<nettime> WSJ: Can Copyright Be Saved?

[Felix Stalder <felix@openflows.org>]

[It's quite amazing, not too long ago, an outfit like the WSJ would have
any questioning of the absolute enforcement of copyrights slandered the
way Forbes slandered the FSF recently. Now, suddenly, even the WSJ admits
that things are up for grabs and that there are valid several options.
Now, you might not agree with their portraying of DRM as "middle of the
road" solution, but just putting it out as one of several options,
including a tax!, rather than the only one, is quite a significant change
in itself. Felix]


Can Copyright Be Saved?
New ideas to make intellectual property work in the digital age

By ETHAN SMITH
Staff Reporter of THE WALL STREET JOURNAL
October 20, 2003

For some people, the future of copyright law is here, and it looks a lot
like Gilberto Gil.

The Brazilian singer-songwriter plans to release a groundbreaking CD this
winter, which will include three of his biggest hits from the 1970s. It
isn't the content of the disc that makes it so novel, though -- it's the
copyright notice that will accompany it.

Instead of the standard "all rights reserved," the notice will explicitly
allow users of the CD to work the music into their own material. "You are
free ... to make derivative works," the notice will state in part. That's a
significant departure from the standard copyright notice, which forbids such
use of creative material and requires a legal agreement to be worked out for
any exceptions.

Is this the future of copyright? Perhaps. But a better way to think of it is
that it's one of the possible futures of copyright. Because right now, it's
all pretty much up for grabs.

Blame it all on the Digital Age. As any digital downloader can tell you,
technology and the Internet have made it simple for almost anyone to make
virtually unlimited copies of music, videos and other creative works. With
so many people doing just that, artists and entertainment companies
sometimes appear helpless to prevent illegal copying, and their halting
legal efforts so far have antagonized customers while hardly putting a dent
in piracy.

The challenge is finding a way out of this mess. Efforts fall broadly into
two camps. On one side, generally speaking, are those who revel in the
freedom that technology has brought to the distribution of creative
material, and who believe that copyright law should reflect this newfound
freedom.

On the other side are those who believe that the digital age hasn't changed
anything in terms of the rights of artists and entertainment companies to
control the distribution of their creations and to be paid for them -- the
essence of copyright law. For them, the answer is to leave copyright law
intact, and to use technology to make it harder for people to make digital
copies.

Here's a closer look at some of the competing visions.

IN THIS TOGETHER

The copyright notice for Mr. Gil's coming CD is being crafted by Creative
Commons, a nonprofit organization that seeks to redraw the copyright
landscape. Believing traditional copyrights are too restrictive, it aims to
create plain-language copyright notices that explicitly offer a greater
degree of freedom to those who would reshape or redistribute the copyrighted
material.

Traditional copyright law gives owners of creative material -- and them
alone -- the right to copy or distribute their works. Although they can
waive all or part of those rights, the process isn't easy and usually occurs
in response to a particular request. Those hurdles, critics say, can hinder
the open and freewheeling sharing of material the digital age makes
possible.

Creative Commons seeks to make the system more flexible by spelling out
which rights the copyright holder wishes to reserve and which are being
waived without waiting for a request. Artists can mix and match from among
four basic licensing agreements: They can decide whether they simply want
attribution anytime their work is used by someone else; whether they want to
deny others use of the work for profit without permission; whether they want
to prevent others from altering the material; and whether they want to
permit the use of material only if the new work is offered to the public
under the same terms. An underlying layer of digital code enforces the
rights laid out by the owner, telling computers how a given work can be
used.

A Creative Commons license isn't for everyone. It might appeal to
independent artists for whom free samples, distributed online, might
represent an attractive marketing option, or for someone like Mr. Gil, who
believes that making it easier to share and reshape his music can be an
important part of the creative process. But it's unlikely to appeal to the
big media companies, for which copyrighted material is what they sell.

Still, Mr. Gil, who is also Brazil's culture minister, sees Creative Commons
as a way to unlock the creative potential of digital technology. "I'm doing
it as an artist," he says. "But our ministry has been following the process
and getting interested in supporting projects concerning free use," not only
for music, but also for creative content in general.

TAX TIME?

A more radical proposal for overhauling the copyright system comes from
William Fisher, a Harvard University law professor and director of the
Berkman Center for Internet and Society.

