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Songs on the Security of Networks
a blog by Michał "rysiek" Woźniak

Copyright reform debate lives on

This is an ancient post, published more than 4 years ago.
As such, it might not anymore reflect the views of the author or the state of the world. It is provided as historical record.

Since Polish and European citizens voiced their opinions on the need of copyright reform so clearly 2 years ago there is a feeling of anticipation in the air – what’s next? Brussels-based politicians hint (or outright state publicly) that everybody is waiting for some Polish move.

Can’t say I blame them. Widespread Anti-ACTA protests started in Warsaw; Polish Prime Minister was the first to admit ACTA was a mistake; politicians from Poland were also the first to grasp that (using the not-exactly-fitting language of Polish MP Gałażewski) ACTA was “passé” and also the first to start asking the right questions.

This past September finally something has happened. At the CopyCamp Polish MEP Paweł Zalewski has shared his ideas for copyright reform in the EU, and about two months later, together with Amelia Andersdotter and Marietje Schaake, announced them officially in the European Parliament.

A month later the European Commission opened-up consultations on the InfoSoc directive reform – a process we should all take part in! Time is of essence, as the deadline is 5th of February, but there are tools that help get involved. Use them!

Soon afterwards the Polish Ministry of Culture opened local consultations in order to create an official Polish stance in the InfoSoc reform consultations.

The Copyright Forum is one of the after-effects of the ACTA debate (the Ministry was responsible for the treaty within the Polish government), and of other situations where Ministry’s decisions and processes seemed less than transparent, so to speak. For which they have been heavily criticised.

The Ministry seems to learn on their mistakes, and does not wish to ever be called “non-transparent”, hence the Copyright Forum was born. Long story short, any and all organisations that are interested in copyright and its reform now have a chance to voice their opinions in an open debate, facilitated by the Ministry. Finally!

New consultations, old misunderstandings

The 5th Copyright Forum was about:

As far as the a sane stance on these issues is concerned, please see Open Education Coalitions’s response in this consultation process. I want to focus here on something else.

This was not the first (nor, hopefully, the last) copyright consultation meeting I partake in. Even though we (“us, opennists”) had been explaining our position for years, we still find basic lack of understanding (as I am not going to assume malicious, conscious mangling) of what we’re trying to say. It was clearly present in statements made on this Forum also. Let’s have a look at the most “interesting” of ideas and misrepresentations, shall we?

“Linking to illegal content should be illegal itself”

The idea here is that mere linking on the Internet to content that is in some way infringing on somebody’s intellectual property copyright should be illegal itself, because notice-and-take-down procedures are slow, complicated and ineffective.

Before we dive into how bad an idea this is, let’s stop for a moment on the “illegal content” part. That’s another of those language constructs that are artificially used in a way to slant the debate before it even starts. “Illegal content” is content that is illegal to share, reproduce, etc, under any circumstances, regardless of whether or not you have a license on the content itself. If Polish copyright collectives claim that the “content” created by the artists they (supposedly) represent is “illegal”, maybe they should call the Police?..

If we’re talking about infringement, we should call it infringement, nothing more, nothing less.

An idea that was also present on the Forum and is closely related to “making linking illegal” strategy is “making search engines remove links to infringing content”. Both ideas are completely absurd, for a number of reasons too long to be put in full here; here’s the skinny:

  • links are purely informational, just as bibliographic notes; penalisation of linking is as absurd as penalisation of bibliographic notes;
  • removing links to infringing content is sweeping the problem under the rug, instead of solving it at the source (e.g. by removing the infringing material);
  • a person that links to a given content has no practical way of ascertaining the legality of said content, not to mention that this legality can change over time;
  • this whole idea is claimed to be “necessary” in the light of “ineffectiveness” of notice and take down; well, if notice and take down is ineffective, what makes the proponents of such a measure think that they will have any more luck with removing links than with removing content itself?
  • regardless of its ineffectiveness, it will cause problems for works published under libre licenses, including free software.

More in-depth arguments are also available.

“Users of culture”

The division between “users” (or “consumers”]) of culture, and “creators” of it is as old as it is outdated. It had, perhaps, some sense in the times of mass-media, with their clear difference between broadcasters and audience. Today all you need to become an artist is a laptop, and all you need to reach your audience is the Internet.

Read-only culture became read-write again, finally. There is no meaningful line of division between “users” and “creators”. Everybody can be one or the other, as they choose.

Users’ responsibility

According to polish copyright law today, if I have access to a given work, I can download it, and use it (including sharing it non-commercially with my family and friends). I do not have to check whether or not that content has been shared with me legally. That’s the sharer’s problem.

Of course that’s something hard to swallow for the copyright collectives and their ilk. Hence the idea to change that, to make the user responsible for downloading and using content that might have been illegally published or shared. A proposal that is burdened with some of the same arguments as “making linking illegal” one above. Namely, how can a user check that, if even courts tend to have problems with it?

