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Beyond the Bricks/Knowledge/Libraries
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Why sharing ebooks is good for people – and good for publishers

by Glyn Moody

One of the joys of reading is being able to share your favourite books with friends, family and colleagues. As I am sure is the case for most people, in these circumstances I often go on to buy my own copy of a book I have been lent and like. In this respect, sharing books is not only an important social act of generosity, it’s also one of the best forms of marketing, since it represents a recommendation from a trusted source, and a chance to try before you buy.

Things have changed recently, with the increasing popularity of ebooks. Many use Digital Rights Management (DRM) to make it hard for people to share books. More generally, publishers have pushed the line that unlike physical books, ebooks should never be shared. Their main reason for this assertion seems to be that it’s simply too easy to share digital books by making a copy, and so people shouldn’t do it, because, well, copyright. But this new injunction is really part and parcel of publishers’ wider fear of – and hatred for – anything digital. That’s because they know that it is impossible to stop digital material being copied, no matter what laws are passed, or DRM is applied.

The idea that ebooks by definition must never be shared was always wrong – books released under sensible licences can be shared without problems. It is also dangerous, because it leads to this kind of stupidity, noticed by the Twitter user @emeraalds when looking to buy a (physical) book, and reported here on The Mary Sue site (via mvario):

The copyright page, which is from a book called Zodiac Academy #1: The Awakening by Caroline Peckham and Susanne Valenti, reads, “This book may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it wasn’t purchased for your use only, then please return to your favourite book retailer and purchase your own copy. Thank you for respecting the hard work of this author.”

In other words, the publishing industry’s repeated insistence that ebooks must not be shared has spilled over into the world of physical books. To the credit of the authors in this particular case, when they found out about the notice, they explained that it was added during the publication process, and that: “It was not checked or approved by us and is not an accurate statement or reflection of our principles, or our view on libraries”.

There are probably other physical books circulating that have this kind of statement on the copyright page. They represent a fundamental assault on the First Sale Doctrine, which allows people who have bought works that involve copyright to re-sell them. As the Wikipedia entry puts it:

Without the doctrine, a possessor of a copy of a copyrighted work would have to negotiate with the copyright owner every time they wished to dispose of their copy. After the initial transfer of ownership of a legal copy of a copyrighted work, the first-sale doctrine eliminates the copyright holder’s right to control ownership of that specific copy.

An important case at the Court of Justice of the European Union, the EU’s highest court, ruled that the First Sale Doctrine can also apply to digital goods. In the US, the situation is less clear-cut. But for reasons mentioned at the beginning of this post, it is actually in the publisher’s interest to encourage the sharing of ebooks, since it represents a powerful marketing approach that will drive new sales. The copyright world’s obsessions with control at any cost means that they are failing to enjoy these opportunities, and that authors are losing revenue as a result.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Knowledge/Libraries/Thoughts
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Judge puts corporate profits above public benefits in Internet Archive copyright case

by Glyn Moody

Walled Culture has just written about the selfish and short-sighted lawsuit that four of the biggest publishers brought against the Internet Archive. Unfortunately, following oral arguments last week, Judge John G. Koeltl has rather quickly found in favour of the former. The Internet Archive has already said that it will appeal against the decision, so the fight isn’t over. The judgment handed down by the court is a fascinating document because of what it says about the judge’s underlying assumptions, and about the state of copyright. The judge explains how digital publishing currently works:

Libraries usually buy their print books from publishers or wholesalers. Copies of ebooks, however, are typically not bought but licensed to libraries from publishers through distributors called “aggregators.” The Publishers task aggregators with ensuring that a library lends its ebooks only to the library’s members.

The judge goes on to explain that publishers offer various kinds of licensing, but only one of them – Wiley – offers a “perpetual, one-copy, one-user licence”. The others offer things like time-limited licences, which must be bought again and again; or licences that allow an ebook to be lent out a fixed number of times. Aside from the Wiley licence, none of the others give libraries the right to lend out an ebook as often as they like, or for as long as they like. In other words, they represent a considerable retrogression from what a traditional library does. For the judge, this is not just acceptable, it is perfectly normal. The Internet Archive (IA), has a completely different approach, described by the judge as follows:

First, IA makes available one digital copy for each non-circulating print book it keeps in storage. Second, IA partners with libraries to “contribute” the number of their print copies of the book toward the number of lendable copies on IA’s Website. Even if a partner library has multiple copies of a book, IA counts only one additional copy per library.

There are two key elements here. First, the Internet Archive lends out an ebook only when it has a physical copy of that book in its collection. It is simply allowing people to access that physical book electronically. Secondly, it extends that capability to participating libraries. Provided they too own a physical copy of a book, the Internet Archive will allow visitors to borrow it virtually. What the Internet Archive has done, then, is to pool the holdings of all participating libraries into one, consolidated library, which then lends out digital copies of the physical books it holds collectively.

This innovative approach allows people anywhere to “visit” this consolidated library, and to borrow books online. It means that more people around the world can read books that they would never encounter personally, since it is not practical for them to visit the physical library holding the title. That was particularly important during the Covid pandemic, when lockdowns around the world meant that few people could travel anywhere.

It is clear, then, that the Internet Archive’s approach – based on physical books that have been bought by someone – is an important contribution to making knowledge and creativity available, at a time when both were hard to access. But the judge will have none of it. He summarises his view on the whole case as follows:

IA argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet. But these alleged benefits cannot outweigh the market harm to the Publishers.

There is clearly no doubt in this judge’s mind that the alleged “market harm” to publishers should outweigh any wider consideration of “the public benefits [IA’s] copying will likely produce”. And that, in a nutshell, is the problem with copyright today: that it is framed in terms of corporate profits not human progress. As Brewster Kahle, who set up the Internet Archive (and whose Kahle/Austin Foundation supports this blog) put it in a statement on the decision:

Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society – owning, preserving, and lending books.

Let’s hope the higher courts have a deeper understanding of what is at stake here.

Featured image by Internet Archive.

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Beyond the Bricks/Knowledge/Thoughts
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The EU has brought back opt-in copyright for text and data mining: let’s build on that foundation

by Glyn Moody

The central theme of Walled Culture the book (free digital versions) is the clash between copyright, devised for an analogue world, and the Internet, which is inherently digital. There are many manifestations of the the bad fit of the two, but if I had to choose one step that doomed copyright in the online world it would be the 1886 Berne Convention, for the following reason, as explained by Wikipedia:

The Berne Convention introduced the concept that protection exists the moment a work is “fixed”, that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires. A creator need not register or “apply for” a copyright in countries adhering to the convention.

