[GUFSC] Can Copyright Be Saved?: New ideas to make intellectual property work in the digital age

[Ricardo Grützmacher]

http://creativecommons.org/getcontent/features/wsjFonte:

Can Copyright Be Saved?: New ideas to make intellectual property work in 
the digital age

by Ethan Smith, Staff Reporter of The Wall Street Journal
Reprinted with permission, January 2004

For some people, the future of copyright law is here, and it looks a lot 
like Gilberto Gil.

The Brazilian singer-songwriter plans to release a groundbreaking CD 
this winter, which will include three of his biggest hits from the 
1970s. It isn't the content of the disc that makes it so novel, though 
-- it's the copyright notice that will accompany it.

Instead of the standard "all rights reserved," the notice will 
explicitly allow users of the CD to work the music into their own 
material. "You are free... to make derivative works," the notice will 
state in part. That's a significant departure from the standard 
copyright notice, which forbids such use of creative material and 
requires a legal agreement to be worked out for any exceptions.

Is this the future of copyright? Perhaps. But a better way to think of 
it is that it's one of the possible futures of copyright. Because right 
now, it's all pretty much up for grabs.

Blame it all on the Digital Age. As any digital downloader can tell you, 
technology and the Internet have made it simple for almost anyone to 
make virtually unlimited copies of music, videos and other creative 
works. With so many people doing just that, artists and entertainment 
companies sometimes appear helpless to prevent illegal copying, and 
their halting legal efforts so far have antagonized customers while 
hardly putting a dent in piracy.

The challenge is finding a way out of this mess. Efforts fall broadly 
into two camps. On one side, generally speaking, are those who revel in 
the freedom that technology has brought to the distribution of creative 
material, and who believe that copyright law should reflect this 
newfound freedom.

On the other side are those who believe that the digital age hasn't 
changed anything in terms of the rights of artists and entertainment 
companies to control the distribution of their creations and to be paid 
for them -- the essence of copyright law. For them, the answer is to 
leave copyright law intact, and to use technology to make it harder for 
people to make digital copies.

Here's a closer look at some of the competing visions.

In This Together

The copyright notice for Mr. Gil's coming CD is being crafted by 
Creative Commons, a nonprofit organization that seeks to redraw the 
copyright landscape. Believing traditional copyrights are too 
restrictive, it aims to create plain-language copyright notices that 
explicitly offer a greater degree of freedom to those who would reshape 
or redistribute the copyrighted material.

Traditional copyright law gives owners of creative material -- and them 
alone -- the right to copy or distribute their works. Although they can 
waive all or part of those rights, the process isn't easy and usually 
occurs in response to a particular request. Those hurdles, critics say, 
can hinder the open and freewheeling sharing of material the digital age 
makes possible.

Creative Commons seeks to make the system more flexible by spelling out 
which rights the copyright holder wishes to reserve and which are being 
waived without waiting for a request. Artists can mix and match from 
among four basic licensing agreements: They can decide whether they 
simply want attribution anytime their work is used by someone else; 
whether they want to deny others use of the work for profit without 
permission; whether they want to prevent others from altering the 
material; and whether they want to permit the use of material only if 
the new work is offered to the public under the same terms. An 
underlying layer of digital code enforces the rights laid out by the 
owner, telling computers how a given work can be used.

A Creative Commons license isn't for everyone. It might appeal to 
independent artists for whom free samples, distributed online, might 
represent an attractive marketing option, or for someone like Mr. Gil, 
who believes that making it easier to share and reshape his music can be 
an important part of the creative process. But it's unlikely to appeal 
to the big media companies, for which copyrighted material is what they 
sell.

Still, Mr. Gil, who is also Brazil's culture minister, sees Creative 
Commons as a way to unlock the creative potential of digital technology. 
"I'm doing it as an artist," he says. "But our ministry has been 
following the process and getting interested in supporting projects 
concerning free use," not only for music, but also for creative content 
in general.

Tax Time?

A more radical proposal for overhauling the copyright system comes from 
William Fisher, a Harvard University law professor and director of the 
Berkman Center for Internet and Society.

