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Copyright and the long paw of the law

17 May 2013

Toute personne physique ou morale a droit au respect de ses biens. Nul ne peut être privé de sa propriété que pour cause d’utilité publique et dans les conditions prévues par la loi et les principes généraux du droit international.

Fine words – if not perhaps quite as elegant as Voltaire himself might have phrased them, nevertheless sentiments that could easily have come from his pen. And every European schoolchild should be taught them, just as the constitution of the USA is taught in that country. Plainly that won’t happen in the near future, as our Government considers how to get out of the treaty in which they are embedded (this is article 1 of the first protocol to the European convention on human rights, in case you need to be told: A1P1 for short).

But while we have an intuitive grasp of their moral force when it comes to tangible belongings (and react with indignation when states ignore the principle and expropriate assets, such as the Cypriot deposits), we can get a bit lost with more abstract possessions. We have no difficulty extrapolating from outright ownership to more nebulous rights – when public land was enclosed 200 years ago, the loss of traditional rights of grazing might well have engaged these rights. And we have grown accustomed to the very wide range of rights, from copyright and patents to brands, the possession of which should also be protected where appropriate.

But the difficulties mount when two people have an interest in the possessions. How can we reconcile those claims – and how can those claims simultaneously comply with A1P1? This is what is at stake in the failure of our Government to deal properly with the issues of orphan assets in the Enterprise and Regulatory Reform Act.

As a believer in the paperless office I was delighted a few years ago that the British Library had installed high quality scanners in the reading rooms which allow you to copy books and take away the results on a memory stick. But to my astonishment (and despite my repeated admonishments) the library insisted on imposing a prominent watermark on each page which not only rendered the text (particularly of very old books) illegible, but made it impossible to use any images – even when these were in the public domain. By what authority did the library deprive me of my right to use these images? The library does not own them. I do. We all do. There is a trickier argument when the images are within copyright, and what the library’s obligations might be to identifiable copyright holders (though I’m not sure these are any different than with photocopies, which they disfigure with no watermark). But what of the case which applies so often, at least to the material I tend to consult: photographs in a book published say in 1900, where it is probable that they are in the public domain but not certain (seventy years after the death of a photographer creates a theoretical uncertainty going back to the Crimean War)?

The difficulty with these assets is that no one knows whether they are in copyright or not. They inhabit a limbo, like Schrödinger’s cat, where we cannot work out which eigenstate they occupy. And there is no simple means to command the box to open to find out. Either the work is out of copyright, and the British Library is stealing from me; or the work is not, and the British Library is facilitating theft from the copyright owner.

I don’t think there is a straightforward answer to this. It certainly isn’t dealt with by proposals to allow a third party to collect money, applying most of it to administrative costs and keeping some back in the (in my experience, vanishingly) improbable event that the copyright holder will make a claim: that ensures that users are disadvantaged, while simultaneously restricting claimants’ rights and, to add insult to injury, offers only a national licence which will in practice be completely useless as publishing, whether digital or on paper, is invariably global these days. Only Parliament’s name on the act will distinguish this from the practice of a number of picture agencies (including I’m afraid certain museums) who offer to sell reproduction rights which they don’t own.

Personally I am extremely uncomfortable about all this. I don’t think so much beneficial (and certainly harmless) activity between well-intentioned citizens should have any taint of irregularity. And while the law routinely has to deal with uncertainty over the guilt or innocence of the defendant, it breaks down when we know neither who is the claimant, nor whether any loss has been suffered. Intellectual property differs from other assets in that its use can create additional value: if you lease a house or a car, you pay rent which matches the value of the owner’s loss of occupational amenity; while the loss can be quantified on the same basis in simple piracy (the user deprives the owner of the revenues he has unlawfully captured), the creative reuse of texts or images may involve no loss for the copyright holder. The failure to distinguish piracy from creative reuse is at the heart of this confusion.

The root cause is surely the unbalanced development of law: it is easy to see how successive governments have listened to large companies with vested interests in retaining all the value in intellectual property, while users (including many creators themselves) have been poor lobbyists. Art historians have been particularly weak, with many major museums conflicted by having justified the establishment of reproduction rights departments on the basis of optimistic forecasts of revenue streams.

My view is that a far more radical approach is long overdue. Mechanical processes (like reproductive photography) should not enjoy copyright at all (in accordance with the Infopaq principle). Creative works (but only where the author takes the trouble to identify himself) should enjoy much shorter initial protection – probably no more than 20 years, unless extended by the author by registration and payment of a nominal annual fee (of no more than £5 p.a.). And – for reasons I hope to set out more fully in another post – I believe they should be extendible only until the death of the author.

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From → Art history, Justice

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