Walled Culture the book (free digital versions available) was launched just over three years ago. A few weeks afterwards, I talked with journalist and editor Maria Bustillos about the book and its background, as part of the Internet Archive’s Book Talk series. That interview has just been added to the Future Knowledge Podcast series in a shortened form, so this seems like a good moment to take stock of the key developments in the copyright world since the book’s launch.
Walled Culture’s first chapter looked at the impact on copyright of the transition from analogue to digital technologies, and the attempts by the copyright industry to lock down the new medium of the Internet. This section explored the enormous effort expended by companies in trying to stop people making copies of digital files, which meant privileging copyright above basic consumer and even human rights. Since the book was published, the work to strengthen and widen industry control has continued.
For example, in October 2022, there was a French proposal to impose a levy on the commercial use of works in the public domain – which undermines the very idea of what the public domain is. The following year, Germany proposed including copyright infringement as an example of “digital violence” – a reflection of the inflated importance that copyright is too often assigned as a result of industry lobbying. A few weeks later, the EU’s top court ruled that there is no right to online anonymity because copyright is more important. More recently, the EU has floated the idea of strengthening copyright yet further, by giving new rights to live streaming sites, to the detriment of the Internet and its users.
Chapter 2 of Walled Culture explored the consequences of the ever-longer copyright term and the attempt to apply analogue constraints in the digital realm. One is the issue of hostage works – works that are still in copyright, but which cannot be re-issued because it is not clear who owns the rights, and thus who could give permission for new editions. Even though there are laudable new efforts to tackle it, the problem is so huge that such small-scale heroism barely makes a dent in it.
The chapter also explored the many problems for libraries that arise from the shift to ebooks. It turns out that publishers have been even more greedy here than was evident when Walled Culture first appeared. In the UK, publishers lobbied against a 20% tax being applied to ebooks, arguing that removing it would allow people to enjoy lower prices. The UK government was persuaded, the tax was removed, but instead of passing on the savings to ebook purchasers, publishers kept prices largely the same, and pocketed the extra money themselves.
Another topic covered in the same chapter concerned the Marrakesh Treaty, which allows countries to bring in copyright exceptions to facilitate the creation of versions of works that can be accessed by the visually impaired. Even though such a treaty was first discussed 45 years ago, and finally agreed 13 years ago, it turns out that several countries are still undermining the goals and the intent of the treaty – an extraordinary betrayal of the blind, visually impaired, and dyslexic people around the world. The Marrakesh Treaty saga shows the copyright industry and its friends in governments around the world at their very worst, unashamedly placing copyright’s intellectual monopoly above other fundamental human rights.
Chapter 3 was a detailed exploration of open access – the idea that everyone, everywhere, should have free access to published knowledge, specifically to the research that is publicly funded. As Walled Culture the book explains, serious mistakes were made in pursuing this idea, with the result that the version of open access we have today has failed to bring with it all the predicted benefits. However, in the last few years, a glimmer of hope has emerged in the shape of diamond open access, where there are no charges for either the reader or the researcher. Walled Culture has reported on a number of the initiatives to support it.
The next two chapters looked at a very different, but highly important aspect of copyright: its enforcement. They describe more than a decade of attempts by the copyright industry to use harsh new laws to stop files being copied and shared online. Perhaps the most famous initiative is the French Hadopi, whose “three strikes” approach was meant to curb file sharing by throwing people off the Internet completely. It failed miserably, and at considerable cost to the public purse.
In the period since Walled Culture the book was published, a new state system for fighting alleged copyright infringements has risen to prominence, this time in Italy. Called Piracy Shield, it is administered by the country’s national telecoms regulator, Autorità per le Garanzie nelle Comunicazioni (Authority for Communications Guarantees, AGCOM). As this blog has tracked, AGCOM continues to extend Piracy Shield, even in the face of research that it is not working and that it brings with it serious “economic, technical and operational harms”.
