Rumors of a 'Whisper Campaign' Forming Against Fair Use 174
An anonymous reader writes "Ars Technica reports that a group of companies and organizations it calls 'big content' is currently engaged in a worldwide 'whisper campaign' against Fair Use. 'The counter-reformation in question takes the form of a "whispering campaign" in which ministries in different countries are told that plans to expand fair use rights might well run afoul of the Berne Convention's "three-step test." The Convention, which goes back to the late 1800s, was one of the earliest international copyright treaties and is now administered by the World Intellectual Property Organization (WIPO).'"
Only the US has fair use anyway... (Score:2, Interesting)
Oh wait... just one tiny little problem with the usual Slashdot conspiracy theory. There is exactly 1 country in the world that has fair use: The US. In the history of the world there has been exactly 1 country that has EVER recognized fair use: The US. No country except for the US has ever recognized fair use as a legal theory. In some common-law countries like the UK and Australia there is a parallel concept of "fair dealing", but it tends to be given a much narrower interpretation than the broad equitable doctrine of Fair Use that is employed in the US. When it comes to common law countries like those in the EU, there are enumerated lists of exceptions from copyright protection that are extremely strict and inflexible compared to Fair Use rights. This is how it has been for well over 100 years, but it's fun to see Slashdot promote FUD and ignorance instead of any type of rational discussion (again).
Re:The "3 steps" (Score:3, Interesting)
1) not the default, this is for exceptions, (sounds redundant though).
2) Does not cost the owner in lost sales/reduced sale price
3) This reads as a ban on things like fanfic, where the character of the original work can be altered by additional information
The problem with the law is that one person's interpretations of this becomes law for future reference, and it takes years of training to have a moderate understanding of that background, and the ability to find the specifics when you need it.
Re:The "3 steps" (Score:2, Interesting)
MODS - Not Flamebait (Score:3, Interesting)
SCOTUS Stacked Against Berne Convention (Score:3, Interesting)
They already can't enforce the laws on the books, because they are PR disasters, that only constantly serve to diminish the credibility of the law. The big media content owners are starting to run scared, as well they should be. Look at the comments regarding yesterday's study that 95% of 18-24 year olds copy content illegally. Nothing but solid contempt for these insane copyright laws. The tide is shifting, and politicians voting to screw consumers will be assuming ever higher political liability for doing so.
This is all good. These people are the evil cousins to the ultimate evil international bankers without any country loyalty or concern for consumers who confiscated real money world-wide and instituted fiat paper money debt control. They finance wars, they could care less who is at war as long as there is war somewhere from which to profit through the issuance of debt and confiscation through bankruptcy. And ultimately, the war on copyright is just the warm up battle to the war on fiat paper money. They are just printing control and printing taxation at will, at the expense of disparate international citizens. It's nothing put pure theft of the wealth which is the property of culture, of all, just like free speech and free trade.
Perhaps other countries will now better understand American disdain for the United Nations when they see other international institutions like the IMF, WB, and now the World Intellectual Property Organization (WIPO). They are there to finance themselves by legalized theft against your rights.
Re:The "3 steps" (Score:2, Interesting)
In politics, it's not a "whispering campaign" (Score:5, Interesting)
Politics does not select for politicians who are deep thinkers -- although possibly there may be a few odd examples. Politics favors the gregarious, the people pleasers, the networkers.
So, suppose you are such a person, who makes his way in the world by being popular. You aren't stupid by any means, and let's stipulate for the purposes of argument you are not corrupt, but well intentioned. Still it's a fair bet you probably aren't the kind of person who likes to hike to a lonely spot in the mountains, to spend a pleasant afternoon contemplating the role of the unrestricted flow of information in maintaining a vibrant and free society.
But this is exactly the most important kind of issue that comes in front of you as an elected official. And in all probably, you don't have a deep reservoir of accumulated thought to draw upon when this comes up. You have deeply held convictions but you haven't worked out how they all apply in cases like these.
So, being a gregarious person, you draw upon the thoughts of others who had the foresight to propose the connections in advance. Furthermore, being a people pleaser by nature, your first inclination when they did this was to receive their argument favorably. You certainly did not tear it down and throw it in their face as a load of rubbish.
Having received the argument favorably, and since the argument connects the question to some of your values, like "private enterprise", you're primed to take it up as your own.
