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[static.git] / content / texts / intro / author-user-intermediary.html

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title: "Author, user, intermediary – in search of the balance"
author: "Miłada Jędrysik"
order: 4
---

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The tension between rights and
privileges of authors, intermediaries
and users of cultural works is an
integral part of the copyright law
since its inception. The proliferation
of the Internet has strengthened
this tension, the shape of
relationships built by this law and
their impact on social life being thus
worth discussing.
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In 1827 Alessandro Manzoni, a renowned Italian writer,
published the work that for the Italian culture is of similar importance as for the Poles the epic poem Pan
Tadeusz written around the same time. This novel The
Betrothed, a love story with a social fresco in the background, became the manifesto of “Italian spirit” so desired during the formation of modern unified state formerly split into kingdoms, principalities and republics of
the Apennine Peninsula. A particularly important role in
this process played the formation of the literary Italian
language (in a world in which every major city used its
own dialect). Manzoni, thanks to the popularity of his
work, was given the role of a codifier of this language.
But first he had to, as he put it, “wash his vocabulary on
the banks of the Arno”, i.e. learn the Florentine dialect
, the language of Dante and Petrarch , regarded as the
most classic . In the years 1840-1842 he published the
final version of The Betrothed, devoid of Lombardian
accretions (Manzoni came from Milano).

However, three years later, the famous Italian publisher
of French origin Felice Le Monnier issued the previous,
non-canonical version of The Betrothed without asking
Manzoni’s opinion. There began a famous, 18 years’ process for copyright. Manzoni finally won it.

So open violation of the will of the author, who was
aware of the cultural and political significance of his or
her work, draws our attention to the semantics of the
Polish and most European term “authorship law”. This
term denotes the rights vested in the author, providing
him or her with an income from work and the right to
decide on its content. This is in Polish – in English we
have “the copyright”, i.e. the right to copy other people’s
work. And indeed, the British Statute of Anne of 1710,
considered the first modern copyright law, because
it gave the authors the right to print and reprint their
work, in practice protected the interests of the cartel
of London’s largest booksellers, who had already purchased the property rights of authors.

And so, from that time, it will be with the more and
more complicated matter of copyright law - the tension between rights and privileges of authors, intermediaries and users will be its integral, perhaps the most
important, element for the next 300 years.

Anyone acquainted a little with the Anglo-Saxon culture
knows “Happy Birthday To You”, and everyone who learned English at school would sing this popular song in
classroom. After all, it is one of the most recognizable
pieces of music in English. Hardly anyone knows that
for the public performance of “Happy Birthday To You”
royalties are due. And they are due to Warner/Chapell
Music, one of the branches of the largest American record company Warner Music Group.

The melody, which was composed by two American
teachers, sisters Mildred and Patty Hill, was announced in print in 1893 (though with other lyrics). But it
was only in 1935, when one of the record companies,
which then took over Warner, reported it to the registry. At that time in the United States the copyright law
was not acquired automatically the moment the work
came into being, but you had to report your credit to
the authorities, as in the case of patent mechanism.
Well, today Warner claims that their rights to “Happy
Birthday” will have expired by 2030. This assertion may
be rebutted in court, because the company has been
sued for it, and a lot of experts believe that the rights
expired a long time ago.

For now, however, at least in theory, anyone who records for someone a happy birthday, and puts it on
You Tube, for example, may get a bill from Warner. In
1995 Steve James, director of a popular documentary
Hoop Dreams about two young baseball players from
Chicago, had to pay 5 thousand dollars for a scene in
which the family sings “Happy Birthday” to one of the
characters on his 18th birthday.

The question whether copyright is the best possible
(and perhaps the worst, but no one has invented anything better so far, as Churchill used to say about democracy) way to protect the rights of authors, or the
mechanism driving profits of intermediaries at the
expense of the authors and users will also accompany us from the time of the Statute of Anne. The more
the development of technology and short-sightedness
of politicians made the creation of information monopolies possible, the more the pendulum swung to the
intermediaries. London booksellers were replaced by
media companies, whose interests span the globe. And
the more powerful they are, the easier it is for them to
make the copyright law serve their interests.

At the time of the Statute of Anne the protection period for new books amounted to no longer than 28
years from their publication. Today in the European
Union countries it is 70 years from the death of the
author, and therefore often more than 100 years from
the publication. The acceleration of civilizational and
cultural changes we are experiencing means that most
of the works entering now the public domain are basically trash that may be of interest to only a group of
enthusiasts.

