restrict interaction with other software or equipment, and has even been used to guarantee a sort of anti-copyright where it’s useful, ensuring the software which was initially provided freely must always be redistributed in the same manner. The latter is described by the GNU Project, which uses it to spur contributions to a growing amount of technically advanced software:

http://www.gnu.org/licenses/licenses.html

It may be necessary to ensure that copyright law supports licenses of this form, or specifies what restrictions can reasonably be placed on those receiving copyrighted material. This could allow, for example, recording companies at their choice to define the scope of a copyright “work” to include rights management information or even the particular format it was provided in to prevent it from being transferred to a non-managed format. Consumers could accept or reject these types of restrictions, and choose from alternatives.

I think enabling or encouraging content licensing in law would be preferable to creating a single legal framework regarding rights management for all providers and consumers to adhere to (as in, a fixed set of requirements and restrictions) which may inadvertently favour one side over the other when written, and then be difficult to change later in a timely fashion.

I have more comments on this below in the section regarding digital rights management.

Database Protection

I assume the idea of “non-original” databases would include those created from contributions, such as certain Open Web Directories in which individual users of the service contribute to its structure, or collections of CD content listings (for reference purposes, as opposed to file-sharing systems like Napster). I assume that it would also include archives of publicly available information, like email discussion groups, Usenet postings, or web pages like those managed by web page search engines.

In some cases, contributors agree to give up their copyrights and transfer them to the database owner. In others, they may give up limited rights by making information public within an implied domain (web pages), but still want to retain some rights regarding use for profit or other purposes.

In all cases though, the usefulness that a database of these items adds is not the content provided by others, but the structure which organizes and relates the items to one another. This information may not be explicit in the form of a document, but is information encoded in “meta-data”. In the case of computers, this would often be encoded in a variety of digital formats, but if can also be encoded in non-computer form, such as a library book catalogue, or references from a research paper to other papers and books.

Even though it is in a non-document form, the database organization is information which requires an effort to create, and so does deserve copyright protection, even if this copyright doesn’t extend to the contents of the database.

Digital Issues

As I said above, the digital format for information and the new technologies for manipulating it are a threat to the established business concerns, and I believe they are trying to exert influence on authorities to try to prevent any change to the status quo, through new laws and practices.

Technical Measures of Copyright Enforcement

The most important issue in this is, I believe, what amounts to attempts to grant the power of law enforcement to technological tools. To be specific, the idea that “technical measures aimed at limiting access to or reproduction of works” should be given a privileged status in law. The intent of copyright law should be to protect copyrights, not to protect technology.

In the most practical sense, trusting technical solutions to be able to essentially interpret the law is not likely to succeed very well, given the complexity of the law and the number of possible unforeseen contingencies that must be considered. Any number of hypothetical scenarios could be suggested to illustrate this, but one example of a technical measure which badly misses the target is the Content Scrambling System (CSS) used on DVD discs, which encrypts the content so it can only be played back on an authorized player. This neither prevents copying, since the encrypted data can be copied to another disk if the equipment is available to a person, nor does it prevent access, because the encrypted copy can be played on any authorized DVD payer as if it were original.

It’s likely that the CSS was never intended to prevent copying, but the DVD Copy Control Authority, the trade association which tries to enforce compliance with DVD standards and agreements, has presented it as such in legal actions, one of which is mentioned below.

In addition, laws often change, and once distributed, it’s difficult or impossible to change all systems with such technical measures in place to reflect such changes. Even when the law doesn’t change, interpretations often do, subject to court rulings, with the same problem.

A more social problem is problems interpreting and applying laws regarding technical systems which are often very difficult to understand, even for technically experienced people. There are many issues with the recently changed copyright law in the United States (known as the Digital Millennium Copyright Act (DMCA)) which illustrates this, and I’m sure many submissions have been made on that topic. But I’ll mention two examples.

