Years ago I held the obscure title of Spokesperson on Intellectual Property for the Green Party. With the fuss yesterday about our policy on copyright, and the strong likelihood of some attempt to change that policy at our autumn conference, I’ve tried to reach back into that part of my brain to explain some of the thinking behind shortening copyright terms.
This blog is rather long, but it really just scratches the surface of the debate around copyright. For a much more succinct take on this, read Caroline Lucas’ blog.
My intention here isn’t to set out a strong argument for one particular policy, but rather to introduce the curious to the debate, and inform party members who might want to bring a change forward in the autumn conference.
I should also like to note that I used to earn a living from journalism, co-ran a community arts project, and have artists and writers in my family and friendships, so I have some understanding of the “real world” of copyright.
We’ve been here before, of course
The policy that has caused so much concern sits in our Policies for a Sustainable Society, a long-term vision drawn up by our members. Back in 2009 we drew heated criticism from scientists and science journalists for some of the policies in this long-term vision. It was an embarrassment.
In response, we kicked off a two year review process. I sat in some of the early workshops, as members developed consensus around the best way to fix the problems and express our core principles. You can read more about that process in this blog for the Campaign for Science and Engineering.
I’m hoping this fuss will kick off a similar, if smaller, process to review our approach to copyright. If you’re a Green Party member or supporter and you’re concerned, then get involved!
If you find what I have to say interesting then follow the links and read up on the free culture movement.
Green Party vision vs manifestos
I’ll begin with a major confusion between our manifesto for the next five years and our long-term vision.
Our long-term vision, called the Policies for a Sustainable Society, is developed by members, democratically, at our twice-yearly conferences. Our manifestos then interpret the broad framework this provides, to set out a radical programme for the election at hand – in this case, what we would do in the next five years.
Our long-term vision
The current long-term policy on copyright seeks a “balance… between ensuring that there is adequate funding and incentive for innovation for socially and environmentally valuable activity and encouraging the widest possible sharing of these rights, which are public goods.” It continues that “on cultural products (literature, music, film, paintings etc), our general policy is to expand the area of cultural activity, that is ways that culture can be consumed, produced, and shared, reduce the role of the market and encourage smaller and more local cultural enterprise.”
We want more creativity, more people able to spend time reading, visiting art galleries, sketching what they see, creating parody pop songs, and so on. In a less materialistic world, the arts become incredibly important – how much better for people to spend their evenings composing silly songs on the guitar, or their afternoons working on their paintings, than stuck in second and third jobs that do nothing for their well-being or that of society?
That’s the big picture.
The vision then goes on to propose “generally shorter copyright terms, with a usual maximum of 14 years”. By this, we mean that rather than the current maximum of 70 years after the creator’s death, it should only be 14 years after their death. Unfortunately, as written, this appears a bit ambiguous and has caused confusion, so it needs clearing up!
Our manifesto for this election
Our manifesto, which is the basis for my campaign for Parliament, says we would “make copyright shorter in length, fair and flexible”.
We are setting copyright law in a much broader approach to the arts. Our manifesto pledges to increase arts funding by £500 million a year, reduce VAT for live performances and tourism to 5%, stop regulations stifling small live performances in pubs, and bring in a 35 hour week to generally give more people the free time to create.
We would consult with copyright holders and the general public to establish an appropriate length, and in any case would need to abide for the moment by numerous international agreements. For example:
- EU copyright law, which specifies life plus 70 years for literary and artistic works in Directive 2006/116/EC Article 1(1)
- The Berne Convention, which specifies life plus 50 years in most cases, 50 years after publication for anonymous or pseudonymous works, 50 years after release for audiovisual works, and 25 years after creation for applied art and photography
Why do we have copyright?
The law around copyright has been described, with good reason, as “of diabolical complexity and obscurity”. It is probably the least understood, and most widely violated, area of law on our statute books.
Indeed with the rise of the internet meme, it is violated millions of times every minute.
As the terms mentioned in the Berne convention point above illustrate, the length of copyright terms already varies widely. The copyright on databases I create will last for just 15 years. The copyright on my photography of BedZED – from which I have earned some money – and my blog won’t expire until 70 years after my death.
What’s more, its interpretation – and philosophical basis – varies from country to country.
In the USA, they have something called “fair use” which allows comedians to parody copyrighted works, while in the UK we just have “fair dealing” which is much more restrictive and often sees parody, satire and criticism curtailed. The law was recently changed on this, but it is still – in my view – too restrictive.
In both the UK and the USA, copyright law is couched as a social contract, not a natural right. If it were a natural right, we would say creators have an inalienable right to stop people using, copying and “remixing” any work they create. But that’s not what our copyright law does. Instead, the social contract recognises that we will get more interesting paintings and films and novels if we give the creators a time-limited monopoly over their work, so they can charge for it. The length of copyright is supposed to be just long enough to promote the arts, but not too long because we want to be able to use, copy and re-interpret their work freely as soon as we can.
In countries like France, where the legal and philosophical basis emerged from thinkers like Hegel, they base this social contract on a stronger moral claim for the author to the expression of their will. This leads them to give authors protection for their “moral rights”, for example to stop a sculpture you have sold from being exhibited in the entrance lobby of a right-wing organisation. We have a much more limited form of moral rights in the UK, and many countries don’t recognise these at all.
