Should we kill copyright in order to save it?

One of the more interesting workshops at the C2MTL business conference in Montreal last week was the provocatively titled “Let’s Kill Copyright: The Future of Protecting Online Creative”, presented by internet law expert Allen Mendelsohn and sponsored by digital media library 123RF.
“Copyright has got to be the most boring subject in the history of the universe,” said Mendelsohn, questioning his workshop participants’ motives for being there at all.
Shouldn’t we be out having fun, he implied, wading in the balloon pool and getting inspired by some of the more “up with everything” workshops that are the conference’s forté?
“How am I supposed to compete with yoga robots?” asked Mendelsohn, referring to a presentation from the previous day that did in fact feature two cute little robots performing a yoga routine. “I’m a lawyer talking about copyright, and there are robots doing yoga. I just can’t compete with that.”
Mendelsohn announced that his Master’s of Law thesis was on the subjects of copyright, the internet and torrenting, otherwise known as downloading movies, TV shows and music.
“As a result of that, I’m considered pretty much an expert on torrenting,” he said.
“An argument I hear all the time is, ‘Look, I’d like to pay the creator of Game of Thrones for the copy that I downloaded, but really it’s HBO that’s making all the money off Game of Thrones. It’s not Benioff and Weiss,” referring to the TV show’s creators.
Poor old George R.R. Martin doesn’t even get a look in on that equation, never mind the army of actors, musicians, screenwriters, technicians and HBO executives who helped build the show.
Truly, it takes a village to prosecute you sitting at home, illegally downloading music and films and infringing copyright.
You can probably already guess how this workshop is going to go. In theory, sorting out copyright seems straightforward enough. You copy something without asking, you pay the price. In practice, however, it is endlessly complicated.
Are the existing systems of copyright enforcement adequate to dealing with technologies like torrenting? Obviously not. Might this workshop come up with some unorthodox solution, perhaps involving a radical new technology, like say the blockchain, to protect creators’ rights?
To get the workshop participants going, Mendelsohn asked us a question. “Copyright. Does it work on the internet? Does it work in the 21st century? I’m not sure that it does. And I make my living with copyright.”
At the end of his presentation, Mendelsohn divided the workshop into groups and challenged us to brainstorm possible solutions, or even a replacement, for copyright.
“Maybe together we can figure out a way to kill copyright dead. Stab it in the heart with a dagger,” said Mendelsohn.
Before setting off on this task, Mendelsohn defined copyright in its narrowest legal sense, namely “the right to copy”.
Copyright, he reminded us, is distinct from a trademark or patent, such as Apple’s pending U.S. Supreme Court legal tussle with Samsung regarding its patented rounded smartphone corners.

“Copyright. Does it work on the internet? Does it work in the 21st century? I’m not sure that it does. And I make my living with copyright.” – Allen Mendelsohn

In law, copyright is meant to protect “works”, or the published expression of a creative idea, whether written or photographed or, in the case of music and moving pictures, recorded.
Pointing to the fact that the copyright system is a geo-political hodegpodge that varies from country to country, Mendelsohn makes the case that enforcing copyright on the internet is simply untenable, or at least extremely difficult to effectively enforce.
There’s the WIPO treaty, the Berne convention, the ratified but yet-to-be-implemented Trans-Pacific Partnership, which contains all kinds of new, very problematic proposals regarding intellectual property and copyright.
These treaties are supposed to protect holders of a copyright in one country from infringement in all signatory countries.
And how is that working out for everyone? Not very well, from the looks of things. Would it simply be better to jettison the whole thing and let people copy digital work to their heart’s content?
Now that the barrier to copyright infringement is simply “copy” followed by “paste”, what is the point of even trying to stop it?
And seeing as everything relies on the ability and willingness, or inability and unwillingness, of authorities in those countries to enforce copyright, maybe it would be better to just call the whole thing off.
Artists and writers wince when you use the word “content” to describe their work, and rightfully so. The word is an insult to any self-respecting writer, musician or artist.
A novel read on an e-reader, or a symphony listened to via an online stream, may not be on the same quality level as a series of subliterate tweets, but they’re all published works.
And that’s what’s changed with the switch from the analog era into digital. Social media and the internet in general is a publishing platform.
What’s important is not so much what’s being watched or read or listened to, but the fact that people’s lives are spent consuming media digitally.
Downloading an album puts the listener in a different relationship than someone who physically goes to a record store, flips through stacks of records, chats with the salesclerk, and then brings some music back home so they can listen to it on a turntable.
To borrow a line from Marshall McLuhan, “The medium is the message.” Or to put it a little differently, “platform” matters.
We’ve reached the point where experts are now talking about an imminent age in which “everything is media”, the word “everything” meaning our interaction with reality itself, from self-driving cars to television, shopping, education, government, social life, the supply chain, public transportation and more besides, all mediated by data, algorithms and sensors connected to devices constantly in interaction with “the cloud” and each other.
Good luck policing copyright infringement when “everything” becomes media.