That's why buying access is such a huge win for special interests and a huge loss for democracy. It's not that there isn't corruption, of course there is. But a politician doesn't have to be personally corrupt for you to corrupt his opinions.
It's an odd thing, but being the kind of person who likes to spend quiet afternoons contemplating big questions, I have found vigorous "men of action" remarkably easy to steer. They're always up to do something and they think of themselves as "far sighted", but that usually means they don't have a clear view of how the ground in front of their feet is connected to the goals they see on the horizon. And they tend to be completely unaware that they are acting without a road map, so when you slip one under their nose, they internalize it. You can see that this is just one of many possible alternatives, but they have a way of seeing it as the one true path that they have been following all along.
Cutting down fair use didn't call for 3-step tests (Score:3, Interesting)
It would take an ingenious lawyer to argue that any of the fair use rights that coexisted happily with the Berne Convention for most of a century, are somehow in conflict with it now if there is any movement to revive or restate them.
-wb-
Re:The "3 steps" (Score:3, Interesting)
Re:Leeches (Score:5, Interesting)
I'm not the same AC as this guy, but it's funny he mentions them in the context of a "whisper campaign" against fair use.
Sonny Bono was a Scilon and a Congressman. In 1998, he didn't just argue for copyright extension, he got the Mickey Mouse Protection Act named after him: The Sonny Bono Copyright Term Extension Act (CTEA).
The Scilons, via Bono and via the rest of their Hollywood connections, were strong advocates for the DMCA. Within months of its passage, they were using DMCA threats to out critics and open them up for further harassment. They've used the DMCA as a legal cudgel against everyone from Google (they tried to prevent Google from linking to critics' sites) to Slashdot (the only time in Slashdot history that the Editors have been forced to delete a post).
Using back channels to lobby for the end of fair use would be a major legislative victory for the Scilons; the only reason they don't sue on the basis of the phrase "seventy-five million years ago" is because they'd be laughed out of court. Under cult doctrine, "the purpose of a lawsuit is not to win, but to harass", and if fair use (using quotations from cult materials for purposes of parody, expression, or criticism) goes away, they'd have standing to file such suits.
That AC's closer to the truth than he knows. It wouldn't surprise me one damn bit to see the Scilons behind this.
3 Tests (Score:2, Interesting)
Re:Cutting down fair use didn't call for 3-step te (Score:2, Interesting)
And this Berne Convention International Copyright Treaty is itself *illegal* under United States law, as the length of copyright terms are unconstitutionally not contemporary limited. Maybe we don't even need an actual copyright infringement case to appeal all the way up to the Supreme Court, and can just directly attack Berne itself.
fighting FUD with facts (Score:3, Interesting)
Oh wait... just one tiny little problem with the usual Slashdot conspiracy theory. There is exactly 1 country in the world that has fair use: The US. In the history of the world there has been exactly 1 country that has EVER recognized fair use: The US. No country except for the US has ever recognized fair use as a legal theory. In some common-law countries like the UK and Australia there is a parallel concept of "fair dealing", but it tends to be given a much narrower interpretation than the broad equitable doctrine of Fair Use that is employed in the US. When it comes to common law countries like those in the EU, there are enumerated lists of exceptions from copyright protection that are extremely strict and inflexible compared to Fair Use rights. This is how it has been for well over 100 years, but it's fun to see Slashdot promote FUD and ignorance instead of any type of rational discussion (again).
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
VS
six principal criteria for evaluating fair dealing [wikipedia.org].
1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
2. The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after its purpose was accomplished? What are the normal practices of the industry?
3. The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing.
4. Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied?
5. The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
6. Effect of the Dealing on the Work Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair." A statement that a dealing infringes may not be sufficient, but evidence will often be required.
"These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair."
Re:Leeches (Score:3, Interesting)
This is NOT a counter-reformation! (Score:3, Interesting)
What I mean is that the counter-reformation led to change within the Roman Catholic church. It led to less greed (or at least less display thereof), less concern with "worldly" matters and a refocus on their original purpose, the leading of a spiritual group.
I doubt this "counter-reformation" in the music biz will lead to a refocus on the original intent of the copyright.
Re:That's not how I heard it... (Score:2, Interesting)
By mentioning it, people will talk about, which will lead to wider distribution, etc.
