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Criticism of copyright

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Anti-copyright refers to the complete or partial opposition to prevalent copyright laws. Critics of copyright include infoanarchists, scholars, anti-copyright groups and groups that argue for fundamentally reformed copyright. The central anti-copyright argument is that copyright has never been of net benefit to society, and instead serves to enrich a few at the expense of creativity.[1] Anti-copyright groups may question the logic of copyright on the grounds of economics, culture and even spirituality. Anti-copyright arguments in the context of the Internet argue that copyright law need to adapt to modern information technology. More general anti-copyright arguments point to the fact that humans have always copied and establish arguments around the “need” to share or mash-up culture and knowledge.

Anti-copyright, or anti-patent arguments have been advanced with regards to affordable generic anti-AIDS drugs in developing countries. Anti-copyright and anti-patent arguments have also been advanced with regards to software (see Software patent debate) and Web 2.0. Recent developments around The Pirate Bay in Sweden and, what some commentators have termed "copyright wars", with regards to BitTorrent and peer-to-peer file-sharing, are underlined by anti-copyright arguments and sentiments.[2]

"Anti-copyright" is a phrase without legal meaning and an anti-copyright notice may be placed on material in order to encourage wider distribution.

Groups that argue for fundamentally reformed copyright include the copyleft movement[3] and the Creative Commons, which have developed their own Creative Commons Licenses.[4] These groups may be described as "anti-copyright" in reference to the fact that they oppose the currently prevailing copyright laws.[5][6] Pirate Cinema and groups like The League of Noble Peers advance more radical arguments, opposing copyright per se.[7][8] A number of anti-copyright groups have recently emerged in the argument around peer-to-peer file sharing, digital freedom, and freedom of information; these include the Association des audionautes,[9] and Defective by Design.[10]. Scholars and commentators in this field include Lawrence Liang,[11] Jorge Cortell,[12] Rasmus Fleischer[13] and Siva Vaidhyanathan.[14]

The classic argument for personal copyright is the view that granting developers temporary monopolies over their works encourages further development and creativity by giving the developer a source of income. [15] The anti-copyright response to this argument is that copyright has never been of net benefit to society, and instead serves to enrich a few at the expense of creativity. [1]

Anti-copyright arguments question the logic of copyright on the grounds of economics, culture and even spirituality. Anti-copyright arguments in the context of the Internet tends to argue that today’s copyright laws are redundant, unlikely to reign in Web 2.0 and hence, that laws need to adapt to modern information technology. More general anti-copyright arguments point to the fact that humans have always copied and establish arguments around the “need” to share or mash-up culture and knowledge.

Creative Commons

Often described as anti-copyright because of its criticism for prevalent copyright law, [5][6] Creative Commons states that it is not anti-copyright per se, but argues for copyright to be managed in a more flexible and open way. [16]

Creative Commons takes the position that there is an unmet demand for "copyright" that allows the copyright owner to copyright work as “Some rights reserved” or even “No rights reserved.” According to Creative Commons "many people" do not regard "all-out copyright" as helping them in gaining the exposure and widespread distribution they want. Creative Commons argue that their alternative Creative Commons Licenses allow entrepreneurs and artists to employ innovative business models rather than all-out copyright to secure a return on their creative investment. [17]

Creative Commons also argues that its licenses can be used by those who "get fulfilment from contributing to and participating in an intellectual commons". Creative Commons reasons that "many citizens of the Internet want to share their work -- and the power to reuse, modify, and distribute their work -- with others on generous terms." [4] This is particularly in the context of Web 2.0 and the increase in user generated content.