That might have seemed like a good idea at the time, saving creators from the bother of registering their new works. Fast forward a hundred years, and the arrival of the Internet meant that the default for everything placed online is that it is under copyright, whether or not it is needed. Moreover, this also means that copyright laws designed to protect physical works like books and DVDs from large-scale piracy by organised criminal gangs also applies to the most innocent act of digital copying by ordinary Internet users. This absurd over-reach has led to numerous cases of people being prosecuted and fined huge sums for actions that were accidental or trivial. Many of these were discussed in the early chapters of the book Walled Culture.

The situation might seem hopeless, since the copyright industry never allows even wrong-headed laws to be repealed while they operate to its benefit. But an excellent post by Paul Keller on the Open Future blog has spotted something rather interesting. The main thread of the post is about text and data mining (TDM), machine learning (ML) and the EU copyright framework. In particular, he considers the thorny question whether authors, creators, and others need to give permission before their works can be used as input for generative machine-learning systems, something that Walled Culture has discussed several times. Keller’s whole analysis is valuable, but here I’d like to focus attention on his closing point:

the EU legislator has ensured that in the context of TDM/ML, copyright protection will only accrue to those creators and rightholders who actually want it enough to signal their intent. This approach addresses one of the most fundamental problems with copyright: that it applies by default to all creative output — both by creators who wish to control the use of their works and by those who do not. The EU framework for TDM limits copyright protection to those creators who want it, without covering the rest of human expression on the Internet with the suffocating blanket of default copyright protection that would lock those works away for many decades.

That is, for all its many faults, the EU Copyright Directive has done one thing that is rather innovative: in the context of TDM and ML, it has made copyright opt-in, rather than automatic. This goes against 100 years of the Berne Convention, and creates an important precedent. As Keller notes:

this opt-in approach to copyright is limited to TDM, but it is not inconceivable that this approach could be expanded if it proves to work in practice, especially in the ongoing discussion about ML training.

Assuming it does function, TDM’s opt-in will be something that can be cited as an example of an area where there is no automatic copyright. That fact can then be used when pushing for a wider opt-in approach that would be more suitable for the digital world.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Knowledge/Libraries/Thoughts
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Publishers have long hated libraries; here’s the history, and the next attack

by Glyn Moody

As a Walled Culture post last year noted, publishers hate libraries (well, many of the bigger publishers do, at least.) A handy piece of research entitled “The Publisher Playbook: A Brief History of the Publishing Industry’s Obstruction of the Library Mission” (freely available as a preprint) confirms that the hatred is long-standing:

Libraries play an essential role in the democratization of knowledge to the public. To serve this role, libraries have continuously evolved their ability to provide access to collections in innovative ways. Many of these advancements in access, however, were not achieved without overcoming serious resistance and obstruction from the rightsholder and publishing industry. Libraries and their readers have routinely engaged in lengthy battles to defend the ability for libraries to fulfill their mission and serve the public good. However, Congress and the courts have historically upheld libraries’ attempts to expand access for the public. As outlined below, the struggle to maintain the library’s access-based mission and serve the public interest began as early as the late 1800s, and continues through today.

The most recent example in “The Publisher Playbook” of companies doing their utmost to limit what libraries can make available is the terrible lawsuit against the Open Library for daring to increase access to books during the Covid pandemic. Today, 20 March 2023, the Southern District Court of New York will be hearing the oral arguments in this important case.

The penultimate example of the new research is litigation against US state legislation promoting fair and equitable ebook access. Walled Culture wrote about this back in December 2021, when US publishers sued to stop a Maryland law that would require publishers to license ebooks on “reasonable terms”. Hardly unreasonable, you might have thought, but the publishers disagreed, sued – and unfortunately won. But library advocates are a persistent lot, and they have come back with new model legislation aimed at addressing the ebook licensing problem, described here by Publishers Weekly:

The revised language, developed with support from nascent library advocacy group Library Futures, takes a “regulate” rather than “mandate” approach. In other words, unlike Maryland’s law, which would have required publishers to offer license agreements to libraries “on reasonable terms” for digital books that were available to consumers, the new legislative language instead focuses regulating the terms of agreements. Key to the revised bill’s effectiveness is language that would render unenforceable any license term that “precludes, limits, or restricts” libraries from performing their traditional, core mission.

The model language has been introduced in bills in two states, Massachusetts and Hawaii, but more are in the works, apparently. Of course, publishers are already trying to paint this approach as “unconstitutional”, and they will doubtless challenge proposed laws in the courts. And so the battle between libraries and the publishing industry continues.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Knowledge/Libraries/Thoughts
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Here’s a puzzle: when is the public domain not in the public domain?

by Glyn Moody

Walled Culture is a big fan of the public domain. The amazing artistic uses that people are able to make of material only once it enters the public domain are an indication that copyright can act as an obstacle to wider creativity, rather than something that automatically promotes it. But there’s a problem: because the public domain is about making artistic productions available to everyone for no cost and without restrictions, there are no well-funded lobbyists who stand up and defend it. Instead, all we hear is whining from the copyright world that the public domain exists, and calls for it to be diminished or even abolished by extending copyright wherever possible.

Sometimes those attacks can come from surprising quarters. For example, in October last year Walled Culture wrote about Italy’s Uffizi Galleries suing the French fashion house Jean Paul Gaultier for the allegedly unauthorised use of images of Botticelli’s Renaissance masterpiece The Birth of Venus on its clothing products.

Sadly, this is not a one-off case. The Communia blog has another example of something that is unequivocally in the public domain and yet cannot be used for any purpose, in this case a commercial one. The public domain art is the famous Vitruvian Man drawn by Leonardo da Vinci over 500 years ago. The commercial use is as the image on a Ravensburger puzzle. As the Communia blog post explains:

According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.

This makes a mockery of the idea of the public domain, which to be meaningful has to apply in all cases, not just in ones where the relevant Italian cultural institution graciously decides to allow it. The fact that this law was passed is in part down to the success of the copyright industry in belittling the public domain as an aberration of no real value – something that can be jettisoned without any ill effects. However:

These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.

Let’s hope the Court of Justice of the European Union does the right thing, and defends the incredible riches of the public domain against every depredation – including those by Italian cultural institutions.

