Copyright is more important than privacy, says top EU court advisor

We recently wrote about the preliminary decision of Advocate General Szpunar, an advisor to the EU’s Court of Justice of the European Union (CJEU), concerning geoblocks. The same Advocate General (AG) has come out with another opinion, this time concerning important questions of copyright and privacy. The basic issue is whether EU Member States can require Internet Service Providers to allow copyright companies to access information about the IP addresses of users. As the digital rights organisation EDRi writes in a post on Szpunar’s latest opinion:

retention of traffic data constitutes a serious interference with fundamental rights. For traffic data and location data in general, only targeted data retention is allowed for the objective of combatting serious crime. [Previously] the CJEU clarified that the IP address assigned to the source of an internet connection can be retained for a limited time for all users.

The CJEU’s rationale for this is twofold: the source IP address is less sensitive than other traffic data, and access to retained IP address data might be the only means of investigations for some crimes committed online. However, in light of the seriousness of the interference, only serious crimes can justify the general and indiscriminate retention of source IP addresses.

That would seem to rule out giving access to IP addresses for copyright infringement, which is not a “serious crime”. The EDRI post explains:

The AG rightfully notes that infringements of intellectual property rights cannot amount to a serious crime (point 74). Therefore, access to IP addresses retained for the purpose of fighting serious crimes in order to sanction copyright violations is contrary to EU law as it currently stands.

However, this conclusion is “unsatisfactory” for the AG as he fears “systemic impunity for offences committed exclusively online” such as the unauthorised distribution of movies via file sharing or online defamation. AG Szpunar believes EU law should not go against national measures that force the mass retention of IP addresses to combat any type of offences, even very minor ones.

The only condition for retention of source IP addresses should be that investigation and prosecution of the alleged offence is not possible by other means than access to this data.

That is, Szpunar admits that copyright infringements are not serious crimes, but nonetheless goes on to ignore that pertinent fact, and to recommend that privacy should be trampled upon simply because it is supposedly not possible to identify people any other way. Leaving aside the fact that the last part is probably not true – it is extremely hard to hide your identity completely when you go online – there is a larger point here.

As this blog has noted many times, it is easy to copy digital artefacts, and the Internet functions by making multiple copies as it sends data around the world. It is not surprising that it is impossible to stop people from making copies and sharing them online. Instead of accepting this as a fact of digital life, copyright companies have succeeded in convincing politicians that copyright laws must be made even more harsh in a forlorn attempt to stamp out unauthorised copies. As this latest opinion from Szpunar shows, this logic implies that if all other approaches fail, even privacy must be sacrificed on the altar of copyright maximalism.

For the moment, this insane prioritisation of copyright over fundamental human rights is only a recommendation. We have to hope that the full CJEU recognises how unbalanced this is and ignores it in its final judgment, which will be handed down in due course.

Featured image by Laurent Verdier.

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Digital books do wear out – just like digital music, digital films and video games

There’s a great post by Brewster Kahle on the Internet Archive blog with the title “Digital Books wear out faster than Physical Books“. He makes an important point about the work involved in providing and preserving digital books:

The Internet Archive processes and reprocesses the books it has digitized as new optical character recognition technologies come around, as new text understanding technologies open new analysis, as formats change from djvu to daisy to epub1 to epub2 to epub3 to pdf-a and on and on. This takes thousands of computer-months and programmer-years to do this work. This is what libraries have signed up for—our long-term custodial roles.

Also, the digital media they reside on changes, too—from Digital Linear Tape to PATA hard drives to SATA hard drives to SSDs. If we do not actively tend our digital books they become unreadable very quickly.

The issue is particularly acute for this sector because ebooks potentially offer huge advantages over physical ones, which therefore encourages libraries and archives to adopt that format. Unfortunately, the latter are faced by two sets of problems: the one mentioned above, and the fact that publishers are making digital books less useful than analogue ones in order to boost their profits, as I detailed in Walled Culture the book.

Of course, ebooks are not the only digital artefacts subject to the problems pointed out by Brewster. Digital music and digital films also wear out in the sense that formats change and the media they are stored on must be replaced as technology progresses. It also applies to the world of video games – a cultural area often overlooked. Moreover, video games – like ebooks – are typically locked up using Digital Rights Management (DRM), which adds a further challenge to preserving them: it’s generally against the law to circumvent that DRM, even for purposes of making backups or changing its formatting.

In other words, the problem of archiving digital creations is hard enough, but thanks to copyright, it’s often impossible. So much for copyright supporting creativity…

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If Twitter goes down in flames, what happens to its huge and historically important collection of tweets?

