Rather than the stringent protections copyright confers being applied to works by default, we are seeing many artists having to undo these defaults by specifying more liberal licenses with their works at the time of publication in order to facilitate promotional proliferation of their works when self-published.
We are also seeing the harsh penalties permitted by copyright being more widely used by publishers against unwitting citizens. There must be far clearer distinction of protected vs unprotected works made for the benefit of citizens if they are to be so severely punished.
Ideally, we need to restore copyright to its original purpose as a legal device enabling redress between commercial publishers, in order that they secure exclusive publication rights and enjoy this financial incentive to publish. To achieve this we need to allow the market to decide between freely redistributable works and stringently controlled works.
I therefore propose a reclassification of digitally representable works:
- Private Intellectual Property: Unpublished works (possibly privately circulated).
- Copyright reserved: Normally published works, automatically enjoying the option for protections conferred by subsequent copyright registration.
- Copyright registered: Unpublished or copyrighted works registered by a publisher on behalf of the copyright owner for extended copyright protection.
Private IP enjoys the same protection as registered copyrighted works, but registration is optional, e.g. may be registered in advance of publication if the work is expected to be published.
In all works the author is granted inalienable moral rights (accurate attribution in copies or derivatives where attribution is given, either explicitly or implicitly), the right to choose whether or not to publish, and the right to choose whether to register their work, or permit derivatives to be registered.
Moral rights are not transferable and can only be possessed by human beings (individually or collectively). Being a matter of inalienable truth, moral rights concerning attribution accuracy persist forever. However, the privacy rights of an author (to veto publication of unpublished works and to remain anonymous with respect to published works) terminate upon the author’s death (though may still be subject to others’ privacy rights).
The key change to copyright is that public performance, reproduction, and derivation of unregistered copyrighted works are now permitted as long as moral rights are observed (attribution is accurate where given and that derivative works are either clearly distinct, obviously the work of the deriving artist, or true to the original). This means transformative copies may be made without altering the sense of the work, e.g. change in resolution/fidelity rather than Bowdlerisation (unless clearly identified as a Bowdlerised derivative by another artist at all times). What would have been permitted under fair use remains permitted, e.g. excerpts for review.
Unlike unregistered copyright works, registered works are considered wholly within the control of the publisher (irrespective of how practicable this is post-publication). Registration may also be transferred to another publisher. All moral rights remain preserved/unaffected, and operations on (including possession or performance of) the work require specific authorisation/approval/license from the publisher. This must either be:
- attached to physical media containing the work,
- securely encoded within the work,
- possessed separately by the person or company in possession of a copy of the work (or conveying/transmitting/transforming it, etc.), OR
- published by the registration authority (a public license).
It must be clear to a purchaser of a retailed license that use of the work is strictly limited and is subject to the strong protections enjoyed by registered copyright.
Because a copyrighted work may only become registered with the approval of the author (always the copyright holder if published), the author effectively retains the same abilities as they had under the old copyright regime, i.e. to elect to completely restrict their work, enjoy strong protection of these restrictions by the state, and license authorisation for various restricted operations as they choose.
In order to sanction such strong protection by the state, the work must be commercially valuable and this can effectively be demonstrated by an initial registration fee of £1,000 with renewal of £100 each decade thereafter. Copies of the works must be lodged with the registration authority at the time of registration (becoming public domain upon expiry). These works can be inspected/viewed by the public on appropriate premises in person subject to an administration fee – naturally, no copies are permitted. However, hashes (MD5) of the registered works in each released format can be supplied on request at no charge (in order to confirm possession of a particular registered work).
Once permission to register a work has been obtained from the respective living authors, it may be protected up to 100 years after the last author has died, subject to payment of registration and renewal fees (which lapse after 1 year of non-payment). If such permission cannot be obtained from the authors (they are dead and made no explicit instructions in their will) then their published works can never be registered. However, this does not preclude a distinct ancestral or derivative work being so registered (if the respective authors remain living). In other words, whilst an author is alive they control whether their work may be registered, and have veto over
others’ derivatives of their works being registered. Upon death their work defaults to becoming permanently unregisterable, and they lose veto over derivatives being registerable.
Once a work is registered it does not apply any control over copies of that work or derivatives already in public circulation from previous publication, except as far as vetoing derivatives becoming registered (unless permission has already been granted). Consequently, it is advisable to register an additional, digitally distinct transformation of the work if already published. Otherwise it may be difficult to establish the provenance of an unauthorised copy.
This can be compared to a work initially published under a copyleft license (such as CC-SA) and subsequently republished under full copyright.
Private IP must be clearly identified [PIP](for the benefit of those to which it may be privately circulated). Similarly for registered copyright, e.g. (Creg).
Copyrighted works may be optionally identified as usual with©, however may also be signified as permanently barred from potential future registration, by marking them appropriately, e.g. (U) for copyright unreserved (copyrighted, but unregisterable). Effective dedication of a work to the public domain in this way can be confirmed at no cost by supplying it to the registration authority (credentials are required, but no penalty is applied if dedication is subsequently determined to be invalid, e.g. insufficiently distinct derivative).
If it can subsequently be shown that a registered work has not obtained permission from all necessary authors then the registration is invalid, and costs may be awarded to the authors whose permission was not sought. It is an offence to register a work knowing one has insufficient permission, or failing to demonstrate due diligence.
The EUCD is revised to apply only to registered copyright.
The effect of the above changes would be to embrace self-publishing and the benefits of greatly facilitated cultural exchange, yet to preserve the ability of large, commercial publishers to retain their traditional business models (for as long as their stringent control requirements remain acceptable to the market).
As ever, an author retains freedom of choice:
- To retain their works unpublished at no cost (with strong IP protection)
- To self-publish, with all moral rights, at no cost – retaining the option to register.
- Immediately or subsequently register their works for strong protection for a fee by appointing a publisher to do this on their behalf.
- To self-publish and publicly waive their option to register – (equivalent public domain dedication)
The important thing is that the default protections should represent those able and likely to be self-policed by the populace in its own interests. Any more severe protections especially those with draconian infringement penalties should at least be explicitly requested by the author via their prospective publisher, and clearly brought to the attention of any purchaser/user.
It is considered that there is no longer any need to incentivise self-publication by applying draconian restrictions by default, and that where such incentivisation through restriction is required for works of high commercial value this option remains available, but only for works whose publishers are willing to assert their high commercial value in the form of a registration fee.
This proposal should apply to new works. Existing works may be freely registered (commencing at date of original publication) if within 10 years of this proposal being enacted, with a default public license equivalent to the original copyright restrictions, and if this is done within their original copyright term. Registration and renewal fees, however, remain payable if it is desired to extend protection beyond the original copyright term, or to enjoy the restrictions not originally granted by copyright – for which permission by respective living authors must be demonstrated.