Green paper on copyright, II

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (US Constitution)

 In 1993 the US government issued a green paper on copyright and the Internet. At the time the latter was being referred to as the "National Information Infrastructure" or NII. That green paper led to a white paper called: Intellectual Property and the National Information Infrastructure. The conclusions in this paper led to government efforts like the DMCA, as well as the as-yet unresolved questions about the library exceptions in section 108 of the copyright law.

Twenty years later we have another green paper on copyright and the Internet. It is, as are nearly all government documents, long and complex, and I hope to find time to do a comparison of the two papers to see if we have progressed in this area. But from a first reading I believe I can say that there is something that the two papers have in common: who they consider to be a creator and a rights holder.

It won't surprise you to learn that the emphasis in papers I and II is on the commercial content production communities: books, movies, music, newspapers.   As quoted in the press release,

“We see a digital future in which the relationship among digital technology, the Internet, and creative industries becomes increasingly symbiotic,” said Assistant Secretary of Commerce for Communications and Information and NTIA Administrator Lawrence E. Strickling. “In this digital future, the rights of creators and copyright owners are appropriately protected; creative industries continue to make their substantial contributions to the nation’s economic competitiveness; online service providers continue to expand the variety and quality of their offerings; technological innovation continues to thrive; and consumers have access to the broadest possible range of creative content.”

Oddly, he seems to be describing the Internet that I interact with today, but calls it the digital future. Nowhere, however, is there a mention of the rights of creators of Facebook pages, Google+ entries, Youtube videos, or tweets. A distinction is often made between creators and consumers, yet through social media and Internet publication methods (like blogging), that division is less valid than it was in the past.

Nor does the report admit that there is a the vast amount of content that is user-supplied and highly consumed, like Youtube, and that this content exceeds, both in publication and in consumption, the commercial offerings that the authors of the report are so concerned about. Hearings held to discuss the first green paper had industry representatives saying that the Internet would not be a "success" if commercial and entertainment content was not available, as if the Internet at the time (1994) were just an empty shell waiting for Time-Warner and Disney and Thomson-Reuters to come along and fill it up. Bruce Lehman, chairman of the committee producing the green and white papers, said to Congress in 1995:

 Creators, publishers and distributors of works will be wary of the electronic marketplace unless the law provides them the tools to protect their property against unauthorized use. Thus, the full potential of the NII will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the NII.

In case you weren't there at the time, the Internet in 1994 was a thriving community with huge amounts of content. It was less flashy than today's Internet, since the technology did not yet allow for the efficient streaming of video and sound, and downloading a photograph could take a while. But it was not languishing for lack of content. This goes many-fold for the Internet today, but the representatives of the commercial content industries are somehow oblivious to any content that isn't making money for them. And that includes every Youtube upload, every Facebook page, bazillions of Flickr photographs, countless tweets.

Here are some stats from Youtube and Hulu, taken from their sites. Admittedly, Youtube is not 100% non-commercial and Hulu is not 100% pay-for-view, but this still shows that Youtube and its crowd-sourced content should be counted as real content in the sense of the green paper on copyright. But it isn't.

Hulu

 Number of Hulu video views in the past year     457 million
Total number of people who watched Hulu at least once in the past year     38 million
Number of Hulu video views in the past year     457 million
Average number of videos a Hulu watcher views     12
Average length of time a person spends on Hulu     1hr 13min
Number of devices in use that Hulu is available on     120 million
Percentage of people who use Hulu and only watch television shows     73 %
Percent of people who use Hulu to watch movies     9 %
Percent of videos viewed online that Hulu makes up     4 %
Percent growth for Hulu from 2010 to 2011     60 %
Total revenue made in 2011 by Hulu     $420 million

Youtube

More than 1 billion unique users visit YouTube each month
Over 6 billion hours of video are watched each month on YouTube—that's almost an hour for every person on Earth, and 50% more than last year
100 hours of video are uploaded to YouTube every minute
70% of YouTube traffic comes from outside the US
YouTube is localized in 56 countries and across 61 languages
According to Nielsen, YouTube reaches more US adults ages 18-34 than any cable network

So Youtube got 12 billion unique visitors in a year, to Hulu's 457 million. You'd think data like that would have an impact on the thinking of these folks. And the fact that Youtube reaches more viewers in the key demographic than cable TV should also shake up some media executives. In addition, those who upload content to Youtube are rights holders, as the Youtube terms of use makes clear:

For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service

You would also think that the report would address these Youtube content providers as creators, just as those who add content to Facebook pages are creators. But these creators are somehow not real creators in the minds of the writers of the report, and their needs are not addressed. No where does the report decry the exploitation, without compensation, of the work of these creators by industry giants like Facebook and Google. If someone else is making money off of your content it's bad, unless you aren't one of us, and therefore it's ok. The 99.99% of us who do not own the means of production and distribution must cede our rights in order to participate in the creation of content.

The report urges Congress to criminalize the unauthorized streaming of copyrighted works. Copyright law violations are subject to civil penalties, so this greatly ups the threat level for violations. This also revives one of the disputed and hated aspects of the famed "Stop Online Piracy Act," (SOPA) which was defeated through massive activism.

The upshot is that copyright will benefit those who create industrially, but not the millions who create individually. We should just admit that copyright law no longer has anything to do with creativity or social impact, and instead rename it to the "copyright industries law." As the 2013 green paper explains:

The industries that rely on copyright law are today an integral part of our economy, accounting for 5.1 million U.S. jobs in 2010—a figure that has grown dramatically over the past two decades. In that same year, these industries contributed 4.4 percent of U.S. GDP, or approximately $641 billion.

That's what this green paper, and the previous green paper, and all of the changes to copyright in the centuries since the time of the US Constitution, are really saying. Very little of what is protected today, and very little of what contributes to that $641 billion, is either Science or a useful Art. The founding fathers were writing at a time when science and technology defined progress, and progress defined prosperity. They did not, and could not have, anticipated the rise of leisure time and the media that would allow the creation of a huge economic center based on entertainment (including infotainment, which covers much news reporting today). Ironically, real Science is being encouraged to provide its content as Open Access. It's time to openly state that copyright law today is not what the founding fathers had in mind.

Update: Excellent blog post on the Green Paper and copyright by Kevin Smith.

---

Addendum: I just re-discovered the CPSR statement on the NII from 1994, and it contains this paragraph which is so sadly insightful:

An imaginative view of the risks of an NII designed without sufficient attention to public-interest needs can be found in the modern genre of dystopian fiction known as "cyberpunk." Cyberpunk novelists depict a world in which a handful of multinational corporations have seized control, not only of the physical world, but of the virtual world of cyberspace. The middle-class in these stories is sedated by a constant stream of mass-market entertainment that distracts them from the drudgery and powerlessness of their lives. It doesn't take a novelist's imagination to recognize the rapid concentration of power and the potential danger in the merging of major corporations in the computer, cable, television, publishing, radio, consumer electronics, film, and other industries. We would be distressed to see an NII shaped solely by the commercial needs of the entertainment, finance, home shopping, and advertising industries.