Culture used to be something produced by creators and consumed passively by the remainder of the populace. Cultural works were static, and consumers were expected to experience them primarily in the form produced by their creators.[1]
Cyberspace has blurred this creator/consumer distinction. Its technologies allow a consumer to experience culture in ways different from those envisaged by its creator, or even to modify or combine it with other cultural works and become a creator.[2]
Open Culture in the digital world requires two things:
- the availability of works in digital form, so that they can be processed by computers and across networks; and
- the absence of restrictions on that processing or transmission which prevent a person acting as creator/consumer.
1 The economics of exploitation
Information is by its nature a non-rivalrous good. Its possession, use or enjoyment by one person does not prevent any other person from also possessing, using or enjoying it. Information is inherently open.
This openness creates real problems if a creator wishes to monetise a work which is in the form of information. Something needs to be done to make the work excludable, to ensure that it cannot be consumed unless it has been paid for. One possibility is to modify the information content of the work, for example by using a DRM/TPM technology, so that it cannot be consumed without payment. This is only a temporary solution because advances in computing technology, coupled with the ingenuity of those who believe information should be open, inevitably producen counter-technologies which are able to make the work non-excludable.[3]
Alternatively the creator of a work can be granted a legal right to control some or all uses of that work. For most cultural works, the current legal scheme is found in the law of copyright and neighbouring rights (such as performance right). As a consequence of the digital revolution and the advent of cyberspace, these rights have been extended to encompass the use of DRMs/TPMs by a rightholder.[4]
Every right to control the use of a work can potentially be used to prevent others from using that work to create new works. If Open Culture is important, then it is also important to limit the scope of those controlling rights.
2 The ‘natural’ scope of legal rights
Existing rights in works are often described as ‘natural’ or ‘fundamental’. These commentators are effectively saying that the shape and scope of the rights is largely fixed, and that reform can only be by way of tinkering at the edges.
Copyright is often described as a natural property right, drawing on John Locke’s ‘labour-desert’ theory of property[5] that a person has a right to those things which he has appropriated from the commons by means of his labour. By analogy, theorists argue that words and ideas constitute a commons and that a person who labours to produce an intellectual work from that commons must therefore own that work as property.[6] But Locke’s theory does not demand that the property right should take the shape of a right to control copying, and even less so that the current shape of copyright law is the only permissible form that such a property right must take.[7]
Copyright as a fundamental human right derives from the philosophy of Hegel,[8] which assigns property rights in things because the individual has invested his internal will into that external thing and thus invested it with an aspect of his persona. However, Hegel does not assert that a state must assign rights to all such things, merely that if the state does assign rights then it appropriate to do so by way of property rights.[9]
Article 27(2) of the Universal Declaration of Human Rights constrains states to grant some form of rights over cultural works:
Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
But again, it does not constrain the shape and scope of those rights when implemented in law.
Once we accept that these rights are purely legal constructs which aim to restrict the fundamental openness of information, and that they have no ‘natural’ scope, society is free to set their boundaries where it thinks best. Rights in works reflect our views about the appropriate trade-off between competing interests, in this case the free use of information versus the benefits to society from granting individual rights. If technology changes the nature of those interests then the scheme of legal rights needs to be reassessed.
3 Reshaping information rights for Open Culture
In most jurisdictions information rights fall into two broad categories. The first is rights to control use of information created by the rightholder, normally granted in the form of intellectual property rights and primarily, though not exclusively, concerned with economic return. The second is rights to control use of information about the rightholder, which can be seen as aimed at protection of the personality.[10] These control what information should be disclosed, through rights of privacy and confidentiality, and also control misrepresentations of the personality, such as via defamation but also including some of the moral and other rights normally dealt with as intellectual property.[11] As an example, one might take a work created by a musician (a performance on video), annotate it with information about that musician, and combine it with other information to make the whole thing interactive. The musician’s rights of privacy and confidentiality, together with his or her right not to be defamed, would need to be respected as well as the rights of the creators involved. The right to freedom of expression, though not examined in detail here, is also fundamental to Open Culture and is playing an increasing role in the interpretation of copyright.[12]
These rights balance the benefits to society from granting those rights and the costs of diminishing the openness of information. Their initial balance was set long before the arrival of digital information and open communication networks. In those days information was far less open, and acquiring or communicating it usually required some dealings with a physical copy of a carrier containing the information.
