Proposal: Digital Millennium Cultural Heritage Act

[nekokami]

This is a proposal to curtail abuse of the copyright system. The idea would be to push for legislative changes in these directions. The US government is distracted with other things right now, but maybe our friends in the EU could help get things going there? We'll need to take this up with all governments (or at least all in the WTO) eventually.

Digital Millennium Cultural Heritage Act

Purpose: To preserve cultural heritage by ensuring that creative works remain available so long as any members of a community find them valuable enough to preserve.

Creative Works: Creative works (herein referred to as "a work") consist of any content created and distributed by the creator, including, but not limited to, text, images, music, video, or software.

Copyright expiration: the holder of the copyright of a work shall retain that copyright while the work remains in commercial distribution. If a work falls out of commercial distribution for three years or more, copyright reverts first to the creator of the work (if different from the former copyright holder and still living), and then, after a period of two years, to the public domain. Works entering the public domain in this fashion must still retain attribution to their creator(s) if distributed further.

Commercial Distribution: Commercial distribution is defined as the ready availability of a work for all fair use by any purchaser. Works in commercial distribution may not be restricted by any means to prevent such fair use, which includes, but is not limited to, presentation by accessibility tools, excerpt for scholarly or critical purposes, creation of personal archival copies, resale, or the ability of the purchaser to enjoy the work via any device or medium capable of presenting the work. Fair use does not include the distribution of a work currently in commercial distribution or substantial portions thereof to third parties, unless explicitly authorized by the copyright holder, other than resale of ownership to a single party (see below).

Non-Hinderance of Translation or Conversion: A copyright holder may not hinder the translation of a work to another language or to a format supported by a device capable of presenting the work. A copyright holder has one year after the initial request of the work in a human language or for a specific device in which to make the work available in that language or for that device. After this point, compulsory licensing may be used to compensate copyright holders for the translation or formatted version of the work as performed by a third party. This includes works not commercially in distribution as digital works at the time of the request.

Transfer of Ownership: Fair use of a work applies to the purchaser specifically for the period of time the purchaser chooses to retain ownership. If a purchaser of a work chooses to resell their ownership of the work, all copies of the work held by the seller must be transfered to the buyer or destroyed at the time of purchase.

Limited Licensing: Limited license forms of a work, such as rentals, leases, demonstration or time-restricted versions, etc. which restrict fair use do not qualify as commercial distribution for the purposes of copyright expiration or non-hinderance of translation or conversion.

[I considered adding something about equitable pricing between digital and non-digital versions, but decided to drop it and see if the market could take care of the problem.]

Note that this doesn't explicitly prohibit DRM, it just specifies that DRM can't get in the way of fair use by the individual user (or someone the purchaser wants to sell the work to). Which probably effectively eliminates DRM, other than, say, watermarking or similar schemes. But if the publishers can figure out a way to do it without blocking fair use, they can still do it.

Comments welcome,

[rlauzon]

Overall, I think this is fair and workable. It's similar to a proposal that Lessig (I think) made where once a work is created, the copyright holder has 10 years to register it. Failure to register means that the work falls into the public domain. Registration is only $1. Every 10 years, the copyright has to be renewed.

So works that are no longer commercially viable quickly fall into the Public Domain.

Originally Posted by nekokami

Commercial Distribution: Commercial distribution is defined as the ready availability of a work for all fair use by any purchaser.

Which means that almost all DVDs will not be "commercially distributed" because region encoding violates Fair Use.

IHMO, removal of region encoding is a good thing. But the MPAA won't like this at all.

I'd like to see a similar version of this for Patent reform: use it or license it in a reasonable amount of time, or you lose the patent. It would greatly reduce the effectiveness of Patent Trolls.

[NatCh]

Originally Posted by nekokami

Transfer of Ownership: Fair use of a work applies to the purchaser specifically for the period of time the purchaser chooses to retain ownership. If a purchaser of a work chooses to resell their ownership of the work, all copies of the work held by the seller must be transfered to the buyer or destroyed at the time of purchase.

I'd add one bit here:

"If a purchaser of a work chooses to resell or otherwise transfer their ownership of the ...."

Otherwise you'd have lawyers arguing that you couldn't give stuff away, or leave it as an inheritance, etc.

Other than that, I like it. I think we'd have quite a time getting it passed, but there you go.