In a well-publicized example, a 16-year-old Norwegian boy named Jon Johansen has been charged in the United States for violating the DMCA by writing a program which decoded information encrypted by the CSS. The program had one effect of allowing certain types of computers to play DVD videos the same way as “authorized DVD players”, which is a legitimate use of an ordinary encrypted DVD. Information can be found here:

http://www.eff.org/IP/DRM/DeCSS_prosecutions/Johansen_DeCSS_case/

In another example, Russian programmer Dmitri Skylarov was arrested for writing a similar program to allow users of a file format called eBook, created by Adobe Systems, to use an unencrypted version of the file (one legitimate use is to allow visually impaired customers to pass the file to a program which reads the text aloud for them). Information can be found here:

http://freesklyarov.org/

In both these cases, they did not break any laws in the process of writing these programs, since the laws of their own countries allowed them to do so. Because copies of these programs made their way into the United States, the government extended a strict interpretation of the law to people outside its jurisdiction. This interpretation also goes against legal precedents in U.S. copyright law which allow “fair use” of copyrighted material, as well as other indirect legal principles.

One specific example is the principle that a baseball bat becomes an offensive weapon only when it is used as an offensive weapon. Until then, it remains a baseball bat. Additionally, when it is used as an offensive weapon, whoever designed, manufactured or sold the bat are not considered an accessory to this action. The most recent interpretations of the DMCA, at least in regards to these legal cases, throws away these principles and assumes that a baseball bat is always an offensive weapon, even when it is used for playing baseball.

In the case of something as common and familiar as a baseball bat, these arguments are obvious. When it’s a matter of complex technology, individuals, law enforcers, politicians and those in the justice system may have a difficult time following the concepts and details of individual mechanisms (either to restrict or circumvent restrictions), to the point where even technically experienced people can confuse technical issues with social or legal issues. For example, a programmer might say that the eBook encryption doesn’t even qualify as an effective “technical measure” to control access because the method used (and described by Dmitry Sklyarov shortly before his arrest) is childishly simple, from their perspective, while others would argue that any measure qualifies, even if it uses pig latin.

In summary, technical measures for copyright control have been ineffective, and the legal protection of them has been abused where it was tried.

Currently, attempts are being made in the U.S congress to extend the rights given to technical copy restriction measures even further, mandating that all devices sold to consumers be required to contain federally approved copy prevention technology, and preventing its bypassing in all cases. A summary is presented here, with links to the complete text:

http://www.politechbot.com/docs/hollings.090701.html

While I believe this has far too many practical and technical flaws to become law in the U.S, I do believe it represents the pressure from companies whose business depends on increasing copy restrictions (as they are specifically singled out to produce the technology and policies which the technical measures will carry out), and does not refer to the rights of the creators or of the consumers. For example, the proposal does not seem to allow for the expiration of copyright, or a copyright holder releasing the copyright to broader use. It may even allow distributors to apply the technological restrictions to non-copyright or -copyrightable material.

In other words, this law would not serve to protect copyrights, rather it would protect the technology itself – removing the protected technological restrictions on a non-copyright work would remain a crime. In this sense, it is elevating the technology above the copyright itself. And since it enables the distribution companies to control the technology, it allows them to control access regardless of copyright law, giving them greater power to decide on the rights and limits that both consumers and creators have than the government has, and without legal restriction. Governments must eventually be responsible to (and represent) the consumers who are part of the electorate, when deciding on rights and restrictions.

This can not in any way be considered “balanced”.

Rights Management

This area is different from copy restriction, in that as a technical measure, it does not attempt to direct the actions of individuals or impose restrictions beyond what is legal. There are precedents to legally protecting identifying information, such as credit card numbers and counterfeit postage stamps, in order to prevent fraud. I believe tampering with rights tracking information (such as digital watermarks which I mentioned above, and others) can and should be considered in the same category as fraud.

For discussion purposes, as an example of what could be done, suppose the following elements are employed:

- An Internet funds transfer service, such as what credit card companies provide.

- An Internet music verification service.

- A hypothetical music format which includes digital watermarking.