Beyond the Bricks/Thoughts/Visualisation
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Why the emerging new copyright landscape is both good news and bad news for creators and the public

by Glyn Moody

The Walled Culture blog has been writing about the hot topic of generative AI and its impact on copyright for nearly six months now. One of the sharpest commentators on this area is Dr Andres Guadamuz, whom we interviewed a year ago. He’s just written a great blog post about a video by Corridor Crew entitled “Anime Rock, Paper Scissors”. It’s a fun, short animation – only seven minutes long – that is of note for the following reason, as described by Guadamuz:

What makes this a remarkable exercise is that the animation was made with artificial intelligence tools, particularly Stable Diffusion. While the voices, music, and acting are all human, the animation was achieved by training an SD model using stills from Vampire Hunter D Bloodlust, and using other SD tools to superimpose the images to the actors.

As Guadamuz says in his commentary, Anime Rock, Paper Scissors is particularly interesting as a harbinger of a new kind of user-generated content, where copyright is increasingly irrelevant:

for a generation of content creators, copyright is not something that bothers them greatly, their only interaction with it has been through platform enforcement, so for them copyright law has become whatever YouTube, Instagram, Twitch and TikTok say it is. Infringement are seen through the lens of not falling foul of whatever rules the platforms have, while copyright ownership is also less important in a world of subscriptions, endorsements, and merchandise. Sure, there will be some people who will still benefit from copyright, but for the most part an entire ecosystem is growing without any thought towards copyright.

It’s good news that the outdated and restrictive framework of traditional copyright is largely being ignored by creators, including those using these new AI-based tools – all released as open source in the case of the Anime Rock, Paper Scissors project, another welcome development. But as Guadumuz rightly notes, it is being replaced with rules laid down and policed by the platform giants – YouTube, Instagram and TikTok. To a certain extent, those rules are arbitrary, and individuals have little recourse against decisions based on them, unlike formal laws, which can be challenged in the courts. That’s a retrogressive development.

Moreover, the shift to this kind of privatised law-making provides the copyright industry with multiple opportunities to shape those new rules. It can do this through backroom chats with Internet platforms, “encouraging” them to move in a certain direction, using carrots and sticks. It can publicly threaten and then instigate legal action against the online companies. And it can lobby governments to bring in laws that force platforms to change the rules in favour of the copyright industry, as happened with Article 17 of the EU Copyright Directive.

That shift is something that groups working to empower creators and the public in the digital world need to bear in mind when approaching future battles that will take place in this new copyright landscape.

Featured image by Corridor Crew.

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Beyond the Bricks/Knowledge/Media
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The EU link tax was bad enough, but Canada’s threatens to be even worse

by Glyn Moody

At the heart of Walled Culture the book (available as a free ebook in various formats) is the story of the disgraceful EU Copyright Directive and how it was passed. I won’t go into the details here, except to note that Article 15, aka the snippet tax or the link tax – the idea of forcing Internet platforms to pay for the privilege of sending traffic to news sites – never made sense. It was a product of greed and laziness on the part of newspaper publishers, who saw that Internet companies were making lots of money, and decided to ask their politician chums in the EU to pass a law to divert some of it their way.

Unfortunately, the success of that gambit has inspired publishers in other countries to do the same. As this blog reported a year ago, Australia has given the newspaper industry the same kind of law, and currently Canada is aiming to bring in similarly awful legislation. The expert tracking most doggedly the Canadian version, and analysing its deficiencies, is Professor Michael Geist. One of his recent blog posts makes clear that Canada’s link tax is going to be even worse than the EU’s.

As the post recounts, a Canadian senator with a journalistic background asked the department responsible for the new law an important question. The current legislation is framed in terms of making Google and Facebook pay. So what happens in the future, when, as is likely to happen, neither is profitable? Simple, came the reply: the Canadian government would just make TikTok pay instead. But TikTok doesn’t share news links in the way that Google and Facebook do. That’s irrelevant apparently: it’s enough that Canadian get their news from TikTok. As Geist writes:

If officials envision turning to TikTok for mandated payments despite the absence of links, their vision of the scope of “facilitating access to news” could treat access to news as awareness of news and thereby extend to little more than discussing or engaging with news on a large platform that otherwise qualifies as a “digital news intermediary”. That would obviously scope in activity that goes beyond reproduction, linking or even indexing. It would simply involve individual Canadians exercising basic rights of freedom of expression.

A tax on “discussing or engaging with news on a large platform” is an astonishingly foolish idea. It is an approach with absolutely no justification, one that if implemented would stand as just the latest monument to the newspaper industry’s envy of online platforms’ success. The fact that it is even being contemplated shows how the link tax can lead easily to something much more pernicious and dangerous. Meanwhile, supporters of the idea continue to paint it as merely another, “ancillary”, kind of copyright, and therefore nothing to make a fuss about.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Thoughts/Visualisation
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Copyright means you may need permission to put photos of your own furnished room online

by Glyn Moody

One of the life’s certainties is that copyright maximalism will continue to encourage absurd rulings by complaisant courts. Here’s a rather spectacular case from Germany. It involves a “photo wallpaper”. For those of you who – like me – aren’t quite sure what that means, it is the name given to wallpapers that are essentially huge, blown-up images based on photographs. In this particular instance, photo wallpaper was used to decorate a holiday flat. As is normal for such situations, the owner took pictures to entice people to rent the property, including images of the room with the photo wallpaper, which was clearly visible in the online marketing materials. Here’s how things went as a result, reported by Pinsent Masons:

The flat owner had purchased the wallpaper in 2013 at a price of €13.50. In 2020, the flat owner received a cease-and-desist letter: the photographer, who held the copyright to the tulip photos used for the wallpaper, considered that his rights to the images had been infringed and demanded the flat owner to stop reproducing the photographs on the internet. The owner of the holiday flat refused to sign the cease-and-desist declaration and the case went to court.

The photographer explained that he had given permission for his photos – of tulips, apparently – to be used for a wallpaper. But he had only given permission for the use of the photo as wallpaper, and claimed that further permission to display his image was required if a photo of it were put online. Unfortunately the Cologne Regional Court agreed with this interpretation. It’s a ruling that could have important ramifications for anyone taking pictures of furnished rooms, as the Pinsent Masons post explains:

the ruling is not only relevant in relation to photo wallpapers, but could also be extended to other furnishing items that create an atmosphere, such as pictures, sculptures or designer furniture.

