Alternatives to Copyright By Eva Garmpi, llm candidate

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Alternatives to Copyright
By Eva Garmpi, LLM candidate

KLS LLM Dissertation September 2006

Table of Contents






Chapter 1 – Why there is a need for alternatives to copyright?


Changes in copyright’s duration


Changes in copyright’s scope


Digitisation & Change in copyright’s reach and the force of



Change in the concentration of media and privatisation


Chapter 2 – Customising Copyright: Creative Commons licensing scheme


Advantages of CC’s licensing scheme


CC’s lack of ethical position


a) CC is failing to set minimum standards of freedom


b) CC’s ideology is reactionary


CC’s lack of political position


CC’s lack of enforcement ability


CC’s lack of common sense position


Chapter 3 – Imagine a world without copyright


Abolition of copyright and the dominance of the public



The market and the first-mover advantage


Temporary protected usufruct








Copyright law is a sub-division of intellectual property law, a legal device, which is designed to offer protection to original works of authorship that are fixed in any tangible medium of expression. Copyright protection vests immediately and automatically upon any original creative output and confers ownership in the form of limited monopoly upon the authors of the creative material. Notwithstanding the main reason for the existence of copyright protection, that is the need to secure authorial creativity, as the main source of cultural upgrade, copyright has been transformed into a vague romantic idea, superseded by these days reality. The substantial and narrow alteration copyright law has recently undergone in terms of its duration, scope, change in reach and force of regulation has tremendously modified its fundamental economic and cultural purpose and has provoked inconsistency and imbalance with respect to the societal understanding of the law. Moreover, the emergence of the Internet, this super highway of information that offers a tremendous amount of material, has challenged copyright system’s foundations. Indeed, as we enter the age of digital commerce, digitisation creates greater concerns about copyright law. A proper balance between the protection provided for right holders and the wider public interest is yet to be found.

The foregoing alterations concerning the substance of current copyright law and the many economic and social concerns raised within nowadays reality, have called for copyright’s redefinition and reformation, or even to an extreme, for copyright’s abolition. A series of alternative mechanisms have been already suggested.

In approaching the matter, I will first consider the reasons for which copyright alternatives have been a hot topic of late. The second axis of my argument will be concerned with presenting and assessing the advantages and disadvantages of one of the most fast-growing alternatives of copyright’s system, that is, the Creative Commons licensing scheme. The assessment will show that Creative Commons is probably the only successful and workable alternative structure that exists at the moment and that most of its alleged disadvantages derive from simple misunderstandings of the legal system it launches. Finally, the third axis of my argument will assess the pros and cons of an entirely new model, which has been recently suggested, as a replacement to current copyright regime and was presented by Joost Smiers and Marieke van Schijndel, in an essay titled “Imagining a world without copyright”. Throughout the evaluation of this latter alternative structure, I will basically challenge its foundations and conclude by seeking to prove that, albeit very compelling, the new model has not been developed comprehensively and fails to persuade us about its viability and enforceability in nowadays reality.


I would like to express my gratitude to all these people who helped in the materialisation of this paper. Initially I would like to thank my family for the opportunity they offered me, to enhance my knowledge in law and to stand more firmly upon my decision to become a lawyer. Moreover I would like to thank my friends for their support throughout this important effort and finally I would like to send my kindest appreciation to my professor and supervisor Mr Alan Story, who introduced me to the creative world of Intellectual property law and who taught me the value of having and freely expressing my opinion on things.

Thank you all very much.
To commence with the analysis of this paper, a brief introduction and a fundamental understanding of the main concept and general principles of copyright law is deemed to be essential.

Copyright law dates back to the 17th Century, when for the first time piracy, that is, the unauthorized use or reproduction of copyrighted material, threatened the economic investment of printers and publishers. At that time the protection of the laborious efforts of authors was of little significance and the possibility to reprint books effortlessly and cheaply had raised insecurity amongst the publishing circles in society. Copyright protection has always been intertwined with developments in reproduction technologies starting with the evolution of the printing press, but it was not until the 1709 Statute of Anne, which passed into law on 10th April 1710, that copyright in literary works was parliamentary protected through statutory regulation granting exclusive rights to authors and protecting consumers from publishers’ control over printed works that had been already sold. Prior to this, common law had been the sole regulatory power over disputes respecting the rights to the publishing of books1.

