New kinds of copyright

Now what are some of the changes we might want to make in copyright law in order to adapt it to the situation that the public finds itself in? Well the extreme change might be to abolish copyright law but that isn't the only possible choice. There are various situations in which we could reduce the power of copyright without abolishing it entirely because there are various different actions that can be done with a copyright and there are various situations in which you might do them, and each of those is an independent question. Should copyright cover this or not? In addition, there is a question of "How long?". Copyright used to be much shorter in its period or duration, and it's been extended over and over again in the past fifty years or so and in fact in now appears that the owners of copyrights are planning to keep on extending copyrights so that they will never expire again. The US constitution says that ³"copyright must exist for a limited time²" but the publishers have found a way around this: every twenty years they make copyright twenty years longer, and this way, no copyright will ever expire again. Now a thousand years from now, copyright might last for 1200 years, just basically enough so that copyright on Mickey Mouse can not expire.

Because that's why people believe that US Congress passed a law to extend copyright for twenty years. Disney was paying them, and paying the President too, with campaign funds of course, to make it lawful. See, if they just gave them cash it would be a crime, but contributing indirectly to campaigns is legal and that's what they do: to buy the legislators. So they passed the Sunny Bono copyright act. Now this is interesting: Sunny Bono was a congressman and a member of the Church of Scientology, which uses copyrights to suppress knowledge of its activities. So they have their pet congressman and they pushed very hard for increased copyright powers.

Anyway, we were fortunate that Sunny Bono died but in his name they passed the Mickey Mouse Copyright Act of 1998 I believe. It's being challenged by the way, on the grounds that, there is a legal case that people hope to go to the Supreme Court and have the extension of old copyrights tossed out. In any case, there are all these different situations and questions where we could reduce the scope of copyright.

So what are some of them? Well, first of all there are various different contexts for copying. There is commercial sale of copies in the stores at one extreme and at the other there is privately making a copy for your friend once in a while, and in between there are other things, like, there's broadcasting on TV or the radio, there's posting it on the website, there's handing it out to all the people in an organisation, and some of these things could be done either commercially or non-commercially. You know, you could imagine a company handing out copies to its staff or you could imagine a school doing it, or some private, non-profit organisation doing it. Different situations, and we don't have to treat them all the same. So one way in we could reclaim the... in general though, the activities that are the most private are those that are most crucial to our freedom and our way of life, whereas the most public and commercial are those that are most useful for providing some sort of income for authors so it's a natural situation for a compromise in which the limits of copyright are put somewhere in the middle so that a substantial part of the activity still is covered and provides an income for authors, while the activities that are most directly relevant to peoples' private lives become free again. And this is the sort of thing that I propose doing with copyright for things such as novels and biographies and memoires and essays and so on. That at the very minimum, people should always havea right to share a copy with a friend. It's when governments have to prevent that kind of activity that they have to start intruding into everyone's lives and using harsh punishments. The only way basically to stop people in their private lives from sharing is with a police state, but public commercial activities can be regulated much more easily and much more painlessly.

Now, where we should draw these lines depends, I believe, on the kind of work. Different works serve different purposes for their users. Until today we've had a copyright system that treats almost everything exactly alike except for music: there are a lot of legal exceptions for music. But there's no reason why we have to elevate simplicity above the practical consequences. We can treat different kinds of works differently. I propose a classification broadly into three kinds of works: functional works, works that express personal position, and works that are fundamentally aesthetic.

Functional works include: computer software; recipes; textbooks; dictionaries and other reference works; anything that you use to get jobs done. For funtional works I believe that people need very broad freedom, including the freedom to publish modified versions. So everything I am going to say tomorrow about computer software applies to other kinds of functional works in the same way. So, this criterion of free... because it necessary to have the freedom to publish a modified version this means we have to almost completely get rid of copyright but the free software movement is showing that the progress that society wants that is supposedly the justification for society having copyright can happen in other ways. We don't have to give up these important freedoms to have progress. Now the publishers are always asking us to presuppose that their there is no way to get progress without giving up our crucial freedoms and the most important thing I think about the free software movement is to show them that their pre-supposition is unjustified.

I can't say I'm sure that in all of these areas we can't produce progress without copyright restrictions stopping people, but what we've shown is that we've got a chance: it's not a ridiculous idea. It shouldn't be dismissed. The public should not suppose that the only way to get progress is to have copyright but even for these kinds of works there can be some kinds of compromise copyright systems that are consistent with giving people the freedom to publish modified versions. Look, for example, at the gnu free documentation license, which is used to make a book free. It allows anyone to make and sell copies of a modified version, but it requires giving credit in certain ways to the original authors and publishers in a way that can give them a commercial advantage and thus I believe make it possible to have commercial publishing of free textbooks, and if this works people are just beginning to try it commmercially. The free software foundation has been selling lots of copies of various free books for almost fifteen years now and it's been successful for us. At this point though, commercial publishers are just beginning to try this particular approach, but I think that even for functional works where the freedom to publish modified works is essential, some kind of compromise copyright system can be worked out, which permits everyone that freedom.