Yes, I love the Irony as well.
Re:Berne Convention can go piss up a rope (Score:3, Interesting)
14 was the original, extendable to 28. But we live longer now so I say 20 years extendable to 40 years for everyone but lower fees for personal copyright holders. The initial 20 or any current extension is transferrable to the estate of the deceased, or to the buyer of a bankrupt corporation's copyrights, but after that copyright will expire at the end of the term.
The big thing we need to do is go back to registered copyrights only. Nothing is copyrighted unless registered. We make registration a simple and fairly cheap automated online process, including a web service API at the Copyright Office for ever-changing web content, running accounts to pay the fees. Give it 10 years to kick in, all non-renewed and non-registered works are in the public domain at that time. No more orphan works.
Why? Copyright is designed to give you profit as incentive to create. You don't need a copyright if you're not looking for profit.
What I just wrote is copyrighted, it's insane.
What about the treaties? They are meaningless. The Constitution is the highest law of this land, and the treaties disagree with it, therefore the treaties are invalid.
Re:it's interesting they are digging this deep (Score:3, Interesting)
I think we both can agree that the reason for copyright is to encourage creators to create. There will always be creators who want no money for their works, but we would lose out on some potentially powerful creations of content.
What would you propose to do to "give thanks" to the creators?
excellent question (Score:3, Interesting)
#1: that current copyright law rewards content creators. it actually rewards content distributors
#2: that current copyright law is the maximum benefit for creators in terms of reward and protection. no copyright law at all provides equal benefit
how the heck can i think that?
say i give away a copyrighted song for free on the internet. under the old way of understanding, this is hurting the content creator. in actuality, this is giving the content creator free publicity. then how does the content creator cash in? radiohead simply put out a tip jar on the website that gave away its music for free. they made millions. they also made more than if they were working under the old copyright system, since they would only get fractional pennies while the distributors made dollars on every cd
yeah but radiohead was made by the conglomerates. yes, this is true. and radiohead was also owned by them. radiohead, prince, the beatles: after enough fame, you can cut yourself free, and make real money. all fo the one hit wonders form the 70s, the 80s, the 90s: they lived the high life of limos and big hotel rooms for a few months, all paid for by the conglomerates. when all is said and done, they were left with a few pennies. the very elite like michael jackson and the rolling stones cash in by retaining the rights to their songs. they get leverage on their name. but you are talking about the ultra-elite here, not the vast majority of artists
content creators will always make money from advertising and concerts. consider those nobodies featured in apple itune ads. that's how they cash in. they are paid by apple. not because some copyright law got them paid. they were unknown. its easy to enforce a check from apple
in the new world, their recordings are simply free advertising, not another revenue stream. the old copyright world will still exist, where content creators do deals with conglomerates that heavily promote them, reaping millions for the conglomerate, fame for the creator, and a contract that lets them see very little actual money. this is the way it has been for decades, and the way it will continue to be
meanwhile, the internet simply opens the chance for tiny niche players- the guy at the local bar, etc., to get their stuff out there, to get known. to self-distribute. the assumption is that by giving his music away free on the internet, he is losing out on cash. this assumes that anyone would actually pay him, or that he would actually make money via the conglomerates, then, or now. so copyright law doesn't serve him, nor would it ever. the idea is to give it away for free to make fame, which you then cash in on via concert venues and ad deals
now we have an open door to the possibility of the internet-made music sensation. who, by giving away their music for free, catapults to fame via word of mouth, and cashes in with concert venues and advertising
and then, if an artist gets lucky and enters the realm of the ultra-elite like jay z, concerts and ads will be his cash cow. yes, he won't make any money from recordings. and so what? that's just advertising for him now
it's a different paradigm, it works, it rewards artists, often better than the old system that rewarded the distributors. and it doesn't require copyright law. because copyright law assumes only a few distribtutors, its enforceable. with everyone a distributor on the internet, its unenforceable, and simply not part of the cash equation
its the television model: television is given away for free over the air. yet it makes billions: advertising
and concert venues
Re:Only the US has fair use anyway... (Score:3, Interesting)
And yes, european copyright has different roots than US copyright in many cases, including the "moral" aspect. As I said: The details vary. For example, German copyright law recognizes the actual creator a lot stronger than US copyright law, including some rights that you can not sell or give away.