Interview with Bill Thompson – Part III – Copyright Law

8 Mar

This is part III of a four part interview with Mr. Bill Thompson, noted technology columnist with the BBC.

part 1, part 2

“Copyright is not a Lockean “natural right” but is a limited right granted to authors in order to further the public interest. This principle is explicitly expressed in the U.S. Constitution, which grants the power to create a system of copyright to Congress in order to further the public interest in “promoting progress in science and the useful arts.” (Miller and Feigenbaum, Yale) UK’s copyright law dates back to Statute of Anne from 1709, which states – “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” Both seem to see copyright as something tailored towards public good. The modern understanding of it has sort of disintegrated into a sort of “right to make as much money as one can”. Am I correct in saying that? Please elaborate your views on the subject.

Copyright started out as an attempt to restrict the ability of publishers of books to control absolutely what they did under contract law and to establish limitations on the period in which a work of fiction or indeed any written work could be exploited by one group of people, and to ensure that after certain amount of time it was available as part of the public domain to serve the public good. So copyright has always been about taking away any absolute right so that the creator of a work of art, fiction, literature or non-fiction has so that everyone can benefit; take away the absolute right and give away in return monopoly over certain forms of exploitation during which period they are expected to make enough money or gain enough benefit to encourage them to carry on creating.

So the idea is that it is a balance – give the creator enough so that they can create more and encourage them to do that because it is good but make sure that the products of their creative output fall into the public domain so they can be used by everyone for the wider good on the grounds that you can never know in advance who will make the best use of someone else’s creative output and therefore it should be available. So, the fact that the early years of the last century a cartoonist in the United States called Walt Disney drew a mouse based on other people’s ideas is great and Disney and his family have had a lot of time to exploit the value in the mouse but there are other people now who could do a better job with it and they should be allowed to get their hands on the mouse and do cool stuff with it. That’s the idea and that is the principle that is being broken by large corporations who see economic advantage to themselves in extending the term of copyright, in limiting the freedoms that other people have because they don’t care about the public good, they care about their own good. And legislatures, particularly in the United States but also elsewhere, have been bought off, corruptly or not, and have not been true to the original principles, which is that in the end it should all go into the public domain so that anybody who wants can make use of it and exploit it in creative ways that we cannot yet imagine. In a sense it’s an expression of humility – its saying that we cannot know for sure who will be able to do the best with its work and therefore it is the interest of everybody that it should be available to everybody. That was the breakthrough – the insight – of copyright law 300 years ago. We are coming up to the 300th anniversary of the Statute of Anne, the first codified copyright law and I think we should big party for it.

The point is that – the point is most eloquently made not by Larry Lessig, who is good, but by Richard Stallman of the Free Software Foundation and his point is just that copyright is broken and it needs to be rebalanced and we need new and different approach to copyright and in a sense it is the one area of law where we actually do need to start again. I am advocate always of trying to make old laws work with new technologies. I think that we should be very cautious about making new laws because looking back historically it does like that today’s politicians are more stupid and more corrupt than those of older days and therefore are less likely to make good laws – that just seems to be the case. Correct me if I am wrong. And therefore we should avoid giving them the ability to screw things up. But with copyright we are forced to. So we have to engage with the political system, we have to make sure that the people who have political power understand the issues and we have to force them to do the right thing. In other areas for example libel laws and all sorts of other aspects of what we do online, in fact the existing legal framework has proven remarkably robust. There have been problems over jurisdiction and problems over enforcement but the laws themselves have applied pretty well in the networked world and we haven’t needed that many new laws and that is a good thing. Copyright is the one area where we clearly do.

Copyright, if minimally construed, is the right to produce copies. This particular understanding is fabulously unsuited for the Internet era where technology companies like Google have a business model based on making daily copies of content and making it searchable. Book publishers, along with some other content producers, have cried afoul. It seems to me that they don’t understand the Internet model, which in a way has changed the whole dynamic of ‘copying’.

I don’t think it has changed the whole dynamic as much as it as exposed another reading of the word copy and made it the dominant reading and so undermined part of ball. Parliamentary draughtsmen, the people who wrote those laws, were perfectly right in using the word like they did; it is just that we have promoted one particular facet of copy. The fact that we use the word copy to refer to the version that is made in sort of viewing a webpage on a browser – the version that is held in the display memory and all those sorts of things – we could have avoided a lot of this fuss by redefining what the word copy means thirty years ago or fifty years ago or just not using the word copy. It wouldn’t have actually helped the larger issue because the real problem with copyright is not that too many incidental acts on our computer systems, on our network are in principle in breach of copyright, it’s the fact that the existence of the network makes it possible to breach copyright deliberately, almost maliciously.