In many ways, the heart of the Walled Culture book is Chapter 6, which describes the battle over the EU Copyright Directive, including some dramatic twists and turns in the narrative. As the chapter notes, the end result was deeply unsatisfactory, contradictory even. But it was passed, which meant that EU Member States were required to transpose it into local laws. The manner in which that was done is instructive.
For example, in Portugal, a new law implementing the EU Copyright Directive was not only passed without debate, it was passed without the public being told what the final form would be. The secretive, anti-democratic manner in which the new law transposing the EU Copyright Directive was rammed through is one of the worst examples of the contempt often shown in the field of copyright by politicians for the public they supposedly represent and serve.
In terms of major copyright changes, there were two main novelties in the EU Copyright Directive. The first was the so-called “link tax”, supposedly about saving the European newspaper industry and supporting good journalism. The reality has proved rather different, as a recent analysis showed, confirming earlier experiences in Spain and Germany. More recently, Canada introduced its own link tax, and research already indicates that it has been a failure from multiple viewpoints.
The other major change brought in by the EU Copyright Directive concerned the requirement for platforms to obtain licences for any copyright material that is uploaded to their servers, and to use filters to block material that is not licensed. Remarkably little has been heard about these upload filters since the Directive was passed and implemented. But that’s not because they are working well, or that people have stopped uploading copyright material to sites – the prime justification for upload filters – but because the copyright industry has moved on to bigger things. It no longer wants a few large platforms to filter uploads, it wants the entire Internet infrastructure to filter everything at all times.
In 2023, basic Internet infrastructure services – DNS and CDN – were accused of involvement in making unauthorised copies of material, even though they played no active role in its transmission. The same year, there was a French proposal to force browser providers to create the means to mandatorily block websites present on a government provided list. Then came a suggestion that the blocking should take place on the Internet’s core routers. That was just a proposal, but Italy has already brought in requirements for Piracy Shield blackout orders to be applied by DNS and even VPN providers.
Chapter 7 discussed the increasing consolidation and concentration of media power, to the detriment of creators, and the extremely dubious activities of many collective right organisations (CROs). The former has continued apace, and some CROs are finding new ways to increase their income. Similarly, the loss of culture as a result of copyright, discussed in chapter 8, has not diminished. Since the Walled Culture book was published, further examples of this unnecessary destruction have emerged in the world of films, classic TV programmes, video games, and even the Web itself. There are doubtless many others yet to be discovered.
The one bright spot in terms of recent developments is in the context of Chapter 9. This concluded by looking at the idea of true fans, and how they might offer an alternative and fairer approach to supporting creators. As numerous recent Walled Culture posts attest, this seems to be catching on, and in some surprising places.
The biggest development in the copyright world since the Walled Culture book was launched is undoubtedly generative AI. I didn’t mention it in the book, because the idea only entered the mainstream in November 2022, when ChatGPT was launched, and thus many months after Walled Culture was written.
There is a certain irony in the apparently unstoppable rise of genAI, and the ensuing panic by the copyright industry. As Walled Culture the book details, companies in the latter sector have been obsessed with preventing ordinary people from using the Internet to make even a single unauthorised copy of material – often threatening extreme legal and economic sanctions. And yet today’s hot genAI companies – startups like OpenAI, and established players like Google – have used vast swathes of the digital world in order to train their AI systems, and there is little the copyright companies have been able to do about it. To be sure there are plenty of lawsuits underway, and even a few fines. But the sums involved are likely to be relatively small compared to the extraordinary valuations placed on genAI companies – making them just another minor cost of doing business.
What’s really problematic about the rise of services based on generative AI is not that they are using huge amounts of copyright material – those will probably be licensed in one way or another – but that the creators of that material are unlikely to see much benefit from the payments made to publishers, recording companies and studios. Generative AI is portrayed as a novel and exciting chapter in technology, but actually, it’s not new, since much of the foundational work goes back decades. And as far as ordinary people and creators are concerned, it is definitely the same old copyright story: companies reaping the benefits and profits, while everyone else is expected to accept with gratitude the few scraps tossed their way.