This blog has just written about the likely loss of a very particular kind of culture – K-pop live streams. Culture is culture, and a loss is a loss. But potentially we are facing the disappearance of a cultural resource that is indisputably more important. I’m talking about Twitter, and its vast store of tweets that have been written over the last 16 years of its existence.

We have rather taken Twitter and its key role in modern culture and public discourse for granted. But the recent purchase of the company by Elon Musk, and his idiosyncratic decisions since doing so, have (a) raised the possibility that Twitter will go bankrupt, as Musk himself has allegedly said, and (b) made people realise how much of value would be lost if that happens.

There is no ongoing independent backup of Twitter. There was to begin with: the US Library of Congress (LoC) signed an agreement allowing it to create a complete Twitter Archive for a while. That ran for 12 years, during which time billions of tweets were collected. As an update on the Twitter Archive explained in 2017, the decision not to collect everything thereafter was taken because of the dramatic increase in the number of tweets; the fact that the Library of Congress only received text, but many tweets were more visual than textual; and the increase in potential tweet length from 140 to 280 characters. The LoC also noted that its partial collection already “documents the rise of an important social media platform”, and that in any case, it does not aim to “collect comprehensively”. As a result, it started adding tweets on a more selective basis. It concluded:

The Twitter Archive may prove to be one of this generation’s most significant legacies to future generations. Future generations will learn much about this rich period in our history, the information flows, and social and political forces that help define the current generation.

I would argue that this was still true after the archive was halted; whether it will be in the future, remains to be seen. Nonetheless, at the very least we are faced with losing many, perhaps most tweets from the years 2017 until 2022. That’s because as far as I am aware, no one else is receiving a full feed of tweets in the way the Library of Congress was. The indispensable Internet Archive holds snapshots, but there is no guarantee it has a particular tweet.

Downloading and storing all tweets directly from the public Twitter service is not possible. That’s not so much for technical reasons – it would be a challenge but surely not beyond today’s advanced systems – but because of copyright. Twitter’s Terms of Service state:

You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).

Making copies of billions of tweets without permission would be too risky for any organisation to contemplate, given the huge costs involved in such a project. Obtaining that permission from hundreds of millions of Twitter users to make copies of their tweets would be a licensing nightmare. Whatever happens as a result of Elon Musk’s changes to the service, that copyright problem is not something that is going to disappear. As a result, what the Library of Congress rightly called “one of this generation’s most significant legacies to future generations” will always be at risk of disappearing forever, leaving the valuable but incomplete archive the LoC holds, but does not make publicly available.

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Top EU court’s advisor points out that geoblocks can be easily circumvented: time to get rid of them

One of the central ideas of both Walled Culture the blog and Walled Culture the book is that copyright simply doesn’t work in the digital world. One proof of that fact can be found in the ridiculous concept of geoblocks. This is the idea that you can carve up the Internet according to geography, such that somebody in one nation or region cannot access something that is meant for another country. This arises from Big Copyright’s desire to sell many smaller, local licences to material that add up to more than would be obtained by selling a global licence. That might have worked well with physical objects like books, which can be stopped at the border, but doesn’t work with the digital packets of the Internet, which can’t be stopped there.

It’s true that there are various technical schemes for trying to block a person in the “wrong” geographical location from accessing material, notably by checking where they are sending their Internet packets from. But there is an easy way to circumvent such moves by using Virtual Private Networks (VPNs). These essentially allow a user to appear to be in any country where the VPN has a local server, a so-called ‘exit node’. Although it is possible to block such nodes once they become known, they can easily be moved to different Internet addresses, so that the cat and mouse game begins again.

Although VPNs have been a fact of life for many years, the courts have only just started to catch up with their legal implications. An important case involving them is currently working its way through the Court of Justice of the European Union (CJEU), the EU’s highest court. It is about people in Austria using VPNs to access a service that was designed for customers in Serbia and Montenegro only, because of licensing limitations.

The final judgment from the CJEU has not been made yet, but we do have a kind of preliminary view from one of the court’s specialist advisors. Advocate General Maciej Szpunar’s opinion (no English version) on this case is by no means binding on the CJEU, but is likely to be an indication of how the court might rule. In his commentary, he made the following important point (via DeepL):

As is well known, neither in the virtual nor in the real world are there any protective measures that cannot be circumvented or violated. This can only be more or less difficult. The same applies to geographical access blocks. Different types of technical means, including VPN services, allow these blocks to be circumvented, in particular, by virtually changing the user’s location. Although technical means exist to counter such practices, they are not, and probably never will be, fully effective – progress in violation techniques is always one step ahead of progress in protection mechanisms.

