Copyright discussion

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For us common creatives, there is something called "copyright" that is meant to protect our work. Much like patents, that protect the ideas of inventors who invent new machines, it was supposed to do the same for artist's ideas.
Does it still serve it‘s purpose? What is the best way for a common creative to find a place in an ever-changing society (and economy)? The following text is meant to provide inspiration (not fully grown solutions) to the topic of copyright. Trying to raise a discussion about what copyright is, what it is not and what it should be.

The history of copyright

The cause was the invention of the press in 1440. The process of publishing was complicated and expensive. Margins for authors were low. Someone reprinting a book, wouldn't pay the original author at all and often produced bad quality, or even changed the text without permission. Copyright itself was introduced in: England 1710, France 1791, USA 1795, Germany 1871 to prevent that.

In 1886 the Berne Convention introduced international minimum standards to protect literary, scientific and artistic works. It also introduced limitations to copyright holders, allowing a fair use of their work.

Since due to technological limitations publishing has been a costly process, it became a business. The so-called „publisher“ would take the effort, risk and cost off the creators and do the publishing for them - for a fee. A whole ecosystem of companies helped to ease all steps from production to delivery. Given the high costs, getting into the market to compete with existing companies was difficult. Also due to the limited number of companies not everybody who did wish to publish was actually able to do it, thus limiting the number of publicly recognized creators as well.

With growing markets and growing numbers of copies sold revenues went up as well. Undoubtedly a creator who has been successful in the past can be expected to be successful in the future. Thus reducing economical risk and enabling the creator to demand higher prices. This was the dawning of the era of super stars.
With rising margins the companies created a global market for creative work making it available to everybody. When growing market diversity made business-to-business licensing a time consuming process, companies did step in to bridge the gap. They did handle the license sales and enforcement for the copyright holders - for a fee. Their work played an important role reducing the effort for both customers and publishers.

And still in the mid-90ies all these companies started getting into difficult waters. Many are blaming the internet and unauthorized copying.
Did things change BECAUSE of the internet? Not really. Truth is that these companies were necessary to bridge a technological gap. They were solving a problem, providing an important service to the creator. What happened is just the same as what did happen to many other businesses: the technological deficits have been solved and the gap has been closed. The high costs of production and publication that were the reason why these companies came into existence in the first place have been reduced dramatically. The companies still provide a service, but it is no longer exclusive to them. Self-publication has become a realistic option as the internet allows creatives to reach large audiences at virtually no cost.

You have 1 missed call: Cassandra

Did really nobody see it coming? Was it inevitable? Again: not really.
The first thing a company has to understand - and we as software developers have told the story a thousand times - is that the internet is not a publication channel. It is an aggregation medium. The internet is not about publishing content but providing the right content whenever you want and wherever you want.
How to do that? First you need to convert all your relevant work to a unified, structured format since otherwise you will not be able to search it for meta data. Second you must modernize and automate your production process. Otherwise you will not be able to offer on-demand services.
We as software people have been through this in the print industry during the least 10 years and did face a lot of opposition. It was when people began to realize that automation of business processes also means that some positions within the company are becoming obsolete. We also had to slowly convince them that introducing a new software does not magically solve all their problems. They had to learn that the whole business process had to be modernized - instead of just replacing a software tool. As a company, when your customer‘s needs change you cannot simply re-brand the same old product and expect things to continue as normal. You will have to adapt. You may also realize that the new needs of your customers create a different market than the one you were used to. Thus the earlier you adapt to these changes the more time you got and the better are your chances of being successful.
We thought we were stating the obvious - but instead the call remained unheard.

So while some companies did their homework in time and are doing quite well, others did not. In a market economy obsolete business models will vanish over time. If as a politician you try to prevent that from happening you do not save the business, you harm the market.

Is there any chance that a company can survive opposing the market? Definitely: no. The internet has opened publication to everybody. If you own a company that is trying to sell content, you now have up to 16 billion competitors doing the same. The crowd of common creatives produces more content per minute than the whole industry does produce in a year. Even if you doubt my words and come up with a more defensive calculation: you will find out that you still have no chance. And if try to make the world choose between your content and YouTube: you are out of business.