As we talk I am waiting for the Episode 13 of Series 3 of Battlestar Galactica to download onto my PC via Bittorrent from the United States so I could watch it. Ok! Now that is a complete infringement of copyright.
[I reply jokingly – so I am going to the MPAA.] Feel free, I would welcome their letter. I would delete it once I have watched it and I would buy the DVD once it comes out. But Sky here hasn’t started showing it four months after it was on the Science Fiction channel. Well I am not going to wait four months to watch something when it is available. I mean that’s just foolish. That exposes holes in copyright law. It also exposes holes in the economic strategy of multinational corporations who run the broadcast industry in the UK and the US because they just don’t understand the market or what people are doing. There are times when you have to stretch the system to demonstrate the absurdity of the old model and that’s what I see myself as doing.

The US and EU copyright regimes differ in some marked ways. Similarly Australian copyright law is different in its statute for limitations that is much smaller than US. Post Internet, we do really need a common international framework for copyright.

But we do. We have that. We have the World Trade Organization, we have WIPO – the World Intellectual Property Organization, we have the Berne (convention signatories). There is an international framework for copyright. It’s as broken as anything else. We need a new Berne, we need to go back to Switzerland and renegotiate what copyright means on a global level but there is that framework but it’s been caught out by technology.

Databases are given legal protection in EU via its database directive while similar privileges haven’t been granted in US. What do you make of this effort to give copyright to databases?

That’s just a European absurdity which we will realize was a mistake and eventually change. You have a database copyright in European Union and in some other countries though not in United States and it is clearly a mistake. There is growing awareness that something needs to be done about it because it’s not necessary to offer such protection. The idea that you get automatic protection for taking other people’s data and structuring it in a certain way has limited economic flexibility and has damaged competitiveness.

There is always a problem you see that as new technologies emerge to suggest new rights to go with them and this was the case where [we drafted something into] a law before wiser counsels could prevail.

Gowers report recently received a fair bit of attention. The report, I believe, had this wonderful recommendation for handling patent applications. It talked about putting up patent applications online and having an open commenting period. You in fact wrote about the report in your recent column. Can you talk a little more about the report?

Gowers report was commissioned by the Chancellor of the Exchequer, Gordon Brown, who is a senior government minister, basically second only to Tony Blair and indeed Gordon Brown hopes to be Prime Minister within the next few months. Because of the way British politics works he can probably manage that without ever getting elected because he would just become party leader and therefore automatically the Prime Minister because the Labor Party is the dominant party in the government.

Brown commissioned a man called Andrew Gowers, who had at that point just been fired from being the editor of the Financial Times, to carry out this report. Andrew is a nice man but many of us doubted his ability to resist the Copyright lobby, to resist the pressures, to write something which would make industry happy, but he surprised us all, partly thanks to the excellent team of people he had working for him at the Treasury in the UK. He came up with a report that wasn’t radical but was sensible and what we do best in British politics is sensible because people can behind sensible. He said some things which were well argued, didn’t give in to the vested interests, and didn’t give the music industry what they wanted.

Unfortunately the Gowers Report is just that – it is a report, it is a series of recommendations which then goes into the government machine and has then to be acted on. It doesn’t do anything itself. We have a political issue here which is that when Gordon Brown as Chancellor of the Exchequer commissioned the report, he believed that by the time it was published he would be Prime Minister, he believed by then Tony Blair would have gone and he would then be in a position to take this report and say I commissioned this report when I was Chancellor and it is absolutely fantastic, now I am Prime Minister and I am going to make it happen. Unfortunately Tony Blair has refused to go and so Gordon Brown has received the report as a Chancellor and has no real power to deliver on it. And so the question is when Gordon does become Prime Minister – will it be his priorities – probably not, will the world have changed- probably, will he have been leaned on so effectively by the very wealthy music and movie industry so that he will actually dilute some of its recommendations –well tragically probably yes. So the timing is all wrong. The opportunity that Gowers presented was for Gordon Brown to say – this is great let’s just do it. Now we are going to have to wait – eight months – and [in that time] things would have changed and there will be a lot else for Gordon Brown to do. So for those of us who think that the recommendations are good are trying to keep the pressure on and keep track of what is happening, have the right conversations and make sure that when Gordon does become Prime Minister, because it looks fairly likely that he will, that he is reminded of his at the right time in the right way so that it can then turn into real change.

The other thing to remember is that a lot of changes that are proposed, a lot of recommendations are proposed, are actually international recommendations. So there are things that will have to happen at a European level or at a global level and so to some extent it is a call for British ministers, for British representatives, for British commissioners at Europe, for British delegates at WIPO to behave in a different way but it will take some time before we know that’s being successful. The report advocates engagement at a global level. It then needs to happen.