VPNs are a fact of life, Szpunar acknowledges, and attempts to counter them are unlikely to be fully effective. That being the case, geoblocks make very little sense, since anyone who is determined enough can use VPNs to access material. Certainly, Szpunar has not gone so far as to say that geoblocks are pointless, or that they should be abandoned – quite the contrary. However, it is an important step on the road that leads to a more rational copyright approach recognising the global nature of the Internet, and the impossibility of enforcing copyright’s old analogue rules there.

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V Live, the largest archive of K-pop live streams, will soon be V Dead: what happens to all that culture?

When people speak of culture, and preserving it, they usually mean the works of recognised artistic giants like Shakespeare, Leonardo Da Vinci, Charlie Chaplin, and Miles Davis. They rarely mean things like live streams of Korean pop music, generally known as K-pop. And yet K-pop is undoubtedly an expression – some would say a particularly vibrant expression – of a characteristic modern culture. It is also subject to copyright, which brings with it problems, as this story on Mashable reveals:

On Monday, Oct. 31, South Korean live streaming app V Live notified users that it’d be shutting down on Dec. 31, 2022. The closure isn’t a surprise — in March, HYBE, owner of the competing app Weverse, announced it had acquired V Live and intended to close the app — but it is a bummer for artists and fans. V Live is the largest-ever archive of live-streamed K-pop content. Where will that content live on when the app goes dark?

Owned by Naver, V Live launched in 2015 as a tool for Korean artists to connect with fans. They did that primarily through live streams, which were then saved in the app as on-demand videos. As K-pop exploded in global popularity, V Live connected these entertainers with an international audience who watched them eat meals, celebrate birthdays, and produce music in real time.

V Live is therefore a great example of how artists can use the latest technology to forge closer relationships with their fans around the world – something that Walled Culture has been advocating as a key element of finding new ways to fund creativity.

According to the Mashable article, some of the recordings will be moved to Weverse’s own platform. Specifically, recordings of artists who join Weverse before V Live is shut down. Weverse has also said that artists can download their V Live archives in order to upload them elsewhere. That’s all well and good, but it still leaves many musicians facing the possibility of their streams disappearing forever, because they are unable to move them to new sites, for whatever reason.

One issue in this story is the concentration of power in this sector, a typical problem that bedevils most of the copyright world, as I discuss in Walled Culture, the book. The main problem, though, is copyright itself. In a sane world, relevant cultural organisations would be able to download all of the streams on the V Live site as a matter of routine in order to preserve them for posterity, as important cultural artefacts of the K-pop world. Copyright naturally forbids that, seeing preservation as infringement. As a result, K-pop culture is likely to lose some of its characteristic moments, for no good reason, and to no one’s benefit.

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Canada is planning to take the EU’s link tax as a model for one of its own new and bad copyright laws

One chapter of my Walled Culture book (free download available in various formats) looks at how the bad ideas embodied in the EU’s appalling Copyright Directive – the worst copyright law so far – are being taken up elsewhere. One I didn’t include, because its story is still unfolding, is Canada’s Bill C-18: “An Act respecting online communications platforms that make news content available to persons in Canada”. Here’s the key idea, which will be familiar enough to readers of this blog:

The Bill introduces a new bargaining framework intended to support news businesses to secure fair compensation when their news content is made available by dominant digital news intermediaries and generates economic gain.

In other words, it’s a link tax, designed to make big digital platforms like Google and Facebook pay for the privilege of sending traffic to newspaper publishers. The full depressing story of the copyright industry’s greed is retold in Walled Culture. But a fresh perspective on this latest link tax comes from one of Canada’s top copyright experts, Professor Michael Geist. He has been writing blog posts about Bill C-18 and another terrible proposed copyright law, Bill C-11, on his blog for a while. They are well worth reading for anyone who wants to follow what is going on in Canada and in copyright generally. Geist has recently written a great post about Bill C-18, entitled “Why Bill C-18’s Mandated Payment for Links is a Threat to Freedom of Expression in Canada“:

The study into the Online News Act continues this week as the government and Bill C-18 supporters continue to insist that the bill does not involve payment for links. These claims are deceptive and plainly wrong from even a cursory reading of the bill. Simply put, there is no bigger concern with this bill. This post explains why link payments are in, why the government knows they are in, and why the approach creates serious risks to the free flow of information online and freedom of expression in Canada.

