Author, user, intermediary – in search of the balance
Miłada Jędrysik

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.

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.