Like Creative Commons, the French group Association des audionautes is not anti-copyright per se, but proposes a reformed system for copyright enforcement and compensation. Aziz Ridouan, co-founder of the group, proposes for France to legalise peer to peer filesharing and to compensate artists through a surcharge on Internet service provider fees. Reportedly, major music companies have equated Ridouan's proposal with legitimizing piracy.[9] In January 2008 seven Swedish members of parliament from the Moderate Party ( part of the governing coalition), authored a piece in a Swedish tabloid calling for the complete decriminalization of filesharing. The Swedish members of parliament wrote that "Decriminalizing all non-commercial file sharing and forcing the market to adapt is not just the best solution. It's the only solution, unless we want an ever more extensive control of what citizens do on the Internet."[18]

Web 2.0

Anti-copyright arguments have proliferated with the rise of Web 2.0, which allows collaboration on a global scale (e.g. Wikipedia), but has brought with it a rise in copyright infringement. Commentators have pointed out that Web 2.0 "users" often do not realise that they are engaging in copyright infringements. For example, blogging and the associated passing around of articles and images may not be recognised as copyright infringement by the blogger, and/or not intended as such. [19] Hence Web 2.0 is part of a recent shift in our awareness and expectation of the Internet, which acts as the interface for almost instant, ubiquitous availability of information as and when required. [1] While many Web 2.0 users or companies do not advance consistent anti-copyright arguments, their actions and business models fundamentally question prevailing copyright. Companies, such as YouTube, Viacom and Google, may comply with requests to remove copyrighted material, but refuse to actively enforce copyright on their site. These companies argue that they do not have the power to prevent the uploading or downloading of copyrighted material. [20]

Scholars such as Rasmus Fleischer argue that copyright law simply seems unable to cope with the internet, and hence is redundant. He argues that the Internet, and particularly Web 2.0 have brought about the uncertain status of the very idea of “copying” itself. He argues that in an attempt to rein in Web 2.0, copyright law in the 21st century is increasingly concerned with criminalizing entire technologies. Leading to recent attacks on different kinds of search engines, solely because they provide links to files which may be copyrighted. Fleischer points out that Google, while still largely uncontested, operates in a gray zone of copyright (e.g. the business model of Google Books is to display millions of pages of copyrighted and uncopyrighted books as part of a business plan drawing its revenue from advertising). Fleischer's central argument is that copyright has become redundant with regards to the internet, that the cost of trying to enforce it is unreasonable, and that instead business models need to adapt to the reality of the darknet.[21]

The Darknet Theory

Main article: Darknet (file sharing)

Peter Biddle, Paul England, Marcus Peinado und Bryan Willman, Microsoft-affiliated researchers, published “The Darknet and the Future of Content Distribution” 2002. The paper investigated what they call "the darknet", a collection of networks and technologies used to share digital content (such as peer-to-peer file sharing and CD and DVD copying). The authors stops short of stating that copyright law has been made redundant by the rise of "the darknet", but state that "We believe it probable that there will be a few more rounds of technical innovations to sidestep existing laws, followed by new laws, or new interpretations of old laws, in the next few years." The paper discusses evidence that "the darknet" "will continue to exist and provide low cost, high quality service to a large group of consumers. This means that in many markets, the darknet will be a competitor to legal commerce." [22]

The authors also argue that people have always "copied", however in the past valuable objects were mostly physical and it was uneconomical or, when carried out on a large scale, stoppable using patent law or copyright law. They argue that this has fundamentally changed with the Internet and associated technologies, as valuable digital content can be copied at little cost and distributed on an unprecedented scale. [22] Kevin Kelly, the founding executive editor of Wired magazine, has commented that "When copies are superabundant, they become worthless, while things which can’t be copied become scarce and valuable. What counts in the end are “uncopyable values,” qualities which are “better than free.”[21]

Electronic civil disobedience

Main article: Electronic Civil Disobedience

One well publicized instance of electronic civil disobedience (ECD) in the form of large scale intentional copyright infringement occurred on February 24, 2004, in an event called Grey Tuesday announced as "a day of coordinated civil disobedience". Activists intentionally violated EMI's copyright of The White Album by distributing MP3 files of a mashup album called The Grey Album, in an attempt to draw public attention to copyright reform issues and anti-copyright ideals. Reportedly over 400 sites participated including 170 that hosted the album. [23][24]

Blatant disregard of copyright law by millions of Internet users every day on file sharing networks might also be considered a form of constant ECD in that people engaging in file sharing have decided to ignore existing copyright law.

