Open past books and digitization - bernard lang - fossa2011
FOSSa 2011 Conference October 26-28, 2011, Lyon Openness TrackOpen Past : can books be opened by digitization? Copyrights Old Clothes after H. C. Andersen Bernard Lang AFULAFUL : Association Francophone des Utilisateurs de Logiciels Libres produced with the free software
My ideologyThermodynamics efficiency – darwinismHumanism recognition of author and work ( incentive)
A phase transition in the culture/knowledge ecology ● [ Digitization + Internet ] copy + send = $0 changes its economic and social laws ● This enables new economic, social, and legal engineering ● It also disables former economic, social and legal devices http://www.istockphoto.com/Copyright / IP Engineering must be consistent withunderlying technical, economic and social physics
Inadequacy of Intellectual Property in the digital world?● Digital creation are non rival : No natural marginal cost● Software Patents & Copyright : create marginal cost => Adulteration of natural economic properties Intellectual Property artificially induces rivalness Is it efficient ? Should we find better ways of remunerating creation ?
Value and Usage Value as social usefulness (rather than individual)● Material goods are rival => limited use (but property preserves value - tragedy of commons)● Digital creations are non rival => unlimited use but intellectual property limits use, hence reduces social valueIP is socially less efficient, unless there is another factorsuch as : Incentive to create – remuneration of creative work
IP is not a problem in material economy (usually) and sometimes a solution● Material goods are rival and have a marginal cost● Royalties for patents or copyright do not significantly adulterate possible economic models (usually)Ignoring the fixed cost of prototyping● Material production requires significant investment in capital● IP offers a more secure return on investment● Applies to both copyright and patents● But there are no production cost in digital “production” IP was created for professionals in a material economy it is now applied to average people in a digital economy
The case of written creation Copyright is the daughter of the printing press (~1450)● It started as a monopoly of stationers (16th and 17th century) enforcing individual monopolies over the printing of books The production investment was protected long before the Statute of Ann (1709) transferred the monopoly to authors who still usually return it to publishers, but receive royalties.● Royalties are just a share in the cost of each book and do not change much the economics.● Obligation to pay royalties for making copies became a basic assumption (nothing to be gained otherwise) and still is to this day : Books cannot be free Same reasoning applies to presentation rights (theater, ...)
International CopyrightTreaties : Berne Convention - WIPO Copyright Treaty - TRIPS● Exclusive right to authorize or prohibit use / exploitation: reproduction – making available – ... indexing ... ?● The rights and its exploitation are without formalities for rightsowner (except possibly in country of origin)● Moral rights (disclosure, attribution, integrity, ...) may vary● Possibility of exceptions or limitations to exclusivity, constrained by the 3-step test● Until 70 years after the authors death, never less. (20 years at most, fees and formalities for patents)
Some issues● Most works have a short economic lifetime very short when materialized (shelf cost) but longer when digitized : long tail● Publishers have no digital rights before 10 to 20 years ago● => many works are out of commerce● Rightsowners are hard to find (no formality rule)● Many works are orphaned – the rightsowner cannot be found to authorize exploitation – but still are of cultural interest. How can they be exploited ?
The rush on orphan works● Orphan works have existed for a long time● No one really cared● Specific laws (Japan, Canada) were seldom used● They are suddenly important ... because Digitization causes technical and economic changes – that make orphan works economically relevant – that make orphan works culturally more relevant easy access, search engine, global processing – that should – and will – evolve the legal system former solutions (no formalities) are now the problem
Some facts about the digital world● Copying is a technical part of the medium including format shifting and non consumptive copies● Making copies is no longer an economic activity Though selling copies could still be● Open / free access is now another normal exploitation very relevant to research and teaching (green paper) while commercial exploitation used to be the only way● Petabyte data bases, freely accessible worldwide at no cost to user, are now possible ==> Berne 5(2) “no formalities” is obsolete ... almost. a problem rather than a solution (to a 19th century problem)
The Google Book Search Settlement● Google scanned books to create an index - is it fair use ?● Publishers and Authors sued● It changed into a class action leading to a settlement Publishers and Authors pretending to represent all rightsholders (including orphan works RH)● The proposed settlement is a Registry enabled to sell in digital form all works under copyright and out of commerce. the profit being shared between all parties, 30% for Google and 70% for rightsholders registered with the registry.● It covers more than orphan works (no search for owners)● The settlement was rejected because it gave a de facto monopoly to the Registry, including Google, over all orphan works, and more generally unregistered works.
The French view● Google and the Registry should not be allowed to infringe the rights of foreign rightsholders (this is theft)● French rightsholders are pushing a French solution, though few details are available (secret agreement with ministry)● The solution is ~ Compulsory Collective Management● Which is essentially the Google solution without Google allowing exploitation of orphan work without owner search, and thus more than orphan works,● to the benefit of other rightsholders (authors, publishers)● And the theft is suddenly virtuous
The French motives● Orphan works are competition to new works● Orphan works are a good excuse for casual infringement by professionals (“Droits Réservés” – DR ) (particularly for graphics and photos)● The royalties of unreachable authors should be collected, so as to protect their financial interest● And the money can fruitfully be used for culture if they do not show up. They are adamant that any other solution to use of orphan works should impose a costly diligent search of rightowners In other words, they are not protecting the interest of unreachable authors, but their own.
My view● Authors increasingly favor digital visibility over royalties – => the royalties assumption is no longer warranted● Their moral right of unreachable authors to see their work survive and have a public has priority● Financial return is secondary and unlikely to reach them● Any cost or obstacle will reduce work survival ( diligent search, royalties ) unless it is a small part of the cost of non digital exploitation● Berne “no formality” is obsolete and a convenient fiction it can be replaced by a worldwide registration system● And works need to be digitally available on a massive scale, in the public interest.
Orphan Works directive proposal● Diligent search for rightsowners is circumscribed – To the country of origin of the work – To a fixed set of sources in relevant country => it can be mechanized in a database (ARROW) : => diligent search can be cheap, certified, dated● Orphan works can be made freely accessible by public cultural and educational institutions for their public interest mission.● Orphan works can be used for profit upon payment of royalties kept in escrow for resurfacing rightsholders ... A reasonable compromise ...
Merci “Auch wenn ich untergehe, lasst meine Bilder nicht sterben, zeigt sie den Menschen.”“Even when I am gone, do not let my paintings die, show them to the people” Felix Nussbaum, German expressionist painter, murdered in Auschwitz