This case is yet another example of copyright gone mad, with additional authorisation being required for perfectly normal and harmless activities that no rational person would regard as requiring permission or payment.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Knowledge/Libraries/Thoughts
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Research shows that, when given the choice, most authors don’t want excessively-long copyright terms

by Glyn Moody

Last week Walled Culture mentioned the problem of orphan works. These are creations, typically books, that are still covered by copyright, but unavailable because the original publisher or distributor has gone out of business, or simply isn’t interested in keeping them in circulation. The problem is that without any obvious point of contact, it’s not possible to ask permission to re-publish or re-use it in some way.

It turns out that there is another serious issue, related to that of orphan works. It has been revealed by the New York Public Library, drawing on work carried out as a collaboration between the Internet Archive and the US Copyright Office. According to a report on the Vice Web site:

the New York Public Library (NYPL) has been reviewing the U.S. Copyright Office’s official registration and renewals records for creative works whose copyrights haven’t been renewed, and have thus been overlooked as part of the public domain.

The books in question were published between 1923 and 1964, before changes to U.S. copyright law removed the requirement for rights holders to renew their copyrights. According to Greg Cram, associate general counsel and director of information policy at NYPL, an initial overview of books published in that period shows that around 65 to 75 percent of rights holders opted not to renew their copyrights.

Since most people today will naturally assume that a book published between 1923 and 1964 is still in copyright, it is unlikely anyone has ever tried to re-publish or re-use material from this period. But this new research shows that the majority of these works are, in fact, already in the public domain, and therefore freely available for anyone to use as they wish.

That’s a good demonstration of how the dead hand of copyright stifles fresh creativity from today’s writers, artists, musicians and film-makers. They might have drawn on all these works as a stimulus for their own creativity, but held back because they have been brainwashed by the copyright industry into thinking that everything is in copyright for inordinate lengths of time. As a result, huge numbers of books that are freely available according to the law remain locked up with a kind of phantom copyright that exists only in people’s minds, infected as they are with copyright maximalist propaganda.

The other important lesson to be drawn from this work by the NYPL is that given the choice, the majority of authors didn’t bother renewing their copyrights, presumably because they didn’t feel they needed to. That makes today’s automatic imposition of exaggeratedly-long copyright terms not just unnecessary but also harmful in terms of the potential new works, based on public domain materials, that have been lost as a result of this continuing over-protection.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Thoughts
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Copyright has been one of life’s certainties: but will it always be?

by Glyn Moody

Copyright seems to be a fixture of our legal, economic and social systems. For 300 years, it has formed the backbone of the structures used to incentivise and remunerate creators. During that time, copyright has been extended repeatedly in length and breadth. The original term of the 1710 Statute of Anne – 14 years’ monopoly protection with a provision for renewal for a further 14 years – has blossomed into life plus 70 years for much of the world. Copyright now applies to areas far beyond the original scope of printed works. These constant and unidirectional moves by legislators around the world might seem to confirm that copyright is an effective approach where more is better, and that it is working as a means of rewarding artists fairly. The facts suggest otherwise.

For example, in 2018 the US Authors Guild conducted a survey of US writers. It revealed that the median author income was $6,080, down from $8,000 in 2014, $10,500 in 2009 and $12,850 in 2007. Respondents who identified themselves as full-time book authors still only earned a median income of $20,300, even including other sources of income such as teaching. That is a level that is well below the US federal poverty line for a family of three or more.

In the world of academic publishing, the situation is even worse: authors are typically not paid for their work at all. No wonder, then, that the leading academic publisher Elsevier has consistently enjoyed profit margins of 30-40% – far beyond what companies in other industries ever achieve. Moreover, academics are routinely required to assign the copyright of their work to the publishing companies. This has the effect of making it hard or impossible for researchers to share their own papers and results with colleagues unless they seek and are granted permission by the publisher. In this case, copyright impedes wider access to knowledge, and acts as an obstacle to the collaborative approach that lies at the heart of research.

Things are also bad in the music industry. A report published by a UK Parliament committee found in 2021 that “the terms under which the major music groups in particular acquire the rights to music favour the majors at the expense of the creators”. This has resulted in an average income for performers that is less than the median wage.

One possible explanation is that music streaming services and Internet platforms retain a disproportionately large share of the revenues they generate, and pay artists too little. A new report from the UK’s Competition and Markets Authority (CMA) explores this issue in detail. It found that “music streaming services are not making sustained, excess profits: indeed, our analysis has shown that many services have low or negative operating margins.” Another concern is that a large “value gap” might exist between what platforms like YouTube pay to artists, and what streaming services like Spotify pay for similar works. The CMA found that in 2021 the gap, such as it was, amounted to less than 0.5% of the £1,115 million total UK recorded music revenues that year – about £5 million. Shared among the 400,000 creators releasing music in the UK in 2020, that would represent an average “missing” payment of around £12 per year.

Even superstars struggle under the current system. There are few more popular musicians than Taylor Swift: her most recent songs occupied all ten of the top positions in the U.S. singles chart. And yet even she lost control of her early songs as a result of being required to assign the copyright to recording companies. Her solution was extreme: in 2020 she announced that she was re-recording those songs in order to retain rights to the new master recordings.

Copyright seems to serve the public well enough – there’s no shortage of books, music or films being produced each year. But here, too, there are problems, albeit of a less obvious kind – for example, the issue of orphan works. These are works, typically books, that are still covered by copyright, but unavailable because the original publisher has gone out of business, or simply isn’t interested in keeping them in circulation. Copyright means that unless the current owner can be located – a difficult task for obscure works that were created decades ago – it is against the law for someone else to reprint them. Nobody benefits from this, but attempts to address this situation, like the EU’s Orphan Works Directive have been half-hearted and ineffectual, and the problem remains.

The situation is arguably worse in the world of cinema. While books held in libraries are durable, and are likely to survive until such time as their copyright expires and reprints may be made, that’s not true for films, which often exist as a unique copy on extremely flammable or delicate media. It is estimated that already half of all U.S. films made before 1950 have been lost, while the figure for films shot before 1929 is over 90%. Copyright restrictions prevented copies being made of the films, which could have preserved them for posterity.