“The internet crosses borders, but for the most part the law does not.”

“Copyright was invented in 1709, in something called the Statute of Anne,” says Mendelsohn. “In 1709, it literally took three weeks to even get to another country. So they weren’t thinking, in 1709, about the implications of country-to-country copyright. Now, in the 21st century, that’s all we think about.”
Since the invention of the printing press, humanity has struggled with how to protect the work of art in the age of mechanical reproduction, with varying degrees of success or failure, from the memorable “home taping is killing music” campaign of the 1980s, through the sampling controversies relating to rap music around that time, to Napster and the near-death of the record industry.
The problem of copyright is that it still relies on the geo-political realities of the 18th through 20th centuries, whereas the internet, at least in theory, is global.
“The internet crosses borders,” says Mendelsohn, “but for the most part the law does not.”
Judged on adherence to the intent of copyright protection measures versus the effectiveness of enforcement, the actual outcome has been to enrich middlemen and various people standing along the supply chain, minimizing the return to artists and creators while juicing the audience for maximum profit.
From the turn of the century onward, it is arguable whether the “level playing field” or “information wants to be free” model promised by the internet’s first wave during the 1990s has delivered an improvement for independent copyright holders in the 21st century, compared to the excesses of the film production, publishing and music industries in the 20th.
Even so, there must be a 21st century solution for the problem of copyright.
If someone in some other country steals an image or a music file or a piece of writing that you are the author of, how are you going to a) prove that it’s yours and then b) get the authorities to enforce your copyright?
Practically speaking, all anyone can do now to prove authorship is either develop sharp eyes and ears, or use the Image Identification Project from Wolfram Research, or Canadian start-up TinEye, with its Reverse Image Search, which promises to identify the authorship and origin of a digital image.
Other types of intellectual property, specifically trademarks and patents, must be registered to be valid. You’ve got to go to the trademark office or register a patent with the appropriate authority.
“There’s always a record for trademarks and patents,” says Mendelsohn, “and it’s much easier to find out if you’re violating someone’s trademark or patent, because it’s registered.”
Copyright, on the other hand, is automatic. If you publish a work, it’s copyrighted at the moment of publication, or “fixation” as the legal term puts it.
This applies as equally to a tweet or a blog post or the uploading of a photograph to social media as it does to the publication of a paper novel or the release of a vinyl record.
Your cat video is copyrighted to you the moment you put it on the internet, for the life of the author plus 50 years if you’re in Canada, or 70 years if you’re in the United States.
But unlike with patents and trademarks, your copyright isn’t registered anywhere. It simply exists.
And that’s the main part of the issue, is establishing a record for authorship and then enforcing it.
It would be great if existing copyright treaties and means of enforcement were re-balanced to protect and favour the creators of works, formerly known as artists.
“If you create something, you should have the right to earn the profits from what you create,” says Mendelsohn.

“Copyright lawyers, we’re very bad at this. We always look to the authorities, to the judges and the lawmakers, from the top down setting the rules. Maybe we should be setting the rules as a community.”

