[fc-uk-discuss] Harmonising free culture and IP maximalism

[Crosbie Fitch]

This is what I just tried to post to the Pho mailing list, but it was
rejected. :-(

I thought I'd post it to FC-UK just in case anyone finds it entertaining.

NB I believe the market will reject IP maximalism, so be careful to write me
off too readily as a closet maximalist. I figure that if one cannot rouse
the masses against exploitation by the publishing cartels, that one can
seduce the cartels into expediting their own destruction.

-----Original Message-----
From: Crosbie Fitch 
Sent: 06 April 2006 19:38
To: Pho (pho at onehouse.com)
Subject: Harmonising free culture and IP maximalism

I think I've figured out how to revise copyright law to simultaneously
please free culturalists, free software authors, creative commoners, as well
as IP maximalists.

We satisfy IP maximalists by finally recognising the concept of intellectual
property.
Even so, IP is already self-evidently applicable to unpublished works given
these works are wholly in the control of the author. So, no change there.
Where IP is difficult to apply is to published works. But, if IP maximalists
are going to succeed in their lobbying, perhaps it's best that if they do
get their way, it should be separated from the 'culural commons'. In other
words, rather than allow copyright to become reinforced to draconian
extremes (into a sociopathic monster), we adjust copyright to recognise the
modern realities of digital technologies (extreme ease and inexpense of
self-publication/promotion and reproduction/diffusion), but create separate
draconian IP protection legislation (that people can choose whether to
utilise/patronise).

I thus propose three new classes of work (more specifically, digitally
representable works):

Private IP: Unpublished works (possibly privately circulated)
Copyright: Normally published works, automatically copyrighted
Registered IP: Unpublished or Copyrighted works registered for protection as
IP

Private IP enjoys the same protection as registered IP, but registration is
optional, e.g. if the work is expected to be published.

Copyright as conferred to published works grants the author inalienable
moral rights (accurate attribution in copies or derivatives where
attribution is given, either explicitly or implicitly), and the right to
choose whether to register their work, or permit derivatives, as IP.
Copyright is not transferrable and can only be possessed by human beings
(individually or collectively). Ownership of registered IP however, is
transferrable. Being a matter of inalienable truth, moral rights concerning
attribution accuracy persist forever. However, the privacy rights of an
author (to veto publication of unpublished works and to remain anonymous
with respect to published works) terminate upon the author's death (though
may still be subject to others' privacy rights).

The key change to copyright is that public performance, reproduction, and
derivation of copyrighted works are now permitted as long as attribution is
accurate where given (moral rights), and that derivative works are either
clearly distinct (the work of the deriving artist) or true to the original.
This means transformative copies may be made without altering the sense of
the work, e.g. change in resolution/fidelity rather than Bowdlerisation
(unless clearly identified as a Bowdlerised derivative by another artist at
all times). What would have been permitted under fair use remains permitted,
e.g. excerpts for review.

Unlike copyrighted works, works registered as IP are considered wholly
within the control of the IP owner (irrespective of how practicable this is
post-publication). All moral rights remain preserved/unaffected, and
operations on (including possession or performance of) the IP require
specific authorisation/approval/license from the IP owner. This must either
be a) attached to the physical media, b) securely encoded within the work,
c) possessed separately by the person or company in possession of a copy of
the work (or conveying/transmitting/transforming it, etc.), or d) published
by the registration authority (a public license). It must be clear to a
purchaser of a retailed license that use of the work is strictly limited and
is subject to the strong protections enjoyed by registered IP.

Because a copyrighted work may only become registered IP with the approval
of the author (always the copyright holder if published), the author
effectively retains the same abilities as they had under the old copyright
regime, i.e. to elect to completely restrict their work, enjoy strong
protection of these restrictions by the state, and license authorisation for
various restricted operations as they choose.

