IPR: Why Failure To Reform Is Not An Option

There's a proposal for orphan (AKA "hostage") works that seems set to fall far short of its goals when it comes up for the vote later on this month. These refer to works whose owners haven't stepped forward to claim ownership. Meanwhile, unaccountable bots are taking down videos and stopping broadcasts in defiance of the DMCA safe harbour provisions. Why doesn't somebody do something about it?


We need to talk about reform of intellectual property laws in a way that gets it done. Neelie Kroes of the EU Commision knows this, but her voice is not being heard as much as it should. Corporate interests dominate the EU Parliament at the moment. It was only by concerted action on ACTA that we got anything done.  I promised Glyn Moody I'd write an internet manifesto and run it by him but basically, my views are that we need to reform IPR so it benefits the public as much as the producers, we need to secure and confirm net neutrality, and we need to ring-fence privacy rights without hampering law enforcement. If we can achieve these things, all the problems we're dealing with now will no longer be an issue in the future.

Orphan works

How are these restrictions improving our economy? How are they helping cultural diversity? How are they helping artists live from their art? How are they helping stem piracy? - Neelie Kroes

Mrs. Kroes is aware that our copyright laws need reform but she's up against powerful lobbyists who want to keep things the way they are and tighten up restrictions for their own benefit, then punish anyone who tries to bypass it. That's the situation we're in now and it's responsible for the unwarranted takedowns. As a Pirate Party supporter, I can't agree with the way things are done now. We need to move away from the idea of ideas as property and move towards a service-based business model.

At the time of writing I've got Preston Reed playing exquisitely for free in a hangout on air on another tab. I really think he's well within his rights to charge for that. As it is, he's using it for advertising for his live shows. Check him out, he really is amazing. Now try to imagine him posting his work online for the fun of it under a pseudonym and never formally claiming it. At the moment a user must make a resolute search online to try to identify the creator of the work he or she wishes to use.  If you fail to find the owner and use it anyway, the work is still subject to copyright law and you can get into trouble with collections agencies, which is where the trouble is. Their chief objection to the commercial use of orphan works is that people might make money from them. That's it, that's all they've got. My personal opinion is if you can't be bothered to claim ownership of a work and you let it lie around on the internet for five years or more, it should enter the public domain. You snooze, you lose. And yes, I'd accept it being done to me.

I mean, how much trouble do you have to go to in order to claim ownership of your works? I made a picture of a beaver's bum today (don't ask!) and that can be traced back to me. I claimed ownership of it in a post I made and it first appears in my photos from posts album on Google Plus. Is it mine? Yep. Use if you want, I don't mind. Just tell people it's mine. The point is, there's no excuse for not claiming your work or putting your name to it in some way, shape or form. Contrast that with the new EU directive that falls short of the public good:

1. It establishes retroactive financial liability for public institutions such as libraries and creates legal uncertainty. This will discourage public institutions from the digitization of their collections by creating fear of expensive future claims if rightholders eventually reappear.


2. It strongly restricts private funding of digitization within the context of public-private partnership contracts by practically prohibiting any commercial exploitation of the works by private partners. Private participation is limited to sponsorship or donations. Since public funding for digitization is quite limited, this is a major financial barrier to the on-line recuperation of orphan works. The permitted uses of orphan works are limited to a narrow definition of “the public interest mission of public institutions” preventing reproduction and the recuperation of costs.


3. Torturous, expensive and bureaucratical requirements for the search of unknown authors that even includes the search for embedded content (illustrations, designs,..) in each work. This seriously limits large-scale digitization by preventing the use of specialized software (Arrow) for the searches as it cannot find embedded content.


4. Record keeping requirements are too detailed and expensive to maintain within the required databases. It also limits the scope of the directive to works first published in a member state and there is not a clear mandate of mutual recognition of licensed orphan works from one EU member state to another. ~David Hammerstein, TACD

When narrow commercial interests trump the public interest, something is wrong. It's why I'm trying to convince creative artists to move away from copyright rents as a source of income. If I can help to make the collections agencies irrelevant by persuading people not to use them, they can't influence the laws that affect me.

DMCA abuse

It was the geek world's greatest show, the Hugo awards. Neil Gaiman was invited to the stage to collect his award for the Doctor Who episode he penned, The Doctor's Wife. Then the screen went black and the words "Worldcon banned due to copyright infringement" came up. Why? The DRM robots on Ustream, which was broadcasting it on the internet, interpreted the fair use of scenes from the aforementioned episode as infringment and killed the feed. Vobile, the third party service used by Ustream, shut it down at once. CEO Brad Hunstable later told us,

Vobile is a system that rights holders upload their content for review on many video sites around the web.  The video clips shown prior to Neil’s speech automatically triggered the 3rd party system at the behest of the copyright holder.

So basically it's not really his fault, it's the third party's and its users. Remember Stop 43? It's this fear of losing out on copyright revenues and proprietary notions that is causing this problem. I'm in favour of sharing the hell out of content and redirecting advertising revenue to the creator. That way, the more sharing there is, the more money the creator receives. Misappropriated monies can be returned and contested revenues can be held in escrow. It's not rocket science.

The solution

The Pirate Party already has the answers: limit copyright terms for licencing and increase the availability of works to the public domain. Make money from direct services and don't try to make money by limiting copying and/or distribution. Selfishness, greed, and entrenched interests are contributing to the problem we have because the middlemen risk being cut out. Like I care. Adapt to survive. That means, if you want to make a living in a Pirate world, you have to work with your customers instead of trying to lock them down and control them. Since the buck stops here, it's what I do myself. I've got links to my PayPal account on the side and at the bottom of each article so you can buy me a coffee if you like my work but you're not obliged to. I don't mind people linking to my work or copying and sharing it as long as they credit me. The credit is non-negotiable. That's fair, isn't it?