Law is proficient at creating conceptual constructs from nothing. In essence all law is ideological. Idea layered on idea to form an edifice one would hope reflects the broad interests and needs of society. Yet it is important to recognise that legal constructs are merely that: constructs created over a long stretch of history to serve the needs of dominant interests in society. As such law does not represent truth in any deep sense.
What we take as given today actually exists because interests in society have pushed lawmakers - both judiciaries and legislatures - to evolve law over time to suit their needs. While property rights attached to the expression of ideas (copyright) is often viewed as an axiom of business, it is relatively recent on the timeline of developing legal concepts. And on a weighted scale balancing private interests with public, copyright law has now evolved too far away from its intellectual justification. The response of the free and open source software movement has been to use existing law for communal benefit. Now, an opportunity exists to apply the same legal rationale to film and video production and using the Internet as the collaborative infrastructure.
The law as a political construct
First, several examples help illustrate law as a political construct rather than truth.
Trusts emerged in England in the 12th and 13th centuries as a construct to separate the legal and beneficial interest in land. At that time in England, land ownership was based on feudalism: the King was the absolute "owner" of land and all nobles "held" land (either hereditably or non-hereditably) from the King in exchange for military services and dues. During the Crusades the King required nobles (landowners) to leave England and fight for extended periods. To facilitate the management of their land in their absence landowners conveyed their interest with the understanding the land would be conveyed back on their return. In cases however this was refused by the new landowner. Unfortunately for the original landowner no recourse existed under the common law because the land had been legally conveyed. A practice emerged whereby the original landowner would petition the King, who referred the matter to his Lord Chancellor to decide according to his conscience. Generally the Lord Chancellor found it unconscionable given the circumstances that the interest of the original landowner be superseded by the subsequent owner. Over time the Court of Chancery emerged as the court to seek equitable remedies when the common law could not provide a remedy. To enable the equitable remedy, the legal ownership right would be considered separate from the beneficial interest in land: the owner of the property holds the property on trust for the beneficiary. Today, the Court of Chancery oversees a separate body of law to common law known as equity, and trusts are used extensively in estate management.
The trading company - the antecedent to the corporation or company of today - emerged in the 16th and 17th centuries in European empires to facilitate international trade from their colonies. Any colonial project would require significant funding from different sources with the expectation of profit in return. Investment was obtained from wealthy merchants and aristocrats after a Royal Charter from the Crown for a monopoly on trade in a given area for a given timeframe was received. Rather than have all the diverse investors manage the project, the trading company was devised to separate operating responsibility from the right to a share of the proceeds. In order to assign liabilities and facilitate purchasing this construct could enter into contract in its own name: it was deemed a legal person. In some jurisdictions today - most notably the United States - corporations have equal rights as actual people under the constitution.
United States society places incredible importance upon the ideas contained in its constitution. The constitution legitimises the state and defines the extent of its powers. Yet the idea of limiting sovereign power evolved politically as concessions from the state to demands from interest groups in return for support. Perhaps most notably was the political truce between King John and powerful barons intent on paying less tax: a charter agreed in 1215 and known today as the Magna Carta. The Magna Carta therefore - while revered in legal circles as an inherently important charter - is equally a simple representation of political leverage.
Viewed therefore as reflecting the evolving needs of society and its elite influencers, law is neither sacred nor permanent. Rather, it is an open political question how and what law should be created, and in whose interests it should serve.
What we might mistake as axiomatic today - ideas such as trusts, corporations and constitutions - originated in the minds of people as political constructs to serve the needs of a dominant interest in society at the time. Law does not represent inherent truth.
So how might we similarly consider another supposed pillar of contemporary law, intellectual property?
Conceptualising intellectual property
Nowadays, intellectual property is widely considered a cornerstone in the common law tradition. Unfortunately the term intellectual property is misleading: what is in fact several divergent concepts may be misunderstood from this name as a broad right to own what one thinks up.