Probably the most important judicial ruling in Canadian history on copyright came out of a case regarding photocopying of legal materials at Osgoode Hall law school in Toronto, which produced a line delivered by the Supreme Court, stating that “the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”
Most artists, in Canada or anywhere else, will laugh at that term “just reward”, but let’s assume they’re talking about money.
The judgement seems straightforward enough, if you can agree on what constitutes a “just reward” for a creator (aka. artist) in exchange for dissemination of his or her work, modulated by “the public interest”.
The see-saw holding up the two sides of that relationship between creator and “user” rights rests on the word “balance”, with the artist sitting at one end and the audience sitting at the other.
If we can agree that it’s in the public interest that writers, filmmakers, musicians and artists continue to exist, then we could probably also agree that “content”, in its digital form at least, should be somehow paid for.
It’s difficult to compete with free, after all. But since downloadable and streaming media along with clickbait journalism have become normalized, the idea of convincing the end user to pay for original music, films, journalism or writing that they enjoy is probably a ship that has already sailed.
Further bending this see-saw and distorting the sense of balance between creator and audience are a couple of extra-legal actors, namely middlemen, in the form of publishing platforms or means of distribution, not to mention the whole public relations industry, who ensure that we all know about the work of Radiohead and Taylor Swift but not of the other 99% of artists and creators, pushing those works into our shopping carts at the expense of less well-known artists.
However, the problem of middlemen, whether they’re there to physically sell you the work, or to convince you that this artist is worth hearing over others, is a thornier problem that may have more to do with psychology than how material gets distributed.
All the same it’s a problem, that may very well have a technological solution.
“This is the biggest problem on the internet today,” says Mendelsohn, returning to our thesis, “the theft of content. When someone has put up a video or anything, any creative content on the internet, it’s stolen immediately. The person who created that content is no longer getting their just reward.”
And so Mendelsohn throws down the gauntlet to the bright minds of a bunch of C2MTL attendees, tasked with brainstorming a solution to the problem of what to do about copyright in the digital age.
“Or maybe,” he suggests, in keeping with his workshop’s title, “we’re not supposed to protect creators.”
The radical proposal on the table is to either find a framework that’s more effective than the current system for enforcing copyright, or to simply admit defeat and enter a new era in which all digital content is free to copy and free to exchange.
Let the brainstorming begin.
At the end of a half-hour or so of the groups discussing amongst themselves, the proposals put forward fell broadly into two opposing camps: 1) let’s create a global central authority dedicated to validating and protecting copyright, and 2) forget it; everyone is on their own.
Considering that the challenge put to us was to find a 21st century solution for a 21st century problem, our actual ideas were disappointingly mired in 20th century thinking.
One participant even suggested, when asked, that each person’s attitude to digital content likely depends on how old you are, and that the younger generation’s idea of how an artistic work moves around on the internet is different than someone whose ideas of culture were formed in the 20th century.
A central authority, or a United Nations-style bureaucracy for copyright? Even as everyone nods approval around their table at the suggestion of it, you can already sense how well that’s going to work out in practice.

“…the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” – Supreme Court of Canada

The absolute majority of artists that I know (and I’ll speak now as someone who’s got a Master of Fine Arts degree), are basically allergic to interacting with an overly centralized anything, whether that be a bureaucracy or gatekeeper or authority of any kind.
Art industries, on the other hand, like record companies, publishing houses, and film production studios may respond a little more positively to the idea, but they also have the resources to pay lawyers to deal with this newly established bureaucracy.
Stepping gingerly outside my status as a journalistic observer, I mentioned to the group the existence of blockchain technology, which most people associate with Bitcoin.
And while Bitcoin as a digital currency may or may not ever catch on in a widespread way, it has nevertheless become clear that blockchain, the technology behind Bitcoin, has widespread uses for validating exchanges between people and/or institutions, both in terms of proving a document’s authorship and in terms of getting paid.
The suggestion went down with muted acknowledgement, but at least it was put into the air, even if it was received with the same enthusiasm as a suggestion to replace dollar bills with pine cones or sea shells.
Reluctance to take a serious look at blockchain technology, particularly Ethereum, as a solution to the copyright problem is likely down to its novelty, seeing as Ethereum was introduced by 21-year-old Torontonian Vitalik Buterin late in 2013, with a full public version of the platform only arriving this past February.
That hasn’t stopped Ethereum’s traction, however, in the worlds of law, banking, voting, insurance, and various other industries where it seems poised to end the era of middlemen entirely, doing away with traditional paper contracts, and replacing them with “smart” contracts as proof of work.
Some artists are already testing the use of blockchain for proving copyright and as a peer-to-peer distribution network that also ensures payment.
Given the inability, though, of some of the brightest minds at C2MTL (which are some very bright minds, indeed) to come up with an answer to this problem, blockchain may merit a look as a 21st century solution to an old and evolving problem.
“Copyright lawyers, we’re very bad at this,” said Mendelsohn, concluding his workshop. “We always look to the authorities, to the judges and the lawmakers, from the top down setting the rules. Maybe we should be setting the rules as a community.”
Which is exactly what Ethereum smart contract technology would enable.
With Canada’s Copyright Act apparently scheduled for review in 2017, it may be time to bring such forward-looking proposals into the discussion.