Cui bono?

Whom does copyright really protect? Creative professionals like to think that it’s them, the creators of the content. This is not true. Copyright protects the (commercial) copyright holder. In the majority of cases this is not the creator, but some company that holds the rights to commercially exploit the work. Company contracts may even contain a clause stating that any of the employees artistic work is their property, thus leaving the creator empty-handed.

How is it handled? In some industries like the music business large companies (like the German GEMA) handle the collection of fees from copyright users. The money is pooled and used to pay shares to copyright owners. This was meant to encourage people to produce art and work as artists. Actually it may work when the ratio of copyright owners to users is favorable. But what happens with several million copyright owners all demanding a fair share?
The majority of creatives will pay money into the pool but get much less (if anything) back. Thus discouraging young people to enter the market. The instrument that was meant to push the market now keeps it down. In the end the idea of having a centralized institution to handle valid demands from a decentralized community of creators may just not be the best way to solve the problem as it discriminates many creatives.

Why most of us won't need copyright

As a software developer, I personally don't care for individuals that ignore my copyright.
The margin on private contracts has dropped so significantly that the market might as well be dead. I do believe that you won't want to threaten every cat lady or school kid out there with a law suit just because they might have copied some of your material.

Why use Open Source? Take a look at an Open Source license: the GPL. It states you may copy the software, sell or modify it, or sell the modifications, as long as you allow everybody to do just the same. Very simple. Does this mean we are giving software away for free? Of course not! It does not state that you may not demand payment and it does not state that you are forced to publish the code on the internet. It just demands that you don‘t sanction your customers on what to do with your work once they have already paid you.

Also the idea that other companies might step in, copy your software once it is Open Source and drive you out of business is bogus. The Open Source license states that any new adaption to your software must again be Open Source. The best thing that can happen to you is when somebody DOES copy, modify and sell your software. As in that case the other company will take all the commercial risk, spend the marketing budget, do all the development for you and in case they are successful selling the modification you can always port it back to your original software since the modification is Open Source as well. So whatever they do will help to improve your product - even if they fail.

Also remember: you are the prime creator of the product. So no matter how many companies successfully pick it up, when customers are looking for first-hand expertise they will always turn to you. Thus a clever competitor will join you as a business partner rather than trying to fight you on the market.

In fact: the worst thing that could happen is that nobody picks up your product and nothing happens at all. What means you haven‘t lost a thing.

Another problem that Open Source solves is, that freelancers and SMBs don't easily gain access to high value contracts. This is because customers think, that they are too fragile or even lack the necessary man-power to provide the requested services in the long run. In that case classic licenses and service contracts would go down with them and thus cripple the company who is dependent on their services.
Thus it's hard to compete against larger contractors - unless you are an Open Source company. If a product is Open Source you can always hire somebody to maintain it. This significantly reduces the risk of investment, making small businesses more attractive.

Also as far as I‘m concerned: 90% of my income is paid for adapting my software products to a customer's needs and for offering support and maintenance to ensure it stays that way. The 10% I lose for not selling licenses won't hurt me. Especially when you remember that you may save far more than 10% by using Open Source as free advertisement for your company.

So in total: Open Source is a win-win situation for software developers and customers. That‘s why it‘s a good idea to use it.

What about authors?

As an author I usually hold no copyright, since I sold it to my publisher.
Margins for authors have dropped significantly in the past years. In the year 2000 I would earn 200 Euro per printed page in a magazine. Today it's 50 - if I get anything at all.
So basically I don't write for the money, but because I want my voice to be heard. I wish to be copied, translated and re-published. So please do!

While some publishers may not want to be copied I realized that some others have started putting copies of key articles or older magazines online themselves to increase traffic to their websites and earn money through advertisements. As an author this is of course something I fully support. As again: I want to be read and if somebody is getting some money out of it along the way I won‘t care.

In addition some publishers even have started to provide additional services. The first in line to name is O‘Reilly of course. They were an early adopter of on-demand services and flat-line access to all their works on the web.

