How to Fix the Copyright System

In many of my posts this year I have been calling for a radical overhaul of the copyright system for the digitally connected economies of the 21st century. The complexity of this challenge is daunting. But despite that the task is daunting it is important to describe some practical ideas to fix the problem.

Those who create new things, whether that is music or memes or stories or services and establish trust should be rewarded by the society. To do this we need to give our innovators and inventors the power to control their innovations and inventions, to set their price and the conditions that apply to their creations. Modern technology gives us almost unlimited choices in how we might design such a system.

In his wonderful book Free Culture Lawrence Lessig argues that creators of intellectual property rely on the ideas and knowledge that went before them. That innovation requires access to those ideas and knowledge in the public domain. If the Law causes or at least permits the public domain to become barren, innovation will be diminished.  Consequently we need to protect IP to reward creation whilst at the same time building the public domain of knowledge and ideas.

Harvard law professor William Fisher has suggested that all content capable of digital transmission be marked with a digital watermark and governments regulate a system but have it developed by entrepreneurs to measure usage and collect payments based on this watermark.

Three years ago I made these suggestions at an ACS conference on the digital economy and whist some of them are beginning to emerge they are worth set out here:

  • allow digital files to be loaned as we currently loan a paper book using an iPod/Pad/Phone or Kindle by suspending access to a file on one device for a pre-set period while it is active on the another device
  • allow digital files to be permanently transferred (sold) to another device
  • to permit copyright holders to set their fees for permitting permanent transfer (selling) or temporary transfer (lending) of files
  • to set ‘fair use’ permissions for limited extracts of file content and those extracts be secured with a digital watermark
  • to set a ‘fair use’ fee structure by copyright holder at publication
  • to lodge and registered a digital work so that copyright can be claimed
  • to ensure the copyright owner renews their registration say every 10 years and failing to register or renew a copyright renders that copyright to the public domain.

This system would remove the need for private detectives and large amounts of time and money hunting down the ownership of digital assets and will remove a major barrier to innovation and invention, which is damaging to our economy.

This system would also stop the likes of Larrikin Music demanding royalties in the order of 60% of millions of dollars, already earned by the real creative people, for a 4 second rather vague reference in a musical riff to Kookaburra sits in the old gum tree. Because a deal of that size could never be done before a song was released.

The US Congress and other parliaments have been extending copyright protection for authors since 1908 taking it from 14 years to an author’s lifetime plus 70 years or 95 years for a corporation. If this continues, as it is likely to do, we are operating under permanent copyright protection by stealth.

To simplify the system we need to both narrow and strengthen copyright. To reduce the high legal fees involved in current copyright cases we need to make copyright narrow and clearly defined. The system must be easy to understand and to operate.

Derivatives from a copyright work should be separated from the rights of the work itself and be limited to a very short term perhaps as little as 10 years. That is where a film is made based on a book or a musical is created from music, innovators will be free to create new works from existing works 10 years after publication but fees for exact reuse of existing works will require payment of a fee forever. This again will make the system simpler and easier to operate without resorting to the courts. Having a system where in practice only those with deep pockets are protected and the individual is powerless to protect their invention will stifle innovation and ultimately lower productivity which in turn reduces the ability of an economy to provide higher living standards for us all.