In general parlance, copyright law constitutes the legal framework that offers protection in the form of a limited monopoly to the creative and arduous expression of thoughts and its ultimate manifestation in fixed tangible forms. It is the law that regulates the accessibility of cultural and public possessions. Copyright law provides the author of the cultural product with an exclusive or sole property right for a limited time over the fruits of his or her labour. The aforementioned exclusivity involves the exercise of a series of certain acts such as a) the creation and sale of copies of the work (including, typically, electronic copies), b) the public performance of the work, c) the translation of the work into another language d) the importation or exportation of the work, e) the sale or assignment of these rights to others, f) the creation of derivative works. The overturn to the foregoing “property-like”2 restrictions is the act of copyright infringement.

National copyright acts protect the right holders of literary, scientific and/or artistic works against the unauthorized reproduction and dissemination of their work. Supplementary laws also protect performing artists, filmmakers, broadcasters, and producers of audio works3. However, copyright does not extend to all forms of copying. In most jurisdictions the public’s access to a copyright owner’s monopoly is permitted under certain circumstances which are statutorily dictated.

Copyright protection basically involves the expression of an idea, not the idea itself4. The aforementioned distinction has given birth to the idea-expression divide, according to which only the expression of ideas, information or function is protectable5. However, the generalisation that characterises the abovementioned dichotomy, does not apply perfectly to all circumstances of the rather sophisticated reality. A series of judicial decisions have proved that the tangible form of expression of ideas does not always constitute the subject-matter of copyright protection6.

After the end of the copyright term, the work falls into the public domain and can be used by anyone. Yet, nowadays authors scarcely retain their copyright in their works. Given that copyrights may be sold, granted, or relinquished, it is very often that a copyright holder will contractually transfer (assign) his or her copyrights to a large business, which far beyond the author’s capabilities, has the production and marketing power to successfully launch and disseminate the cultural product to the public. The payback for the aforementioned assignment will most probably be royalties, publication or merely a certain fee7.

The international character of copyright law can be traced back in the 18th and 19th century, when copyrights were being violated by vicious booksellers, who at that time had fallen in an illegal commercial bargain of exporting cheap editions to foreign markets and of importing cheap editions from abroad to compete in the domestic market8. In the field of international law the Berne Convention 18869 with its numerous amendments and updates has been the most far-reaching regulatory legal body that first established the recognition of copyrights between sovereign countries and controls a number of international agreements on copyright. Among many other things, the Convention provides for an automatic copyright that does not require registration, declaration or other formalities. In this international vein, another significant regulatory body is the Rome Convention, which provides for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations10. Finally, international agreements, such as the 1996 Copyright Treaty11 and Performances and Phonogram Treaty12, released by the World Intellectual Property Organization (WIPO)13, have formed further elaborations of the aforementioned conventions and have provided additional protection for copyright deemed necessary in the modern information era. National legislation in the United States, in the European Union and Australia is largely in conformity with these two latter international treaties as a response to perceived and actual threats posed by cyberpiracy.

In light of the aforementioned brief historical flashback, it becomes apparent that copyright has gone hand in hand with the history of technological evolution and creativity and has occupied people in a national and international level. The existence of copyright regulations throughout the years, while a series of technical developments, such as the radio, film, TV, video and audio recorders, photocopiers and computer hardware and software, was taking place, have made some people14 believe that, irrespective of contemporary advances in technology, copyright remains the primary way to trigger creative inspiration, in the lack of which, much of our cultural heritage would have been absent15. This rather optimistic conceptualisation of copyright takes for granted the social and judicial rightness of copyright’s concept and perceives the system, as the sole legal administrator of our public and cultural legacy throughout history and all over the world.

On the other end of the spectrum, there are scholars, who refuse to accept that copyright, as presently constructed, is essential and search for new directions in copyright law. The critiques fall basically into two camps. The first group claims copyright’s inherent injustice and invalidity and advocates its abolition16. By anticipating the “death of copyright”17 and strongly challenging the direction copyright law is taking mankind18, critics in this camp argue that current copyright system has undermined its own goal and has become an utterly inefficient rewarding legal mechanism, which instead of serving the average artist, sides with the ends and benefits of cultural conglomerates19. Yet the second group adopts a rather moderate thesis. It detects the disadvantages of the system, particularly copyright’s incapability to adjust in the new world the Internet has introduced and without rejecting the system, it seeks to optimise and adjust copyright in nowadays digitised reality20.