Mr. Fisher believes that the wide-open nature of the Internet and the 
explosion of creative material that it has fostered are making the 
administration of copyright law increasingly unwieldy. Traditional 
copyright is beyond fixing, he believes, and ought to be scrapped in 
favor of a simpler system that doesn't require an onerous effort to 
protect each piece of creative material against copying.

His solution is a regimen called compulsory licensing. In this system, 
music and film, after being registered with the copyright office, could 
be traded freely over the Internet, eliminating the problem of copyright 
enforcement. The owners would be compensated out of a fund raised by a 
new tax. In order to share the proceeds of the tax, content owners would 
be obliged to license their material for such use -- that's the 
compulsory part.

"The only palatable short-term taxation option would impose a levy upon 
services and things that are used to access, store, record and play 
digital entertainment," Mr. Fisher says. "ISP access, blank media, MP3 
players, CD burners, and so on."

The professor estimates that a tax would need to be set at a blanket 15% 
to make up for the revenue lost to the new system. Critics already have 
pointed out, however, that the $2.4 billion he estimates his proposal 
would raise annually falls far short of the roughly $11 billion in 
annual revenue reaped by the music industry alone in the U.S.

Exercising Restraint

On the other side of the debate are those who believe that copyright law 
doesn't need to be tinkered with at all; it just needs an effective 
enforcement mechanism, which is not out of the realm of possibility.

Steps already are being taken in this direction with technology known as 
digital-rights management, or DRM, a field led by Microsoft Corp. This 
technology aims to protect the copyrights of producers of digital 
materials while allowing for the traditional right under copyright law 
for people to copy materials for personal use.

Rather than locking up digital content, DRM puts it on a leash. For 
instance, DRM technology may serve as the basis for security features 
that allow for only a single copy of a CD to be made, and don't allow 
the copy to be copied. The technology may allow tracks from the same CD 
to be exported to a portable MP3 player, but not to be transferred online.

In describing how DRM can protect entertainment providers without 
antagonizing consumers, Dave Fester, general manager of Microsoft's 
digital media division, says, "DRM is the magic link that allows you to 
step into that secure world, yet do it in a smart, flexible way."

Numerous security systems rely on Microsoft's DRM, now in its fourth 
incarnation. Most of the new online music stores that sell music in the 
Windows Media format rely on Microsoft DRM to place limits on copying 
and burning; the others, Apple Computer Inc.'s iTunes store and Time 
Warner Inc.'s MusicNet, rely on different DRM schemes. And a handful of 
CDs have been sold with Microsoft-powered DRM systems in place, in an 
attempt to stanch the flow of copyrighted material onto the Internet.

Indeed, DRM has provided a middle ground for music companies that have 
hesitated to institute in the U.S. the draconian controls now standard 
in Europe and Asia, where CDs generally are sold with technology that 
prevents them from being copied in any way. Not wanting to go that far, 
these companies until now have settled for continuing to produce CDs 
that have no controls at all.

A pioneer in DRM technology is a CD by rhythm-and-blues singer Anthony 
Hamilton released in the U.S. in September by the BMG unit of Germany's 
Bertelsmann AG. The CD relies on a copy-protection system from SunnComm 
Technologies Inc. of Phoenix. The system, which incorporates DRM 
technology, uses encryption to allow for the creation of only a handful 
of copies of the tracks on a CD inserted in a computer, for uses such as 
export to MP3 players.

However, the protection application runs only on some operating systems. 
Worse, many in the online community quickly pointed out that simply 
holding down the shift key while inserting the disc prevented the 
copy-protection application from running at all.

Thomas Hesse, BMG's chief strategic officer, acknowledges the system's 
shortcomings, but adds that it is "more a speed bump than a complete 
solution to all our problems."

SunnComm Chief Executive Peter Jacobs points out that the shift-key 
trick only works if a user executes it the first time -- and each 
subsequent time -- the CD is inserted into his or her computer. Mr. 
Jacobs adds that future versions of the copy-protection software will 
make the trick even less likely to work.

"You can't start from a perfect place," says Mr. Jacobs.