Alternatives to C-61: Statutory concerns for the protection and encouragement of creative works

August 24th, 2008 Posted in Information Technology, Intellectual Property

I want to suggest an alternative paradigm to the statutory regime for creative works as intellectual property, a.k.a. copyright.  I’m not going to get into detailed explanations of the existing Copyleft and other alternative paradigms to copyright.  But I’m going to borrow from them, and from discussions I’ve had with industry players and legal theorists (lawyers and academics) to, I hope, open some discussion on what else can be done.

This is not meant to be a set of specific fixes to C-61.  Prof. Michael Geist has been doing an exceptional and detailed job of that on his blog at http://www.michaelgeist.ca.

Instead, these ideas presume us not already headed down C-61 Avenue, but at a fork where C-61 is one of the roads being touted.  It is not the only road currently available, in the sense that one can opt out and instead choose licensing options to circumvent copyright.  Rather, these ideas are ways to do something different from C-61 entirely, but that would still be a statutory avenue rather than the contractual private road of licensing.

Let me restate that analogy:

There is a highway in front of us, available to all, whether they know the murky legal engineering of intellectual property or not, and that highway is statute.  It is created as public law; it is statute - an Act of parliament that binds all, unless…  Unless one is confident in their legal engineering to construct a private road or hike through unpaved trails of their own design:  These private roads and trails are the legal opt-out of public law:  contract.  Contract takes many forms, from a handshake (not very good) to a signed note on a napkin, to a voluminous drafted document.  But they are all contracts - agreements between parties to bind themselves to the terms and conditions listed within the document.  Licensing, in this context, is a form of contract that creates an exemption from prohibited use:  the law says you can’t use without permission; the license grants permission that is conditional on certain terms - this is a licensing contract.

There are many existing, well-paved private roads.  Some enhance the user-rights segment of copyright, and some enhance the creator-rewards segment.  The first includes licenses such as GPL (GNU General Public License), which includes provisions for profit; and Creative Commons, which includes exceptions for profit.

I want to consider if there’s a different way to build the public highway.  Is there a way to make that highway so good that we don’t have half the population - the lay people who aren’t aware of the private roads or are aware but don’t have the resources to make them sufficiently accommodating - running into the legal shrubbery with hiking boots and ATVs built of lawyers’ drafting fees or frustrated acquiescence.

Like any legislative project, probably the greatest imperative is to outline goals, objectives, concerns, perspectives, etc., before attempting the balancing act that is drafting.

PARTIES

I’ll start with what I think is a decent list of the parties involved:

1.  Artists

Also known as creators, these are the people who, alone or in teams, instatiate the expressions we call creative works.  In other words, they fix unique expressions of ideas in tangible, consumable, and alienable forms.

2.  Facilitators

These are the promoters, producers, distributors, and employers who make the works - and sometimes the artists - famous, profitable, or both, by acting as agents of the artists.  Usually the facilitators do this in exchange for an interest in the work.

3.  Consumers

This is one facet of the public.  Consumers are the public acting as users of the work.

For the other facet of the public, I’m going to add a “0″ to the list - a party who must precede the artist-creator:

0.  The Commons

I’ve been sitting on this one, musing on what to call it over a dry martini.  I have a fairly clear idea of how to describe this facet of the public, but other than calling it “the commons,” couldn’t decide how to label this:  It is the meta-public, the place where the cultural denominators flow together into the lexicons needed to create and consume creative works.

This often-overlooked party is the very aspect protected by the U.S. Constitution and thoroughly ignored by the WIPO treaty, Bill C-61, the U.S. DMCA, and most End User License Agreements.  It is endagered, and with its starvation through overpropertization of creative works we will see cultural stagnation and eventual deterioration.  This facet is also crucial to Dr. Ken Cavalier’s argument about copyright as a trust, at least insofar as I can tell through the conversations we have had.  As soon as his blawg goes live, I will announce it here (subscribe to my RSS!) in a separate post.  I’ll also update this post with a link.

CONCERNS

So there you have the parties.  Here is a very simplified list of their concerns:

1.  The Commons

The commons is concerned with the assimilation of creative works into the public domain.  It wants the cultural denominator to grow, to evolve, to be fed, and to feed.

2.  The Artist/Creator

The artist needs to express, to contribute, and to be recognized for their contribution.  In the archetypal example, attribution and promulgation serve the creator’s primal needs.  Economic consideration is secondary, but not absent.  Consider the academy as a model.

3.  The Facilitator/Agent

The facilitator is an industrial entity, concerned with profiting from the creative work and expanding its equity holdings in intellectual property.  Though its relationship with the artist can be parasitic, it is more often symbiotic:  The facilitator engages its machinations to achieve the artist’s promulgation goal, and it does so at a profit.  The archetypal facilitator, being a capitalist industrialist, is chiefly concerned with profit.  This currently manifests through overpropertization and protectionism.

4.  The Consumer

The consumer is concerned with availability and consumability of creative works, and the opportunity to explore the continuum from consumer to creator through the stuff I talked about above — the assimilation into the cultural denominator.

The rest of this post is almost finished and will go up in a day or two, as soon as I finish a paragraph on moral rights.  I undertand you prefer shorter posts anyway.  Part II restates the concerns listed here as goals to be balanced in a new statutory regime, and sets out 4 theories to be considered in the development of that system:  The U.S. Constitutional Model, the Trust Model, a Profit-Right Model, and Moral Rights.