In the Copyright Wars, the Great News & the Setbacks

Two recent developments suggest that the reactionary regime of maximalist copyright can still command a lot of raw political power to beat back commoners, flout legal principles and craft the law to its liking. Yet at the same time open networks and default norms of sharing are getting some serious traction these days, as two other developments attest. Could a post-reactionary world of free culture be at hand?

First, the bad news. A few weeks ago the EU extended the term of copyright protection for music recordings by another twenty years – an ignoble replay of what the U.S. Congress did in 1998 for U.S. copyright law. You may recall that the Disney Co. was determined to stop Mickey Mouse from entering the public domain, and the motion picture, recording and publishing industries were just as eager to reap a public giveaway worth billions of dollars.

If the copyright extension had not been adopted, lots of British music recordings from the 1960s from the Beatles to the early Stones and many others were expected to enter the public domain in 2012. Now there's a chilling thought: music that's still popular becoming free!  Alternatively, the artists themselves could begin to distribute the music themselves, rather than having to let the record labels have exclusive rights for another 20 years.

But in a pure power play by EMI, Universal, other record labels and superstar acts wrested the public's ownership rights back for themselves. They prevailed upon the EU to retroactively extend the terms of copyright for existing works – a brazen, unprincipled move if you truly believe that copyright law is meant to incentivize artists to create.

Could somebody please explain to me how a retroactive extension will incentivize John Lennon and Paul McCartney to create new works? John is dead and Paul has already collected gazillions from his early Beatles days.  While the labels claim that the copyright extension would help struggling artists, it is actually a form of backdoor protectionism for stodgy, innovation-resistant recording labels and their piggish rock-star partners.

Bono and U2, the faux populists, have been particularly aggressive in seeking a bigger, richer copyright monopoly for themselves while pretending to be concerned about struggling garage bands. U2's manager told The Guardian (UK) that “systemic copyright infringement....has helped wipe out so many musicians, bands and labels in recent years." The reality is that the estates of dead rockers will now be reaping a windfall and the dinosaurs of the music industry will be rewarded for failing to come up with consumer-responsive digital distribution.

The other bad news in copyright is Golan v. Holder, a case that was heard in the U.S. Supreme Court on Wednesday. The case involves a 1994 federal law that lets foreign authors re-assert copyright protection to old works that have already entered the public domain. The law essentially allows an author (or more to the point, his publisher or software, film or recording companies) to re-privatize works that belong to commoners.

Thus, films by Alfred Hitchcock and Federico Fellini, books by C.S. Lewis and Virginia Woolf, and symphonies by Prokofiev and Shostkovich – all of which have been freely available – were abruptly reclaimed as private property, forcing orchestra conductors, libraries and consumers to pay for works that had been free. It's a classic case of copyright law being used to abridge First Amendment rights. Again, an outrageous power grab by industries that know how to throw their money and political cloiut around. Court watchers predict that there may be a 4-4 ruling in Golan, which would leave the law standing. (For more on the case, see the NYT account or Lewis Hyde's oped in the Huffington Post.)

But now for the good news! The open access publishing movement turned a big corner last week when Princeton University adopted open access rules for its faculty. 

The new policy means that all articles published by faculty must be openly available on the Internet, and not exclusively controlled by journal publishers. More specifically, all Princeton faculty must agree to grant the University a “nonexclusive, irrevocable, worldwide license to exercise any and all copyrights in his or her scholarly articles published in any medium, whether now known or later invented, provided the articles are not sold by the University for a profit, and to authorize others to do the same.”

The idea is to prevent commercial journal publishers from obtaining copyrights in works by Princeton professors, which generally results in the work become less accessible to other academics and the public. That's because publishers demand payment for reprints and lock the online versions behind paywalls – a practice that flouts the general spirit of sharing within academia and dispossesses faculty and the university itself from using their own works. (The new policy does not cover books, fiction, poetry, music, film, lecture notes and case studies.) Notably, Princeton adopted this policy even though it has not yet established its own open-access repository for faculty works; presumably that will be worked out in coming months.

The Princeton policy shift is significant because it throws the weight of a leading Ivy League institution behind open access principles. Now that dozens of colleges and universities have moved in this direction, including Harvard, it's clear where the future of academic publishing is headed....and that's extremely positive news.

The other great copyright news is that European national libraries support making their meta-data on millions of works available via a Creative Commons Zero (CC0) public domain dedication. This will vastly improve the ability of anyone to locate works held by libraries throughout Europe.

The press release for the announcement explains the import of the decision:

It means that the datasets describing all the millions of books and texts ever published in Europe – the title, author, date, imprint, place of publication and so on, which exists in the vast library catalogues of Europe – will become increasingly accessible for anybody to re-use for whatever purpose they want.…

Bruno Racine, new Chair of CENL and President of the Bibliothèque nationale de France, and Dr. Elisabeth Niggemann, former Chair of CENL and Director of the Deutsche Nationalbibliothek, welcomed the leadership shown by CENL. Dr Niggemann said…‘Only in that way can society derive full social and economic benefit from the data that we’ve created to record Europe’s published output over the past 500 years. The best analogy is between bottled water and a water main. Rather than bottling it and branding it, we’re putting data on tap, so that everyone has free and open access, and can use it for whatever purpose they need.’”

The basic problem is that the legal status of the libaries' meta-data (information about works, such as the author, publisher, subject matter, etc.) is unclear, which means institutions would be wary of building systems on unreliable legal bases. As Creative Commons explains: 

Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished....CC0 helps solve this problem by giving creators a way to waive all their copyright and related rights in their works to the fullest extent allowed by law.

So it's a big deal that European libraries are lining up to cooperate and use the CC0 mark to clarify that all copyright and database rights have been waived, and are therefore legally available to be shared. We can all look forward to a flourishing meta-data commons among European libraries!