Geist explains how the Canadian government is being dishonest by trying to suggest the bill is not really about forcing platforms to pay for links, just forcing them to compensate news publishers in some way for using those links. Geist also points out how C-18 would require links to news material from big publishers to be paid for, but not those from small media outlets. That in itself reveals this bill is about rewarding a few corporates at the expense of smaller publishers. Also troubling is the fact that “the bill effectively says that whether compensation is due also depends on where the expression occurs since it mandates that certain venues pay to allow their users to express themselves.” Geist rightly points out that this would set a terrible precedent:

Once government decides that some platforms must pay to permit their users to engage in certain expression, the same principle can be applied to other policy objectives. For example, the Canadian organization Journalists for Human Rights has argued that misinformation is akin to information pollution and that platforms should pay a fee for hosting such expression much like the Bill C-18 model. The same policies can also be expanded to other areas deemed worthy of government support. Think health information or educational materials are important and that those sectors could use some additional support? Why not require payments for those links from platforms. Indeed, once the principle is established that links may require payment, the entire foundation for sharing information online is placed at risk and the essential equality of freedom of expression compromised.

That sums up neatly why the whole link tax idea is so pernicious. It seeks to privilege certain material over other kinds, and would turn the fundamentally egalitarian glue of the World Wide Web – links – into something that must be paid for in many cases, destroying much of its power.

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The Czech Republic’s proposed version of upload filters has a bad idea that could become a great one

A clear demonstration that the EU Copyright Directive is a badly-drafted law is the fact that it has still not been implemented in national legislation by all the EU Member States three years after it was passed, and over a year after the nominal deadline for doing so. That’s largely because of the upload filters of Article 17. The requirement to block copyrighted material without authorisation while fully preserving users’ rights is probably impossible to put in place in any straightforward way. As a result, national legislators have had to come up with various kinds of approximations when drawing up their local laws.

Over on the Communia blog, Paul Keller has a good exploration of how the Czech Republic is tackling the issue. The current Czech proposal is particularly interesting because it is one of the first to be available after the EU’s top court, the Court of Justice of the European Union (CJEU), brought a little clarity on the safeguards that need to be included in national implementations of Article 17. Notably, the language of the latest version of the Czech law:

inserts one of the core findings of the CJEU ruling — that platforms can only be required to detect and block content on the basis of the information provided by rightholders and cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by the platforms — into the Czech implementation. While it does so by referencing concepts developed by the [Advocate General in his opinion on the CJEU case], instead of the criteria from the final judgement, it is a welcome addition that will offer a better protection to users’ rights than the literal implementation [originally] proposed by the government.

Another innovation by the Czech lawmakers rightly tries to address the problem of platforms that repeatedly block or remove lawful user uploads. Unfortunately the way it proposes to do that is to shut down the entire platform. As Keller writes:

While it provides a powerful incentive for platforms not to overblock, invoking this remedy would result in substantial collateral damage that negatively affects the freedom of expression of all other uses of the affected platform.

So what could a more reasonable — and less harmful— remedy look like? What if instead of threatening to shut down the offending platform, [it] threatened to shut down the upload filters instead: If it would prohibit the provision of the automated content recognition (ACR) system for the purpose of blocking or removal of user uploads?

Shutting down upload filters that overblock is a really good idea, since the algorithmic filters lie at the heart of the problem with Article 17. Moreover:

if the scope of the injunctive relief would be limited to banning the continued provisions of overzealous upload filters, the proposed Czech implementation of Article 17 could even become a template for other Member States seeking to bring their implementations in line with the requirements of the CJEU while otherwise staying relatively close to the text of the directive.

Let’s hope the Czech Republic shows the way by adopting Keller’s suggestion, and that other EU countries follow. It won’t turn the Copyright Directive into a good law – nothing could do that – but it will blunt some of its worst effects.

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The copyright world is already panicking about music created using generative AI; too late

A couple of weeks ago, Walled Culture wrote about the rapid rise and advance of generative AI in the world of visual arts. One key aspect was its impact on copyright, which emerges as making even less sense in a world where AI programs can knock out an infinite number of images on any topic in any style, for close to zero cost. The post also noted that this development was not unique to the visual arts, but would also soon be found elsewhere – in the world of music, for example.

TorrentFreak has an interesting article about how the copyright world is already panicking about this possibility. As the post explains, the Recording Industry Association of America (RIAA) recently sent to the US government a list of “notorious markets” – basically countries and companies that it doesn’t like for various reasons. It does this every year, but there was a new category of things that the RIAA wants the US Trade Representative to do something about, those that:

generate, master or remix a recording to be very similar to or almost as good as reference tracks by selected, well known sound recording artists

The RIAA continues:

To the extent these services, or their partners, are training their AI models using our members’ music, that use is unauthorized and infringes our members’ rights by making unauthorized copies of our members works.