For books the story is slightly different as most young authors will realize that instead of earning big money by selling a book they will even have to pay the publisher in order to be published at all. At least: if they want their work to be printed on paper. This is where the internet really helps common creatives to do their first steps for free: in order to be read - not sold.

Does the author need restrictive copyright? Not really. Using a copyleft license model to protect your business won‘t harm: neither the publisher nor the author. Again the worst thing that could happen is that nothing happens at all.
The best case scenario is that somebody translates and publishes your work in another language, thus opening a foreign market for you for free! Providing access to readers that you would otherwise never have had the chance to reach at all. Why is that more interesting than the virtual risk of having others re-publish your work? Because if you wish to be successful in the long run your aim should not be to sell a one-time product, but to create a brand that sells itself. Also if you proof to be successful another author could as easily write something very similar to your work and publish it under another name: copyright won‘t prevent him from doing that. As a historic example see the case of „The Wizard of Oz“ by Frank Baum compared to „The Wizard of the Emerald City“ by Alexander Volkov.
Thus the real deal is of course to protect your brand - which has nothing to do with copyright at all.

What about photos?

There still is a market for photography, but the time-frame of relevance is getting much shorter. If you shoot a current event the photos will be worth a lot less next week, or next month. Some customers even rent a license for a certain period of time instead of buying the photo.
I thus see no point in having a copyright protecting an artist's work for 50 or even 75 years in most cases, not only concerning photography but also many other works.
There may be exceptions – paintings, famous portraits, commissioned works – but those are few. So in general copyright could be limited to a shorter period of time with no harm to the vast majority of creatives, while providing a great benefit for the culture of our society.
Plus (again) as a photographer I don't care for private use. Copy it, remix it, show it to your friends - as long as you don't publish it to the masses or sell it to the media, I consider it fair use. I make photos because I want them to be seen, remixed and re-published. The worst thing for a photographer is not being unable to sell pictures, but to have nobody who cares about your work.

What about music?

Is music still what it used to be in the 80ies?
If we pay for music, we would want to use it on our primary music device. For most people this will be a MP3 player, smart-phone or computer. Thus you may want to copy it to a hard-disc (either on computer, home cinema, or media center). Given that the technology has improved a lot since the 80ies you may also expect to see at least a video - not just hear the music.
In addition, creating and publishing music has become cheap and easy. Jamendo.com alone had 30,000 albums listed in 2010. In 2011 it have already been 52,000! All available for free by common creatives. According to statistics published by the German „Bundesverband Musikindustrie“ the number of commercial albums released in 2010 by all companies was just about 15,000.
So if music sales are dropping I do believe it's not because people copy music, but because people consume music in a different way than they did 30 years ago.
If you want to earn money in the music industry today, I would suggest: go on tour. Play at concerts. And possibly make a tour video about it. Sell T-shirts. Sell soft-drinks. And (as always) seek business to business contracts. Just don‘t file a law suit against kids for doing the same that you have done with your cassette recorder when you were young.

Conclusions

I believe, the copyright we have today is good for just one little thing: prevent the market from growing. It is protecting large industries that would normally have to face massive competition by common individuals, groups of artists, and SMBs.
I suggest to start selling "services" around the artwork/product - instead of focusing on the content itself. The additional value created through these services is what makes us competitive.
For freelance artists I would suggest to try to gain access to the local community. You won't stand a chance if you try to solve every problem on your own. Give away portions of your work for free, so others have a chance to judge for themselves. Finally I suggest to seek out business to business contracts.
I personally think the "media crisis" is here to stay. Because it's a symptom of the constant change of markets and society as a whole. We should accept it as an opportunity.
We now have a chance - as a society - to start being more creative than ever before. The coming century may not just see one Mozart or Shakespeare but many, as more and more people get a chance to be heard. It’s time to embrace this opportunity – encourage the growth of creative commons. I believe this much more important than to ensure short-term profits by reducing consumer rights to protect those companies who have failed to adapt to a changing market.

(ac/tom) Diskussion