The abovementioned differing factions, favoured on one hand by those who encourage the “all rights reserved” perception of copyright system and those who oppose copyright and either advocate its abolition, or its optimisation, have triggered a long-lasting war, “a copyright war that lobbyists have won by convincing the world that the constant value of copyright is now under threat”21. But is this “traditional” value indeed under threat? Are all these scholars who advocate copyright’s replacement a bunch of vicious, ill-considered controversialists, who just want to blow at copyright’s bastion?

Whatever the alleged benefits and value of copyright are, will not be presented generously in this paper. A closer look will rather be given at some of the main disadvantages of current copyright system and at two alternative mechanisms presented recently to replace the current copyright system, their advantages and disadvantages.

Chapter 1

Why there is a need for alternatives to copyright?

Copyright is not “the rock of Gibraltar, it has not remained fixed over the ages”22. Instead, copyright has been constantly changing and expanding. In fact copyright has undergone a substantial and prescriptive alteration in terms of its duration, scope, change in reach, force of regulation and change in the concentration of media23. Of course the growing popularity of the Internet, computer networks and the World Wide Web (WWW) has not been without any challenge to copyright mechanisms. The ramifications of these alterations, some of which are the gradual erosion of the concept of the “public domain”, the inconsistency and imbalance that exist in human societies respecting the understanding and obedience of the law, the squashing of dialogue in democratic societies as a result of the over-privatisation copyright law has created over cultural products, as well as the incapability of copyright to adjust to nowadays constantly evolved digitised reality and the incapability to provide solutions to non-Western countries, are some of the reasons that urgently call for its redefinition and reformation24 and for some scholars even to its abolition25.

Changes in copyright’s duration
In basically all jurisdictions copyright law is oriented towards two different directions. Copyright law has an economic purpose and a cultural dimension26. The economic purpose has an “immediate effect”27, which involves the incentivisation and rewarding of those who contribute to the creation of culture, while the cultural dimension forms the “ultimate aim”28, that is to say, the stimulation of creativity for the general public good.

The remuneration of authors is a good thing. However the means chosen by copyright law to secure this fair return, that is, by granting authors almost endless monopoly rights, has ended up to be an evil that should last not longer than it is deemed essential for the security of general public good29. Once, there was a balance between the protection provided for right holders and the wider public interest. For instance, in 1790, the Congress enacted the first copyright law, which provided for a fourteen years renewable copyright term assuring that the maximum terms of copyright would be granted only for works where they were wanted30. At that time a free-to-take culture was lying in the public domain and this was because copyrights were expiring relatively quickly and were free for people to build upon them and thus contribute to cultural upgrade. Yet the concept of the public domain, the “lawyer-free zone”31 that functions as a pool for future creators, is rather gradually being eroded than enriched. This is due to copyright terms’ extensions that have inexorably increased over the past two centuries halting thus creativity and provoking a series of problems that have proven copyright to be injurious to its own purposes and welfare. How can copyright serve its initial cultural purpose, when there is not anymore public domain? And do the authors really care if their creative works will grant any benefits to their distant descendents?

Indeed, nowadays copyright system has been tremendously lengthened and has replaced the notion that copyright should expire and that works should fall into the public domain. As a result of that, the potential of culture to be built upon the cultural output, which is gathered in the large pool of human knowledge, is diminished. For instance, United States copyright law copied the European life-plus-70 regime32 and by extending its term eleven times the last forty years it has established eventually a system of perpetual copyright with an average term for corporate works of ninety-five years33. What is more, since the United States abandoned their “sensible” renewable copyright system in 1976, the automatic way of assuring whether works have passed to the public domain or not, vanished.

“The public domain is orphaned by these changes in copyright law”34. There are cases, where desirable cultural works that would have otherwise been created, were adjourned, because of the copyright in underlying works. The situation deteriorates even more, when new authors with difficulty manage to negotiate a licence with current copyright holders35, or worse, when copyright’s exclusive rights are conferred on remote descendents, who unreasonably exploit the creative skill and effort of someone, whom probably hardly remember.

