Source Michael Lahanas Hellenica World Scientific paradigms enter

Source: Michael Lahanas, Hellenica World

Scientific paradigms enter crisis states when they are unable to satisfactorily respond to challenges despite becoming more and more complex. Crisis states are the precursor to paradigm shifts. - Kuhn, The Structure of Scientific Revolutions

The copyright system has all the symptoms of a ‘crisis state’: - widespread discontent - massive increases in complexity - ad hoc adjustments …whilst still failing to satisfactorily address the challenges of the day.

Kuhn: When the old rules ‘no long define a playable game’ it’s time to make a new one.

An international collaboration: Rebecca Giblin (Monash) & Kim Weatherall (Syd) (co-editors) Dev Gangjee (Oxford) Martin Senftleben (VU, Amsterdam) R Anthony Reese (UC Irvine) Caroline Ncube (Cape Town) Jeremy de Beer (Ottawa) Christophe Geiger (CEIPI, Strasbourg)

The result of 3 years work: a collection of impossible ideas

Why bother?

Reimagining the current approach to copyright’s duration

The first copyrights lasted for 14 years, and could be renewed for 14 more.

Today’s minimums: Berne and TRIPS: life + 50 Aus-US FTA: life + 70

Copyright’s orphans: The copyrights of countless works outlast their owners’ interest in them, including: ~90% of photographs in UK museums ~70% of unpublished works (letters, maps, diaries etc) in Australian libraries

Main justifications for current terms: 1. To incentivise initial cultural production; 2. To incentivise further cultural production by producing rewards that will subsidize investment in new works; 3. To incentivise ongoing investment in existing works (ie to ensure their preservation and continued availability); and 4. To recognise and reward authors for their creative contributions.

Rationale #1 How well does the existing approach incentivise initial cultural production?

Assuming a real interest rate of 7%, $1 today = $0. 93 in 1 year $0. 0045 in 80 years $0. 0012 in 100 years

Rationale #2 How well does the existing approach incentivise additional cultural production by producing rewards that subsidize investment in other new works?

The evidence: it can happen, but windfall profits translate poorly to investment in new works that would not otherwise have been created

Rationale #3 How well does the existing approach incentivise ongoing investment in existing works?

The claim: ‘A lack of copyright protection … restrains dissemination of the work, since publishers and other users cannot risk investing in the work unless assured of exclusive rights’. – Marybeth Peters, Copyright Register, Testimony to US Congress

Paul J Heald, ‘How Copyright Keeps Works Disappeared’ (2014) 11 Journal of Empirical Legal Studies 829

The evidence: works restricted by copyright are actually subject to less investment and narrow dissemination than their counterparts in the public domain.

Rationale #4 How well does the existing approach recognise and reward authors for their creative contributions? Critical. Misused. Misunderstood.

Instrumentalist rationales: (like the first three we looked at) justify copyright as a means of achieving economic and social aims Naturalist rationales: rights recognise and reward authors’ contributions (per eg Locke, Kant, Hegel)

‘There is a strong moral argument … that as authors confer benefits on society through their creative activity - the provision of learning, instruction and entertainment this contribution should be duly rewarded. ’ – Sam Ricketson, ‘The Copyright Term’.

The ‘incentives’ component can go to anyone (society’s only interest here is in getting the works produced) But the ‘rewards’ component is justifiable for authors only

Artist hereby irrevocably grants, sets over and assigns to Producer throughout the universe, exclusively and in perpetuity, free and clear of any and all claims, liens and encumbrances, all right, title and interest of every kind whatsoever, whether now known or unknown, in and to the Material and all other results and proceeds of Artist's services hereunder.

Main justifications for current terms: 1. To incentivise initial cultural production; 2. To incentivise further cultural production by producing rewards that will subsidize investment in new works; 3. To incentivise ongoing investment in existing works (ie to ensure their preservation and continued availability); and 4. To recognise and reward authors for their creative contributions.

If we could reimagine current approaches to duration, how could we do a better job?

One possible alternative, via 4 stages: 1. 2. 3. 4. Automatic grant of rights as incentive for initial production Renewable, registration-based ‘creator right’ Transition to public domain Public domain

Benefits of the reimagined approach: 1. 2. 3. Secures more of copyright’s ‘rewards’ component to creators Facilitates investment in existing works Reclaims currently lost cultural value from copyrights that outlast their owners’ interest in the work

Another benefit: Fresh ideas for achievable reforms

Finding the wriggle room in Berne and TRIPS: - They dictate minimum terms, but not ownership - They prohibit formalities as condition of enjoyment and exercise of rights – but not on ownership transfers

Rebecca Giblin and Kimberlee Weatherall, What if we could reimagine copyright? (ANU Press, 2017). Free full text downloads from ANU Press website (or via link in packs to follow).