The digital watermark would contain identification of the content, and the identification of the consumer (stored by the verification service, which the customer would subscribe to), and an access code, which would all be numbers, and combined mathematically in a way that you could not easily extract one from the other. The access code would be kept in the verification service database, and not released publicly.

The music would be encrypted, or only a small amount of necessary information might be encrypted. The decryption key would be a combination of music identification code, consumer identification, and a decryption code (different from the access code, also kept only on the verification service) which would be combined in a similar way as the watermark.

To verify a music file, the consumer’s music player would sent the identifiers for the music and consumer and the watermark to the verification service. The service software would use the access code to extract the music identification from the watermark to ensure the watermark hasn’t been tampered with, then would check in its database to see if the consumer has the copyright license for this music. If so, then the service would create a partial decryption key by combining the decryption code and music identifiers from the consumer, and send that information back. The consumer’s music player would combine the partial decryption key with the consumer identity to create the full decryption key, allowing it to decrypt the music and play it.

If the consumer is not licensed, then the subscription agreement the consumer has with the verification service could allow the service to debit a funds account and then add their identity to the database for this music, then continue as before. If someone gives a copy to a friend, then the music’s watermark will not produce the correct music identifier. In that case, verification service will create a new encrypted segment for the music file and send that, where it will replace the old encrypted segment in the consumer’s copy, plus a new watermark. It will then create and send the decryption key for the new encrypted information, allowing the music to be played.

It’s possible for a consumer to misrepresent their identity or store the decryption key in a system like this, but I believe this would be uncommon for a variety of reasons.

First is that if the system operates conveniently, there will be little incentive.

Second, much of the idea of “free data” to download comes from the earlier text-based nature of the Internet, in which there was no attempt to restrict access to content. I think that given a convenient system (no restrictions on copying or trading, authorization happens automatically), the idea of free content may change regarding the various different types of information available. Some may still be viewed as free, but the idea of payment may seem justified for others, particularly if their payment supports more access or an increase in the variety available to them. This may not be immediate, since even putting such a system in place will likely take years, and becoming used to it may take more, but there is a precedent.

Many computer programs are sold as “shareware”, a term for software which gives users the right to freely copy a program, but asks the user to pay for it if they find it useful. Although the markets for these programs are usually smaller, many software companies based on this model exist and are profitable. In exchange, the user gets support or newer versions. Sometimes, shareware programs are only partly functional without a software “key“, which a user obtains by paying for it. These functional limits can usually be bypassed by technically knowledgeable people, and fully functional versions can be passed on, but the users of these programs usually prefer the purchased versions for a variety of reasons, including the fact that the prices are usually very low because there is no overhead for advertising or distributing them, as there is with widely known commercial software.

Although not all users pay for the software, enough do that the overall scheme is profitable. With an automatic mechanism in place, the ratio would be much higher.

Third, since the access to each file depends on the identify of the licensee, a person would need to keep track of the identity of each licensee with each file, or store the decryption key along with encrypted the music data. While this could be done with software, it is another complication.

Fourth, technology can also enable monitoring of networks. A person who wants to share files needs to make their presence known to others, and that would include companies which enforce copyright licenses. A person who distributes files with watermarks made up only of a variety of other person’s identities could be singled out for investigation.

Internet Retransmission of Broadcast Programs

As I said above, I believe that the compulsory broadcast license would be a good model to deal with the issues of digital duplication and transmission over the Internet. The immediate difficulty I see is that there may no longer be a single source for the content once it is spread to various other people, making administration complex.

I only see this as a short term problem, and in the long term infrastructure will be devised by interested parties to manage this, such as in the example I gave above. The problem would then be, how can this transition be made smoothly.

The copyright license would need to apply to the consumers as well as the rebroadcasters. A provider of a copyright work would be obligated under the license to ensure that the receiver agrees to abide by the same terms (that is, not to redistribute it without a compensation mechanism being in place) before it is transmitted. There is precedent in computer software licensing for this sort of agreement.

