Depending on who you’re talking to, this will either be a terrible thing, because creators will be unable to earn a living and there will be no incentive to create great works – or a wonderful thing, because creators will find new ways to earn a living, without the involvement of greedy corporations and middlemen.
I dispute both of these points of view, because I feel they underestimate the vested interests involved in copyright. I fear that in future, copyright will go unquestioned and be unquestionable. My fears derive in part from my own recent experience in the development and implementation of copyright regulation.
When the Internet started posing a threat to copyright regulation, industry responded with the international adoption of a ‘notice and takedown’ procedure. This means that whenever an Internet service provider (ISP) is given notice that it hosts material which infringes copyright, then on the basis of that notice, the ISP removes the offending material from the Internet.
There is rarely any requirement that the copyright owner prove infringement has taken place. The complaint is simply taken in good faith, and the material is removed. This means that the Internet, so celebrated for granting the power of expression to anybody with a computer and a connection, is in fact subject to an industry monopoly over its content.
Of course, copyright itself is already a form of government-backed monopoly over words, sounds and images. And copyright existed over two centuries before the Internet did. But traditional copyright law also limits monopoly, seeking to balance private reward for creators of works with fair use of those works by the public. A key reason why the principle of fair use has survived, is that copyright disputes have traditionally enjoyed arbitration by a court of law.
While a court is far from being an ideal place to resolve a dispute (of any kind), fair use is a principle better protected in a court of law than it can ever be in the marketplace. Court procedure is (ideally) insulated from vested interests, and, whatever its shortcomings, at least takes place in view of the public.
When companies have the power to bypass the courts, and pull the plug on internet content with a mere claim of copyright infringement – as they do at present – then there is a unilateral emphasis on copyright as reward, rather than on copyright allowing for fair use.
This shift in emphasis has gone further in some countries than others. The US government, for example, has yet to abandon all responsibility for maintaining court arbitration of copyright disputes. Under the Digital Millennium Copyright Act (DMCA), an (alleged) copyright owner in the USA can easily have your content removed from the internet without the involvement of a court. The DMCA states that an ISP “shall not be liable for monetary relief”, provided that “upon obtaining … knowledge or awareness” of content that infringes copyright, it “acts expeditiously to remove, or disable access to, the material”.
But then as the content provider, the DMCA entitles you to force the dispute into court, where the copyright owner has to justify their complaint. (The DMCA says that if an ISP receives a “counter notice” from a provider whose content has been removed, that ISP can only absolve itself of liability for wrongfully removing the content if it “replaces the removed material and ceases disabling access to it not less than ten, nor more than fourteen, business days”. This then forces the rightsholder alleging infringement either to drop their case or take it to court).
Things are different in Europe, where the legislation which addresses online copyright infringement holds ISPs responsible for removing material. The commonly known ‘Ecommerce Directive’ says that “Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of a service”, provided that “upon obtaining … knowledge or awareness” of illegal content, the ISP “acts expeditiously to remove or disable access to the information”.
But the Directive contains no standard notice and takedown procedure. Rather, in a scandalous abdication of responsibility by the European authorities, the legislation encourages the marketplace in each member state to come up with its own standard procedure. (It says that “Member States and the Commission shall encourage … the drawing up of codes of conduct at Community level, by trade, professional and consumer associations or organisations, designed to contribute to the proper implementation of Articles 5 to 15”).
This is tantamount to the judge in a court case handing the plaintiff the keys to the prison, and telling the plaintiff to make up their own mind whether or not the defendant should be locked up. Since the internet makes it difficult to maintain both strict regulation of copyright (important for commerce), and due process in copyright disputes (essential to justice), governments have taken the easy option by preserving commerce rather than justice.
The most substantial effort to date by European industry to standardise a notice and takedown procedure is RightsWatch, a company funded by the European Commission (under the auspices of its Fifth Framework Programme) to investigate self-regulatory models for the regulation of copyright online. The company sets out to “investigate the hypothesis that self-regulatory procedures can fulfil stakeholder objectives more efficiently than law-based approaches” in copyright regulation.
The use of the term “stakeholder” here – rather than, say, “citizen” – is revealing. Because RightsWatch is a company and not a statutory body, it can only extend recognition to internet users in their role as paying customers of an ISP – rather than as citizens, with the right to free speech and a fair hearing.
When I recently published an article (on spiked) spelling out these criticisms of RightsWatch, I was invited to participate in one of its working groups as a representative of Internet users. This gesture was well-intentioned, but did nothing to assuage my fears about the exclusion of Internet users from the proceedings. Internet users never elected me to represent their interests, any more than they elected RightsWatch.
I accepted RightsWatch’s invitation to participate in their working group, so that I might observe the proceedings and raise my concerns with those present. This made for a somewhat surreal day, as the group sought consensus between all present on how the notice and takedown procedure might be developed, and I questioned the legitimacy of the procedure, thereby making consensus impossible.
I was left feeling less hopeful that the future of copyright can be determined by a public debate, about whether and why copyright is a good thing. Such a debate is essential, which is why I have been writing articles and organising discussions about copyright for the publication I work for, spiked – and why I welcome the creation of this copyright forum on openDemocracy. But the copyright debate has in many ways already been bypassed.
The future of copyright is being decided behind closed doors, by representatives of a nervous industry, who have been given decision-making powers by equally nervous governments, eager to wash their hands of responsibility for arbitrating copyright disputes.
And there is a danger that the involvement of critical voices such as mine, in the development of copyright regulation, will be used to claim that the public was consulted on the matter – whereas in truth, an unelected representative of the public was asked for his opinion, and there was no obligation to act upon that opinion.
Unless we restore the copyright discussion to a public and political debate, then in future, copyright will go unquestioned and be unquestionable.