Should the illegally-shared works be marked in a certain way? If so, whose responsibility that would be? Artists’? Sharers’ themselves? If the latter. how can one be sure that the content gets marked truthfully? If the former, artists would have to gain control over every single shared copy… while somebody that would still want to share without proper authorisation will do so anyway.

Or maybe the “users of culture” (being creators themselves!) should limit themselves to just a few “kosher” channels? If so, which ones should these be? And who decides, on what grounds? Can I start such a channel myself, for example in the form of a blog, videolog, podcast? If so, how can my audience be sure that it is “legal” itself?

Finally, how should users of infringing content be punished? Are we to assume that copyright collectives are proposing the American model here?

“Everything that potentially allows anybody to make money – is commercial”

That’s an attempt at defining the hard to draw line between “commercial” and “non-commercial” use, and it’s done in a way that makes sure that any use of cultural work on the Internet is in fact commercial. After all, even if I were to completely non-commercially send a private e-mail with a picture attached to my family member, my ISP, their ISP and probably at least one ISP in between makes money in a quite real way.

Does it make sense to use such a broad definition of “commercial use”? After all, it’s legal for me in Poland to watch some movies together with my friends. But in such a situation there are several third parties than can profit from it – a taxi driver, public transport operator company, some local grocery stores where we buy the supplies for the evening… Does that make my watching movies with my friends “commercial”? Or, for that matter, if I am going to watch a movie myself, the electrical company is going to profit a bit. Is that commercial also, then?

And by the way, how about the copyright collectives themselves – after all they employ people, who profit from their activities…

Non-commercial vs. libre-licensed

That one’s a classic, with authors publishing their works under libre licenses being called “creators not planning to make money on their works”.

How many times do we have to repeat ,ad nauseam, that libre-licensed work does not have to be a pro-bono work? There are many ways to make money on digital works – sponsoring, crowdfunding, work-for-hire, adverts are just a few most obvious.

There are big corporations and small firms publishing some of their products on libre licenses – Intel, Google, RedHat, to name just a few best known. Stating contemptuously that publishing something under a libre license means that the author has no intention on profiting from it is either a sign of ignorance, or (much worse) willful attempt at marginalizing such creators.

“Some organizations are only interested in gratis access for users”

That’s also something we hear quite often. Usually from the same person. Mr Dominik Skoczek, once the head of the Intellectual Property and Media Department at the ministry of Culture (he was the person responsible for ACTA topic within the Ministry), today representing the Association of Polish Movie Producers (think: MPAA without the clout), had an abundance of occasions to hear from us that libre licensing is about something other than cash.

And that it’s not about “users”, as everybody can be a creator.

I wouldn’t go as far as to assume malice on part of Mr Skoczek; on the other hand if I assume that after years of our patient explanations of our views he still cannot grasp the not-so-complicated ideas behind them, Mr Skoczek could understandably feel offended…

Instead of pondering the source of such lack of understanding, then, I shall simply explain once more, that libre licenses, free culture, free software, etc, are not about gratis access, but about the possibility of creating and remixing. Creativity and culture are never in a void, all creative work is derivative, making works inaccessible for remixing up to 70 years after author’s death – is a barbaric attack on culture itself.

Authors of libre-licensed works and organisations demanding libre-licensing of works created with public funds demand not “access” for all, but allowing creativity for all.

A Polish lawyer (and author of a well-known blog), Piotr VaGla Waglowski, had asked one of the Polish copyright collectives (the one supposedly representing rights of authors like him) about the possibility of receiving what could most aptly be described as “his money”. The answer he had received was too long to be quoted in full here, but the important part is this:

Due to a very large number of entities entitled to receive these funds there is a danger of considerable atomization of remunerations to which they are entitled. This has direct bearing also on the possibility of such remuneration, namely on acceptable repartitioning model of the received funds. (…) In summary, we have no way of meeting your expectations at this time.

I don’t think I can find a better comment than VaGla himself:

By the way, is not remunerating authors by copyright collectives can itself be considered copyright infringement?

Creators’ inalienable right to financial gratification

That’s another very dangerous idea being passed under the guise of “working in artists’ interests” (by none other than copyright collectives, of course). The proposal is: as authors are often in a much worse negotiating position when discussing their remuneration terms with their publisher or producer, it should be made impossible for authors to abdicate or transfer their right to financial gratification. Thus, every time a work is “exploited”, artists themselves will also have to receive money.

These, of course, would go through copyright collectives. But that’s okay, as “the only chance for money reaching the artist are copyright collectives”, right?

Regardless of who should receive such royalties, the very fact of their introduction would make libre licenses ineffective – each use, even of a libre-licensed work, would mean payable royalties. That means Wikipedia would be (financially) impossible, along with open educational resources and the rest of the libre side of creativity.

Summing it all up

I guess the best summary of the Forum and many of the ideas expressed therein is a quote by one of the attendees (can’t wait for the release of the video recording of the forum to link directly):

Representatives of some of the NGOs here think this is all about some ideals – it’s not, it’s about hard cash!

What could I possibly add to that! We’re all waiting for the official stance of the Ministry (and the Polish government) in the European Commission consultation process – but we need not wait without action on our own part!