Rights to property are central to the capitalist democratic tradition. Capitalism at its simplest is a system to allocate scarce resources in a society. Without the right to "own" resources and monopolise the income from the resource capitalism cannot function.
Original rights to real property (land) existed in the Roman empire and were adopted in Europe in the Middle Ages. These rights are theoretical and socially enforced: other civilisations have developed successfully without any notion of the right to own and derive income from land, for example indigenous Australians.
The economic imperative to property rights is rent: the right to earn income exclusively from the good. Yet the concept of property also provides the right to use the good, the right to transfer the rights to others and the right to enforce the bundle of rights: to seek recourse should anyone infringe the other rights.
So beyond land - in which the European traditions have assigned this bundle of rights for two centuries - what other economic goods should be assigned property rights? What otherwise public resources should a private person (actual or legal) be granted the artificial right to monopolise incomes from to the exclusion of others?
Broadly in the common law tradition, several economic goods have property rights attached granting the owner monopoly rights to their income: the expressions of ideas (copyrights), novel inventions (patents) and identifiable marks that distinguish products or services from other products or services (trademarks).
Attaching property rights to works
The printing press was invented around 1440 by Johannes Gutenberg along with movable type printing technology. This innovation dramatically deflated the cost of printing and improved the quality simultaneously. When Gutenberg printed the Bible in the 1450s a technology to publish ideas had been established. By 1500 printing presses across Europe may have produced more than twenty million volumes, a dramatic surge in distribution of ideas that greatly contributed to the European Renaissance.
The spread of ideas presented propaganda concerns to European rulers. To prevent undesirable ideas from spreading the Parliament of England regulated the printing presses. The Licensing of the Press Act 1662 required all printing press operations to register with the Stationers' Company1. Eventually, the Parliament of England replaced controlling ideas via the publisher and its guild with a system of licensing via the author. The Statute of Anne 1710 granted authors an exclusive right to their work for 14 years, with an optional renewal for a similar term, after which expiry the work would fall into the public domain. The statute was the first to provide copyright regulated by the government and courts rather than private parties: it was the first to grant state-sanctioned exclusive monopoly rights to the income from printing and reprinting books. Similar provision for the state to grant monopoly rights to authors is provided in the United States Constitution, written in 1787.
The purpose of copyright
Copyright exists to incentivise authors to create: in the words of the Statute of Anne, to encourage "learned men to compose and write useful books". To reward creative endeavours resulting in work that without an artificial monopoly would otherwise not be created.
That authors be rewarded for creating works of value is for the public benefit: in the US Constitution, Article 1, Section 8, the purpose of copyright (and patents) is stated as to promote progress in science and useful arts by securing exclusive rights to writings (and discoveries).
In other words, an author is rewarded for creating a work of value with an artificial monopoly on the economic rents of the good, without which reward the author may not have been sufficiently incentivised to create the good. The monopoly right granted to the author is to the public detriment due to the increased cost of access to the private good. Ultimately the public is better off when the work resolves to the public after the author has been appropriately remunerated.
The expanded scope of copyright
Since 1710 the scope of copyright has expanded significantly, both the types of protected works and the grant term. Indeed, as soon as the grants originally outlined in the Statute of Anne began to expire in the 1730s, London booksellers engaged in lengthy legal proceedings against the Scottish printing industry to extend the term of their monopoly rights under common law. It was in this period that London booksellers first argued that perpetual copyright - copyright enduring the death of the author - was necessary to incentivise authors to create works: if an author could not bequeath her right to a monopoly to her descendent or another party she assigned her rights to (her publisher for instance), why would she create a work of value in the first place?
In contemporary common law jurisdictions, monopoly protections have been extended from books to include: written music, recorded music, written screenplays, dance performances, photographs, paintings, motion pictures, videos, architectural drawings, and source (human readable) and object (computer readable) software.
Most importantly, the grant term has been extended significantly from the Statute of Anne's 14 years from date of creation plus an optional 14 year extension. In most jurisdictions today work does not enter the public domain until 50 years after the death of the author, as stipulated by the Berne Convention2 of 1886. Yet the trend towards perpetual monopolies without public benefit continues: in most common law jurisdictions (for example the United States, United Kingdom and Australia) work enters the public domain 70 years after the death of the author.
