Copyright is Dying, Beware of Accessright

by Tom Penzer on Sat, Mar 2, 2013

We will recall these days as the final moments of the once venerable institution of copyright, a system originally intended to allow artists to commercially exploit their work by limiting the creation of copies. This system functioned relatively smoothly in the days of printing presses and record presses, when the equipment and inclination to make a commercially viable copy were scarce. Then things started to get bumpy with the arrival of home recording equipment like VCRs and tape recorders, as people grew accustomed to making high-fidelity copies of commercial works. In these days of digital artwork recorded, distributed and consumed on an endless number of devices, made accessible through an endless number of online services hosted in various countries, we copy and share with little consideration.

In response, several measures have been taken to contort the copyright system around the new realities of digital content use. The US's Digital Millennium Copyright Act and numerous similar initiatives around the world have attempted to bring a semblance of regulation to the emerging digital content industries, but our actual legal rights as individuals on the subject of copyright remain poorly understood, rarely respected and constantly shifting. Can we legally copy the music we bought to our phones, or for use in the car? Probably, yes. Can we legally copy the movie we bought? Probably not, though often little actually prevents us from doing so. Will that still be the case in a few years? Who knows? Something, it will be said, must be done to bring some clarity to the matter!

So what are we talking about here? Copyright has effectively governed two critical aspects of the distribution of information: who gets to distribute a piece of information, and who gets to access it and how. We must be careful to recognize that the only reason our access to information was ever limited by copyright, or maybe rather that the structure of copyright law was ever workable, was because the means of making copies were so scarce. Now that most of us are carrying globally networked devices capable of recording and sharing our surroundings in ever-increasing fidelity, it is inevitable that protected works will be copied and distributed as a matter of course.

Some might be tempted to argue that the solution to bring order to this chaos is obviously Accessright, that is a notion that people and companies should be granted monopoly on determining everyone's level of access to representations of their protected intellectual work. This would be a prime example of cranial-rectal inversion, however. Copyright was never about granting a monopoly on access, but merely on the commercial exploitation of a work. The existence of libraries (those places with a bunch of books you can borrow for free) throughout the civilized world attests to that. Any attempt to segregate people into those with a right to access a piece of information and those at fault for accessing it would be a clear attack on our status and dignity. It should be common sense that we have an innate right to observe our surroundings and share our experiences with others, and the idea that there are parts of our environment, even in our own homes, that we might be restricted from observing, recording and sharing will be increasingly rejected.

So if accessright cannot be tolerated, then how can we move forward? With copying being irrelevant, the meat of the matter is commercial distribution. One path might then be to frame intellectual property in terms of Publishright, the notion that people and companies should have a monopoly on determining commercial distribution arrangements for their protected works. We must come to some broad agreement as to the conditions under which a protected work can be legally distributed, along with measures dealing with different types of infringement in a reasonable manner, in accordance with the magnitude of any harm done.

Is it OK to distribute a digital copy of a protected work among your own devices? Unquestionably, yes. Is it OK to distribute a digital copy of a work to a family or household member? Probably, yes. Privately to a friend or extended family member? Possibly. To YouTube or to 10,000 friends on your website with advertising revenue? Probably not. Should the person who does that pay a significant fine? Most likely, depending on the scale of the revenue they made.

Is it OK that there's a bad recording of a Michael Jackson song playing in the background of your wedding video on YouTube? Most assuredly. Can you upload a perfect digital copy of a Michael Jackson song with a still image of the album cover in a video the length of that song? Probably not. Should a person who uploaded a protected work to ten people on BitTorrent or who uploaded it to YouTube for no financial gain be made destitute? Probably not. Should they be encouraged to pay $150 for the privilege of attending online publishright school for eight hours on a Sunday? Maybe after a warning or two, if you're sure you've got the right person.

Much of this is oversimplified and likely tainted by my cultural expectations, but I feel this is a reasonable balance, certainly more than any of these attempts to apply patch after patch to our obsolete copyright system. I don't have any privileged insight or solutions to this crisis, but when we consider the economic impact at stake, we should at least strive to ask the right questions and keep this train from flying off the rails. It's time for our intellectual property laws to mean what they say and say what they mean, and for us that means putting copyright to rest and hopefully replacing it with something better.

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