This would satisfy the legal situation, I think, but enforcement would be a problem without a rights management infrastructure. Unfortunately, there is no substitute for that. Because of this, copyright laws should encourage the creation of such a system. For example, compulsory rebroadcast licenses might be granted only for works in distribution formats which meet the criteria for a rights management system over the Internet. As such systems are put in place for different media (audio, video, text), companies would be allowed to provide that content.

It would be necessary to allow content creators to opt out of such a compulsory license, and for limits to be placed on what would be eligible for it, because it would affect a wider variety of media than broadcasting, and would cross distribution formats. For example, a home videotape copied between two people would not be eligible because it was not already in a “public” media, as would a recorded song emailed between them (email is not public either), but a video that was broadcast over a cable station, or a song placed on a web page for download, would be public, and so would be eligible.

Performers’ Rights

The types of works that can be copyrighted vary from those which consist of little creativity, such as computer programs, to those which depend completely on the creator, and could not be created by anyone else.

Performers as well as other creative producers seem to implicitly have more control over their resulting works by virtue of the fact that they are the only ones capable of producing them, either once or repeatedly, depending on the type of expression. It’s correct for copyright laws to acknowledge this fact.

One could argue that it is inherently impossible for such a performer to “give away” their right to reproduce the performance, because the performance cannot be reproduced in its entirety, only recordings can be made and copied, and recordings are invariable limited to only specific aspects (perspectives, quality, etc.).

Rights Management in an Online Environment

As I mentioned above, online rights management is essential to allow copyright to exist in a practical sense because without it, administration is impossible.

One suggestion I would make is that it might not be necessary to limit management systems to a single system, and it would be preferable to base rights management on privately based systems. Artists and content creators could subscribe to one or more management systems run by various companies to distribute their work, and consumers could subscribe to the system of their choice obtain or use such works. Subscription agreements could require a commission from the royalties paid to the copyright holders by the consumers would be paid to the rights management companies, or straight subscription fees might be preferred – this can be decided by the individual parties.

The systems would need to meet fairness criteria, including compliance with legitimate usage by the customers, compulsory licensing and further distribution if appropriate, and allowing the material to be transferred to other rights managed formats. The companies could be the holders of the copyrights, as is common practice among recording and distribution companies, but the compulsory aspect of this approach would prevent them from using rights management to limit distribution by other services, so as to ensure competition.

There are several reasons for a competitive commercial approach to online rights management.

Since the Internet is international, it would be difficult to mandate a system which was stricter than those of other countries, while it would be easier to mandate a system which was more lenient. If the legislation in the U.S which I mentioned above is an indication, it may not be possible to avoid a more lenient copyright system in Canada than in the U.S.

A system based on compulsory license is probably the best way to approach the commercial interests while maintain freedom and access rights for customers. The companies involved would have an interest in ensuring that such a system meets their needs as much as possible. At the same time, competition should provide an incentive for individual companies not to be too demanding, when the possibility exists that a competitor is willing to provide more benefits, easier usage, or take less money.

A second reason is that trying to build a single comprehensive system that meets everyone’s needs would likely be expensive. The motive of profits would be an incentive for companies to invest in its development. In addition, since many of the companies involved would be internationally based, they would have a large number of resources to apply.

Ideally, this would be an international project accepted by all or most jurisdictions which online rights management is needed, which includes all industrialized countries and a growing number of developing countries. I can see developing countries interested in supporting such a system because it would allow them better access to international markets for their own cultural products, and the resulting royalties, without being limited by the existing commercial distribution system, and the bottlenecks which I described above that limit the variety of works available to consumers.

International agreement (possibly under an organization such as the World Intellectual Property Organization (WIPO), which is intended to be a forum for these issues) is likely necessary to ensure that rights management standards have a minimum level of consistency across all jurisdictions where the Internet is available.

I am of the opinion that, given time, the conventional restriction-based business models which use copyright principles to make works artificially scarce for the purpose of inflating its value (for example, restricting movies first to a small number of theatres, then releasing in video form for purchase or rental, and eventually broadcasting over television) will not survive in an era where ease of distribution is taken for granted by consumers. Alternative sources of entertainment content will be created which will be preferred by consumers partly because they bypass the restrictions of the older business model and so are more convenient. In addition, restricted content with enough popularity will be converted and traded illegally, using either formal or informal trading networks, and the number of distributors (as I said, up to one per consumer) will make prevention increasingly difficult and costly.