If you’re interested in the philosophical arguments, you might like to read my Masters dissertation from 2006 discussing interpretations of Locke’s theory of property and the free culture movement, and this article by William Fisher.
It’s no surprise, then, that many of the emotive and moral arguments about copyright make claims that lie outside the reach of UK law, or that confuse what copyright is really about.
As an author, in the UK, you are not deemed to have a natural right to earn a living from your writing, or to stop Nigel Farage from using your photography. Instead, we have agreed as a society to give you time-limited rights in return for the extra creativity we think this will support. That’s the crux of the question – is the length of copyright striking the right balance?
The Mickey Mouse rule
Copyright was established by the Statute of Anne in 1709, with a length of 14 years after your work is created, with the possibility of getting a 14 year extension. Since then it has been lengthened, incrementally, so that it now provides rights for the quite amazing length of 70 years after the death of the creator for many types of work.
Coincidentally, that’s not far off the age of Mickey Mouse’s creator.
Here’s the US copyright terms via this blog which you can read for more on the subject:
In short, each time Disney’s copyright on Mickey Mouse looked at risk of expiring, the US Congress extended the copyright term! Despite opponents arguing that the Sonny Bono Act would hinder the progress of science and the arts – the constitutional basis for copyright – the corporate lobbyists won the day. You can read more about this story in this excellent Washington Post article.
The result is that anybody trying to parody Mickey Mouse, or create works that are in some loose sense inspired by and therefore derived from that work, has to pay royalties, or wait for many more years to pass until the copyright expires.
Copyright stifles this creativity, on the understanding that without life plus 70 years of protection, Disney couldn’t function. Which is rubbish, of course.
This is why Caroline Lucas wrote that “many creators are in a stranglehold from our copyright laws, which see big corporation control the rights to work”.
The benefits and harms of copyright terms
Obviously there is huge diversity among creative people who earn money using copyright. It’s over-simplistic and insulting to suggest this is just about massive companies like Disney.
In music, most academic studies have shown that income from copyright overwhelmingly goes to a very small number of creative people. For example, this analysis of musicians’ royalties found that 95% of British musicians in 1996 were earning less than £1,420 per year from their copyright, and only 2.4% of German composers/songwriters could live off their creative output.
Most copyright income is also earned in the earlier years. Of course, some writers will still get a bit of money decades after publication, but they are still small in number and we have to balance their claim to that income against the loss to society of them retaining a monopoly over the work.
What is this loss? Put simply, it is further creativity. As these academics argue:
All authors, artists, and composers make use of the public domain in creating new works. Current composers rely on themes, concepts, and even actual melodies from classical or folk traditions, but eventually their music too will enter the public domain so that future composers can make further use of their contributions. When Disney makes a delightful animated film out of Snow White or Beauty and the Beast, the studio is not creating these works from scratch but rather is relying on old folk tales, on which the copyrights long ago expired. In turn, the Disney films themselves will eventually be available for reworking by other creative artists.
When I co-ran a community arts project called Remix Reading I realised that most art being created in Reading was routinely violating copyright already, just under the radar. Without copyright violations we probably wouldn’t have hip hop or Warhol’s soup cans, the Milifandom and Ed Balls memes couldn’t exist, and YouTube would be a boring desert.
We only notice ‘innocent’ copyright violations when – for example – Marvin Gaye’s family won an absurd case against Pharrell Williams for the cheek of using a similar bass line. As Pharrell said,
The verdict handicaps any creator out there who is making something that might be inspired by something else.
This applies to fashion, music, design … anything. If we lose our freedom to be inspired, we’re going to look up one day and the entertainment industry as we know it will be frozen in litigation. This is about protecting the intellectual rights of people who have ideas.
This led me, long ago, to think that copyright lengths are too long and too strict. It’s what makes me think our manifesto is absolutely right to say they should be “shorter in length, fair and flexible”.
If you’re interested in this argument, have a read of Free Culture by Lawrence Lessig. You can download the whole book for free, and then go on to explore the free culture movement.
So what should copyright look like?
There are many ways that you could reform copyright to be shorter, fairer and more flexible.
At the radical end of the spectrum, some call for it to be scrapped altogether. Others say it should be much, much shorter – just long enough to get optimal returns for society. The campaigner and academic Rufus Pollock published some research in 2007 and 2009 suggesting that the optimal length for copyright would be 15 years, taking us more or less back to the Statute of Anne in 1709!
The Creative Commons movement, which I used to be very involved with, has developed clever modifications of copyright to allow you – for example – to freely copy and ‘remix’ works, but requiring you to then arrange payment if you want to make some commercial use. That provides fairness and flexibility.
You might also ask, should we adopt a ‘moral rights’ approach similar to that in countries like France? Is copyright a social contract, something to balance public and private interests? Or should we treat copyright more like a natural right?
Don’t like it? Join and change it!
Unlike most other political parties, the long-term vision on copyright that kicked this all off is open to revision by our membership.
I’m certain that a change will now be brought to our conference as a result of this debate. That’s good politics – something was agreed years ago, now it is being scrutinised and debated, and it will probably be changed as a result in September.
If you’re a writer, musician or filmmaker and have got to the bottom of this long blog, I hope I have persuaded you of two things: first, we place a high value on the arts and want to get copyright policy right; and second, we are open to and enjoy debate, and would like you to join us and help us develop the best possible approach to copyright.