In any event, the files these services disseminate are either unauthorized copies or unauthorized derivative works of our members’ music

One service that is mentioned in this context, Songmastr, has responded to the criticism, reported in another TorrentFreak post, saying that it doesn’t do the things it is accused of. But it’s worth considering the issues such services raise, since there are already generative AI programs that can produce music in a variety of styles, just as the RIAA hates.

The central concern for the copyright world is that somebody is daring to make “derivative works” from music without paying for the privilege. It’s rather sad that the RIAA doesn’t understand that this is how music has been made for thousands of years. Young musicians grow up hearing, singing and playing the music of the previous generation, and they learn from it to produce their own music. For the best musicians, that creation is uniquely theirs, not a facile copy.

The idea that copyright holders should have some kind of ownership of the next generation’s music is not just wrong, it’s deeply pernicious. It seeks to extend the corrosive view that creativity can be owned by one person – or, worse, one company – by further asserting control over art that has been produced under its influence in some way. It underlines how antithetical copyright is to both art and creativity.

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Why the “true fans” model is great not only for creators, but for entrepreneurs too

The “true fans” idea has appeared in many posts on this blog, and also makes an appearance in the last chapter of Walled Culture the book, as a viable alternative to copyright and its manifest ills. Kevin Kelly first articulated the true fans idea in 2008, and it was surprisingly soon after that companies started popping up to provide some of the infrastructure needed to facilitate the idea. For example, Kickstarter was launched in 2009, while Patreon began in 2013, and both have gone on to become hugely successful examples of the true fans approach.

Simon Owens has an interesting post on his Substack newsletter entitled “Why Patreon is struggling“. He identities a number of what he calls “key weaknesses in the platform’s core offerings”. One is that “a creator’s ability to distribute free content via Patreon is limited”. That’s a problem, because many people (rightly) want to see an example of a creator’s work before sending off money. It also prevents creators from distributing their work freely on Patreon as a matter of course, in order to reach as wide an audience as possible, and to locate the true fans among them.

Another issue according to Owens is that Patreon doesn’t have a recommendation tool that helps creators find new audiences. The lack of basic tools for distributing and analysing content is another clear gap in Patreon’s offerings according to Owens. Finally, he notes that there are many competitors in this sector, writing:

If Patreon wants to usher in the next era of the Creator Economy, then it needs to give creators a reason to choose it over its competitors. It can’t just be a paid membership platform anymore; it’s time to up its game on content optimization and discovery.

The fact that Patreon has been so successful – in January 2022 the company revealed that over 250,000 creators using its service had earned $3.5 billion at that point – is an indication that the true fans model works even without bells and whistles. It also means that there is a lot more room for innovation in the business models based on the idea of people supporting creators directly. The weaknesses that Owens discerns in Patreon’s service are also opportunities for new startups in this market. It’s clear that the true fans idea is good not just for artists, but for entrepreneurs too.

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No good deed goes unpunished in a world where the rules have been set by academic publishers

One of the heroes of my new book Walled Culture is Paul Ginsparg. In 1991, Ginsparg set up an automated email server while he was a staff member of the Los Alamos National Laboratory. As preprints – early versions of academic papers – were uploaded, the server would send out alerts to subscribers, who could then request the full texts. Ginsparg later recalled:

It was originally intended for about 100 submissions per year from a small subfield of high-energy particle physics, but rapidly grew in users and scope, receiving 400 submissions in its first half year. The submissions were initially planned to be deleted after three months, by which time the pre-existing paper distribution system [of preprints] would catch up, but by popular demand nothing was ever deleted.

Initially known as ‘xxx.lanl.gov’, but renamed in 1998 to ‘arXiv.org’ (pronounced ‘archive’), it currently holds more than 2 million papers, in the fields of physics, mathematics, computer science, quantitative biology, quantitative finance, statistics, electrical engineering and systems science, and economics, with an average of 15,000 more added every month.

Ginsparg’s project has clearly been a huge success. It has demonstrated that preprints, which can be downloaded and shared freely, are for most purposes just as valid as the “official” version of a paper published in a traditional journal, whose annual subscription may cost thousands of euros. However, a long and fascinating post called “A Vision of Metascience – An Engine of Improvement for the Social Processes of Science”, by Michael Nielsen and Kanjun Qiu, reveals an aspect of Ginsparg’s career that I had somehow missed:

as he developed the arXiv it consumed more and more of his time, and he gradually became what we would call a full-time metascience entrepreneur. He ultimately resigned his position at the lab after receiving an unfavorable performance evaluation, describing him as having “no particular computer skills contributing to lab programs; easily replaced, and moreover overpaid, according to an external market survey”. He went to Cornell University, and more and more of his professional identity became invested in the arXiv.

