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how to free the culture

This Magazine Staff

As Paul Wells put on his blog yesterday, the PWAC is fighting the latest demand by CanWest Global that freelancers give the company “the right to exclusively use and exploit the Content in any manner and in any and all media, whether now known or hereafter devised, throughout the universe, in perpetuity.”
These sorts of fights are not going to go away. Lawrence Lessig wrote over five years ago that control over intellectual property could become the civil rights battle of the coming decade, and it is looking like he was right. We need to figure out a general institutional structure for dealing with various threats to copyright, including both underprotection (thanks to P2P file sharing) and overprotection (due to ridiculous contracts and Digital Rights Management Systems).
To that end, I cannot recommend more highly the new book Promises to Keep by the Harvard law prof William Fisher. This is easily the best book I’ve read on the subject, better even than Lessig’s recent book Free Culture. Fisher spends the first half of the book tracing the history of copyright and the technological developments that have brought us to the current state of affairs. He then sketches three possible institutional and legal changes:

1. Strengthen copyright and make it a true property right. Thus, infringements would be criminal, not tortious, offences. We could call it the “I made it, therefore I own it” solution.
2. Treat the IP industry as a highly regulated industry, like railroads, phone companies, and electricity companies used to be. Call this the “Jack Layton” solution.
Both of these, Fisher argues, would be better than the status quo. But he says we can do better.
3. He suggests moving to a subscription-like model, which would make downloading on the internet seem free, without actually being free. Basically, the idea is that every song or movie would be registered with a central copyright office and given a unique ID that would be attached to the filename. The copyright office would track the file as it is traded, downloaded, and modified, watched, or otherwise used; probably on some sort of statistical lines, the way radio playlists are tracked. Money would then be paid to artists out of a centralised pot. The money would be raised by either taxing internet use (e.g. taxing IP accounts) or through a general income tax.
It is not a new solution, it is what many people in the various industries have been advocating for a while. What Fisher does though is give detailed institutional details, about how we could balance fair use with producers rights, and the moral rights of creators to control their art versus the values of “semiotic democracy” that allow us to reshape the culture as we see fit.
I’ve done a poor job here of describing what Fisher’s on about. Everyone engaged in the culture industries should read this book.

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