Constraints based on the possession and control of physical property have largely disappeared, and this alone would justify a review of the appropriate balance. Additionally, cyberspace and the digital technologies have made information rights increasingly difficult to enforce, which reduces the gains to society from granting those rights. It is also clear that society derives real benefits from increased openness, demonstrated particularly clearly by the increasing importance of open source software.
All this tells us that getting the shape and scope of those rights correct is particularly important for the future of Open Culture.
3.1 Information rights protecting the personality
In my view the fundamental principles underlying information rights which protect personality are sound. They permit a rightholder to control the use of information which affects his or her personality, which is precisely the damaging activity which the right aims to deal with.
Of course, the scope of these rights has been affected by the digital information revolution. Courts and legislators are frequently asked to review how much control the law should allow in cyberspace, but because the basic shape of these rights is still appropriate for cyberspace it is possible for their scope to evolve. Thus, for example, the English courts have begun to reject defamation claims based on online publication where the defendant has only a tenuous connection with the English jurisdiction.[13]
An important question of scope, which is also relevant for rights protecting information creations, is the extent to which information rights should be enforceable against intermediaries like ISPs. In cyberspace these intermediaries may be the only practical point of enforcement. Currently they have some immunity from such claims,[14] based on their position as providers of essential infrastructure and the apparent impossibility of requiring them to monitor content and take decisions on its lawfulness. This latter justification is losing its force, as Chris Marsden notes in his recent book,[15] because the commercial pressures towards providing varying levels of transmission service quality are requiring intermediaries to analyse the content they carry, rather than dealing with information purely in terms of its addressing data. This is also an area where some courts appear to be attempting to evolve the immunity into a less absolute and more nuanced form.[16] Ultimately this important policy issue will need to be addressed by fresh legislation.
3.2 Rights protecting information creations
By contrast many of the rights which protect information creations are in entirely the wrong shape. The most important of these is copyright, and this is also the right which is in the worst shape for dealing with cyberspace issues.
The precise aims behind the existence of copyright are far from clear, but at present it grants limited rights to creators so as to allow them to make an economic return, thereby encouraging further creations. It also permits creators to protect those aspects of their personality which are expressed in their creations from impairment through use of the creation by others. The return to society from the grant of these rights is that others can benefit from access to the protected works.
The fundamental problem with copyright is that it attempts to achieve its aims by controlling copying. Even a moment’s thought reveals that copying has no direct connection with the law’s aims. Copying is a mere proxy for use of the creation, which is what the creator needs to control if the law’s aims are to be achieved.
When copyright was first devised all copies had to take the form of personal property. Personal property is both rivalrous and excludable, so that controlling the making of and dealings in this personal property also, indirectly, controlled use of the creation. However, cyberspace breaks the link between copies of information creations and any personal property on which that information is recorded. As a consequence, a third party may copy information without making any use of the creation which is legally significant,[17] and may use the creation for economic gain without copying it.[18]
Copying is no longer an effective proxy for control of use.[19] Recent developments in copyright law recognise this, and have extended copyright to encompass acts which do not necessarily require copying. Creators now have the exclusive right to communicate a work to the public[20] and also to prevent the use of technologies which overcome access and copy protection technologies.[21] These do not solve the problem, though, as they are mere additions to an edifice which is based on what turns out to be a false premise – that what needs to be controlled is copying rather than use.
4 Restructuring copyright
The law of copyright assumes a business model under which the exploitation of works is undertaken by selling physical copies of them. This business model is embedded deeply in the law.[22] Unfortunately that business model no longer fits the exploitation of works in digital form.
The obvious solution is to restructure copyright law so that it allows creators an appropriate measure of control over the use of their works. In other words, copyright should no longer be about copying!
