Copy right or copy wrong?

Recently I had a phone call from someone I knew. After a few pleasantries they hit me with a bombshell. They accused me of stealing work that was to form part of a new book. Basically I was being accused of being a copyright thief!

Now I'm a guy who prides himself on being a pretty moral person, with a good idea of right and wrong, so this took me back a bit and it took a while to work out what had happened.

A few months ago I became interested in finding out some more information on a memorial for German P.O.W's in the local cemetery. I asked a friend, who put me in contact with someone in the local museum. They sent me a single page word document which contained the name of the soldiers plus a small paragraph on the causes of their death.

I decided it would be a good project to test if I could use social media tools such as blogging to gather any more information on the persons involved (Getting information on German 1st world war soldiers is especially difficult because unlike in the UK there is no central registry and probably it is not a subject they really want to talk about much). So I copied the soldiers details onto a blog page and thought nothing more of it.

That was it. No breaking in offices at midnight, No hacking of computers, no massed photocopying of illicitly gained materials. Surely I had done nothing wrong, had I?

However as a matter of interest, I decided to look up copyright law to satisfy myself that I was blameless.

Copyright Law

When it comes to copyright, we all instinctively feel we know what is right  and what is wrong .
Photocopying a book and erasing the authors name with your own, then selling the book as your work is wrong. Copying a DVD and selling it down the local market is wrong. Even copying a CD and giving it to a friend is wrong (Although if everyone who has ever done that was sent to jail, we would have to concrete over most of the country). However what I hadn't realised was how far copyright went and with it some of the general misconceptions.

So here is a little quiz, lets see how well you do.

1. When does copyright begin on a work?

If you said when you apply for it and it is granted, please pay the £1000 fine. If you said when it is published, please go to Jail, do not pass go and please pay £200.

By law, copyright begins when something original is transferred from the mind to a physical form. That's right, at this very moment I am creating copyrightable material, which if you use without my permission, I can bring the whole weight of the law down on you (Although whether the internet can be considered physical is a bit of a legal grey area.) Even if you write something down, dig a  large hole and bury it, without ever showing it to anybody, it is still copyrighted. Which is why I am so annoyed my parents threw away my school books with my story about a boy called Harry Trotter who had magical powers. It appears that anything on that basis is copyrighted be it a tweet, email, Facebook missive or even some word document you get sent of unknown provenance.

2. Public data is not copyrightable.

If you said yes -Wrong! In copyright law there is a sweat of the brow clause. Even if the data itself is available to anyone, just the process of collecting the data can make it copyrightable. So if I say, print the date of the battle of Hastings, the very work involved in me finding that information and cutting and pasting it from Wikipedia can make my work copyrighted.

3. As long as you do not intend to make money off the information, you can use it.

If that's what you think, I look forward to visiting you in one of her majesties finest hostelries. There is something called the fair use doctrine, but it has nothing to do with monetary recompense

The rules of fair use are as follows. Fair use is applicable if

• The use is deemed acceptable under the terms of fair dealing.
• That the quoted material is justified, and no more than is necessary is included.
• That the source of the quoted material is mentioned, along with the name of the author.

and only if the work is being used for

• Inclusion for the purpose of news reporting.
• Incidental inclusion.
• National laws typically allow limited private and educational use.

Actually this is an area where I have to admit I was guilty as charged because I had not attributed the work to the museum. My reason for this however, was up to that point I hadn't considered it any more then a trivial gesture of someone helping me, not some privileged access to the guarded vaults of treasured knowledge. Also my use of it was a throw away gesture, not an attempt at serious academic rigour.  If I had, I would of attributed it and I could claim it was research and therefore had fair use. Whether you can put that information on a public blog is another grey area where the copyright law has not caught up with reality.

Anyway as you can probably gather the whole concept of copyright is a minefield that anyone can blunder into despite their best intentions.

The rules on photographic copyright are just as complex. I have a hobby of using old photographs by finding where the original was taken, overlaying the old and my new photo and peeling away one from another to get an show the changes over time (The technique is called Rephotography). Up to this point I had assumed that since the photo's I had used were over a 100 years old  they would be out of copyright.

To show how wrong I was here's another question

A Photo goes out of copyright when :-

A. The photographer dies
B. The photographer dies + 70 years
C. It's complicated

If you said C, you are starting to get an idea of the minefield that copyright is.

I cannot even start to explain copyright law in this area. This is as clearest a description as I can find about  UK photographic coptright law.

OK got that? Basically to work out if you can use a photo, you need to know when it was taken, if it was ever published, who photographed it and when and if and when they joined the great developer in the sky. Good luck with that....

