THE CENTER OF THE COPYRIGHT CREATORS UNIVERSE:

21 May

If the populist Left accomplish their agenda of removing Property Rights in these days of battle to remove Guns n’ Bibles, the Founding Fathers’ American Constitution, making a Creator, the center of their creative copyright universe, will be eroded. Persons on the Left, salaried wonks and lobbyists, believe there should be no ownership of Copyright, further arguing the current term, of Life plus 70, is not only too long but should not exist at all because they believe nothing on the Internet should be owned at all or have been owned long enough.

Cool beans. I argue that all is fair in Love and Property Ownership, stating that highly paid proponents of a Free Internet should neither keep their paychecks nor their family heirlooms which I contend they have owned long enough, further stating that I will give up my copyright to others for free use when über paid athletes, actors and Warren Buffets , successors and accessors to his Wealth give up their rights and claims, until then?

GAME ON!

Two hundred years plus after the Founding Fathers established a precedence for Copyright Protection, a Property Right, the 113th Congress chastised from the bench that involved parties are talking at each other, not with each other nor with consensus. Chairman Coble of the Subcommittee of ‘Courts, Intellectual property and the Internet’ pointed out in his opening statement, disrespect is being shown to Intellectual Property Creators by Opponents who believe in a Free Internet.

 

The hearing, Subject, “A Case Study for Consensus Building: The Copyright Principles Project.”  

Committee minority leader Mel Watts applauded the We Right The Song event he attended earlier in the week, reminding those who exploit Artists there has been a shift in attitudes to Copyright Protections. Watts reinforced that Free Speech does not mean Free Stuff. Watts addressed those present in the Hearing Room, stating consumers deserve clarity over use of Intellectual Property, IP. Business models must accommodate the digital revolution keeping the focus on creators and not those who exploit them. Mel spoke out for the Committee’s position to enure the rights of the creators, stating the world will be better if the creative community’s rights are protected.

The Hearing witnesses are participants in a multi year program, The Copyright Principles Project,’ coordinated by Professor Pamela Samuelson. The project, A Case Study for Consensus Building: The Copyright Principles Project.” CPP participants have met a few times a year, a few days at a time, towards an end goal of consensus on revamping the United States Copyright regs to facilitate the shift of Intelligent thought in a technologically driven world. The Committee was stacked- lawyers, librarians, law professors and, as duly noted and chastised by Legislators- not one representative from the creative arts community. Professor Samuelson indicated her panel participants are all authors. An author on a salary as a professor, staff of the Registry of Copyrights, college does not equate an artist with a song in their heart or a chalk stick in their hands, hoping their passion will pay rent or put food on their table. True artists were not invited to the table. Samuelson said she would have had to invite 50 people. So she invited none.

Witnesses included Jon Baumgarten, former General Counsel of the  US Copyright Office, from 1976-1979 (witness 1); of North Carolina School of Law, a librarian (witness 2);  Dr. Daniel Gervais, Vanderbilt School of Law (witness 3);  Professor Pamela Samuelson,  University of Berkley School of Law (witness 4); and Jules Sigall, assistant general counsel of Copyright for Microsoft Corporation (witness 5).

The Copyright Principle Project report, released in advance of the Thursday late afternoon meeting, was impossible to read without pen in hand. By Page End,the right and left page columns were peppered with WTF and OMG’s. This report was not conceived of by creative sorts who rely on payments and royalties for survival. Thus was a report written by retired self interested self-described intellects with weekly paychecks, annuities and a need to publish, to stay relevant.

Witness 1: Jon Baumgarten adressed the Copyright Principle Project, the CPP, as a collegial session on stewardship facing the country. Baumgarten presented the result of paid for weekends away as real dialogue emanating from participants listening to each other. The process, developing the Copyright Principle Project, did not generate a great deal of agreement, Baumgarten said, rather, recording a lack of consensus requiring more study, as the exercise demonstrated how a committee can agree to disagree. Otherwise known as a stalemate though not being irrelevant. Baumgarten said the Copyright Principle Project recorded the nature of the disagreements, between proponents if the Free  Internet and their opposers, presenting the focus of the Copyright Principle Project more on the users of IP, Intellectual Property, rather than on the creators. Baumgarten said it is going to take patience to address this problem citing that people look for quick solutions for complex problems. Baumgarten, general counsel of  the Copyright Office in 1976 – 1979, a survivor of the earlier debates, made his point to state the tone of the debate rhetoric is important. Baumgarten said the pace for change is driven by people confused by the pace of technology  looking to push the past aside. Baumgarten, hesitated at being asked to speak for individual creators, does not feel the concern is or should be that copyright law is broken and dysfunctional. Baumgarten’s concern, he advised, is that each side listen to each other for solution as Copyright, countered as an impediment, things, rhetoric and debate, get loud.

