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+---
+title: "Author, user, intermediary – in search of the balance"
+author: "Miłada Jędrysik"
+order: 4
+---
+
+{% block lead %}
+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.
+{% endblock %}
+
+{% block text %}
+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.
+
+
+{% endblock %}