I’m going to Contuum 7  in Melbourne a few weeks time, where I’m supposed to be the local GoH (a gesture I appreciate, I like being thought of as ‘local’… but I have no Australian publications (or even nominations in the local awards), yet.  So that seems a little unfair to well, people who have). Anyway, the die is cast and I’m going.  Among the panels I am on is this one ‘Copyright Law:  how is it broken and how can we fix it?’

Now I am not sure we can fix it (for some reason they won’t let me march out the legal departments of Hollyweird, their accountants and all their lobby-pet pollies and hang them all out of hand, which would improve many things, methinks. They won’t even let hang a few as token, to set an example… It would fix  the problems in copyright instantly. )

  But I am damty sure it is badly bent if not utterly broken.

When discussing laws my first step is one much frowned on by courts and legal practicioners and Judges: It is ask what the purpose of the law is intended to be? Now to many of the aforementioned gentlefolk the purpose of the law, any law, is itself.  It exists and that is the basis of the jurisprudence that flows from it.  My starting point is a little different (and bear with me, this does apply to copyright -and therefore to authors, DRM and much else.)  The law is a written codex guiding and enabling the court system to see the purpose of the law is fulfilled. The courts and law merely a tool of that purpose, and if the purpose is not being served, then either court or the law are broken and need fixing or replacing.  This is not an interpretation that finds a lot support with the participants in this field… but it is the one 90% public actually hold to (which if you are one of the 10% might bear thinking about).  

So: What is the purpose of this law called copyright?  If you go back to the original Statute of Anne in 1709 it seems that the lawmakers of the time had very clear ideas about the purpose – the full title of the Statute said very plainly.

“An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.”

You can read this a number of ways, with several slants… BUT the purpose is clear it is for the encouragement of learning [by the poplace at large plainly]  or to put it in other terms, for the benefit of society.  Ownership – exclusive ownership of the intellectual creation is vested in either the author  or purchaser (from whom? the author)  although sadly there was squirm room there, which did incalculable damage to the fulfilment of the purpose of this law. The purpose of the law was not to allow censorship of what was published, and absolutely nowhere was Walt Disney mentioned. Nor was the term of copyright until the heat death of the sun. It was  a ‘short’ 14 years, which it could be leased out for and then ownership returned to the author  * for a further 14 years after which it was public domain.

One merely has to look at the situation propmped the need for such purpose. While Stationers (printers, in todays terms publishers) made good money out of books and enjoyed some monopolistic rights before this… authors had fairly little ability to make a living from writing – there was little to encourage them to disseminate their work in print (which is why the original draft pre-amble is so relevant*). Plainly the lawmakers of time recognised this.

As I read the purpose: Books are good for society, and we want more of them available. So: Authors should have a financial incentive to produce them.  The law then allowed them a monopoly on copies of their own work for a limited time. They could sell the right to this monopoly. 

Or in short: for the good of society authors must be able to earn a living.

Still a bit short on large corporates need to be able to plagiarise work and then benefit from a monoply on selling work they never created until the heat death of the sun…. because, oddly that’s of somewhat nebulous value to society, and actively discriminatory against the ability of the creators of original material to make a living and create more.

So: while the law allows a monoply to exist that neither benefits the public nor allows the author to make a living and thereby gives incentive to her/him to write more and better, it has failed at its purpose and can be declared broken. While authors need day jobs to survive and get 6-8% of the gross – and the middlemen earn living wages and their companies earn profits (after substantial benefits to their staff – salaries, medical, warm offices, equipment, company cars…) the purpose is not being served.

Now there are a number of takes on the above. It could simply be that traditional publishing is publishing people who shouldn’t be.  You could argue (and it happens) that they’re doing the midlist and newbies a favor. Lucky us.

The counter to that is does this ‘favor’ pay the bills or some of them?  And the answer is yes. Almost always.  Then it’s no favor.

The answer I prefer is that traditional publishing and its staff and overheads have taken the protection intended for the author to make him make economic sense, and used it for their benefit, as another author is born every minute and its an enless resource of no real value, unless a bestseller. There are some books being published that shouldn’t be. That do not make economic sense.  But those are books which cannot go to Kindle and pay their expenses as indies.

And that’s just it. Copyright works reasonably and isn’t broken if the middlemen are not allowed to benefit more – in gross terms – than the creator.

The E-book allows us to do this.

There is no place whatsoever for the protection of derivative works – whether you’re doing your own simplified Alice or Walt Disney is.   

The reaction of traditional establishement in losing their monopoly has been to try dig their heels in. To write contracts which defeat the purpose of  copyright, to introduce means to limit e-books – ergo DRM to retain their monopolistic position.

Piracy laws and DRM is of course the classic example of how the law fails if civil society fails to see a justifyable purpose to it.  Super-injunctions (See the UK papers) are another case – where the law has been shattered by massive civil disobedience, which I think you could rightfully argue is what’s happened with copyright. Because society (who are supposed to benefit from it) see it as exploitative and to the benefit of middlemen (be they publishers or music labels) and not having a direct cause-and-effect reward to creators (who in turn reward society), they’ve basically told the law courts that copyright law is not fit for purpose.

Which brings us to alternatives: what can you think of that would encourage learned men to labour at producing more and better books for the benefit of society (and by this I do not mean PC benefits, please! I mean reading is good for us!)? 

Oh – in other important news WITHOUT A TRACE is now available for a princely $2.99 (I am putting my money where my mouth is, and not gouging). In the interests of cutting out middlemen if you want to buy it, buy straight from NR please. I get more money that way, but it does not cost you more.

*I disagree with the author the wikipedia article on the Statute of Anne on this. It was clearly perverted later to be a law protecting publishers rights. The preamble to the original draft of the bill shows plainly that this was to encourage AUTHORS to produce books  – “in whom the undoubted Property of such Books and Writings, as the Product of their Learning and Labour, remains or of such Persons, to whom such Authors, for good Considerations, have lawfully Transferred their Right and Title therein, is not only a great Discouragement to Learning in general, which in all Civilised Nations ought to receive the greatest Countenance and Encouragement, but is also a Notorious Invasion of the Property of the Rightful Proprietors of such Books and Writings.”