Freedom of knowledge

Some groups, such as Hipatia, advance anti-copyright arguments in the name of "freedom of knowledge" and argue that knowledge should be "shared in solidarity". Such groups may perceive "freedom of knowledge" as a right, and/or as fundamental in realising the right to education, which is a internationally recognised human right, as well as the right to a free culture and the right to free communication. They argue that current copyright law hinders the realisation of these rights in today’s knowledge societies relaying on new technological means of communication. [25][26]

Copyright law is seen as preventing or slowing human progress. It is argued that the current copyright system needs to be brought into line with reality and the needs of society. Hipatia argues that this would "provide the ethical principles which allow the individual to spread his/her knowledge, to help him/herself, to help his/her community and the whole world, with the aim of making society ever more free, more equal, more sustainable, and with greater solidarity."[25]

Authorship and creativity

Lawrence Liang, founder of the Alternative Law Forum, argues that current copyright is based on a too narrow definition of "author", which is assumed to be clear and undisputed. Liang observes that the concept of "the author" is assumed to make universal sense across cultures and across time. Instead Liang argues that the notion of the author as a unique and transcendent being, possessing originality of spirit, was constructed in Europe after the industrial revolution, in order to distinguish the personality of the author from the expanding realm of mass produced goods. Hence works created by "authors" were deemed original, and merges with the doctrine of property prevalent at the time. [15]

Liang argues that the concept of "author" is tied to the notion of copyright and emerged to define a new social relationship - the way society perceives the ownership of knowledge. The concept of "author" hence naturalised a particular process of knowledge production where the emphasis on individual contribution and individual ownership takes precedence over the concept of "community knowledge". [15]

Relaying on the concept of the author copyright is based on the assumption that without an intellectual property rights regime, authors would have no incentive to further create, and that artists cannot produce new works without an economic incentive. Liang challenges this logic, arguing that "many authors who have little hope of ever finding a market for their publications, and whose copyright is, as a result, virtually worthless, have in the past, and even in the present, continued to write." Liang points out that people produce works purely for personal satisfaction, or even for respect and recognition from peers. Liang argues that the 19th Century saw the prolific authorship of literary works in the absence of meaningful copyright that benefited the author. In fact, Liang argues, copyright protection usually benefited the publisher, and rarely the author. [15]

Anti-patent

Main article: patent

A long standing argument against patents is that they may hinder innovation and give rise to "troll" entities. A holding company, pejoratively known as a "patent troll", owns a portfolio of patents, and sues others for infringement of these patents while doing little to develop the technology itself. [27]

Anti-patent medicine movement

Recently anti-copyright arguments have been advanced with regards to HIV and Aids drugs. Governments and companies in Brazil, India, Thailand and Uganda have started to challenge patents on medicine, arguing that human lives are more important than patents, copyright, international trade laws, and the economic interest of pharmaceutical companies. Anti-retroviral therapy has long been unaffordable for people suffering from HIV/Aids in developing countries, and proponents of generic antiviral drugs argue that the human need justifies the breach of patent law. When the Thai Government Pharmaceutical Organization started producing generic antiviral drugs in March 2002 the cost of a monthly treatment for one person plummeted from $500-$750 to $30, hence making treatment more affordable. In response the US government placed Thailand on the list of copyright violators. In 2007 the government of Brazil declared Merck's efavirenz anti-retroviral drug a "public interest" medicine, and challenged Merck to negotiate lower prices with the government or have Brazil strip the patent by issuing a compulsory license. [28][29][30]

It is reported that Ghana, Tanzania, the Democratic Republic of Congo and Ethiopia have similar plans to produce generic antiviral drugs. Western pharmaceutical companies initially responded with legal challenges, but some have now promised to introduce alternative pricing structures for developing countries and NGOs. [31][32]

Campaigns for affordable access to medicines, such as Oxfam, argue that developing countries are dependent on foreign pharmaceutical companies. Quoting a recent World Health Organisation report on intellectual property and public health Trevor Jones, director of research and development at the Welcome Foundation, argues that prices of medicines is rarely set by patents and copyright. He argues that "Companies set prices largely on the willingness/ability to pay, also taking into account the country, disease and regulation."[29]