Restructuring the law in this way would require a revision of the balance between those uses which the law grants creators the right to control and those uses which are uncontrolled, and thus constitute the benefit which society receives in return for the grant of rights. Such a review would be lengthy and extensive, and require both further research and a clearer understanding of the new business models which will be adopted in cyberspace. However, it is appropriate to put forward some fundamental principles here, to act as a basis for further discussion.
4.1 Commercial exploitation
It seems axiomatic that the basic right which the law should grant to creators is the control of uses of a work which amount to its commercial exploitation.[23] The law aims to encourage creators by securing for them a return, and that return will be achieved through commercial exploitation of the work.
Commercial exploitation is, of course, more than merely selling copies of a work or providing paid access to it. For example, the use of audio or visual works in marketing or advertising is clearly a commercial exploitation.[24] Interesting questions arise in relation to intermediaries such as YouTube – a video of an amateur performance of a musical work is not a commercial exploitation by the poster of that video, but hosting that video looks like commercial exploitation by YouTube because of the revenue from any accompanying advertising. Currently copyright law does not provide a clear answer to this issue, with the result that licence negotiations between YouTube and rights owners have been long-drawn-out and acrimonious. The general benefits to society from Open Culture might justify treating such hosting as non-commercial exploitation, even if it generates some revenue for the host – a relevant factor would clearly be the proportion of revenues from this source, compared to those from eg music videos licensed by the rights owner, which are clearly commercial exploitations.
The concept of commercial Open Culture is already present to some extent in the existing law. A published musical work could be recorded by others under the statutory recording licence in s 8 of the 1956 Copyright Act for musical works already lawfully exploited in the UK in the form of recordings; this is now substituted by licensing schemes under the control of the Copyright Tribunal under the 1988 Act. A restructuring of the law would create the opportunity to evaluate other kinds of works, most importantly movies and television programmes, to decide how far licensing schemes for their commercial exploitation would be appropriate to promote Open Culture.
4.2 Non-commercial uses
The starting point here should be that non-commercial uses of a work are not within the control of its creator because, by definition, a non-commercial use creates no return in which the creator could share. However, non-commercial uses still have the potential to damage the creator’s commercial exploitation of a work.
The three-step test in art 10 of the WIPO Copyright Treaty allows signatory states to grant exceptions to copyright provided that these:
do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
However, the copying business model embedded in our current copyright system has led to a restrictive view of when such exceptions should apply. If all copying requires the permission of the rightholder, irrespective of the kind of use involved, then the rightholder can charge for such permission. This leads to an understanding that the ‘normal exploitation’ of a work is by means of charging for making a copy. If this is the starting point, any unlicensed use which requires a copy to be made (as do all uses in digital form) must always be in conflict with normal exploitation.[25]
By starting afresh, we can define a new approach to deciding whether a non-commercial use conflicts with the rightholder’s commercial exploitation. It would be helpful to adopt a concept which is already known to the law, and the most obvious such concept is that of fairness.[26]
We must be careful not to confuse this concept with the US defence of fair use, which applies when the use made would otherwise infringe. Our new approach must reverse the emphasis; non-commercial use will not be an infringement unless it is unfair.
What might unfairness mean in this context? A helpful concept can be borrowed from EU competition law, that of substitutability in the market. Defining the applicable market is essential when assessing whether activities are anti-competitive, and the main test for whether two products or services are part of the same market is whether a purchaser will substitute one for another. To put it more simply, the supply of bananas and apples constitutes two separate markets because a consumer, faced with a lack of bananas, will not buy apples instead.[27]
Thus my non-commercial use of a work should be prima facie unfair, and so an infringement of copyright, if it substitutes in the market for the rights holder’s own exploitation of the work. If it does not substitute then, subject to such other elements of unfairness as the courts may later develop, it should not infringe.
To understand this principle it will help if we take an example which is realistic in the digital world. Let us imagine that I record a video of my ukulele performance of Under the Boardwalk and upload it to YouTube. Viewers of my video will not treat it as a substitute for the Rolling Stones’ recording of the same song and refrain from buying the Stones’ version. My recording will not satisfy their desire for the song, no matter how closely I succeed in replicating the Stones’ performance. Thus my non-commercial use would not infringe the Stones’ rights because it is not unfair.