The same post quotes one of his new colleagues at Cornell as saying of this staggeringly obtuse judgement:

Evidently their [assessment] form didn’t have a box for: ‘completely transformed the nature and reach of scientific information in physics and other fields’.

I’m not going to claim that Ginsparg’s unfair treatment was because of copyright, but I do think he was a victim of the academic publishing culture, albeit indirectly. As Chapter 3 of my Walled Culture book explores in detail, publishers in this sector have done an incredible job of colonising the entire academic and research system – and the minds of those in it. For too long, academic publishers have been regarded as an indispensable part of research work; the idea that knowledge could be shared more easily and beneficially without them was inconceivable for many.

Ginsparg not only showed there was another way, he made arXiv work so well that it was manifestly a better way than the traditional approach of disseminating knowledge through publishing gatekeepers. Sadly, the worldview of the management at Los Alamos National Laboratory was so deformed by years of working with academic publishers that they were incapable of understanding or even seeing what Ginsparg had created. Nielsen and Qiu go on to say:

It remains unfortunate that the arXiv’s revenues are far lower than The Physical Review, perhaps the premier publisher in physics; the arXiv has become far more important for the progress of physics (never mind other sciences) than The Physical Review.

That’s an indication that far too many academics still cling to the old, inefficient ways of sharing their knowledge, and that Ginsparg’s great project of moving to a system based on preprints is not yet complete. It’s time for more to join him in his work – even if they are unlikely to receive much in the way of thanks for doing so.

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A concept that should not exist at all is already implemented: the “paying” public domain

A couple of weeks ago, Walled Culture reported on a terrible idea in France: requiring companies to pay for the use of public domain material. As the post explained, this is a subversion of what it means for something to enter the public domain, and a betrayal of the implicit bargain of copyright. Fortunately, the plan was dropped, partly as a result of the outrage it generated.

Naively, I assumed that this was a lucky escape, but that the idea would be back unless we were on our guard. I was wrong: the idea won’t be back, because it has already been implemented in a number of other countries. For example, Jorge Gemetto pointed out on Twitter that something called the “paying” public domain has existed in Uruguay and Argentina for many years. He linked to an interesting article on the topic by Maximiliano Marzetti, who lists even more countries blighted by this copyright perversion: Algeria, Kenya, Ruanda, Senegal, Republic of the Congo, Côte d’Ivoire, and Paraguay. Marzetti refers to a 2010 report from WIPO, which explore the idea of the “paying” public domain further.

A recent article in the Guardian reveals that Italy, too, has this awful approach, whereby any use of the country’s publicly-owned art to sell merchandise requires permission and payment of a fee. That includes works that were never in copyright, and have been in the public domain for hundreds of years, as the French fashion house Jean Paul Gaultier found to its cost:

Italy’s Uffizi Galleries are suing the French fashion house Jean Paul Gaultier for damages that could exceed €100,000 (£88,000) after the company’s allegedly unauthorised use of images of Botticelli’s Renaissance masterpiece The Birth of Venus to adorn a range of clothing products, including T-shirts, leggings and bodices.

The article goes on to explain that the Uffizi Galleries sell merchandise themselves, which means this is about money, as it always is. That’s what copyright does, even to some of the people running the greatest art galleries and museums. The idea that the real public domain – not the damaged, “paying” kind – should be defended for itself, as a matter of principle, never seems to enter their heads.

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Why generative AI will take over the world of art, and will render copyright irrelevant

Observant readers of this blog may have noticed that the images used to illustrate the posts have changed recently. Previously, I have drawn on photos that were either in the public domain, or released under a minimal Creative Commons licence such as CC-BY 4.0. For reasons best known to itself, Google Image search has gone from displaying huge collections of such images, to offering just a couple of dozen. That has made it more or less useless as a source of good illustrations that can be used freely.

So I have turned to a new source – one that is rather different from traditional options. I have been using the Stable Diffusion tool, which describes itself as “a state of the art text-to-image model that generates images from text”, to create my own images. It really is as simple as that implies: you enter a few words that describe roughly the image you would like to generate, and Stable Diffusion does the rest. There’s a technical explanation on the Towards Data Science site of how Stable Diffusion does that. More approachable is a very good video introduction from Vox.

The details don’t really matter, the implications do. For example, the images I have produced are hardly masterpieces, and aren’t even very good. But they all took me 15 seconds to create, and they were free. For many purposes – notably illustrations to articles or marketing material – such images will be good enough in the vast majority of cases. That means a huge chunk of today’s illustration market is likely to disappear as a source of work for traditional artists. On the other hand, new opportunities will open up for those who learn how to wield tools like Stable Diffusion most effectively.