[nekokami]

Originally Posted by rlauzon

Which means that almost all DVDs will not be "commercially distributed" because region encoding violates Fair Use.

This is no accident. Region encoding is one of the things I'm trying to tackle with this. And you're right, the MPAA won't like it. They won't like any of it. Neither will the RIAA. Somehow we have to find a way to get enough people behind this that it can pass anyway.

One point is that if the studios want to keep something in commercial distribution and still mess around with region encoding to try to control when a product is released in different markets, they can do that for up to 3 years, then come out with a region-free version if they want to retain commercial interest. Studios might actually go for this. They like to re-release "special editions" with a few extras to see if they can get people to pay for content again.

NatCH, good catch on the "otherwise transfer" line. Yes, you ought to be able to give away something you've purchased.

The language in this is fairly strong, under the assumption that it would get chipped away during the lobbying process. But not so strong, I hope, that it wouldn't seem like a reasonable starting position. I'd expect to have to negotiate on the time limits, for example.

I think the "cultural heritage" stance is key to getting attention on this, but there may be other good attention-getting arguments. I'm open to suggestion.

Another question is how to handle collaborative works. Most books have a single author, especially fiction, or a short list of authors, but the chain of ownership needs to be clear for any creative work. Suppose there are three authors for a book. Do they each get a shot, one at a time, for two years each? For 1/3 of 2 years each? If a movie falls out of distribution, the dvd distribution studio loses the rights, but who comes next? The producer? The director? Do the lead actors ever get a chance at ownership? Everyone in the credits, in order of appearance? This could be subject to reductio ad absurdum, with movies tied up while the key grip gets a shot at distribution. It will need to be spelled out in the draft of the bill.

[nekokami]

Useful references:
http://en.wikipedia.org/wiki/Copyright
Copyright law as expressed in a variety of countries. One useful point is the distinction between proprietary rights (droits patrimoniaux) and moral rights (droits moraux), more fully defined in French copyright law: http://en.wikipedia.org/wiki/French_copyright_law
In particular, moral rights may apply if a creator is unhappy with a translation produced without authorization on legitimate quality grounds.

http://en.wikipedia.org/wiki/Compulsory_license
The practice of enabling potential licensees to reproduce a work in the absence of production by the copyright owner.

http://en.wikipedia.org/wiki/Berne_C...Artistic_Works
The Berne Convention requires countries to provide copyright protection to works by foreign authors as though the works were copyrighted within the country. The lengths of protection are fairly extensive: 50 years after the author's death, for example. The Berne 3-Step Test is what we have to find a way to show compliance with: http://en.wikipedia.org/wiki/Berne_three-step_test
Short version:
Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.
1 - Certain special cases: cases where a work is unavailable to a purchaser due to format or language barriers. Is this "special" enough?
2 - conflict with exploitation: the copyright owner is not currently exploiting (distributing to) the market segment in question.
3 - Unreasonable prejudice vs. rights holder: compulsory licensing still provides revenue to the rights holder if the work is in commercial distribution, but what if a rights holder wants to stagger distribution of a large inventory so as not to flood the market and lower interest in their products? This is Disney's stragety with release of their movies. Is it a "legitimate interest" for them to restrict access to their works this way?

The closest parallel to what we want may exist in the Orphaned Works statutes of Canada: http://en.wikipedia.org/wiki/Orphaned_works Other countries are also considering the Orphaned Works problem. The critical issue may be to get out of print works and works which have not been translated/converted to available formats classified as Orphaned Works. Currently the copyright holder retains the right to refuse to keep a work "in print" (in distribution) in most countries, even if someone else is willing to take on the cost of distribution. Somehow we need to convince the Powers That Be that this is not in the public interest. The US copyright office is also considering the problem and released a report in Nov 2006 which at least recognizes the problem, though solutions are not proposed.

I'm quite serious about pursuing this. I invite everyone who is concerned about the DRM and e-babel situation to get involved in this discussion. If enough of us participate in the process of trying to get these laws updated, I think we can make a difference through this route.

[nekokami]

I've been thinking some more about the infrastructure to make this concept work.

Let's suppose that the copyright offices are willing to consider compulsory or statutory licensing, i.e. if someone wants to distribute copies of a work, they can do that, but they have to pay a fixed licensing fee per copy distributed. These fees are usually collected by collection societies which are set up to monitor distribution, collect royalties, and remunirate creators (pay them the royalties).