Witness 2: Professor Laura Gasaway’s ‘walkaway’ of the trip to ‘Copyright’ consensus, she presented to the legislators  is that friendship and law dominated the panel she convened and that friendships evolved over the panels intermittent weekends away debating the Copyright Principle Project. Gasaway explained the community of her focus, on the importance of copyright, was institutions, educational users, archives and museums relying on Copyrighted materials ie books, mags, videos, internet, etc. Gasaway said the 1976 Copyright Act, effected during Baumgarten’s tenure as General Counsel for the Copyright Office, does not work well for library users. Gasaway speaks as a librarian, in a culture of cutbacks and free Ebola, etc on the ‘Net.’ Gasaway said she wants removal of regulations from statutes taken into consideration for the unique role of museums, archives and education. Gasaway wants expanded rights for  museums to utilize digital technology for preservation. Gasaway said, deferring to the European proposed model, she wants a repeal of  Statute 108 of the Copyright Regs, asking that the Register of Copyrights rely completely on 107, Fair Use. Gasaway failed to clarify to the legislators that Fair Use is heavily within Copyright defense, in that Fair Use means a shtickel, a little bit, not the whole enchilada of a photograph, artwork or story. Gasaway acknowledged that maybe addressing libraries and museums needs is thorny, followed by the issue of “the Orphan Works problem.”

 

There is no Orphan Works problem if one adheres to the Berne Convention. There is only an Orphan Works problem if someone wants to use IP that is not theirs, refusing to take no for an answer. Gasaway said Orphan Works is important to adress, stating that mass digitization is important for libraries. Gasaway said there is a group in the UK simplifying copyright law. Gasaway did not state that simplifying something is codifying it with an index, a summary, a short sheet. To allow people to understand Copyright Law, write a book for NOLO, the publisher who simplifies Tenant and other laws for consumers but leave the law alone- just bullet point it.

 

Gasaway said photocopying in law school is almost dead suggesting that most of the photocopied items are licensed, between what Westlaw and the Courts put on line. Gasaway said that law schools do pay for IP but their law students don’t, relying on free access to the Internet. Law school of today, Gasaway said, is multimedia, used both by students, teachers and librarians. As an academic, Gasaway admitted she is concerned with the abuse of her work. She is seeing a trend in her colleagues using more off the Internet as a licensed and real solution. Gasaway left out of her conversation consideration for Copyright Creators, excluding Copyright Creators even though she didn’t think she did. Congresswoman Judy Chu said Internet Copyright Infringement is a whack-a-mole process individual Creators feel they can’t win within effecting a take down that is then back up on the Internet within hours. Gasaway, feeling if the take down notice is not effective then it should be adressed by the committee, said the CPP project didn’t not water down Copyright Law but strengthened it. Then again, Gasaway is a librarian not a Creative who she feels there is a problem with. Rights have to be pursued through courts in a system that favors the big guys. Gasawat said compromise which is not a dirty word. Stop being polarized, Gasaway admonished the Creative IP community and focus on how to make work available. No truer words said from someone best described in my biggest lesson about Artists and Agents- a pimp/whore relationship between those who have nothing to sell and need something to sell hence the Artist is courted. Or here, where the artists community is pillaged by those who cannot generate the IP they so desire…..

Witness 3: 1790 <> 1903 <> 1976 . Three dates important to history in the issue of Copyright, pointed out Dr. Daniel Gervais, Vanderbilt School of Law, who sees Copyright creators as small businesses who should flourish. Gervais wants access to IP by Users, seeing a win-win on maximizing Authorized Use rather than focusing on Unauthorized Use. Copyright was once a set of rules negotiated between Users. The world has changed, said Gervais. The use of streamed movies requires a license. Technology makes it easier to use what belong to others. The international vista is beginning to look like a patchwork of rules. Licensing has become an important vehicle for artists, said Gervais. The future of e-industry as commerce depends on the ability to profit. Gervais wants power left in the hands of the Copyright Office, comparing use of IP to buying a car. A User must be registered to confirm details but a car sale requires that the person selling the car has the right to the car to make the sale. Gervais sees monetization as number one issue, recommending reviewing the licensing structure along with a review of formalities as to how royalties are linked to revenues, acknowledging that professional creators need a way to monetize their works. Gervais, challenging people who say they work on behalf of public interest, said he left Mobile out of his conversation. This was mind boggling, since Mobile is the way of the world, and marketing, at this time. The problem is when regulations are on the books people take advantage of it turning it into a model that fuels the antagonization.