Nor is the digital world immune to this problem. The world of video games is already suffering because of copyright, which makes academics reluctant to risk transferring video-game code from older media such as floppy discs to newer, more reliable systems, for example cloud storage, in order to make backups. It also stops them from creating software emulators of the hardware needed to run old games. As a result, even when copyright protection on a game expires – in a century or so – there is a danger that copies of old video games will be unplayable because the media on which they are stored has degraded, or there is no hardware available on which to run them.

One of the main reasons that artists tolerate a system that sees most of them struggling to get by is that copyright is presented as the only way in which they can be rewarded for creating new works for the public. That may have been true in the past, but is no longer the case: the spread of the Internet means that there is now an alternative channel for creators to reach out to their audience. Music, books and films placed on a web site can be downloaded by anyone with an Internet connection, anywhere in the world. That global reach also allows completely new business models to be explored.

Perhaps the most promising of these is the “true fans” model, first articulated by Kevin Kelly in 2008. Instead of receiving a small cut of the sales revenues of works handled by intermediaries like publishers and recording companies, creators are paid directly by their most engaged, “true” fans, and keep almost all the money. That means a smaller number of true fans can provide the same level of financial support that a larger number of today’s customers offer. True fans typically pay regularly, and in advance of a work being created. The approach provides a steady income for an artist, and helps alleviate the fear of being without income until a work is finished and placed on sale.

The near-ubiquity of the Internet means that it is now possible for a creator to find true fans around the world willing to support their work, and for the latter to pay directly, using well-established services like Patreon and Kickstarter etc. A good example of how a well-known creator can use a crowdfunding platform to support work is the writer Cory Doctorow, the first person to be interviewed on Walled Culture. In 2020, when Doctorow’s publisher could not afford to pay for an audio version of his latest book, he asked his fans to fund it. Within a month, he raised $267,613.

Not everyone commands the level of support that Doctorow has garnered, but this example does at least indicate the potential of the true fans approach as an alternative to today’s copyright. The scale of this fan-based patronage ecosystem is under-appreciated. According to one research report, crowdfunding was valued at $17 billion in 2021. By 2028, the global crowdfunding market is projected to grow to $43 billion, with an average compound growth rate of 16.5% over the forecast period. Not all of that will go to creators, but many billions certainly will, which will put it on a par with payments made by traditional intermediaries such as publishers, film studios and music labels.

An interesting aspect of the true fans approach is that it although it is fully compatible with copyright, it does not require it to work. Crowdfunding aims to fund future production, by supporting artists as they create. After a work is finished and released, it is not necessary to invoke copyright law to punish unauthorized copies, since the artist has already been rewarded. Indeed, there is an important advantage in encouraging copies to be shared widely: it allows an artist’s work to be discovered by more people around the world, some of whom will go on to become true fans and to contribute money towards future work. Even mis-attributed copies can ultimately lead fans to the original source, bolstering an artist’s reputation and – potentially – finances.

This form of crowdfunding would eliminate one of the biggest problems with copyright today: the need to stop people making unauthorised copies of digital material under copyright. Every attempt to achieve that over the last twenty-five years has failed – whether through huge fines, threats of Internet disconnection or, most recently, by requiring upload filters, as the book Walled Culture explores in detail (free ebook versions available). These efforts are futile because we live in a digital world where billions of people have a cheap copying machine in their pocket: a smartphone. They use it routinely hundreds of times a day to make perfect copies, which they send out over the Internet to family and friends, who make further copies, and pass them on. Trying to prevent this sharing means fighting against both technology and human nature – a lost cause, as history shows.

A wider use of crowdfunding and the true fans approach could help address the poor rewards that the vast majority of creators receive under today’s business models relying on copyright. It might also see the importance of copyright diminish to the point that it is no longer regarded as indispensable, or requiring yet more ineffectual laws in a doomed attempt to enforce it online.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Knowledge/Libraries/Thoughts
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How publishers lobbied to “axe the reading tax” on ebooks, won – and then paid it to themselves

by Glyn Moody

One of the (many) villains in Walled Culture the book (free ebook versions) is the publishing industry, specifically in the context of the transition from analogue books to ebooks. What could have been one of the most important expansions of the power and possibility of the book form became instead its opposite – a diminishment of both. As a result of publishers’ greed, ebooks became something you rented, rather than owned. Libraries are particularly hard hit: publishers typically only allow the books they license to educational establishments to be lent out for a limited number of times, or for a limited period. Publishers achieved the feat of using the shift to powerful digital technologies to make books less useful, purely in order to boost their profits.

The Walled Culture book explains in detail how the industry was able to do that thanks to bad copyright laws being abused yet further. But there’s a footnote to this transition that I was unaware of when I wrote my history of copyright in the digital age, but which underlines the extent to which most publishers are driven purely by the bottom line, and care little for readers or writers.

It concerns the taxing of books in the UK. Most goods there are subject to a Value Added Tax (VAT), which is a simple percentage of the sale price – generally 20%. However, certain classes of goods are exempt: this applies to things like food, children’s clothing, and also books. Or rather, to physical books: one quirk of the early ebook market was that ebooks were taxed at 20%, even though physical books were not. This led to a 2018 campaign with the catchy slogan “Axe the reading tax”. It was led by the Publishers Association, which wrote in a press release at the time:

Stephen Lotinga, CEO of the Publishers Association, said: “The government must do everything it can to cut the unfair tax on ebooks, magazine and newspaper online subscriptions.

“It makes no sense in the modern world that readers are being penalised with an additional 20% tax for choosing to embrace digital.

“Whether a book, newspaper or magazine is electronic does not change the principle that we should not be taxing reading and learning.

It was a powerful campaign, backed by just about everyone who cared about books, reading, education and knowledge. It had an extensive Web site Axethereadingtax.org, with lots of very good reasons why the tax should be abolished, such as:

A simpler VAT regime would benefit universities and libraries in terms of freeing up resource and money, as well as students buying educational materials.

And

Digital formats are vital for the blind and partially sighted, who can listen to audiobooks or read in the largest print sizes on electronic devices, for those with dyslexia and for elderly or disabled people who may lack the physical capabilities to handle print books easily.

The extra 20% tax meant that everyone was paying higher prices for no benefit. The Publishers Association pointed out:

Removing the VAT from ebooks and epublications would mean that people who buy them would benefit from lower prices. The impact on the government would be a modest reduction in VAT revenues and is small relative to reduced VAT revenues from other goods and services which are zero-rated, including caravans and hot takeaway food.