Trade related aspects of intellectual property3
During the majority of the 20th century the international intellectual property regime was underwritten by the Berne Convention. This convention treated copyright and patents as distinct areas and required signatories to reciprocally recognise the policies of other signatory countries. In 1995 global regulation of information and knowledge shifted away from the World Intellectual Property Organisation (WIPO) towards the World Trade Organisation (WTO) - established as part of the Uruguay Round of General Agreement on Tariffs and Trade (GATT) - together with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Historically, WIPO has been primarily focused on protecting the interests of rightsholders. And in the period immediately following the establishment of the WTO, the TRIPS agreement became a baseline for minimal protections. In the same manner that rightsholders in 1730s London sought to extend the term of their rights, a coalition lead by the pharmaceutical industry and Hollywood studios sought to ratchet up restrictive "TRIPS-plus" protections both through WIPO and United States bilateral free-trade agreements.
A central effort involved standardising the idea of "intellectual property" as a standalone policy ideal that would conjoin previously separate industries - pharmaceutical and content - around a trade-oriented imperative. Given the relative competitiveness of their information economies, developed economies aligned around intellectual property as a foundation to the global trading system. The high-water mark for restrictive protections to-date has been established in the finalised proposals of the Trans-Pacific Partnership which would require signatories to agree to "plus 70" years copyright protection alongside criminal penalties for copyright violation.
Why is copyright policy pivotal now?4
Today, information and knowledge is the key input into the industrialised and networked global economy.
The leading national economies industrialised prior to the 21st century. While many so-called developing economies are still undergoing industrialisation, the major producers of global output were transitioning production from industrial manufacturing to services in the 20th century, and are transitioning to information manipulation at the outset of the 21st. Technologies such as steam power and the factory system were central to the Industrial Revolution in Great Britain that occurred from the late 18th century shortly after the introduction of the Statute of Anne. Today, digital information and knowledge is the defining value of the 21st century economy.
Yet many countries have not transitioned to a knowledge economy. As these countries endeavour to lift living standards of citizens, access to innovative knowledge becomes critical to improving relative competitiveness. It is in this context that trade related aspects to rules governing production and exchange of information, knowledge and culture has become pivotal to developing economies.
Furthermore, more than three billion people - nearly half the world population - are now connected to the Internet. The Internet represents a profound shift in communications capability that - akin to the printing press and movable type technology a half millennium ago - has remade global communications infrastructure. Entire economies, business models and culture are evolving to reflect the interconnected architecture of the network.
While industrial economies focus on manufacturing production and post-industrial economies on services, the knowledge economy is focused on technological innovation - the remit of copyrightable software and media and relatedly novel innovations (patents). Copyright and patent policy, originally concerning a tangental aspect of societal wellbeing at its inception - namely published words - now directly controls the very essence of economic production, societal communication capacity and cultural output.
The problems with copyright
Copyright law was created as a result of the printing press. Its development in the quarter millennium since has reflected the needs of industrialising economies and the imperative of industrial-era business models - particularly mass media communication - to own the means of production and provide a return-on-invested-capital.
Yet the printing press is no longer the most influential publishing technology. The capital-intensive mass media infrastructure - initially via telegraph and newspapers and later radio and television - is no longer capturing the attention of audiences and consequentially advertisers. Internet companies now capture the largest audiences and obtain the strongest advertising cashflow. The financial capital required to build communication infrastructure has plummeted and the core inputs to produce information, knowledge and culture - computing resources and human creativity - is equally distributed across the global network. In this future all communication and culture is extrapolated from bytes of information transferring across the decentralised network, not controlled by siloed content factories broadcasting on the private spectrum.
So how should we treat copyright in the Internet age? Has the raison d'être of copyright fundamentally changed since the Internet necessitating remake?
