Sunday, February 7, 2016

Improper use of a "hackathon": software code to promote flaw in legal code

This is something I've observed before: an attempt to use software code to either route around or mask flaws in legal code.   As hard as it is for technical people to get politically involved and help fix legal code, it is far more likely to succeed than trying to route around the law with code.

While it is disheartening to see a technical community launch these projects, I wonder something fishy is going on when a legal community does as was done by IP Osgood with their Orphan Works Licensing Portal Hackathon. They suggest that "hackathons bring together smart people with lots of different expertise to tackle a big issue with intensity, energy and enthusiasm in a condensed period of time".  Even given this I suspect they weren't interested in participation from people who don't consider this to be a problem that could or should be solved with technology.

The bug

Potential solutions

Obviously if you see this as a legislative problem, writing software to make it easier for money to flow to a collective society rather than a creator won't be seen as a solution but a perpetuation of the problem.

Canadian Copyright Act Section 77

A shorter-term legislative change for Canada would be to repeal section 77 of the act, and to add clarity to section 29 (fair dealings). There has always been discussion about making "effect of the use upon the potential market" a primary consideration for determining fairness, which I have always taken to mean that a specific use of a work would be fair dealings if the copyright holder didn't offer licensing under reasonable terms.  In the case where there is no copyright holder around to offer a license, then it should be made clear no license is required.  This would provide the quickest and most cost effective solution to the orphan works problem, and would properly put the onus on copyright holders to make themselves and their licensing offerings more visible in order to create a marketplace that otherwise doesn't exist.

Collective societies have an obvious role, which would be to use some of the money they keep from copyright holders as "administrative fees" to create a database of authors and their works.  They would then do recruitment to join the collective to enable transactional licensing through them.  With such a searchable database and active recruitment which also serves as public education, works would no longer be orphaned.

Access Copyright, as one example, has taken the funds they have extracted based on section 77 and created an Access Copyright Foundation.  This foundation looks far more like an arts granting agency than something that legitimately should be part of a collective society.  A more appropriate use of money collected on the backs of orphaned works would have been to solve the orphaned works problem for literary works (What AC licenses -- they wouldn't be expected to solve the problem for music, etc).

Note: While I am a strong supporter of stable arts funding, I believe this should occur within the transparency and accountability requirements of a government agency and not through an unaccountable foundation created with funding from a flaw in Canadian law.

Berne Article 5

This is a subject that has received considerable discussion over the decades, but nearly all I've read take the position that this aspect of Berne can never be modernized.  Every WIPO treaty relating to copyright has been an amendment to Berne, and Berne itself has been modified many times, so if it is felt that a patch in the form of a treaty is required to solve this bug then it would be no harder to create and have ratified than any other WIPO treaty or any other change made to Berne.

I am of the opinion that Berne doesn't need to be modernized to handle this issue:  It is only interpretations that need to be modernized, and Berne never prohibited any and all types of formalities for the entire term of copyright.  Put in context it looks far more likely that subsection was a solution to requiring independent registration in every country rather than a prohibition on having a global copyright database that is maintained in coordination with each treaty country.

The first version of Berne was from 1886, a time that clearly pre-dates the modern technological era where we are globally creating billions of new works presumed to be regulated by copyright every second. Copyright is presumed to regulate everything we do with our modern technology, whether amateur or professional, and some claim even when automated such as CCT cameras.  The whole Monkey Selfie debate was sad that anyone thought copyright should regulate those photographs.  The reality is that the vast majority of copyright holders in the modern era don't even know they are copyright holders, and have no interest in licensing their works. In some fields like computer software we have already observed that most of the copyright holders for works greater than 21 years old have gone out of business and there is nobody that a license could be obtained from.

Along with the growth of technology which creates fixated works came a solution to the question of how to determine which works are regulated by copyright: searchable databases.   Compared to the problems in trying to locate copyright holders which the "orphan works" problem only exposes a small portion of, having copyright owners who care to be found provide and keep updated documentation on works, their creators (first holders of copyright), and contact information for their current owners, would be easy.

There is still a good reason to have a "no formalities" period.  Given that most works are created by amateurs who are generally unaware of how copyright relates to them, there should be a period to discover that some of their amateur works have economic value.  Many works will also be created in other countries, some of which won't be treaty countries, and these should enjoy some minimum term of copyright during which they can learn how to renew within the global database.  This also provides time for professional creators and/or their employers to maintain their databases, and allows copyright to regulate the period of time between when a work is first authored and when it might be publicly released.

It has been suggested a 7 year unregistered copyright term would be sufficient, after which registering in a database as part of a renewal process would be required to continue to use copyright regulations up to the maximum term.

This searchable database would solve so many problems with copyright law in the modern era.  If you already have access to a work you wish to use you would have a simple formula to follow:

1) Look up work in database
   a) If found and term not expired, use contact information for current owner to gain license (success!)
   b) If found but copyright term expired, no license required (public domain)
   c) If not found, enter information into database (required part of public records keeping), and determine if work has existed for at least 7 years
     i) If it is older than 7 years, no license required (public domain)
     ii) If it is younger than 7 years, you have some research to do as was the case before copyright modernization.

With this modernization there is only a tiny subset of works where determining if a license is required and obtaining a license is as hard as the problem is today.  This is a good compromise in keeping with the spirit of the "no formalities" requirement while actually modernizing copyright to deal with critical practical issues that could never have been imagined in 1886.


The record keeping part of (1)(c) in the process above can go a long way to helping build a complete database of valued works. Copyright holder activist groups can also monitor these filings and help encourage copyright holders they are aware of to renew their works and join collective societies in order to gain licensing fees.  This would be an effective replacement of section 77 of Canada's Copyright Act, keeping the record keeping value while providing more positive motivations to avoiding works ever being orphaned.

WIPO has their own take on Copyright Registration and Documentation Systems.  Given the current "no formalities" interpretations were really pushed in 1971 as part of the push with the USA finally joining Berne in 1989, we see additional proof that this issue is still open for discussion and can be modernized to take Information and Communications Technology into consideration.

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