In order to sanction such strong protection by the state, the work must be
commercially valuable and this can effectively be demonstrated by an initial
registration fee of $1,000 with renewal of $100 each decade thereafter.
Copies of the works must be lodged with the registration authority at the
time of registration (becoming public domain upon expiry). These works can
be inspected/viewed by the public on appropriate premises in person subject
to an administration fee - naturally, no copies are permitted. However,
hashes (MD5) of the registered works in each released format can be supplied
on request at no charge (in order to confirm possession of a particular
registered work).

Once permission to register a work as IP has been obtained from the
respective living authors, it may be protected up to 100 years after the
last author has died, subject to payment of registration and renewal fees
(which lapse after 1 year of non-payment). If such permission cannot be
obtained from the authors (they are dead and made no explicit instructions
in their will) then their published works can never be registered as IP.
However, this does not preclude a distinct ancestral or derivative work
being so registered (if the respective authors remain living). In other
words, whilst an author is alive they control whether their work may become
registered IP, and have veto over others' derivatives of their works
becoming IP. Upon death their work defaults to becoming permanently
unregisterable, and they lose veto over derivatives being registerable.

Once a work is registered it does not apply any control over copies of that
work or derivatives already in public circulation from previous publication,
except as far as vetoing derivatives becoming registered (unless permission
has already been granted). Consequently, it is advisable to register a
digitally distinct transformation of the work if already published.
Otherwise it may be difficult to establish the provenance of an unauthorised
copy.

This can be compared to a work initally published under CC-SA and
subsequently republished under full copyright.

Private IP must be clearly identified [PIP](for the benefit of those to
which it may be privately circulated). Similarly for registered IP, e.g.
[RIP].

Copyrighted works may be optionally identified as usual with (C), however
may also be signified as permanently barred from potential future IP
registration, by marking them appropriately, e.g. (U) for copyrighted, but
unprotectable. Effective dedication of a work to the public domain in this
way can be confirmed at no cost by supplying it to the registration
authority (credentials are required, but no penalty is applied if dedication
is subsequently determined to be invalid, e.g. insufficiently distinct
derivative). 

If it can subsequently be shown that a registered work has not obtained
permission from all necessary authors then the registration is invalid, and
costs may be awarded to the authors whose permission was not sought. It is
an offense to register a work as IP knowing one has insufficient permission,
or failing to demonstrate due diligence.

The DMCA, if not dissolved, is revised to apply only to Registered IP.

The effect of the above changes would be to embrace self-publishing and the
benefits of free culture, yet to preserve the ability of large, commercial
publishers to retain their traditional business models (for as long as their
stringent IP protection requirements remain acceptable to the market).

As ever, an author retains freedom of choice:
1) To retain their works unpublished at no cost (with strong IP protection)
2) To self-publish, with all moral rights, at no cost - retaining the
Registered IP option.
3) Immediately or subsequently register their works for strong IP protection
for a fee (or appoint an agent/publisher to do this on their behalf)
4) To self-publish and publicly waive their option to register - (equivalent
public domain dedication)

The important thing is that the default protections should represent those
able and likely to be self-policed by the populace in its own interests. Any
more severe protections especially those with draconian infringement
penalities should at least be explicitly requested by the would be IP owner,
and clearly brought to the attention of any IP purchaser/user.

It is considered that there is no longer any need to incentivise
self-publication by applying default restrictions, and that where such
incentivisation through restriction is required for works of high commercial
value this option remains available, but only for works willing to assert
their high commercial value in the form of a registration fee.

This proposal should apply to new works. Existing works may be freely
registered as IP (commencing at date of original publication) if within 10
years of this proposal being enacted, with a default public license
equivalent to the original copyright restrictions, and if this is done so
within their original copyright term. Registration and renewal fees,
however, remain payable if it is desired to extend protection beyond the
original copyright term, or to enjoy the restrictions not originally granted
by copyright - for which permission by respective living authors must be
demonstrated.

NB The above text is copyleft (U) Crosbie Fitch