The good news is that in 2020, the UK government finally removed the 20% VAT on ebooks. The Publishers Association was rightly triumphant:

We are thrilled that, as of 1 May 2020, the unfair 20% VAT on eBooks and digital newspapers, magazines and journals has been removed. Knowledge and learning are vital, whatever format you favour.

Three years later, it’s interesting to see how that has worked out in practice, and fortunately Tax Policy Associates have done the calculations. Here’s what they found:

The VAT cut means that ebook publishers could have cut their prices by 17% and made the same profit. They didn’t. Over this period there were 8%+ price reductions for comparable products – computer game and app downloads – where there was no VAT cut. There were no overall price reductions for ebooks.

We also analysed individual pricing data for the 30 best-selling ebooks on Amazon UK in 2020 (as Amazon is by far the most significant ebook retailer). Only four out of thirty showed a sustained price reduction which could plausibly have been attributed to the May 2020 VAT cut. That likely overstates the effect.

UK government figures show that dropping VAT on ebooks cost the state £200 million. In theory, that is £200 million that could have flowed to everyone buying ebooks, in the form of lower prices. Here’s where it actually went:

Amazon generally retains a royalty of around 30%, so we can say that of the £200m annual cost of the VAT abolition, Amazon received about £60m and publishers/authors about £140m.

To put these figures in context, the publishing industry’s UK profit in 2021 was probably around £200m. Even after increased author royalty payments, this looks like a very significant enhancement to publisher profitability.

This is a perfect example of the how the copyright world operates. It lobbies for changes in the law, claiming that the public is suffering in some way, and exploits the willingness of creators to help put pressure on the government to right that wrong. But when those changes are made, the companies do not pass on the benefits to the public or creators, but keep most of it for themselves.

In the case of axing the reading tax, it was indeed axed – but none of the claimed benefits for universities, or the blind and partially sighted materialised. The publishers kept book prices the same, which means that they picked up an extra 20% of an ebook’s price, since they no longer had to pay VAT. In effect, the tax was still there, but now it simply went to publishers, not the government. All the problems the Publishers Association complained about in terms of the harm to books, reading, learning and education remain. But publishers have become much richer for zero additional work, so suddenly these things don’t matter any more…

Featured image created with Stable Diffusion.

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Audiovisual/Beyond the Bricks/Thoughts
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In a world where AI art is cheap and easy to generate, do we still need copyright?

by Glyn Moody

To say that AI-generated art is controversial would be something of an understatement. The appearance last year of free tools like Stable Diffusion has not just thrown the world of art into turmoil, it has raised profound questions about the nature of human creativity. AI art also involves thorny issues of copyright that have piqued the interest of lawyers, who sense an opportunity to sue tech companies for large sums.

Most AI art programs draw on billions of existing images to formulate internal rules about shapes, colours and styles. Many, perhaps most, of those images will be under copyright. There are already several court cases that will help to decide the legality of this approach, including an important new one in the US brought by Getty Images against Stability AI, the company behind Stable Diffusion. But whatever the outcomes of these, it seems likely that AI-generated art will continue to exist in some form, given its huge potential, and the interest it has generated among the business world and general public.

Similarly, the copyright status of the end-result of using AI to produce new images is ill-defined. In February 2022, the US copyright Office ruled that an AI can’t copyright its art because it didn’t include an element of “human authorship”. However, more recently, an artist has received US copyright registration on a graphic novel that features AI-generated artwork.

In this context, it is sometimes forgotten that copyright for the fine arts is relatively new. Modern copyright dates from the 1710 Statute of Anne, which applied to “books and other writings”. Although the special class of engravings received protection in 1735, it was not until 1862 that the fine arts were eligible for copyright in the UK; for the US, it was only in 1870.

Significantly, one category of copyrightable subject matter explicitly mentioned in the US law was “chromo” – colour lithographs. Copyright became an issue for art once it was possible to make large numbers of high-quality colour facsimiles of original works. Before such technology was cheaply available, it was only through artists’ copies of their own works, plus often highly popular engravings, that a painting or drawing could be shared more widely.

Since the nineteenth century, copyright has been strengthened in numerous ways. For example the term of copyright is now typically for the life of the creator plus 70 years. At the same time, technologies for making copies have progressed greatly. When analogue material is converted into digital form, it is possible to make perfect copies of these files for vanishingly small cost. The rise of the Internet allows any number of copies to be sent around the world, again for effectively no cost.

This has led to a fundamental clash between copyright and the Internet. Where for 300 years the former has revolved around preventing unauthorized copies being made, the latter technology is based on the constant generation and free flow of copies of digital files, and cannot function without them.

Although nobody ever talks about that deep mismatch, in legal terms the situation is clear: everybody online is breaking copyright law hundreds, perhaps thousands, of times a day. Back in 2007, John Tehranian, a professor at Southwestern Law School in Los Angeles, calculated that typical Internet users would be liable for $4.544 billion in potential damages each year as a result of the unavoidable copyright infringements that they committed online. A law that is routinely ignored by billions of people online every day is clearly a bad law.

Unfortunately, the response of the copyright world to this problem has been to call for more stringent laws in the forlorn hope that this will somehow stop people making digital copies. The most recent example of this wishful thinking is the EU’s Copyright Directive. Of particular relevance to the world of visual arts is a requirement that major online sites must operate a filter to prevent unauthorized copies of copyright material being uploaded by users.

The volume of uploads today is so great – in 2020, 500 hours of video were uploaded to YouTube every minute – that such filters will need to be automated. However, it is impossible to encapsulate the complexity of copyright law in an algorithm. Even experts struggle to distinguish between copyright infringement and the transformative re-interpretation of an existing work, as the current case involving Andy Warhol’s use of a photograph for a series of images of the musician Prince demonstrates. Inevitably, the EU’s new automated filters will err on the side of caution, and over-block material. As a result, perfectly legal images that build on the work of others are likely to be blocked, with knock-on harm for artistic creativity and freedom of expression.

If more stringent copyright laws are not only doomed to fail – policing the entire Internet is not possible – but produce serious collateral damage to basic human rights, perhaps the resolution of the incompatibility between copyright and the Internet is to row back or even abolish the former. That may be bold, but it wouldn’t be a huge problem for the fine arts world, where the core artistic output is often a physical object of some kind. Copyright is largely irrelevant for such analogue items, since they cannot be copied in any meaningful way. Although digital versions can often be made, they are not substitutes for the original.

