The best of all possible copyright worlds

It is not easy to talk about copyright and the public domain nowadays and say anything concrete without sounding ideological. During his lecture at UCL [on which see Annsley’s full report here], Professor Hugh Hansen brilliantly managed to hit at least one of these two targets, allowing the audience to bring home at least three key concepts:

(a) There is an ongoing war between copyright holders and those who hate copyright, which might incidentally correspond to those who promote the public domain;

(b) Copyright holders are on the right side;

(c) Really, they are.

The smell of gunpowder is very familiar to those who deal with copyright in the modern world. Lawyers, lobbyists, counsel and even professors are often pressed into military uniform: pirates against good fellows, good fellows against mean right holders, constitutional property against the public domain.  In their very essence, such conflicts are substantially commercial. Yet, many of the guys involved get truly emotional, and it is not rare to hear them declaring true hatred against the other side.

Life is about catching nuances

This Black v Whiteapproach is funny. Identifying an enemy and blaming him to death is the very basis of western society [if you fancy some reading on this, Girard’s books are a must-have]. It also makes it easier to talk of work during non-professional dinners. There is no need to be an insider, though, to realize that this might be not the full story.

What copyright and most of (those who are viewed as) anti-copyright people care about is managing their own business in the most profitable way possible. Both sides have likely realised that the law is not reactive enough to be regarded as the only answer to new challenges. Beyond the forefront battles and unsophisticated representation of a copyright scenario merely characterized by fights to the death, things are currently moving in innovative, constructive and extremely interesting directions, where copyright is still key but in a world which reflects a rich spectrum of colours.

A first phenomenon, not mentioned often enough, eg, is the one that involves a long-standing, profitable collaboration between the two parties of such supposed war in fighting piracy over the internet. Covered by the noise of reciprocal accusations, ISPs and right holders have been working together for years on notice and take down procedures, that have become an increasingly effective way to deal with IP infringement on the internet. The even more effective Follow the Money approach is now setting new levels of interaction between the two parties. This collaboration has led both parties to know each other, and this process is supposed to continue now that some traditional right holders are attempting to become internet service providers and some internet service providers are undertaking commercial initiatives once considered exclusive territory of content providers.

Another issue that deserves attention concerns right holders’ evolving approach towards copyright enforcement and exploitation, which for the sake of brevity this Kat likes to call “copyright in the course of trade”.

This weblog’s readers might recall the Getty Images story. It was about the world’s most important picture agency accepting the idea of its photos being grabbed and diffused without its authorisation, and adopting a new open licence that allows non-professional users to embed a major part of its archive for free. While the terms of paid licence remains the same for companies and professionals, Getty Images would not enforce copyright against amateurs, obtaining in exchange a bunch of relevant information as to how, when and by whom their contents are used, along with promotion of its service and photographers.

A few weeks ago Pixar, the ultra-famous computer animation film studio, announced a similar initiative for RenderMan, its most important 3-D rendering software, used, among other things, to create masterpieces like Toy Story and, as far as this blog is concerned, Shrek’s friend Puss in Boots.  While professional users still have to pay the licence fee for using that software, amateur cartoon-makers can now download and non-commercially use RenderMan free of charge. According to some observers, Pixar’s move is addressed to make RenderMan the standard program to design 3-D cartoons. Users became creators, and it is better use copyright to foster a wide non-commercial diffusion than to prohibit uses out of trade.

Victoria Espinel, president and CEO of BSA - The Software Alliance, made a similar point during the IP Enforcement Summit that took place in London on 11 June 2014. Ms Espinel explained that, in principle, suing non-professional users for copyright infringement is no longer considered the best option. She said:

"In the past, BSA has asked governments to criminalise downloading by people. We will no longer do that [where there is no] intention of distribution or making a profit … our focus is working with companies and governments to make sure they are using licensed software."

And this is so true that BSA decided to cancel the word “piracy” from the title of its annual report, starting from 2014. Things are drifting in substantially the same way in the music industry, most of whose supporters find Prince’s lawsuit against the mum who put on YouTube the video of her 18-month child dancing “Let’s go crazy” more despicable than the actions of the company which manages YouTube [I said “most”].

Remnant of previous wars.

We have the privilege of living in a world that evolves quickly, and mostly for the best. Mass literacy and the internet are putting in question the role of content provider and intermediaries, substantially changing the very significance of “content”, “provider” and “intermediaries”. This change is not reversible, as non-reversible are users’ demand for content for little or nothing and the need for creative industries to obtain a fair remuneration for what they do. Intellectual property is just and wonderful, as it can allow all these things to happen. Beyond the strong conflicts that recent changes are physiologically causing, businesses are adapting to the new challenges with fantasy and creativeness, building up collaborative interactions that go far beyond the two-dimensional representation of a war “good v bad”. Many exciting things are occurring under the sun, and these are as worth to be told as the pretended final battles between IP and so-called "anti-IP" people. While the law is slowly attempting to fit into the new world, the IP community is called upon to play an important role -- to explain fairly what these bizarre and fundamental rights are about and to push for a reasonable balance between interests involved. The whole game is about making profits, not preventing others from doing so. We can call it war, but we don’t actually need to mean it, as

(a) Copyright is cool, and so may be public domain;

(b) Things are going better than what we usually admit;

(c) Really, they do.