The use of AI tools will have a far wider impact on art. Alongside general words, the names of specific artists can be entered as a so-called “prompt” to these systems. The result is an entirely original artwork that is similar in style to the named artist. That’s already causing problems for popular contemporary artists with easily-recognisable styles like Greg Rutkowski. As art AI programs improve, it is likely to become a serious issue for every digital artist.

Just as I was able to knock out crude but serviceable illustrations for my posts, soon anyone will be able to create any kind of image in the style of any artist. Since that artist did not create the image, there can be no copyright claim on it. Although the AI program analysed genuine works from the artist in question as part of the input, it did not distribute copies of those works. Similarly, the output is completely new, and in no sense a copy of anything the artist has created; it therefore cannot be regarded as an infringement of existing works on those grounds.

This means that copyright will soon be irrelevant for digital images. There is no need to make an unauthorised copy of a work when you can simply generate an entirely new one in the style of that work. That’s not entirely bad news for artists. Arguably, the ability to produce an endless range of images in the style of an artist actually makes originals from that artist even more valuable, since they are scarce, unlike the ones generated using AI. It might even be a situation in which Non-Fungible Tokens (NFTs) make sense – in this case, attesting that an artwork has been produced by an artist, not churned out by a program.

In addition, artists that work with analogue materials – oils, watercolours, marble etc. – will also find their work more sought after, because it cannot be produced by today’s AI programs that can only operate in the digital realm.

However, even analogue artists may not be safe forever. As an article on the Sequoia site explains, the new AI art programs are part of a larger trend of what is known as Generative AI. The same computing techniques described above have already been applied with great success to producing high-quality text and software code, and it is expected that video and audio will soon be at the same level. Combining generative AI with robotics to tackle analogue creation is further out, but there is no reason to suggest it will never happen.

The rise of “good enough” outputs in the realms of words, videos and music will render copyright an irrelevance everywhere. No need to copy a novel or piece of music when you can just generate something in a few seconds with exactly the mood and style you want, using generative AI.

People will still want to commission and buy novels and pieces of music that are genuinely new and unique, rather than simply brilliant re-workings of old ideas. In this imminent world where copyright doesn’t matter, creators will therefore be able to concentrate on being original with future works, rather than being infected by copyright’s pointless obsession with stopping copies being made of past ones.

Featured image created with Stable Diffusion.

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How music platform Corite is turning true fans into digital street teams

The last chapter of Walled Culture – the book looks at how the many problems of copyright might be mitigated. It concludes with Kevin Kelly’s idea of “1000 true fans“, which has been discussed on this blog previously. One of the most interesting aspects of the true fans idea is that it doesn’t depend on copyright, and would work perfectly well without it.

Kelly first articulated his vision back in 2008. The world has obviously moved on since then, especially online. His rather general idea of artists being supported directly by their fans has now blossomed into a multitude of different approaches that have already been put into practice. One interesting implementation comes from the company Corite, described in a post on Music Business Worldwide:

The concept for Corite is simple: artists use the platform to raise money for projects from fans, who can earn a proportion of streaming royalties in return.

Corite says that it takes a 10% cut of raised capital and future royalties, while artists typically share 15-20% of royalties with fans, with the rights reverting back to the artist after one year.

On the contrary, I’d say that’s quite complex, but that’s good: it shows startups starting to explore new models in the true fans space. The trendy NFTs also make an appearance, alas, but they seem to be mostly used for the purpose suggested in a previous Walled Culture blog post: as a kind of digital badge proving that a fan is a member of the community supporting an artist. As Corite Chief Operating Officer and co-founder, Emelie Olsson, told Music Business Worldwide:

the community-building aspect will be extremely important. So for example, NFT projects where the [NFT] holders will be the ones who get access to releases first or early access to tickets or merch drops. NFT asset technology allows for building fan clubs on the internet and I think that will have a really good effect on the music industry.

Olsson also offers an interesting parallel to Corite’s use of rewards for fans from the earlier, analogue music world:

Even before social media, you had street teams of fans where they were going around and setting up posters for bands and so on in different cities. That’s how we see Corite – a digital street team.

That’s a great characterisation: true fans organised through innovative companies like Corite as a digital street team. Expect to see more of their virtual posters popping up online.

Featured image created with Stable Diffusion.