It might seem that the extension of the term of copyright is a solution that serves the authors. But the vast
majority of them have no chances for the edition of
their works 69 years after their death, due to the aforementioned reasons. In addition to a number of works
that are already readily available on the market, there
would still be amateurs, but there are no chances for
edition, because publishing companies are not interested. But surely the profits from “Happy Birthday To
You”, a song that from the point of view of its application
and popularity is actually public property, are a tidbit.
And the ones who earn are not heirs to the Hill sisters.

In 2012 on the streets of Polish cities one could see
young people in strange white masks. The largest social protest at the time of crisis was directed not against
unemployment or low wages, but ... an international
agreement on the sale of counterfeit goods, known under the acronym ACTA. The Polish government, which
during that period held the European Presidency, signed the agreement, but due to protests across Europe
- in Poland they were the strongest - the European
Parliament rejected it in plenary.

The wave of indignation over ACTA was the culmination of the second pole of the tensions due to copyright
- between their owners and users of content covered
by them. People wearing masks of Guy Fawkes on the
streets of Polish cities showed that this pole is of particular importance today. Their protest was directed
against the part of ACTA which concerned copyright
violations on the Internet.

Why the agreement, tightening control over such violations and nearing the inevitability of punishment for
them, aroused such emotions? Some will say it was
about freedom of the Internet space. Others that it
was about an ordinary theft, because young Poles were
afraid that they would not be able to freely download
music and TV series. Between the two opinions, marked by emotionally or morally biased statements, there lies a problem called the intellectual monopolies in
the digital age.

London booksellers had to put up with “pirates” under the leadership of the greatest of them, Henry Hill
(convergence of the surname with the famous gangster, whose memories served as the screenplay for
Goodfellas, is purely accidental, so with the authors of
the song “Happy Birthday To You” ). Those “bunglers”
issued books cheaply to the delight of the audience
and the gnashing of teeth of the cartel. Therefore the
Statute of Anne was a kind of muzzle for them.

This picturesque phrase “piracy” revived in 1990s, when
it turned out that copyright law in the form it had been
operating for nearly 300 years, was not able to reasonably regulate the new technologies. The emergence
of audio compression methods in the mp3 file, e-book
readers, digital cameras and camcorders meant that
both the formation and copying of works had become
as easy as never before. And their further dissemination
on the Internet comes down to two clicks: copy – paste.
Despite attempts to align copyright law with the new
forms of cultural circulation, many users are still confused about its scope, or know it but do not accept it.

Blogs, social networks and services - each of us is here
the creator, and the vast majority of this is made on
non-commercial basis (although the profits from such
creativity can simultaneously reap the owners pages on
which it is presented). And of course we could act with
respect to copyright, i.e. just in case not taking anything
from the Web. But why a schoolgirl’s blog about Harry
Potter cannot be illustrated with film stills of him? Each
situation when overzealous representatives of copyright holders threaten us with legal consequences, raises
questions about the balance between the act and its
legal assessment. In the European Union there holds
the principle of proportionality - the scope of the prosecution and punishment should be proportionate to
the consequences of a breach of the law. It appears that
in the case of copyright there is no balance.

I write these words before the issuance by HBO of the
last episode of True Detective, already acclaimed the
event of the season. To find out who is the ghostly
Yellow King, a psychopathic murderer, whom with such
dedication tracked Matthew McConaughey and Woody
Harrelson I could subscribe to cable or satellite. Or watch
the video on the site where other users share it with
copyright infringement - for free, for a pittance, or in
exchange for watching a few ads. What do I do if besides I am not interested in the HBO offer or cannot
afford the fee? I will take my time, and the mystery of
the Yellow King will be revealed by the comments of
my Facebook friends? I am no saint, like most of us. I
will choose the most comfortable way. And the Polish
law does not punish for the “consumption” of a file
obtained in violation of copyright laws. Is my behavior
ethical? One could find both defenders and prosecutors in this case.

The belief that it is worthwhile to expand the scope of
fair use in the copyright law and shorten its duration,
in order to meet the challenges of the digital world and
fix the imbalance between the author, the intermediary and the user is more and more present also in the
political approach to the problem. This is reflected, for
example, in the public consultation on the copyright reform in the European Union, completed in March 2014,
led by the European Commission.