Information is nonrivalrous: the marginal cost of its production is zero. Accordingly, the optimum price of information in a competitive marketplace is zero. This is precisely why monopoly copyrights are required to artificially create markets for information over and above the zero marginal cost of its production. Artificially limiting access to information hinders creation of the next generation of knowledge because information is both output and input for the next idea. The artificial cost of information can be imagined as a kind of tax imposed by the rightsholders of current information on future innovation to the detriment of the public.5 That tax grossly misaligns the value of the economic good. I am confident few would argue the disco inspired The Rolling Stones album Emotional Rescue is valueless, yet it is impossible to argue it is as valuable today than its release in 1980. The information tax is the difference between its true value and the $30 price tag on that record today.
Established copyright policy has not evolved with advanced economic foci nor re-architectured communications infrastructure. Many businesses have not been remade nor have their business models changed: the business models that succeeded in the industrial-era prior to the Internet still dominate major stock lists. Rather than acknowledge that pre-Internet business principles may no longer apply, corporate interests - lead by the pharmaceutical industry and Hollywood studios - have used their political leverage and succeeded in capturing legislative efforts around intellectual property in their desire to lock in their industrial-era business models.
An alternate approach: lessons from software
While work resolves to the public domain - an area conceptualised as outside the realm of intellectual property law - after expiry of the copyright grant, the free and open source software movement has successfully utilised intellectual property laws to define an area of communal access within its realm, often known as the commons. Akin to environmental common land found for instance in the United Kingdom - land collectively owned by many with joint or communal access rights to others - the intellectual property commons is an area of information, knowledge or culture enforced by copyright as communally owned and broadly accessible. In many instances, the copyright licences utilised enforce the permissive license: you may use the existing work provided your contribution is available for others to use as well. Used extensively by free and open source software, these licences create a kind of shared platform of software that all people and organisations can utilise to provide their services atop: a rising tide lifts all boats. Indeed, the world owes tremendously to the free and open source software movement: none of the successful Internet services or advertising companies would be possible without the free and open source software created in collaboration and provided to the information commons. Importantly, this collaborative approach reflects the economic reality of information - its zero marginal cost - in tacitly acknowledging that it is the service layer atop this shared asset in which a market for services can exist.
Open source film and video
Information is bytes on the network, whether software, telecommunications or content. Nowadays, nearly all feature films, advertising commercials, sports films and video news are produced using digital equipment. At the operating system layer of a computer there is a difference between software - essentially text files at the time of creation - and binary video files. However at the network layer this difference is not present.
If collaborative production of software for use by the commons has been so valuable, can this model be applied successfully to films and videos? Are there differences between programmers and filmmakers that preclude the application of free and open source software principles to film production, or do the principles of creative collaborate production of films for use by a commons apply?
The creative motivations of people authoring software for communal benefit must also reside in people making films today. A desire to be creative with other people would propel people to share raw footage they shoot for the public benefit, given the tools to do so. With access to communal original footage shot all over the world, filmmakers could make and reinterpret films and videos at much lower cost. A new focus on storytelling, action or creativity may even develop that increases the quality of films and videos being produced because more can be made.
The free and open source legal framework can be applied to open source films and videos. Yet programmers have had generations of open source software: most recently software is made collaboratively on online platforms like GitHub.com. To evolve open source film and video, filmmakers would need their own version of GitHub.com tailored to the requirements of filmmaking. If you are interested to help bring about this future please get in touch, I am working on these tools and would welcome hearing from you.
1. The Worshipful Company of Stationers and Newspaper Makers, a Livery Company of the City of London.
2. The Berne Convention for the Protection of Literary and Artistic Works.
3. The ideas in this section synthesise those outlined by Yochai Benkler in "The Idea of Access to Knowledge and the Information Commons: Long-Term Trends and Basic Elements".
4. The ideas in this section synthesise those outlined by Yochai Benkler in "The Idea of Access to Knowledge and the Information Commons: Long-Term Trends and Basic Elements".
5. "Access to Knowledge: A Conceptual Genealogy" by Amy Kapczynski.