Witness 4: Professor Pamel Samuelson convened the CPP, Copyright Principles Project, she said, after having spoke. with Copyright lawyers and the prior Register of Copyright. Samuelson describes the CPP as an effort to reach out to people of differing perspectives to maybe come to consensus. Samuelson describes the Statute as getting longer and complicated to read, stating the law was drafted in the 1960 s before the Internet. Samuelson’s focus is on public performance rights and not on 2d. Samuelson hoped the filed ideas in the CPP might lead to conversation. Samuelson says a better regime is needed to facilitate licensing, alleging there is not enough information out there. Samuelson says, in the high tech world that IP awards are excessive. Samuelson did not state excessive fees is not the world of the 2D creator. Samuelson did not adress the 2D world. Pamela sees the role of the individual as being an empirical issue needing research. Pamela said a conversation started with mutual respect, can move forward. Samuelson adressed Communication Rights applied to broadcasters. Samuelson did not adress the world of 2D. Samuelson simplified setting category by category at to this is what a performance right does, etc. Samuelson said there is a lot of good citing in the Copyright Law, in that it protects works for a period of time although she wrote the time should  be reduced. Samuelson said the consensus of Fair Ase of IP has allowed Copyright law to adapt during a time of change, feeling the antagonization is due to how people would be able to control their IP better but cannot not being effective as she hoped, fearing a toxic environment. That said no one knows what the net new technological advancement is, said Samuelson reminding that the Founding Fathers were themselves authors. Samuelson said the States had competitive Copyright laws, so a uniform law was valuable to transition to a national way of being as a country. Samuelson summed up there should be a focus on maximizing authorized  use citing the “simple laws” it took her 68 pages to write, acknowledging different types of users and how to retain users to fit in multiple categories.

Witness 5: Jules Sigall, assistant general counsel of Copyright for Microsoft Corporation describes a stress in the world of IP challenged by instant sharing in a smart world. Sigall sees Copyright as a way of enriching knowledge but not enriching people. Sigall said he speaks for Microsoft and their protection of Copyright but Sigall did not address Microsoft’s infringement on the rights of others ie with BING GALLERY using images without permission or license. Sigall sees sharing information as a tool in an information world. Sigall says the rules must adress the issue of information sharing but failed to acknowledge a culture of social entrepreneurs themselves fearing infringement creating a safe harbor to protect the technology companies, the technological version of the wolf in sheep’s clothing. Sigall feels a need for safe harbors for creators, at the speed and scale of the digital world. Sigall wants works unlocked from owners who don’t care for them, a technological version of Children Protective Services, it seems, able to remove a child from a perceived, or real, environment of danger. Would that not be like role playing the man who kidnapped three women, convincing himself they were safer with him, all the while abusing them for ten years or their lifetime which ever came first- mercifully, ten years came first.

The legislators Q & A showed there is spine in the Committee. The Committee adressed piracy a Microsoft concern, using a takedown system, relying in cooperation of Internet providers around the world. The Good v Evil story was avoided with a focus on trying to unerve each other w Copyright being a functional matter. The legislators reminded the panel that Section 1201 is in place for protection of technology right holders.  

While Cloud Computing is delivering legitimate services, making them valuable, it was acknowledged that things, IP violation, are not going to change but going to continue so there must  be a better way of letting people know how to get hold of,artists, ie databases for copyright authors. Such databases exists. They can be tapped into. But databases come with fees and costs. Artists won’t want to absorb or cannot afford those costs. There was curiosity whether  strengthening penalties might overreach and burden legitimate use of Copyrighted materials.

Congressman Hank Johnson noted the absence of writers from the CPP, also noted the Copyright change should be in consideration of international partners.

Congresswoman Chu on the Creative Rights Caucus expressed concern there were no creators on the CPP panel and none at the hearing today. Chu, noting  Copyright law has contributed to the economy,  is concerned for what will be if the existing law is continued to be watered down. Copyright must allow transformative technology respecting the creators that are needed. Modifying the act so it can be understood easier and simplified for people was put on the table.

Poe said the Copyright law is twice as long as war and peace and not as funny. Poe said America is better because we have the concept of copyright. Then Poe asked what is good about the law now? What is the worst part of the law. The panel took long to respond and review.

Congresswoman Bass asked the meaning of commercial exploitation and if every download isn’t just that- commercial exploitation. Bass said once people needed someone to download for them but, now, people can download themselves having the notion that personal use is an exempted activity. Bass noted that WIPO is meeting next month to tweak copyright law for the visually impaired. . There are countries, super region meetings where some countries are invited and other countries are not invited, putting counter treaties forth to the proposed treaties. Bass did not acknowledge that blind or not, permission should be sought for use of IP. The heart of a creative person is empathetic. The average designer won’t say no

Congressman Collins reminded the Founding Fathers knew every thing has an owner and incentivisation is important. Atlanta is one of ghetto five start up locations in the country. Digress with the report.

Congressman Holding asked why the current Copyright and discussions have become polarized. Witness 3 said because it is important to people who invest time and effort into their engine of creation.

Congressman Jeffries asked about the founding fathers, wanting to know how to strike balance in the competitive environment that exists now. Asked thoughts on strengthening penalties for piracy, he had no answer.

Congressman Descant queried on the use of academics as experts. Academics are IP creators with a paycheck. Noted report focused on utilitarian principles rather than property ,rights the founding fathers  believed were important, citing CPP report said copyright is not a property’s right that it is a utilitarian right.

Congressman Mel Watts summed up the query for 20 pages as proposed by the CPP repudiant Pamela Samuelson. Samuelson said Copyright law can be be done in 20pages. It would have to be enforced and by whom. Not the copyright office, since they have no enforcement. Property theft is perceived as property by the Founding Fathers who envisioned culture of property and people never imagining those principles would be stomped on by a group who want things free….

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