Now imagine a file sharing protocol (not necessarily peer-to-peer) that accepts uploads from anyone, but requires certain information to be entered to upload the file, namely the creator of the content. (It would be helpful if content could be checked against existing content held in the system for matches, as well.) The filesharing protocol notifies the collection society whenever the file is downloaded using the protocol, and as part of the download, the collection society assesses the statutory licensing fee.

Business opportunities:
The protocol could support collections of files and/or download links by third parties, so services could develop of finding and recommending specific content, possibly supported by advertising, similar to radio stations.

The protocol could support direct payments to the one who provided the file (the converter). Better copies (e.g. books with formatting and spell checking) might cost more. The identity of the person who provided the file would not be anonymous, but the system would be legal, so this should not present a barrier.

The protocol could support payments by the server rather than the downloader, so services could create alternate product packages, e.g. time-based subscription models, or could choose to derive more of their revenue from advertising and lower the portion of the statutory licensing fee passed on to customers.

The protocol could support some kind of affiliate program, so that someone who successfully recommends content could be compensated for their effort in locating and selecting/reviewing content.

A peer-to-peer version of such a protocol could support a fee for serving the file, rewarding a distributed service model, and further encouraging people to be honest about the source of a file, hopefully ensuring that the actual creator of the work is compensated.

Fees for works by creators unknown to the system would still be assessed for a period of time (e.g. 3-5 years), after which if no creator had been identified the work would be designated "orphaned" and would no longer bear a statutory license fee.

Potential problems:
- Someone could upload a file and lie (or make an error) about who created it, causing remuneration to the wrong party if the file is downloaded. However, a non-anonymous system as described in the options above could help limit this problem.

- Content creators/owners may object to such an uncontrolled system of distributing content. (Read Cory Doctorow's essays for examples of how vaudeville performers objected to the first radio broadcasts of musical performances.)

Key assumption: the easier it is to find and obtain content legally, the less likely someone is to bother stealing it. If the legal protocol/network has all the content people want, is easy to find, is safe, and is reasonably priced, far more customers will use it than will use the darknet. Some of the options above actually provide incentives to users to share files legally, as well, which the darknet typically does not.

It turns out, of course, that none of these ideas are new. The Electronic Frontier Foundation has suggested this idea among others (e.g. sales taxes on peer-to-peer file-sharing software, blank storage media, or even Internet access itself) as a constructive way to deal with filesharing.

[NatCh]

Thanks for the links, neko. I think the system you're describing bears some further development. It sounds quite promising to me.

[nekokami]

Interesting note: in digging around Wikipedia today, I found an article about the USPublic Domain Enhancement Act, which has been introduced in Congress twice (108th and 109th) and hasn't passed yet. It requires a nominal tax to be paid to keep copyright registered, hence allowing tracking of copyright holders so rights can be negotiated. If the tax isn't paid, the work goes into the public domain automatically 6 months later. Time to get it going in the 110th, I think.

(And while we're at it, we need to tell our congresscritters how much we hate the "PERFORM" act, and pressure them to vote it down. )

[nekokami]

And another one to support: Digital Media Consumers' Rights Act. From the summary provided by the sponsors of the legislation:

Reaffirms Fair Use. The DMCRA provides that it is not a violation of Section 1201 of Title 17 (the Digital Millennium Copyright Act, or DMCA) to circumvent a technological measure in connection with gaining access to or using a work if the circumvention does not result in an infringement of the copyright in the work. For example, under the bill a user may circumvent an access control on an electronic book he purchased for the purpose of reading it on a different electronic reader. However, if he were to upload the book onto the Internet for distribution to others, he would be liable for both a Section 1201 circumvention violation and for copyright infringement.

US citizens, call your congresscritters on this one.

[nekokami]

One more:

Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE) Act of 2005 (Introduced in House) - full text. Specifically legalizes DRM circumvention when practiced for "fair use" (i.e. non-infringing) purposes. Again, was introduced in 108th and 109th Congresses. Different sponsors than the DMCRA. These folks need to get together.

[NatCh]

Originally Posted by nekokami

...the "PERFORM" act....

What's that one? I don't think it's on my radar (not by that name, anyway) at present.

[nekokami]

The wikipedia entry on PERFORM is here: http://en.wikipedia.org/wiki/Platfor...ic_Act_of_2007

Ugly, ugly, ugly.

[NatCh]

Thanks for the link.

That is pretty nasty, all right.