Conversely, if I rip that Stones CD to my computer and then make an MP3 of Under the Boardwalk accessible via some file-sharing platform, those who obtain a copy from me will treat it as a substitute for the copy available commercially. Thus file-sharing (of commercial recordings at least) would be an unfair use and remain an infringement, even if it is undertaken on a non-commercial basis.
Of course, this apparently simple approach is a little more complex than at first sight because most of the works which are likely to be used in an Open Culture context will tend to have multiple creators with different interests and modes of normal exploitation. To take the song Under the Boardwalk as our example there are two sets of creators involved.
The Rolling Stones created the performance under consideration. They make revenue by (a) performing the song live, (b) selling copies of their recording on CD or online, and (c) selling merchandise such as T-shirts which refer to the recording or the album containing it. As discussed above, my own performance does not substitute for their version in the market in relation to any of these revenue streams, and thus does not conflict with their normal exploitation of the work.
The music and lyrics were composed by Arthur Resnick and Kenny Young. They exploit their creation by way of licensing the making of recordings, usually taking revenue in the form of licence fees. Does my recording interfere with this exploitation? An analysis of their revenue streams might assist here.
- All the licensing schemes offered by PRS for Music are based on the distribution or communication of the recording. There is no separate licensing scheme for making private recordings, even though under current copyright law such unlicensed recordings infringe copyright. This would suggest that a private recording of the song will not conflict with the songwriters’ exploitation, and is thus not unfair.
- Posting the video to YouTube generates no direct revenue for me as its creator, and the Resnick/Young income stream is normally derived as a royalty from commercial sales. The fact that I derive no income from my posting, and thus there is nothing to share, would be a factor suggesting that my posting is not an unfair use. This is supported by the fact that there is no available licence for this activity from PRS for Music.[28] By contrast, if I were using the recording to promote my (paid for) performances then this might well be viewed as an unfair use. In this case, though, I generate revenue indirectly via my use which would classify it as commercial exploitation requiring a licence (see above).
- YouTube generates revenue from advertising on a per-view basis, so it is arguable that this is a revenue stream in which Resnick/Young should participate. This then takes us back to the policy discussion about the social utility of hosting spaces for Open Culture, and whether such hosting should or should not be treated as commercial exploitation.
This approach to commercial and non-commercial exploitation seems to work for most creators, with the possible exception of poets (though it is notorious that the income which poets derive from the use of their creations is de minimis and so this may not be a glaring defect).
4.3 Protecting the creator’s personality
At this early stage of thinking it appears that the creator also needs the right to control uses which adversely affect his or her personality. There are three elements to such control:
- Preventing any use at all. The use of a work inevitably affects the reputation of the creator. Creators thus need a right, probably a near-absolute[29] right, to control the first use of a work. As an example, suppose that I undertake a piece of legal research, write it up, and on re-reading it decide that it is not of the quality I wish to make public. Were my university to publish that work against my wishes, my reputation would be adversely affected. Of course, if I have taken the decision to publish and then regret it, my rights to control further use would be based on the principles of commercial exploitation because the effect on my personality has already occurred.
- Attribution. A claim to attribution is so obviously unanswerable (in the absence of eg contractual restrictions which the law will enforce) that no further justification is given here.
- Use in a manner which adversely affects the creator’s personality. This is related to the moral rights concept of derogatory treatment of a work, but focusing on the personality of the creator rather than on the work itself. Open Culture requires that I be able to use a work in a way which its creator did not intend – indeed, much of Open Culture depends on use in such a manner.[30] However, all legal systems provide protection against conduct which causes psychological harm or reputational damage, through concepts such as harassment and defamation, and this seems to be just another aspect of that protection. Of course, there is a clear tension with the principle of freedom of speech which would need to be resolved when devising the scope of this right.