The copyright holders affected this way can claim this as financial damage, but the root of the problem is that the current business model creates artificial scarcity, so raises prices artificially as well, following well established economic theory. When the ability to make copies and distribute them is negligible, the “natural” level of supply is essentially infinite. In that situation, the market price is also exceeding low, as is the cost of supply, and any business model based on scarcity collapses.

In other words, the problem is that the current business model is artificial and unrealistic, not that the alternative is damaging or unfair. This is not unique to the entertainment industry, and technology has rendered many business models of the past obsolete. As a direct analogy, refrigeration made the supply of ice essentially infinite, practically eliminating the retail industry of bulk ice selling and delivery to homes and other businesses. This was not damage, it was simply the normal transition of an industry.

Technology-enhanced Learning

Unhindered distribution of content may be an incentive for the creation of news and educational information, as well as entertainment, because of the fees it would provide would be based on popularity or usefulness, and not on an up-front expenditure which may prohibit people and organizations from investigating a variety of material. It would become more consumer-driven, and less promotion-driven.

Term of Protection

I believe that, in terms of utility, the term of protection for copyright works of an author’s lifetime, plus fifty years, is already excessive.

In terms of incentive for creativity, any term past an author’s death is useless for obvious reasons. As for the rights of the estate of an artist, author, etc., it is true that the full benefit from a creator’s works may not occur until after death, so a reasonable term should be allowed for this, but I think the term should start from the date of creation, and extend past death if necessary, not added to what may already be a fair amount of time during the creator’s life. This is similar to how patents are handled, which is another type of creative work.

A term of fifty years is normally enough for majority of an heir’s adult life. Extending this would provide no substantial benefit to a creator or a creator’s estate. I believe the only pressure for this is for corporations which own large numbers of copyrights to material, and face the idea of that material becoming public domain. I think this is a legitimate concern in some ways, but that concern has nothing to do with the people who are the actual creators. Rather, it is an attempt to maximize investment.

In many cases, I think that rather than copyright law, trademark law would be more applicable, in the cases where the material is readily identified with a copyright holder. Material involving such trademarks, or in which the material itself can be considered a trademark, corporations should have the ability to have some control.

In cases where a corporation merely wants to preserve an investment by maintaining what amounts to a granted monopoly on revenue from a work (which is the essential definition of copyright), then the government could grant such a monopoly to a corporation, in exchange for some consideration to benefit the public good (such as a portion of the copyright revenues), beyond the normal limit of a copyright. Such a fee could be incremental, so that companies holding the copyrights could decide at which point it is no longer useful or profitable to maintain the extended copyright.

For example, fees could increase 1% per year from the first year of the normal term, so that at the 50 year mark, half the copyright revenues would be paid as fees, and at double this term, the company would still maintain the copyright, but not receive the financial benefit (there may be other reasons for wanting to keep a copyright even if there is no financial benefit, such as promotional purposes).

Alternately, the first 50 years could be free of fees, and start at 51% the year after the normal term expires.

Another alternative would be to start at 1% after 50 years, and continue until 150 years had passed.

A fourth option is to allow the option at the start to either accept a 50 year copyright term, or accept a 100+ year fee-based copyright (that last is my preference).

If a fee-based option (the fourth proposal) is implemented, companies with material currently within the term should be given the option to change to the fee-based option, with no penalty (that is, fees would begin at the rate based on which year of the copyright term a work is currently in, such as 10% in the tenth year, but fees for the preceding years would not be paid).

Traditional Knowledge / Folklore

I’m of the impression that folklore can be considered like scenery, in the sense that it does not belong to anyone, but an artist can render that scene in a work of art. The art depends on the skill and perception of the artist, and in the same way the telling or rendition of a folk tale depends on the author or performer.