The problem with copyright

Which of course raises the whole problem with copyright. The reason for it's existence was noble. It was to guarantee that the worlds creators got fair dues for there efforts and protect them from those who wanted  a free ride from their talent. But it was based on a idea that information was difficult to copy and create. Nowadays, everyone is a creator, such as cat video's or blogs and twitters. Not only that, information has no longer the concept of physicality, but is stored in 0 and 1's that can easily be manipulated and transmitted. This means that it is no longer possible to restrict where your information ends up (Hollywood have been trying for years and have has little success, despite great efforts and money being put into stopping it). In truth only those with the biggest pockets can ever hope to assert their copyright and even then they will only ever scratch the surface.

The last copyright act was in 1995. Even in that time, technology changes has made the provisions already look archaic and outdated. One of the changes was that the copyright period was increased to 70 years.At the same time as it was becoming impossible to police the present copyright period.

As I said, once copyright had value, but it is getting to the point when actually copyright is actually constraining creativity. Take my photo's as an example. The work I create is then combined with another long forgotten photo from a deceased photographer to create something new. But the strict interpretation of the law is that I need permission first from the the original photographer, or locate their relatives, or work out if 70 years has passed, get permissions etc. None of which is greatly conducive to creativity.

In many ways I should be a be a proponent of copyright, because my job is one that depends on creation or original material rather than consuming it. As a software developer I make value by finding new ways to solve problems. If someone should steal or appropriate that solution, I should have the remit to sue and get fair recompense, shouldn't I? In the early years attempts were made to do just that. Large companies tried to claim their code was their crown jewels and should be protected at all costs. But the software industry has moved away from that. They realised that the actual process of copyright made their cost more and productivity less. When I write a program I don't want to have to check each time whether another programmer somewhere else had written similar code. We benefit from sharing our creativity so that we can all mix and merge the code in new and imaginative ways.

The other problem with the copyright model is that although the law is designed to protect the small and weak to encourage creativity, what it actually does is the opposite. Most of the present problems with creativity can be traced to Disney in the 70's who realising that Mickey Mouse was about to lose it's copyright protection, lobbied US congress to extend it. Remember this is the same Disney whose virtual whole business model was built on authors such as Hans Christian Anderson and the Brothers Grimm, without so much of a cent going to their descendants. Big corporations love copyright because it stops others entering the market. They, unlike us, have the ways and means of protecting there rights.

If you are an up and coming artist, writer, performer, copyright is an abstract problem. Yes you have copyright on your work, but the problem is not stopping others stealing it, but getting people to acknowledge your work has any value at all. I went to my Photographic club AGM recently and one of the longest discussions was protecting members work from being stolen from the website. Now to those whose living is made with photographs this was a big issue. To the rest of us, the attitude was if we would be so lucky! One of the results of this is that successful artists can live of their past labours protected by law without ever again having to lift a finger. If only the rest of us had such protection.

History has shown that protectionism of a business model in the long run is counter productive. Copyright protects the creative business model in a changing world. Rather than trying to stop that change, it is the business model that must change. A professional photographer admitted to me that there is no money to be made now in selling photographs.  With the low cost of entry, the market is awash with photos. So instead he now trains people to take better photos. He still uses his skills, but in a different way. Instead of his photos being his livelihood, they become his advertising. He still makes a good living, but in a different way.

Other people who at present use the protection of copyright need to do the same. If copyright disappeared tomorrow, great novels would still be written, music composed and films produced. It would just mean that creativity would be more encouraged and not restricted . The only people who would suffer are the big corporations who at present control the access to the magic kingdom.

Finally...

Anyway, what's the ending to this story? Did I say fair cop guv', admit my wrong doing and take the work down.

Well you can see the result here.

The information is now properly attributed, but to paraphrase Charlton Heston, they can take the information on the blog from my cold dead hands. After all, all revolutions start with a little civil disobedience.

The one truth of copyright which is not often mentioned,is that unlike criminal law, enforcement must be done by the copyright holder. Although copyright is a universal right, generally it is only taken up by those with deep pockets. So although it is within your rights to ask nicely to someone not to use your copyrighted material (and please note, ringing me 10 minutes after I get home from work accusing me of copyright theft is not the nice way), if they refuse there is actually very little you can do, unless you wish to consult a lawyer (and remember they charge by the hour). After all this the true arbiter of the content's worth.

Finally

One of definition of a good law is whether it does more good than bad. By that definition copyright law is not a good law. See you down the barricades, comrades...Bring a good book

© Tony Pedley 2014. All rights reserved but you can use it anyway if you really want.

Disclaimer: Do not in any way take this blog as legal advice. I have no qualifications in law, nor do I want one. If you have a copyright issue, talk to a lawyer. Or even better don't

References

1. UK copyright Service
2. Copyright law of the UK(Wikipaedia)
3. What makes a good law