5 Evolution of rights for Open Culture
The rights in works which protect their creator’s personality appear to be capable of evolving to meet the challenges of Open Culture. These rights are not absolute but are relative, which allows the courts to modify their boundaries in accordance with changes in the way society works.
However, copyright is incapable of such evolution. Its basis in copying rather than use renders it unfit to deal with the kinds of uses which society might wish to be free, in order to encourage Open Culture, precisely because all digital uses of a work require copies to be made. This gives little or no scope to re-examine the boundaries of copyright.
Of course there is no prospect of fundamental copyright reform in the near future. The current shape of copyright is defined by international instruments, most importantly the Berne Convention, WIPO Copyright Treaty and TRIPS Agreement. Changing these instruments requires consensus among the majority of national governments, and rightholders have an entrenched position of influence so far as changes are concerned.
In the long term, though, change may be forced by the death of copyright. The copyright system already fails to cope well with the challenges of digital technologies and cyberspace, and it is hard to see how it can be modified to cope simply by the accretion of new rights. If copyright is unable to evolve, the world will be forced to seek out an alternative. I think that alternative is to be found in rights to control use, rather than rights to control copying.
Chris Reed is Professor of Electronic Commerce Law, Queen Mary University of London School of Law, Centre for Commercial Law Studies
[1] Thus the shock when Marcel Duchamp added a moustache to a copy of the Mona Lisa.
[2] Of course, in the analogue world the creator/consumer divide was not absolute. However, acquiring the skills to cross that divide required both aptitude and effort, such that most consumers remained passive. As an example, to play the Mozart clarinet concerto, and thus become the creator of a performance work, you need to learn the clarinet. If you want to perform it on the violin instead, you must learn to play the violin. If you wish to ‘improve’ the concerto, you must learn to read and write music. Once, however, the concerto is available in suitably digitised form, transforming the lead instrument from clarinet to violin (or ukulele, or kazoo) requires no more than a mouse click, and modifying the musical composition itself requires little more effort because of the sophisticated tools available.
[3] As examples, DeCSS was developed to remove the copy control mechanism on commercial DVDs, and HYMN (Hear Your Music aNywhere – http://hymn-project.org/) successfully circumvented Apple’s Fairplay DRM.
[4] Legal action against distributors of DeCSS (Universal City Studios v Reimerdes, 111 F Supp 2d 294 (SDNY 2000), aff’d, 273 F3d 429 (2d Cir 2001)) and a cease and desist letter in the case of HYMN (http://hymn-project.org/forums/viewtopic.php?t=2496) had some effect on the availability of the technologies, but in neither case prevented copy-circumvention tools from remaining available.
[5] John Locke, Two Treatises on Government (1689) – Second Treatise.
[6] For an overview see Tom G Palmer, ‘Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects’ (1990) 13 Harv JL & Public Policy 817.
[7] Alfred C Yen, ‘Restoring the Natural Law: Copyright as Labor and Possession’ (1990) 51 Ohio St LJ 517.
[8] GWF Hegel, Philosophy of Right (1821).
[9] ‘Hegel’s theory cannot be used to support the proposition that the state must recognise intellectual property claims. Rather, Hegel would argue that if the state, in its discretion, were to establish an intellectual property regime, it would be consistent to conceptualize it in terms of property … [A]lthough Hegel argued that property is necessary for personhood, he left to practical reason the decision as to which specific property rights a state ought to adopt.’ Jeanne L. Schroeder, ‘Unnatural Rights: Hegel and Intellectual Property’ (2006) 60 U Miami L Rev 453, 454.
[10] Potentially including commercial personality. Trade mark rights encompass both aspects of information right; the trade mark is information created by the rightholder, and the law deals with both the right to exploit that trade mark and protection of the right holder from uses in a way which misrepresent the relation with the holder.
[11] For a commercial personality, these would include passing off and unfair competition.
[12] Graham Smith, ‘Copyright and freedom of expression in the online world’ (2010) 5 J Int Prop L & Practice 88.
[13] Dow Jones v Jameel [2005] EWCA Civ 75.
[14] See e.g. Directive 2000/31/EC on electronic commerce OJ L 178 p. 1, 17 July 2000 art. 14.
