Copyright law is a little bit broken. Lawrence thought (thinks, presumably) so, Rufus thinks so, I think so. What’s to be done though? Efforts at legislative reform have, to date, been pretty ineffective. The issues are complex and difficult for laypeople to understand / care about, the opposing lobbyists are a powerful bunch, and it’s hard even to convince artists in whose interest copyright should be reformed of the benefits of doing so. How might we possibly fix it?
I’m going to keep my proposal brief, partly to avoid TL;DR-ism, and partly because it’s probably garbage, but here goes.
Creative Commons over Time
Legislative reform is a tough battle. Let’s just side-step it. Take the existing CC licenses and extend them to allow CC/T; the creator retains all the rights to their work afforded under “default” copyright until a nominated date, after which the work is covered by the nominated CC license. Instead of saying “CC BY SA”, you’d say “CC BY SA / T2015″. Until the expiry date is reached, the creator can exploit the work in whatever way they see fit, just as they can today under the “default” copyright regime.
How does that help?
The idea here (and I confess I’ve not talked to any artists) is that going completely CC is scary for artists whose living is made from their creative output. As fervently as you might believe their work would be better served by a CC license, it’s really tough to persuade people to “give away” their livelihoods. Instead, the pitch goes like this… Their work is going to end up in the public domain; everything created today is implicitly “PD / T2150″ (let’s say). All I’m proposing is that instead of using the default date, they choose a date themselves and a license for use after the date has passed. They might well choose “CC / T2100″, or “CC / T2050″, but it’d be an improvement.
In and of itself, that won’t achieve anything, but if you can convince artists to take control over the relationship between their work and society, that’s already a small win. The bigger win will require use of technology. Assuming some plucky evangelist can persuade artists to start using these licenses, the next step is to write a webservice to map the (for instance) ASIN for a CD / track / book to an expiry date. That done, you could a) set up you own shop highlighting the expiry date on the items or b) write a GreaseMonkey script to overlay the expiry date on Amazon’s existing shop. You could colour code works – Red for “PD / T2150″, Green if the creator has nominated an expiry date (we needn’t be any more divisive than that to begin with).
Working out the “correct” term
The plan, in case it’s not clear, is to let the market work out the “right” value for copyright term without global multilateral legislative reform. If you can get adoption and if you can raise awareness and if consumers actually care, what you might hope to see is a dutch auction in copyright term lengths. Artists could compete to best serve their fans by varying the amount of time they felt they needed to profit from a work. This won’t necessarily be the optimal value for society (consumers may underestimate the value to them of reduced term), but one would hope we’d end up with a smaller number for copyright term than that selected by legislation.
What about artists’ retirements?
It’s a commonly held misconception that part of copyright’s role is as a pension scheme for aging artists or a life insurance policy for their families. Society affords artists a temporary monopoly on their work so as to encourage them to create more work, on the understanding that the work is donated to the commons after that monopoly expires. It’s easy to find examples of outliers for whom extended term is a key concern, but the majority of artists won’t see continued revenue from their work that is anything like as substantial as the value to society of having all that work in the public domain. If they’re looking for a pension / insurance scheme one might politely suggest that they should invest in a pension / insurance scheme.
Won’t we just end up eating our CC babies?
There is obviously a risk in this that artists who might otherwise choose a pure CC license end up choosing to exploit their works under a CC/T license. Much like GPL vs. LGPL, we’d obviously prefer that CC/T licenses didn’t exist at all lest they tempt people away from the “right” answer. I think it’s a risk worth taking to try and accelerate the copyfight and get people thinking about the relationship between copyrighted work and society.