"Is there a cap on songwriting royalties?"
The question came from one of the people attending a weekend-long focus group on copyright law run by Lee Edwards at the University of Leeds on behalf of the CREATe research project. Edwards will study the recordings and eventually produce a properly academic report. This is just a rough impression of what happens when you let real people think about hard problems.
CREATe was established to build an evidence base around copyright law and practice. This workshop was an attempt to understand how the non-specialist general public might think about it given a little background and time to mull things over collaboratively. Originally, the plan was that two advocates - one representing the industry and the other an advocate for reform - to make short presentations about their points of view. At the last minute, the invited copyright industry representatives declined to appear and the Open Rights Group asked me to serve as the opposing advocate. To even the imbalance, I wound up acting more as an "expert" helping answer questions. Everyone agreed the loss of an industry representative (and,I'd argue, a more direct representative of creators and artists) was unfortunate, but what can you do?
There were four sessions, and nine round tables of about ten people each who added up to a remarkably diverse group in terms of age, gender, and ethnic background. Each session began with a short, neutral presentation of an area of copyright law - term lengths, exceptions, enforcement, and future reform. Participants answered a set of questions before each session began, and the same set again after it finished. In between, they discussed the issue at hand, using for reference the material they'd heard, a briefing document, and additional cases and examples.
The question up top was the first thing I was asked. "No," I said, marveling at the things people think of. The group that asked this later proposed to limit copyright by earnings instead of time, so that after a certain point the work should enter the public domain.
I thought this was a fascinating idea, and in some ways it seems fair. Two problems: first, Agatha Christie's The Mousetrap, now in its 64th year, would today be sending its profits to everyone but Christie's grandson, Matthew Pritchard, to whom she gave the rights when the play launched. Second: "creative accounting", the term for the kind of accounting that results in lawsuits, like the one filed recently by This Is Spinal Tap co-creator Harry Shearer against Vivendi for $1.25 million because in nearly 30 years the creators' promised 40% of the profits has amounted to $179. In a capped-earnings system no successful commercial work would ever earn out.
The group asked other questions. Why does copyright last life-plus-x-years? Why doesn't it end at death? (What if the author dies before the finished work is published? Shouldn't their family get some benefit?) Why are there so many different national laws? (Because they were designed for physical media.) Why shouldn't copyright be infinite? (Mark Twain, among others, agreed.) Does the Performing Rights Society really check up to see if a garage has a license for playing music that customers can hear? (Yes.) Do you know the George Harrison case? (Now I do).
Some common themes rapidly emerged. Most thought copyright should benefit artists and creators more than distributors and large corporations. Many thought today's copyright term of life-plus-70 was too long. One table suggested the creator should have the right to decide how long their work remained in copyright. Again - a fascinating idea, but in reality impractical, as publishers would likely demand "perpetual" as standard. Some thought there should be an option to release work into the public domain.
The exceptions session brought many questions about fair use. Is that the same as "fair dealing" in the UK? (Roughly.) What exactly does it mean? (The context of which medium for what purpose matters greatly.) Who gets the money from orphan works?
Many thought the law should be more flexible, and, especially, that creators should have more say. The group consistently favored a difference between commercial and personal uses, and recognition that the success of online content may be unintended by the poster. (The famous dancing baby case shows the complexity: the mother who posted a video of her toddler dancing to a Prince song had no commercial intent, but YouTube owner Google certainly does.) Why is there an exception only for visually impaired and not other conditions? (Also a good question, but the treaty granting that exception still awaits sufficient ratification.) The terms are subjective. (Yes.) And confusing. (Yes.) "What is text and data mining?" one table asked, viewing the list of exceptions. (That's another net.wars.)
Edwards had to brief me on the second day, which I missed. In the enforcement session the group disagreed on whether the penalties were too harsh, and much concern about who bears the cost. If ISPs do more (as rights holders would like), then the cost of enforcement is passed on to their innocent subscribers; if the government does it, then the costs fall on taxpayers. More than that, since IP courts are specialist, expensive, and slow, how do we grant individuals equal access to the law? Is there anywhere people can get advice?
Nonetheless, all except one person felt that copyright clearly had value. But they asked this: why should that value be denominated solely in economic terms? Surely the moral right to be recognized as creator also has value?
The fascinating thing is that today's copyright laws were written by specialists because it only affected specialists. That's one reason they're such a mismatch for current technology, which democratized copyright so that it affects everyone. Discussions like these do not take place in modern lawmaking. This experience suggests they should.
Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.