Monday, 19 November 2018

#CopyrightWeek – Don’t Let Upload Filters Undermine the Public Domain

[Note: This editorial is being published in the context of the 2018 #CopyrightWeek, in light of the theme of 15 January on ‘Public Domain and Creativity’, which revolves around the idea that: “Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture”.]

When modern copyright was created in 1710 by Great Britain‘s Statute of Anne, something remarkable happened that is often overlooked: as well as codifying copyright as we now know it, it also brought into being its negation. Before the Statute of Anne, publishers held a form of eternal copyright on the books they placed in the Stationers’ Register. By granting authors a time-limited government-enforced monopoly – 14 years by default, with an optional extension to a maximum of 28 years – the new law recognised that there was a moment when copyright ceased to apply; it therefore confirmed that works once published could later exist in a state without any monopoly protection.

” (…) the steady accretion of works in the public domain has formed an ever-larger reservoir from which creators could draw as they wished, with resultant benefits for both them and their audiences.”

We now call that conceptual and legal space the public domain, since works hitherto locked down by private copyright monopolies become freely available to everyone, to enjoy and to re-use as they wish. In doing so, the Statute of Anne fashioned an immensely rich artistic resource that could be drawn upon by later creators. Since all art builds to a lesser or greater degree on the ideas and achievements of those who have come before – nothing emerges in a vacuum – the steady accretion of works in the public domain has formed an ever-larger reservoir from which creators could draw as they wished, with resultant benefits for both them and their audiences.

Despite the evident power of adding works to this universal resource, the public domain has been under repeated attack. The most direct assault has come from the extension of copyright’s term. All around the world, the length of government protection has moved in one direction only: upwards. From the basic 14 years provided by the Statute of Anne, the copyright ratchet has now brought about a widespread 70 years over and above for the whole lifetime of the creator.

Term extension is sometimes applied retroactively – removing works that have duly entered the public domain, so as to lock them down as monopoly goods once more. If so-called “copyright theft” exists in any meaningful sense, it is this practice, not the making of unauthorised copies of digital works, which the EU’s own study showed causes negligible harm to sales.

The steady expansion of copyright’s reach has had a profound effect on the public domain and how it can be enjoyed. In the years following the passing of the Statute of Anne, a work would remain protected for at most 28 years. That meant a new book would typically enter the public domain during the lifetime of its readers. At that point authors could show their admiration for the work in question – and its creator, who was probably still alive – by using it and building on it in myriad ways. Similarly, they could look forward to the prospect of their own work forming the basis for further creativity by the next generation, which they would probably live to see and enjoy.

“(…) today’s artists can only draw on works created by their long-dead predecessors, unless an artist opts for a more generous licensing approach such as those offered by the Creative Commons organisation.”

That is no longer the case in general. When a book, or music, or a painting, appears today, it is very unlikely that anybody will live long enough to be able to use it in their own works. The minimum length of copyright in most countries is typically 70 years, and that is the case only if the creator dies before a work is released. Since life expectancy is increasing, a more realistic estimate of how long the next generation of creators will have to wait before they can build on contemporary works is nearer 100 years. In other words, today’s artists can only draw on works created by their long-dead predecessors, unless an artist opts for a more generous licensing approach such as those offered by the Creative Commons organisation. For the digital age, where ordinary people have routinely become new kinds of creators, and frequently post text, sounds and images online, that’s a huge loss of potential source material.

Another attack on the public domain comes from a surprising quarter: cultural institutions, which ought to be among its chief defenders. The problem arises from digital images taken of analogue artefacts. When the latter enter the public domain, it is only logical that “factual” digital representations of them should also be in the public domain. That is, when the intent is simply to record its physical appearance faithfully, rather than to produce an entirely new artistic creation that is based on the public domain work, in which case it would be granted its own copyright monopoly.

Some museums and galleries not only refuse to accept this, they go even further, and try to argue that members of the public have no right to make their own images of creations that are unequivocally in the public domain. There is an important case being heard by Germany’s top court to establish whether photos of works in the public domain taken by a Wikipedia supporter can be used freely by the online encyclopaedia. It’s absurd that this should even be a question, but it underlines how susceptible the public domain is to erosion by spurious claims of ownership.

Attempts to limit access to public domain works have been taking place for years, but there’s a new threat to the public domain that could prove to be one of the most serious. It is illustrated by the recent experience of the Australia-based music technologist Sebastian Tomczak. He uploaded to YouTube a ten-hour video that consists of nothing but white noise, defined by Wikipedia as “a random signal having equal intensity at different frequencies”. Its random nature means that there is nothing original about it, and that there can be no copyright. Despite that fact, Tomczak was hit with no less than five copyright complaints from companies claiming that his video was “infringing” on their creations, which also used white noise. Even though “their” white noise was also – by definition – random, and therefore not covered by copyright, YouTube’s complaint system was unable to appreciate that point, and treated the claims as potentially valid.

“If a work uses public domain materials, it could easily be blocked because of pre-existing claims by companies that have produced their own works using the same sources.”

Precisely the same is likely to happen for works that draw on the public domain if the EU’s proposed upload filters are imposed on Internet sites. If a work uses public domain materials, it could easily be blocked because of pre-existing claims by companies that have produced their own works using the same sources. Such a claim would quickly be dismissed if it ever came before a judge, but with upload filters that are (inevitably) automated, the tendency will doubtless be to err on the side of caution. A work that might look infringing because it includes public domain material used elsewhere therefore runs the risk of being widely blocked.

Although in theory those using public domain materials might be able to appeal against such an action, it would require them to know how to do that, and to have the time and the inclination to do so. One of biggest strengths of public domain materials is that they can be used without permission by anyone – especially by those who know nothing about the finer points of copyright law, and who have limited financial resources. It is precisely these individuals who will be unwilling or unable to challenge erroneous blocking by upload filters. Over time, people may even avoid drawing on public domain materials for fear that their posts will be blocked, and that they may be subject to other punishments by sites hosting their material because of their repeated copyright “offences”.

Those pushing for upload filters will doubtless insist this outcome is not their intent, and that may be so. But given the impossibility of incorporating detailed legal knowledge about this famously complex area into online censorship systems, and the vulnerability of the public domain, which is particularly at risk because there is no organisation to defend it, it is inevitable that this rich resource, built up over three hundred years, will be badly affected by automated filters. If it adopts this approach, the EU will end up undermining the basic quid pro quo of copyright – that works can be used freely after a temporary monopoly has elapsed – and thus the public’s acceptance that the current framework is in some sense “fair”. Ironically, a draconian upload filter system brought in supposedly to defend copyright could end up leading to it being seriously de-legitimised.

Featured image by Nick Webb.

Writer (Rebel Code), journalist, blogger. on openness, the commons, copyright, patents and digital rights. [All content from this author is made available under a CC BY 4.0 license]