There are, of course, many born-digital works of art, but it is precisely this class of creativity that is now under threat from AI-generated art. In the future, it is likely that many types of digital images produced today by humans will be replaced by the output of AI systems, particularly in a commercial setting, where economics, not aesthetics, are paramount.

Artists may argue that such algorithmic work is inferior to the human kind. That may be true at present, but such AI systems have already made huge advances in just a few years, as recent developments have shown. In the not-too-distant future, their work is likely to be indistinguishable from that of human practitioners for most everyday uses, not just in terms of quality and creativity, but even to the point of being able to mimic any artist’s style without copying any element directly.

However, there is a different approach to art that AI generated works will be unable to match until AI itself possesses deeply-human attributes such as empathy, and is able to nurture social relationships. It’s exemplified by the artist Anne Rea. Her approach is based on establishing a rapport with people who commission and pay her in advance. She is quoted in Art Business News as saying:

I’d much rather cultivate a relationship with a patron. Get paid up front. Not allow any discounting. Keep all of the money. And through that relationship, get repeat purchases and referrals to their friends and family. That’s a smarter way to go.

Rea’s success harks back to an older model for supporting artists through patronage. Significantly, a large proportion of the world’s greatest artistic masterpieces come from this time, before copyright was invented. As AI art begins to encroach on digital creativity, and copyright threatens to shut down free expression online, perhaps it’s time to explore this older approach that is immune to both. More on this idea can be found in Walled Culture the book, available as a free ebook or in analogue form from leading online bookshops.

Featured image created with Stable Diffusion.

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Audiovisual/Beyond the Bricks/Media/Music/Thoughts
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The copyright world is preparing to hobble yet another innovative technology – generative AI

by Glyn Moody

Last week Walled Culture noted that there already are two lawsuits against generative AI systems that are causing such a buzz at the moment. Both those legal actions involved the visual arts, but as this blog noted back in October last year, generative AI is going to have a massive impact across all the creative arts. Further evidence of that comes from a new paper written by engineers at Google Research:

We introduce MusicLM, a model for generating high-fidelity music from text descriptions such as“a calming violin melody backed by a distorted guitar riff”.

MusicLM is already highly capable:

we demonstrate that MusicLM can be conditioned on both text and a melody in that it can transform whistled and hummed melodies according to the style described in a text caption.

If you’d like to hear the kind of thing it produces, Google Research has put online a huge number of impressive examples. Despite the evident power of MusicLM, the paper’s authors write: “we have no plans to release models at this point”, for the following reason:

We acknowledge the risk of potential misappropriation of creative content associated to the use-case. In accordance with responsible model development practices, we conducted a thorough study of memorization, adapting and extending a methodology used in the context of text-based [large language models], focusing on the semantic modeling stage. We found that only a tiny fraction of examples was memorized exactly, while for 1% of the examples we could identify an approximate match.

In other words, Google’s engineers are acutely aware of the likelihood that the music industry would sue over the creations of MusicLM, in the same way that visual artists have already done with Stable Diffusion. In fact the issue of what the Google team calls “memorization” – that is, literal copying of input samples – occurs only rarely, and in any case is easy to fix with a little tweaking of the code. Regardless of that, an article on Euractiv makes it clear that the copyright world is gearing up to attack generative AI as a matter of principle:

Artists’ organisations are preparing a push for regulatory changes over concerns that EU law fails to protect the creative industries from fast-developing generative AI technologies such as ChatGPT.

The article notes that the copyright industry has a perfect opportunity to hobble this new technology in the EU with the AI Act, currently under discussion:

The original version of the draft law did not cover AI systems like ChatGPT that can be adapted for various purposes.

Artist associations are mobilising to introduce a specific section in the Act dedicated to the creative arts, including safeguards requiring that rightsholders give explicit informed consent before their work is used.

This knee-jerk reaction to new technology has been a constant feature of the legal landscape for the last hundred years or so. Rather than embracing a new technology, the copyright world has always sought to kill it, and failing that, to limit it as much as possible by demanding unreasonable rights to decide what is permitted. Moreover, it generally wants to get paid handsomely for allowing even this limited use, a product of copyright’s perpetual sense of entitlement.

As Walled Culture wrote last year, generative AI is in fact a great opportunity for artists, because it will place a premium on (human) originality, freeing creators from drudge work, which can now be produced by AI systems. But as usual the copyright world isn’t interested in benefitting from this positive change, and would rather fight it, indifferent to the harms that it will cause to everyone else in the process.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Thoughts/Visualisation
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The first lawsuit against generative AI seems doomed to fail because it misunderstands the technology

by Glyn Moody

Back in October last year, a Walled Culture post noted that generative AI programs were likely to have a massive impact on both copyright and creation. When programs can produce free texts, images and sounds that are “good enough” for most everyday purposes, copyright becomes largely irrelevant. Creativity is impacted too, but not just in the obvious, possibly negative way. The free availability of an endless supply of AI generated works will make truly original, human creations more valuable. But of course, many artists don’t see those positives. Obsessed as they are with ownership and its infringements, they have responded to generative AI in the only way they know: by bringing a lawsuit. Their claim:

we’ve heard from peo­ple all over the world — espe­cially writ­ers, artists, pro­gram­mers, and other cre­ators — who are con­cerned about AI sys­tems being trained on vast amounts of copy­righted work with no con­sent, no credit, and no com­pen­sa­tion.

Today, we’re tak­ing another step toward mak­ing AI fair & eth­i­cal for every­one. On behalf of three won­der­ful artist plain­tiffs — Sarah Ander­sen, Kelly McK­er­nan, and Karla Ortiz — we’ve filed a class-action law­suit against Sta­bil­ity AI, DeviantArt, and Mid­jour­ney for their use of Sta­ble Dif­fu­sion, a 21st-cen­tury col­lage tool that remixes the copy­righted works of mil­lions of artists whose work was used as train­ing data.

Andres Guadamuz, who was interviewed by Walled Culture last year, has put together a useful first analysis of this lawsuit. Here’s the key passage:

there is a big issue with how things are described in the lawsuit that clash with how machine learning and diffusion models work in reality. The disparity is that there appears to be a big leap in understanding between the training of a model, and how the model stores that knowledge. According to the complaint, Stability.ai takes the images in the training dataset and these are “stored at and incorporated into Stable Diffusion as compressed copies”. This is not what happens at all, a trained model does not have copies of the training data, that would create an unwieldy behemoth of unfathomable size. What happens is the creation of clusters of representation of things, namely latent space.