[15] Chris Marsden, Net Neutrality: towards a co-regulatory solution (London: Bloomsbury Academic 2010), Ch 4.
[16] See inter alia Barnes v Yahoo 565 F 3d 560 (9th Cir 2009); Hermès International v Feitz (Case RG 06/02604, Tribunale de Grande Instance Troyes, 4 June 2008); SABAM v Scarlet SA (Brussels Court of First Instance 29 June 2007, 24 October 2008); Internet Auction I (German Bundesgerichtshof, Case I ZR 304/01, [2005] ETMR 25).
[17] Religious Technology Centre v Netcom On-Line Communications Services Inc 907 F Supp 1361 (ND Cal 1995).
[18] Chris Reed, ‘Controlling World-Wide Web Links: property rights, access rights and unfair competition’ Indiana Journal of Global Legal Studies (1998) Vol 6.1, 167.
[19] For a more detailed explanation of this issue see Ashley M Pavel, ‘Reforming the Reproduction Right: the case for personal use copies’ (2010) 24 Berkeley Technology Law Journal 1615, 1634-6.
[20] WIPO Copyright Treaty 1996, art 8.
[21] Ibid, art 11.
[22] Laws which contain embedded business models are often unsuitable to regulate cyberspace activities because the nature of the cyberspace technologies tends to produce new business models, thus creating a mismatch between the law and the activity it purports to regulate. See Chris Reed, ‘The Law of Unintended Consequences – embedded business models in IT regulation’, (2007) 2 JILT http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_2/reed ISSN 1361-4169.
[23] Ashley M Pavel, op cit n 19, proposes that this can be achieved by replacing the focus on copying with a right to control communication to the public – 1639 ff. However, Pavel describes this as an improved proxy for infringement – it seems to me that it would be more sensible to concentrate on use, rather than a proxy for use, particularly as communication to the public ought not, in all cases, to infringe a creator’s rights.
[24] As with all legal categories, problems arise at the penumbra – for example use of a work in advertising by a non-commercial organisation such as a charity could legitimately be classified as either commercial or non-commercial exploitation.
[25] See for example the Mulholland Drive litigation in France – Stéphane P, UFC Que Choisir c Société Films Alain Sarde, TGI de Paris (3ème ch. 30 April 2004); Stéphane P, UFC Que Choisir c Universal Pictures Video France, Cour d’Appel de Paris (4ème Chambre 22 April 2005); Société Studio Canal c Perquin et UFC Que Choisir, Court de Cassation, (28 February 2006).
[26] This was suggested to me by my colleague, Professor Christopher Millard, whose assistance is gratefully acknowledged. His original suggestion was that the concept in data protection law of “fair and lawful use” might be appropriate. On further consideration it appears to me that “lawfulness” is unnecessary for these purposes; in data protection fairness is assessed from the point of view of the data subject’s interests, whereas lawfulness addresses the wider interests of society. In deciding whether non-commercial use of a work should infringe copyright our concern is primarily with the interests of the author or rights holder, and the lawfulness of use (other than in terms of the author’s rights) is not relevant to this question.
[27]. United Brands v Commission Case 27/76, [1978] ECR 207.
[28] PRS for Music does operate one licensing scheme which would apply to non-commercial distribution or communication, the Limited Manufacture Licence: http://www.prsformusic.com/users/recordedmedia/cdsandvinyl/Pages/LimitedManufactureLicence%28LM%29.aspx, but this is for the creation and distribution of physical products such as DVDs or CDs. The other online licences offered only cover the inclusion of commercial recordings in an online communication, not the making and communication of one’s own recording – see http://www.prsformusic.com/users/broadcastandonline/onlinemobile/Pages/default.aspx.
[29] Except, perhaps, where use (by way of disclosure) is required in the public interest, applying similar principles to those used in the law of confidential information.
[30] See for example the well-known mashup ‘Scary Mary’, a re-editing of the trailer to the film Mary Poppins in the style of a horror movie trailer with appropriate additional sound effects.