In addition, longer periods of copyright protection mean higher cost to the consuming public for works that would otherwise be in the public domain. According to economic theories, under non-monopolistic circumstances in the market place, the public price for popular works, through competition, decreases to the marginal cost36 of production. Conversely, in a market where monopolies reign, especially if the work is under copyright regime, which means that the marginal cost of production will additionally include the royalties owned to the copyright owner, the price of the work can be expected a lot higher than the marginal cost of production. Consequently there is not any possibility for the public to pay the same for public domain works as for copyright protected ones37.

Judging from the aforementioned, it seems that copyright’s lengthened terms of protection constitute a great impediment to the public’s thirst for creative inspiration and generate loss in the public domain. Given that this loss is not balanced with a greater incentive for further creation, it becomes clear that public benefits under lingering copyright protection, cannot outweigh the costs and serve the general public good, which is copyright’s main goal38.Although copyright’s “infinite” duration does not seem to constitute on itself a competent reason to start rethinking copyright alternatives, a long list of other copyright deficiencies, whose analysis follows, can explain the need for alternatives.

Changes in copyright’s scope
The scope of copyright is “the range of rights granted by the law”39. These rights are vested in the copyright owner to exercise them against a range of “original creative expressions”40, which constitute the subject-matter of copyright law protection. The scope of copyright, although difficult to sketch its contours, has been widely expanded throughout the years in an attempt to serve a wider field of authorial interests and to comply with the new changes technology introduced. This overly expanded scope of copyright has gained as well an international recognition. Legally binding International treaties provide for relevant changes in the law and oblige their member states to show compliance with these changes by adapting their national laws accordingly41. Nowadays copyright covers practically any creative work that is reduced to a tangible form and more significantly grants authors the exclusive right to control all copies of their work, a right much more extended than the previous one covering only the publication of copyrighted works.

For instance, in 1790, US copyright law offered a rather narrow protection basically oriented to cover publishers’ interests. The protection involved the prohibition, under certain conditions, of third parties to republish maps, charts and books. The conditions were first that the original work would have been registered, second that there would be copies of the work deposited in a library and third that the work would carry the © symbol so as to inform the world about its state42. However, nowadays a dramatic change to all these procedural parameters has taken place43. Exclusive rights do not only cover printing, reprinting, publishing or vending of a creative work but any copy of this work, a control that “viciously” extends to derivative44 works as well. What is more, all the procedural steps previously taken by creators to secure a copyright in their works, have been now replaced by a rule imposing to creators the acceptance of the protection offered by the law, whether they want it or not45. Copyright nowadays is not but just a default “all rights reserved” order covering all possible uses of a copyrighted work.

At this point, one might wonder, whether this procedural abolition was an effort to simplify things for absentminded or probably lazy authors, who otherwise would forget to secure their creative works or whether it was an attempt to create absolute control in a free culture zone, where authorial control was just a reduced detail. Given that creative process in the cultural industries is now governed by a few cultural conglomerates, which seek to enlarge their authority and generate more and more profit from cultural output, makes the second possibility more plausible.
Digitisation & Change in copyright’s reach and the force of regulation
Changes in copyright law have been introduced furthermore as a result of digitisation46 that technology has launched. The wide dissemination of digitalised knowledge has become easier than ever. A mere click, drag, and drop are the only moves needed to put a new idea or expression at the centre of global attention and this has come as a new challenge to traditional copyright protection. Famous problems among which stands the Peer-to-Peer file sharing networks47, namely software used for (basically illegal) online exchange of music and other files, have triggered a series of battles in contemporary music history and have put copyright legislation on the spot48. Copyright protection has been jeopardised, because Internet’s content layer49, wherein the information placed on the Internet is comprised and where traditional copyright works exist, gives the option to individuals to publish, reproduce and communicate these copyright works to wide audiences, without resorting to publishers, record companies or motion picture studios.

Technology has increased copyright’s reach both directly and indirectly. Indirectly, since every act on a digital network produces a copy and every copy of a copyrighted work falls potentially under the banner of copyright and directly, in that technology makes possible a control over these copies that before would have been impossible50.