On the other hand, the life of a folk tale also depends on the contributions of all those who tell about it. As it’s passed between people, those who tell it can add their own elaborations, which may be picked up by others or left alone. Folk tales become a type of communal work in this way.

There is a similarity to a movement in the software world called “Open Source”, which is described partly in the document I mentioned above referring to the GNU Foundation, and partly here:

http://www.opensource.org/

This development model is based on expressly giving up copyright restrictions on software source code, with the purpose of allowing the people who use the software to modify it to suit their needs, and add those contributions to a common repository. The result of this has been a large amount of technologically advanced software.

The business model associated with open source software tends to be based on providing services which use that software, rather than selling the software itself – since restrictions on copying and distribution are given up, there is no scarcity, so price is zero. Companies either assist clients in using the software, or they provide a service using that software. In both cases, when they find a need to extend the software, they do so, which helps develop the software, and in return they receive the contributions from other companies using the software, often for similar purposes so that the improvements are relevant to their business.

Similarly, copyright applies to a particular telling or writing or performance of a folk legend, but not to the story itself. I don’t see this as a problem in itself, because this is what allows folklore to be created and developed. However, I can see that those who have retained such folklore by learning it and telling to others could resent people who have not contributed to it but learn it and use it for profit.

The GNU Foundation has addressed the problem for software with the General Public License (GPL). It is a license which forbids this specific act, so that a person or company cannot take software which is copyrighted and distributed under the GPL, and modify it, then keep those modifications secret and sell it.

Software source code must closely follow the rules of the computer systems which it is meant for, and so it’s not simple to take something “similar” the original copyrighted work and use that instead, because the work of making a “similar” version follow the rules closely enough to function is almost the same as to create completely new software which does the same thing. Hence the value of source code is the base from which modifications can be added.

To apply the same principle to folklore, this would mean that the representations of such folklore would not be able to be copyrighted.

This would not be a very satisfactory solution for several reasons. The actual works may be based on traditional sources, but contain a significant amount of contribution by the artist. In addition, the works may only be very loosely based on the original story, or use it only as an inspiration for a different story. In some cases, there is no way to show where the original story came from.

Another possibility is to set up public trusts associated with folk tales associated with different groups of people. A small portion of the profits from any works which can be shown to be significantly based on these tales would be paid to these trusts, and the money would be used for social or economic development of the people where the stories originated.

There are problems with this approach, too. For one thing, many folk tales are shared among many groups, or are created independently. In addition, writers, songwriters, and so on may also independently come up with stories closely resemble folk tales. Another problem would be how to categorize folk tales so as to differentiate them from things like modern urban legends. Finally, administration would be very difficult.

I can’t see a satisfactory solution to this problem. Likely the only reliable way to allow traditional folklore to benefit the people who have historically kept it in memory would be to provide support for individuals in that group to express their folklore in stories, performances, and so on. This would range from funding to providing access to distribution such as publishers, television, and the Internet. This is well outside the scope of copyrights.

Transitional Period for Unpublished Works (Section 7)

I believe that unpublished works can be treated the same way as published works, and that an option should be available for either a set term or fee-based extended copyright, as I described above.

A large number of unpublished works are the result of business operations, or business products such as software. The identity of the author is not normally recorded, and copyright is assigned automatically to the company. As I said above, I believe that copyright terms should begin with the creation of the work, and not with the death of the author. It is very difficult to determine the death of the author in a situation like that, while the date of creation is more commonly recorded.

A transition period of five years should be adequate to prepare for the end of copyright protection, whatever date the term is decided to start on.

Additional notes

My personal position is that copyright is abused more often than it is used beneficially, and I don’t feel compelled to copyright things that I produce. But I do recognize that other people use it for their incomes, or corporate profits, and there is a large economic system which depends on it, and I tried to reflect that in my comments.

There are some people who argue that copyright isn’t really useful anyway, such as in this essay:

http://www.firstmonday.org/issues/issue6_9/scott/

John Bayko
(Address and e-mail address removed)