For other kinds of works, the ethical questions apply differently, because the works are used differently. The second category of works is works that express someone's positions or views or experiences. For example, essays, offers to do business with people, statements of one's legal position, memoirs, anything that says, whose point is to say what you think or you want or what you like. Book reviews and restaurant reviews are also in this category: it's expressing a personal opinion or position. Now for these kinds of works, making a modified version is not a useful thing to do. So I see no reason why people should need to have the freedom to publish modified versions of these works. Verbatim copying is the only thing that people need to have the freedom to do and because of this we can consider the idea that the freedom to distribute copies should only apply in some situations, for example if it were limited to non-commercial distribution that would be OK I think. Ordinary citizen's lives would no longer be restricted but publishers would still be covered by copyright for these things.

[drinks water]

Now, I used to think that maybe it would be good enough to allow people to privately redistribute copies occasionally. I used to think that maybe it would be OK if all public redistribution were still restricted by copyright for these works but the experience with Napster has convinced me that that's not so. And the reason is that it shows that lots and lots of people both want to publicly redistribute--publicly but not commercially redistribute--and it's very useful. And if it's so useful, then it's wrong to stop people from doing it. But it would still be acceptable I think, to restrict commercial redistribution of this work, because that would just be an industrial regulation and it wouldn't block the useful activities that people should be doing with these works.

Oh, also, scientific papers. Or scholarly papers in general fall into this category because publishing modified versions of them is not a good thing to do: it's falsifying the record so they should only be distributed verbatim, so scientific papers should be freely redistributable by anyone because we should be encouraging their redistribution, and I hope you will never agree to publish a scientific paper in a way that restricts verbatim redistribution on the net. Tell the journal that you won't do that.

Because scientific journals have become an obstacle to the dissemination of scientific results. They used to be a necessary mechanism. Now they are nothing but an obstruction, and those journals that restrict access and restrict redistribution [emphasis] must be abolished. They are the enemies of the dissemination of knowledge; they are the enemies of science, and this practice must come to an end.

Now there is a third category of works, which is aesthetic works, whose main use is to be appreciated; novels, plays, poems, drawings in many cases, typically and most music. Typically it's made to be appreciated. Now, they're not functional people don't have the need to modify and improve them, the way people have the need to do that with functional works. So it's a difficult question: is it vital for people to have the freedom to publish modified versions of an aesthetic work. On the one hand you have authors with a lot of ego attachment saying

[English accent, dramatic gesture]

"Oh this is my creation."

[Back to Boston]

"How dare anyone change a line of this?" On the other hand you have the folk process which shows that a series of people sequentially modifying the work or maybe even in parallel and then comparing versions can produce something tremendously rich, and not only beautiful songs and short poems, but even long epics have been produced in this way, and there was a time back before the mystique of the artist as creator, semi-divine figure was so powerful when even great writers reworked stories that had been written by others. Some of the plays of Shakespeare involve stories that were taken from other plays written often a few decades before. If today's copyright laws had been in effect they would have called Shakespeare a quote pirate unquote for writing some of his great work and so of course you would have had the other authors saying

[English accent]

³"How dare he change one line of my creation. He couldn't possibly make it better.²"

[faint audience chuckle]

You'll hear people ridiculing this idea in exactly those terms. Well, I am not sure what we should do about publishing modified versions of these aesthetic works. One possibility is to do something like what is done in music, which is anyone's allowed to rearranged and play a piece of music, but they may have to pay for doing so, but they don't have to ask permission to perform it. Perhaps for commmercial publication of these works, either modified or unmodified, if they're making money they might have to pay some money, that's one possibility. It's a difficult question what to do about publishing modified versions of these aesthetic works and I don't have an answer that I'm fully satisfied with.

Audience member 1 (AM1), question, inaudible

RMS: Let me repeat the question because he said it so fast you couldn't possibly have understood it. He said "What kind of category should computer games go in?" Well, I would say that the game engine is functional and the game scenario is aesthetic.

AM1: Graphics?

RMS: Those are part of the scenario probably. The specific pictures are part of the scenario; they are aesthetic, whereas the software for displaying the scenes is functional. So I would say that if they combine the aesthetic and the functional into one seamless thing then the software should be treated as functional, but if they're willing to separate the engine and the scenario then it would be legitimate to say, well the engine is functional but the scenario is aesthetic.


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Transcription by Douglas Carnall 10 July 2000.


Copyright 2000 Richard Stallman

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