At the moment we are dealing the law being violated
massively, which is obviously not the determinant of
quality of this law. The French HADOPI act (in force
from 2009), which assumed until recently cutting off
the Internet access after the third case of breaking copyright law (this encompassing for example downloading movies from the network) has been relaxed in
2013. Nobody will take anyone’s Internet anyway, just
because of the disproportionate punishment in relation
to the offense. Moreover, even during the four years of
the HADOPI operation, only one person has been punished with a 15-day cut-off of the Web. And the cost
of the government agency, dealing mainly with sending e-mails, amounted to 12 million euros. So much
effort and money have gone into the implementation
of a utopia that could only be real in a world of total
control and supervision. And if we do not want such a
world, we probably also need to agree for the leaking
system or construct it otherwise.

Anyway, the option to “turn a blind eye to piracy, because we earn anyway, and if someone likes the pirate copy, they may be willing to pay for better quality”
seems to be shared by more and more rights owners.
Paulo Coelho on his own blog gave even links to unauthorized e-books with his own novels, and the producers of hit TV series Game of Thrones and Breaking
Bad expressed satisfaction with the great interest in
their productions in the grey zone, counting on the fact
that illegal users will eventually turn into subscribers.

The development and dissemination of such forms of
content distribution as iTunes by Apple, where you can
buy single songs, or streaming services like Spotify,
Deezer or Netflix, for which you pay a subscription
and - depending on its height - you can listen and
watch without any limits or within limits of different
heights, may also have an effect of reducing the grey
zone of the digital content market. The question is
whether anyone will benefit from them apart from
intermediaries.

As usual, when an innovation turns out the existing order, opinions as to the direction of these changes differ.
Proponents of the “old” will claim that only strict adherence to the copyright and exemplary punishment of
those who exceed the standard may restore a sense of
justice and defend shrinking profits. Their adversaries
will pay attention to the fact that the loss is apparent
(profits of the industry continues to grow), and the new
economy offers a tremendous opportunity to manage the customer who will pay for the last episode of
True Detective if access to it is easier than searching
and restoring files from the Internet. Furthermore, this
advantage for “liberating” of digital content - whether
in the form of shortening the duration of copyright or
extension of fair use, and finally open resources - will
be invaluable in the social dimension.

We can already see that the problem of “intellectual
monopolies in the digital age” extends from digital files to physical objects, which so far have managed to
avoid the problem with digital multiplication. However,
after the expiry in January 2014 of patents for 3D printers they have become cheaper and more accessible.
So when faced with the problem of how to control the
distribution of firearms in a situation where everyone
can print a gun at home, it is just a small part of a much
broader problem. If thousands of people desire to print
out chairs by Philippe Starck, what to do to enable him
and his heirs to reap the benefit?

Another invention, Google glasses, which can recognize people and objects and digitally reproduce them, in
addition to privacy concerns also provokes questions
about copyright at the time when copying – however
impossible this might seem - will be even easier than
it is now.

And what will happen in 25 years’ time? This, of course, we do not know. In our study, there are two key
pivots of uncertainty factors on which the future may
depend: on the first one, the public policy transits from
the concentrated on the free market to the community-oriented one. On the second the dispersion of financial, political and legal control over content distribution
loses with Leviathan of monopoly.

Tim Wu, a researcher at Columbia University, in his book
of 2011, “The Master Switch” speaks of repeated in the
information sector cycles of innovation and control.
Whoever owns the master switch, decides on everything - not only about the price and availability of service. Usually, the owner suffocates innovation, inhibiting the development of technology. Because what
do we need innovation for, since we own the switch?
Therefore, the telecommunications behemoth AT&T in
the United States could afford to block inventions that
would make life easier for consumers , such as the universal telephone plug. When it was used by the entire
modern world, the Americans still had to put up with an
uncomfortable and incompatible with networks outside
their country plug. In the 1980s film producers wanted
the U.S. to ban the sale of video recorders , because
they were afraid that the video recording for private use
would break the business . Today’s concerns of some
authors and intermediaries’ lobbies against “piracy” or
loosening of “muzzling” of copyright could be added to
the same repertoire.

The owner of the main switch, however, has no chance
in the fight against the destructive innovation. When he
is ready for it, it is already too late for him - the others
take over the baton. And then they start to make adjustments and checks. Internet seems to be somewhere
at the end of innovation - global information monopolies are already here. But above them there looms
the specter of digital control society, whether in the
form of censorship of uncomfortable artistic content,
or the tracking of consumer behavior. The question of
freedom may be the most important also in the context of the future of the copyright.

In our study we wondered how the future might look
like, depending on which direction of development
the society and the state choose. These scenarios can
coexist - as today, there coexist community-oriented
and free-marked oriented states, basically using the
same rights to intellectual monopolies. It is rather an
exercise of this, which vision will dominate in the developed world, or rather which should, so that everyone - authors, intermediaries, users - feel that they
are treated fairly.


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