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How copyright absurdity rules over J. R. R. Tolkien’s “The Rings of Power”

J. R. R. Tolkien’s “Lord of the Rings” is one of the best-known and best-loved modern works of literature, not least thanks to Peter Jackson’s films based on the cycle. Given that popularity, it’s no surprise that there was interest in creating adaptations of other Tolkien works. The result is “The Lord of the Rings: The Rings of Power”. According to Wikipedia:

Amazon bought the television rights for The Lord of the Rings for US$250 million in November 2017, making a five-season production commitment worth at least US$1 billion. This would make it the most expensive television series ever made.

A post on ScreenRant explains:

Tolkien chronicled tens of thousands of years of stories occurring prior to The Lord of the Rings. Some of these stories were referenced in The Hobbit or The Lord of the Rings trilogy, including the Appendices at the end of The Return of the King, but most of what’s known about that additional canon comes from other works by Tolkien published after his death, such as The Silmarillion, which The Rings of Power isn’t allowed to use for its own story.

The reason, of course, is copyright, because Amazon only has the rights to use “The Lord of the Rings” books, which include the appendices mentioned above. As the ScreenRant article notes, this has forced the team behind “The Rings of Power” to come up with clever but rather convoluted solutions in order to explain key elements of the earlier Tolkien world, without drawing on forbidden materials like “The Silmarillion“.

Some Tolkien fans are not happy about those divergences, but few are aware that copyright is to blame. The saga about new adaptations of the Tolkien epics is a perfect illustration of how copyright is not something that helps people to create, but can act as a serious obstacle to it that must be circumvented.

Featured image created with Stable Diffusion.

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Coming soon: the next phase of copyright maximalism – destroying the public domain

The public domain is the natural state of creative material. It’s where creations end up once copyright’s monopoly has expired. Crucially, it is the quid pro quo for that monopoly. The deal is that the creator of a work is granted a government-enforced intellectual monopoly for a limited period, after which the work enters the public domain for anyone to use for any purpose, including commercial ones. That’s the bargain, but it seems that the copyright maximalists in the French Parliament want to renege on it. Here’s an amendment to a finance bill that was proposed by 75 politicians in the National Assembly a few days ago (translation by DeepL):

The aim of this amendment is to increase aid to artistic creation by setting up a levy on the lucrative commercial use of works in the public domain.

This measure will not affect the free and unrestricted use of works not subject to copyright.

To this end, this amendment establishes, for the benefit of artistic creation, a tax on the profits derived from the commercial and profit-making use of a work no longer protected by the exploitation right granted to the author or his successors in title mentioned in Articles L. 122-1 to L. 122-12 of the Intellectual Property Code. Its rate is set at 1%.

This is a fundamental subversion of material in the public domain, and essentially seeks to create a new kind of state copyright – eternal, presumably – that imposes a tax on commercial use of works out of traditional copyright. It is a betrayal of the very idea of copyright and the bargain that lies at its heart.

Fortunately, the amendment has been withdrawn – perhaps as a result of the cries of horror from a wide range of organisations and experts. But make no mistake, this will not be a one-off. Copyright is now so insanely long and strong that the scope for doing more on these fronts is limited – even complaisant politicians have realised the public won’t accept any more extensions. So maximalists need to find new ways to boost their beloved intellectual monopoly – in this case, by destroying its antithesis, the public domain. Expect to see this pernicious idea crop up again in the future.

Featured image created with Stable Diffusion.

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Ed Sheeran must face yet another music copyright trial, even more outrageous than the others

Back in April, Walled Culture wrote about Ed Sheeran’s victory in a case alleging copyright infringement. Unfortunately, the copyright world’s obsession with ownership means that Sheeran can’t simply relax now. In fact, he has already been hit with another lawsuit. What makes this case worse is that it is alleged he copied his hit song “Thinking out loud” not from a living artist, but from “Let’s get it on”, by Marvin Gaye, who died in 1984. As BBC News explains:

The claim over Thinking Out Loud was originally lodged in 2018, not by Gaye’s family but by investment banker David Pullman and a company called Structured Asset Sales [SAS], which has acquired a portion of the estate of Let’s Get It On co-writer Ed Townsend.

Far from being a lawsuit seeking justice for a poor artist whose work is allegedly being unfairly exploited, this is a matter of someone unconnected with the music in question trying to maximise the return on his investment in an “asset“, by seeking a cool $100 million in damages. Even that is not enough, it seems:

SAS has filed a second case, which is currently on pause, while a separate suit by another portion of Townsend’s estate is awaiting trial.

What this means in practice is that Sheeran will have less time to write new songs for his fans, and instead will have the worry of another pointless lawsuit hanging over him. It’s yet another demonstration of how copyright not only fails to promote creativity, but can actively impede it.

Many more examples can be found in my new book “Walled Culture: How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor”, which can be freely downloaded in a variety of formats.

Featured image produced with Stable Diffusion.

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