Sunday, December 11, 2016

Fake News? Fake History! (About Copyright)

My copyright enthusiasm has led me to take a free online course: Constitution 101 offered by Hillsdale College.

Copyright is mentioned in the Constitution (Article 1, Section 8, Clause 8)  but in my opinion, copyright is also an Intellectual Property right, and the constitution upholds the right to own property. 

Certain opponents of copyright are alleged to have written such statements as: "We Jeffersonians know better. Copyright is not a natural right, entitled to protection at the expense of the public good."

The above link is exceptionally interesting. It is about how some academics who are hostile to the rights of musicians and songwriters especially (but, weakening of copyright for one group of creators opens the door to weaking copyright for all creators) rationalize the allegedly so-called retaliatory constructive termination of the recent Register of Copyrights, Maria Pallante.

"The public good" seems to be the excessive profitability of billion-dollar tech giants that stream or otherwise distribute music and other entertainment, and the "right" of members of the public to enjoy creative works as a perquisite that follows the subscription to- or purchase of certain apps or hardware or software.

Concerns have been expressed about the Library of Congress.

I would describe the Notice of Intent (NOI) Loophole as a variation on "orphan works". Remember the Hathi Trust project? The trick is that a big tech company that wishes to exploit ebooks or music without paying the author or songwriter simply "pretends" that they cannot locate the copyright owner or author. Therefore, under the "permissionless innovation" theory, they exploit the work and pay no one unless or until the copyright owner finds out about it on their own.

This is not the only problem.  Allegedly, "...some in the anti-copyright crowd...are promoting the Library's recent deal with the Berkman Center's Digital Public Library of America to turn a digitized Library of Congress into a kind of feeder to Kickass Torrents with sovereign immunity..."

Given digitization, and the fact that it is mandatory for every copyright owner to donate 2 copies of the best of the best of their works, to the Library of Congress, that quote about feeding torrents is not so implausible. The Library of Congress appears keen to monetize and distribute what's in their collection, if one can extrapolate from what Maria Pallante was ordered to do.

I appear to be the only skeptic about the USPTO push to discuss the Digital Marketplace. For those who wish to view videos of the entire day of events at the USPTO conference on on Friday, Dec 9th, 2016, follow this link:

For those who merely want a book-related summary, there were relatively few mentions of books or ebooks during the day. Encouragingly, the focus seemed to be a genuine and positive concern for a system to ensure that "the internet" should know who owns rights to any type of intellectual property.

Speaker Trent McConaghy (of Blockchain) testified that he would like a Kayak-like (travel industry analogy, not watercraft) system presumably for finding the type of digital intellectual property that one desires at the best price.

Speaker Bill Rosenblatt (I think it was he who made this remark) bemoaned the fact that a Federal Judge (Denny Chin, as I recall) threw out the Google Book Settlement that would have established a Book Rights Registry. That Book Rights Registry would have been very helpful to authors and those who wished to exploit authors' books.

What worries me is, who would pay for any eventual registry? We know that it has been alleged that creative-works exploiters like Pandora and Spotify want music creators (songwriters and performers) to pay for their own music registry so the music services don't have to go to the trouble of locating rights owners in order to pay them. Would authors, musicians, photographers, models, etc have to subscribe in order to be in a registry?

And then, once one is in the registry (at least one could be found and paid), would authors be treated like The Turtles? Just as music that was written and originally performed before 1972 has been treated as if it was out of copyright, and is now being awarded lesser royalties than music written and performed since 1972, could something similar happen to book authors?

Here's how royalties could get reduced without copyright owners getting a voice.

But... the good news is, we can have a voice.  Check out who is on the House Subcommittee on Intellectual Property, and drop them a line. Maybe an anticipatory thank-you note for looking out for authors. :-)

All the best,

Rowena Cherry

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