In July 2008 Nobel Prize-winning scientist Sir John Sulston criticised the "moral corruption" of the medical industry. Amongst others Sulston said that the world is at a crisis point in terms of getting medicines to sick people, particularly in the developing world. Sulston called for an international biomedical treaty to clear up issues over patents and intellectual property. [33]

See also

References

  1. ^ a b c "Copyright - Critiques". Retrieved 2008-07-25.
  2. ^ Mitchell, Dan (August 2006). "Pirate Take Sweden". The New York Times.
  3. ^ "What is Copyleft?". Retrieved 2008-07-29.
  4. ^ a b "Frequently Asked Questions". Creative Commons. Retrieved 2008-07-25.
  5. ^ a b "Creative Commons is not anti-copyright". engadgeted.net. Retrieved 2008-07-25.
  6. ^ a b "Is Creative Commons Anti-Copyright?". Commons-Talk. Retrieved 2008-07-25.
  7. ^ "About". Jesper Cinema Copenhagen. Retrieved 2008-07-29.
  8. ^ "Steal this Film". The League of Noble Peers – Post Thing. Retrieved 2008-07-29.
  9. ^ a b Rose, Frank (September 2006). "P2P Gets Legit – The new Ascap: Audionautes". Wired.
  10. ^ Byfield, Bruce (May 2006). "FSF launches anti-DRM campaign outside WinHEC 2006". Linux.
  11. ^ "How Does An Asian Commons Mean". Creative Commons. Retrieved 2008-07-31.
  12. ^ Jorge, Cortell (May 2005). "Lecturer censored in Spanish University (UPV) for defending P2P networks". Own Website.
  13. ^ Fleischer, Rasmus (May 2006). ""Mechanical music" as a threat against public performance" (PDF). Institute of Contemporary History, Sodertorn University College.
  14. ^ "Siva Vaidhyanathan". Virginia Law. Retrieved 2008-07-31.
  15. ^ a b c d Liang, Lawrence (February 2005). "Copyright/Copyleft: Myths About Copyright". Infochangeindia.org.
  16. ^ "FAQ - Is Creative Commons against copyright?". Creative Commons. Retrieved 2008-07-25.
  17. ^ "FAQ - What is Creative Commons?". Creative Commons. Retrieved 2008-07-25.
  18. ^ Bangeman, Eric (January 2008). "Swedish prosecutors dump 4,000 legal docs on The Pirate Bay". Ars Technica.
  19. ^ Nations, Daniel. "Copyright Infringement - The Dark Side of Web 2.0 / Dealing With Web 2.0 Copyright Issues". About.com. Retrieved 2008-07-25.
  20. ^ Clarke, Gavin (April 2007). "Copyright protection warning for Web 2.0 start ups". The Register.
  21. ^ a b Fleischer, Rasmus (June 2008). "The Future of Copyright". CATO Unbound.
  22. ^ a b William, Bryan (2002). "The Darknet and the Future of Content Distribution" (PDF). Microsoft Corporation.
  23. ^ Kim, Melanie. "The Mouse that Roared, Grey Tuesday". Tech Law Advisor. Retrieved 2008-07-25.
  24. ^ Werde, Bill (February 2004). "Defiant Downloads Rise From Underground". The New York Times.
  25. ^ a b "Second Manifesto". Hipatia. Retrieved 2008-07-25.
  26. ^ "The Hacktivismo Declaration". CULT OF THE DEAD COW and Hacktivismo. Retrieved 2008-07-25.
  27. ^ "Patent troll definition and description". Retrieved 2008-02-15.
  28. ^ "Drugs give HIV patients longer lives in victory for anti-patent activists". Health & Medicine Week. August 2004.
  29. ^ a b Anderson, Tatum (June 2006). "Africa rises to HIV drug challenge". BBC News.
  30. ^ "Brazil's HIV-drug break down". gay.com. May 2007.
  31. ^ Anderson, Tatum (June 2006). "Africa rises to HIV drug challenge". BBC News.
  32. ^ "Brazil's HIV-drug break down". gay.com. May 2007.
  33. ^ McGrath, Matt (July 2008). "Sulston argues for openmedicine". BBC News.


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