What is likely to happen during the trial, if it gets to that, is that there will be expert testimony, and this claim is likely to fall easily.

IANAL, but I agree that the lawsuit seems flawed in its understanding of how generative AI works, and that is likely to cause the action to fail. If it does, it will probably also make it harder for future lawsuits to succeed in this area (Getty Images has just announced one in the UK against Stability AI, but no details yet). The following paragraph from the home page of the legal action is also rather telling:

These result­ing images may or may not out­wardly resem­ble the train­ing images. Nev­er­the­less, they are derived from copies of the train­ing images, and com­pete with them in the mar­ket­place.

This admits that generative AI images may not even look like the input data, but still tries to claim that they represent some kind of infringement because they are “derived” from the training images, even though they do not copy them, as Guadamuz notes, they analyse them. By the logic of this lawsuit, artists who look at other works, and dare to think about how they are put together, are also infringing by virtue of the “input” those creations provide for other, non-copying works.

What’s sad about this lawsuit is that it represents a further instance of copyright-obsessed creators reflexively fighting against exciting new developments in technology. It comes from a misplaced sense of ownership of intangible creative elements that belong to the artistic commons, and thus to everyone. It’s yet another result of copyright’s malign influence on creativity and creators.

Featured image created with Stable Diffusion.

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Beyond the Bricks/Knowledge/Libraries/Thoughts
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Finnish Parliament reminds us that copyright should not trump fundamental human rights

by Glyn Moody
Check out more content on EFF’s 2023 Copyright Week landing page

One of the key dogmas the copyright industry fights hard to impose on the world is that copyright should trump all other considerations, and in all situations. For its supporters, copyright should even be placed above basic human rights, if ever a clash arises between them. For the most part, legislators and judges have allowed this distorted viewpoint to be spread unchallenged, as Walled Culture noted with regret in November last year. That fact makes the following news from Finland, reported by Benjamin White on the site of the Association of European Research Libraries (LIBER), important:

In October 2022 we witnessed a significant development in Finland, with the Parliament’s Constitutional Law Committee concluding that the government’s draft implementation of the Copyright in the Digital Single Market Directive is not in line with the Finnish constitution. In particular, the Committee found that it conflicted with human rights – namely the right to education and science under Section 16 of the Finnish Constitution.

White points out:

Academic commentators have long argued that copyright, and indeed other intellectual property rights, risk undermining fundamental rights in their application. Given the obligation on governments to make careful judgements in situations of legal conflict, fundamental rights undoubtedly provide a clear reason for limiting the scope of IP rights.

Sadly, though, there have been few attempts to take that approach in practice. White mentions the challenge of the Polish Government to Article 17 of the EU Copyright Directive. Although the Court of Justice of the European Union underlined the importance of respect for the right to freedom of expression and information, its unclear ruling may still allow upload filters to censor lawful material.

The Finnish move is of particular interest for the following reason:

Until developments in the autumn of this year in the Finnish Parliament, we have been unaware of the fundamental human right to education and science being used in practice by European legislators to challenge the broadening scope of exclusive rights under copyright law.

We need other legislators and lawyers to follow the Finnish example and recognise that fundamental and universal rights matter more than the supposed sanctity of copyright, which only benefits corporations and a tiny number of “star” creators.

Featured image by Baptiste Valthier.

Beyond the Bricks/Knowledge/Libraries/Thoughts
Posted on

Peer review has failed, and that’s great news – for diamond open access, science and society

by Glyn Moody
Check out more content on EFF’s 2023 Copyright Week landing page

Over on his Experimental History blog, which he describes as “cognitive sneezing and interior design for your head“, Adam Mastroianni has two great posts about peer review in science. Wikipedia defines peer review as “the evaluation of work by one or more people with similar competencies as the producers of the work (peers). It functions as a form of self-regulation by qualified members of a profession within the relevant field.”

Mastroianni explains that although ubiquitous today, peer review is a relatively new phenomenon. After World War II governments poured huge amounts of money into research; peer review was supposed to make sure the money was well spent. But as Mastroianni documents, peer review has failed on just about every metric.

Research productivity has been flat or declining for decades; reviewers consistently miss major flaws in submitted papers; fraudulent work is published all the time. Peer review often encourages bad research because of unhelpful comments; and scientists themselves don’t care about peer review: they actively seek to circumvent it, and ignore it in their own reading.

In the face of this undeniable failure, Mastroianni goes on to consider whether it can be saved. He discusses the obvious approaches that might be applied to do that, and convincingly shows that none of them will work. Peer review has not only failed, it’s unfixable. Mastroianni is “relieved”:

Waiting months just to hear that an editor didn’t think your paper deserved to be reviewed? Reading long walls of text from reviewers who for some reason thought your paper was the source of all evil in the universe? Spending a whole day emailing a journal begging them to let you use the word “years” instead of always abbreviating it to “y” for no reason (this literally happened to me)? We never have to do any of that ever again.

He’s relieved, too, because jettisoning peer review and its constraints has given him a new freedom – and a new pleasure in writing papers that people will want to read:

last month I published a paper, by which I mean I uploaded a PDF to the internet. I wrote it in normal language so anyone could understand it. I held nothing back—I even admitted that I forgot why I ran one of the studies. I put jokes in it because nobody could tell me not to. I uploaded all the materials, data, and code where everybody could see them. I figured I’d look like a total dummy and nobody would pay any attention, but at least I was having fun and doing what I thought was right.

Then, before I even told anyone about the paper, thousands of people found it, commented on it, and retweeted it.

What Mastroianni describes is essentially the diamond open access approach, something Walled Culture has discussed several times. It is designed to provide an extremely simple and lightweight publishing platform to help researchers get their papers quickly and easily before as many people as possible. It is costless, for both the person uploading their paper, and those who download it.

One of the strongest and most frequent arguments against the minimalist approach of diamond open access is that it often comes without the traditional apparatus of peer review, organising which would be too costly for what are typically tiny publishing budgets. Mastroianni’s posts confirm its absence really doesn’t matter, because peer review adds nothing, and may even reduce the scientific value of papers that undergo it. That’s great news for open access, whose gold and green forms are still struggling to achieve their aims. It’s also great news for science and thus society, both of which stand to gain easier access to more interesting and potentially more useful research.

Featured image created with Stable Diffusion.

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