Mr. Fisher believes that the wide-open nature of the Internet and the
explosion of creative material that it has fostered are making the
administration of copyright law increasingly unwieldy. Traditional copyright
is beyond fixing, he believes, and ought to be scrapped in favor of a
simpler system that doesn't require an onerous effort to protect each piece
of creative material against copying.

His solution is a regimen called compulsory licensing. In this system, music
and film, after being registered with the copyright office, could be traded
freely over the Internet, eliminating the problem of copyright enforcement.
The owners would be compensated out of a fund raised by a new tax. In order
to share the proceeds of the tax, content owners would be obliged to license
their material for such use -- that's the compulsory part.

"The only palatable short-term taxation option would impose a levy upon
services and things that are used to access, store, record and play digital
entertainment," Mr. Fisher says. "ISP access, blank media, MP3 players, CD
burners, and so on."

The professor estimates that a tax would need to be set at a blanket 15% to
make up for the revenue lost to the new system. Critics already have pointed
out, however, that the $2.4 billion he estimates his proposal would raise
annually falls far short of the roughly $11 billion in annual revenue reaped
by the music industry alone in the U.S.

EXERCISING RESTRAINT

On the other side of the debate are those who believe that copyright law
doesn't need to be tinkered with at all; it just needs an effective
enforcement mechanism, which is not out of the realm of possibility.

Steps already are being taken in this direction with technology known as
digital-rights management, or DRM, a field led by Microsoft Corp. This
technology aims to protect the copyrights of producers of digital materials
while allowing for the traditional right under copyright law for people to
copy materials for personal use.

Rather than locking up digital content, DRM puts it on a leash. For
instance, DRM technology may serve as the basis for security features that
allow for only a single copy of a CD to be made, and don't allow the copy to
be copied. The technology may allow tracks from the same CD to be exported
to a portable MP3 player, but not to be transferred online.

In describing how DRM can protect entertainment providers without
antagonizing consumers, Dave Fester, general manager of Microsoft's digital
media division, says, "DRM is the magic link that allows you to step into
that secure world, yet do it in a smart, flexible way."

Numerous security systems rely on Microsoft's DRM, now in its fourth
incarnation. Most of the new online music stores that sell music in the
Windows Media format rely on Microsoft DRM to place limits on copying and
burning; the others, Apple Computer Inc.'s iTunes store
(www.apple.com/itunes) and Time Warner Inc.'s MusicNet (www.musicnet.com),
rely on different DRM schemes. And a handful of CDs have been sold with
Microsoft-powered DRM systems in place, in an attempt to stanch the flow of
copyrighted material onto the Internet.

Indeed, DRM has provided a middle ground for music companies that have
hesitated to institute in the U.S. the draconian controls now standard in
Europe and Asia, where CDs generally are sold with technology that prevents
them from being copied in any way. Not wanting to go that far, these
companies until now have settled for continuing to produce CDs that have no
controls at all.

A pioneer in DRM technology is a CD by rhythm-and-blues singer Anthony
Hamilton released in the U.S. in September by the BMG unit of Germany's
Bertelsmann AG. The CD relies on a copy-protection system from SunnComm
Technologies Inc. of Phoenix. The system, which incorporates DRM technology,
uses encryption to allow for the creation of only a handful of copies of the
tracks on a CD inserted in a computer, for uses such as export to MP3
players.

However, the protection application runs only on some operating systems.
Worse, many in the online community quickly pointed out that simply holding
down the shift key while inserting the disc prevented the copy-protection
application from running at all.

Thomas Hesse, BMG's chief strategic officer, acknowledges the system's
shortcomings, but adds that it is "more a speed bump than a complete
solution to all our problems."

SunnComm Chief Executive Peter Jacobs points out that the shift-key trick
only works if a user executes it the first time -- and each subsequent
time -- the CD is inserted into his or her computer. Mr. Jacobs adds that
future versions of the copy-protection software will make the trick even
less likely to work.

"You can't start from a perfect place," says Mr. Jacobs.

-- Mr. Smith is a staff reporter in The Wall Street Journal's Los Angeles
bureau.

Write to Ethan Smith at ethan.smith@wsj.com

URL for this article:
http://online.wsj.com/article/0,,SB106614539785040300,00.html



Updated October 20, 2003 3:11 p.m.

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