Once there was basically a tripartite categorisation of uses. First, the totally unregulated uses that were not within the reach of copyright, because they were not making a copy (ex: reading a book, reselling a book, giving the book to someone else, sleeping on a book), second, the regulated ones, with the republishing of books at the forefront, as the main use regulated by copyright and finally, regulated uses that the law treats as unregulated, because they fall within the scope of the exceptional “fair use” and “fair dealing” doctrine. In the United Kingdom, Copyright, Designs and Patents Act 1988 provides for fair dealing defences if one uses the work for private study or research51 or for the purposes of criticism and review52. Fair dealing doctrines exist as well in other common law jurisdictions such as Australia53, Canada and New Zealand and a similar but more flexible principle, fair use, exists in the United States under the copyright Act 1976.

Although the aforementioned categorisation, and especially the unregulated uses, has been of critical importance to the creation of free culture, it has lost application in the world of the Internet. In the era of digital content, there is no space for unregulated uses and worse, fair use and fair dealing exceptions are too narrow to protect various forms of recreation. Besides the instances of fair use are by definition exceptional and/or provisional, and cannot be often evoked. This sudden shift makes one wonder, whether copies should continue to enforce copyright law or whether the conditions that trigger copyright law’s regulations should be reappraised54. But even if this reappraisal would take place, who would guarantee, that copyright law’s controlling power would be reduced?

Before the net, it was generally the law, namely a court, a judge that would determine the subject matter of copyright protection and the way copyright legislation should be enforced. The human factor had been the main and sole administrator of copyright law’s regulatory power and that regime was giving a sense of naturalness to the judicial procedure and therefore a feeling of social security. Nevertheless in the digital age, it is basically the Internet and no longer courts that administrate justice. A “shameless”55 copyright code constitutes the future of copyright, where programmers will codify control over access to content, a control that judges will not be able to check and courts to ratify. The inability of copyright law to adhere to the technological evolution has led to the existence of legislative gaps and of flawed legal stipulations. Technology that delivers copyright content has started to interpret and enforce copyright law. Nowadays it is software, or generally, “code” that sketches the contours of people’s freedom to access and use copyrighted material.

Large media companies, in their zeal to preserve their increasingly outdated bussiness models, tried to restrict access to their content by first locking content up with “digital rights management technology” (DRM)56.This complex and multi layered mechanism of defence that nastily controls the replication and distribution of copyrighted material, was meant to be an additional provision to traditional copyright protection. Yet, erring on the side of protection, industry’s anti piracy efforts have been turned against the paying public, a strategy that has infuriated customers and alienated artists. There are cases where DRM technology has introduced flawed schemes of protection that left customer’s computers vulnerable to viruses and vandals57. Moreover, in trying to ensure copyright protection, database management systems are usually complemented by a series of strict contracts, mainly complicated licence agreements that set hurdles to the nature of customer transactions. Hence, while DRM technology may be approved on the grounds that it seeks to offer protection to copyright holders to defend their legitimate interests upon their works, it is utterly disapproved on the grounds that it fosters these ends at the expense of consumers.

As if not enough powerful, the aforementioned technological protection has been strengthened by laws and supported by anti-circumvention measures. Large media companies have successfully lobbied governments to adopt new regulations, which apart from authorising and ratifying the use of DRM, prohibit its circumvention, whether or not the use of the copyrighted material made possible by this circumvention constitutes a copyright violation58. In 1998, for instance, the Digital Millennium Copyright Act (DMCA)59 was enacted in order to provide copyright owners with further security. DMCA has been the legal code to offer protection to the software code DRM provides, which itself is intended to support the legal code of copyright. The outcome of such an inter-supportive sequence seems to be rather confusing. Yet, DMCA has gone a little bit further than traditional copyright law protection to outlaw devices that intend to circumvent copyright protection measures, even when this latter circumvention is done in order to exercise fair use rights, or to engage in free speech60. Stricter than traditional copyright law, DMCA encourages absolute control over creative works preventing thus the blossoming of an “unfettered” culture, where freedom to modify, redistribute copies, either gratis or for free, is needed61.

DMCA-like laws have now been spread all over the world. Japan62, Australia63, and much of European jurisdictions64 have adopted DMCA-style copyright restrictions. At least nine additional countries, including Chile, Guatemala, and Singapore have also been pressured to enact similar to DMCA laws, as a result of a vexing bargain with U.S. trade negotiators65, who have claimed something like that to be an important precondition for the security of free trade agreements that govern trade66.

However, most of changes in copyright law would not really matter, if it was not for one more change; the change in the concentration and integration of the media, which has necessitated copyright’s reconsideration as well as the reappraisal of the public domain of creativity and knowledge67.
Change in the concentration of media and privatisation
A growing privatisation of our past and present heritage has been taking place the past twenty years. As Lessig puts it, “Never before in our history have fewer exercised more control over the development of our culture than now” 68. Indeed, a continuing media consolidation has changed the size of concentration and its nature. It has been estimated that, within a few years, the world will be governed by just a few colossal companies69, controlling over eighty five per cent of the media. Production systems are monopolising global upstream and downstream markets70. These production networks form something more than efficient financial structures, they constitute monopolies that reign in a world, where people no longer compete to create and distribute culture, in a world where scientific progress has been decreased, the opportunities for creativity have been diminished and the availability of new products has been curtailed71. These homogeneous and sterile networks with their mining and owning attitude towards the common cultural products of humanity have threatened copyright and paralysed its core purposes of existence; its economic purpose and its cultural one. Indeed, most artists hardly receive any profits from the creation and performance of their work; conversely the main beneficiaries of copyrights are cultural conglomerates, which rip off almost all revenues from the artistic labour. Even the value of royalty rates is now decided in a market place, where the excess supply of creative workers has impaired artists’ bargaining power with firms, a power that was once a determinant factor with respect to copyright earnings72. “Copyright (seems to) favour the firm rather than the artists in the cultural industries”73.

This situation has as well put under threat the survival of democracy and precisely the right to freedom of expression, a fundamental right that has won recognition at both regional and international level74. Indeed, when oligopolistic private control dominates broad areas of cultural expression, where “no counter-melody, no counter-image and in short no dialogic practice is tolerated”75, then it is obvious that “healthy political debate, is being hijacked by few private interests”76. When cultural conglomerates are related to media conglomerates controlling access to information77, the situation becomes even more alarming, especially these days that the advent of the Internet has immensely contributed to the democratisation of access to information, culture and knowledge78.

Taking into consideration all these changes that copyright law has undergone the last two hundred years since its birth in the eighteenth century, it becomes clear that “never again have the concentration and privatisation of our cultural heritage been as significant as it is now”79. Copyright seems to be more about “stimulating the commercial exploitation of creative/cultural output” than about “encouraging creativity and protecting the output of that creativity”80. The traditional balance between the rights of copyright holders and the rights of consumers has been lost. While creative industries are using copyright law in order to enlarge their power and realm, the law itself is becoming increasingly inadequate to deal with societal demands and expectations. Especially in non-Western societies, where art is created and produced in a collective manner the individual approach of the Western copyright system cannot be but a “straight-out disaster”81. Moreover, copyright, as Litman puts it, has become complicated, arcane and counterintuitive82 and its understanding is at the lowest ebb. This complexity has led to the public rejection and disobedience of existing copyright policies. Besides “people do not obey laws that they do not believe in”83. These and a series of other reasons have necessitated the review, simplification and modernisation of copyright and have recently led several scholars and policy makers to present alternatives to the system.

One of the most “far-reaching reorientations” 84 of copyright system, has been Creative Commons (CC) licensing scheme, a revolutionary legal mechanism that basically came to optimise and adjust copyright system in nowadays reality. Standing on top of two edges, shaped on one hand by those who advocate copyright’s lead among any other possible regulatory mechanism and those who strongly oppose copyright, CC seeks to offer a balance and prove that after all we do not live in a world governed by extremes85. CC’s regulatory system, its merits and drawbacks will be critically evaluated in the next part of this paper.

At the other end of the scale, to some analysts, it is the whole copyright system that hinders creation. For those copyright is inherently unjust and invalid and for that reason they advocate its abolition in favour of a radically different system. A quite interesting alternative, which seeks to serve this latter purpose, was recently presented by Joost Smiers and Marieke van Schijndel in an essay titled “Imagining a world without copyright”86. This alternative system, the consequences of its application, its advantages and disadvantages will form as well subject to this paper’s assessment.

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