[h2o-discuss] Re: leaky theories

[Eric Eldred <eldred@mediaone.net>]

Jon Garfunkel wrote:
 from Barbara Blake Hannah:
> "I cannot wholeheartedly accept that my printed work should cease to earn me
> income if and when someone scans the pages and reproduces them on an
> Internet site as 'a service to humanity'."

I see my Shetland water post has served to provoke
Jon to give us some interesting ideas.

I believe that no printed work can be scanned without
permission and placed on the web unless it is in the
public domain.  If it is in the public domain, then
it is no longer "my" printed work, and the 'service
to humanity' is irrelevant.

However, the larger issue is germane to the recent
discussions here.   The current intellectual property
law theory popular with the federal government and
large publishers and corporations such as Microsoft
is rather straightforward.  THEY would like to have
not only exclusive rights to prevent others from
copying the work, but also perpetual rights and
rights to prevent others from making fair use of 
the property.  If you accept such a natural rights
theory for intellectual property, it is hard to see
how to avoid problems such as determining the proper
copyright term, how the Internet should properly
continue to exist as a free and open publishing system,
why there should not be a way to abandon intellectual
property, and many other problems.

A look at the current system of publishing in the
U.S. might be helpful.  It is an illusion to think
that authors can make money from writing books.   For
every Stephen King and Elmore Leonard who has been
able to make enough to live on from novels, no doubt
hundreds of thousands or even millions of others
do not.  What happens with books now is that there
are fewer of them published, those few get a certain
amount of marketing, and when the sales peter out
they get remaindered and shredded.  Perhaps the
copyright may return to the author.  Then the author
is not able to find a publisher to reprint the books.
Then the book appears in the amazon.com listings
as not necessarily 'out of print' but just 'we'll
try to order it for you'--i.e., from a used book
store you could have done yourself online.

Now, what should an author think about this situation,
where she is no longer making money from the book,
and it is no longer accessible to readers?  There 
will be a period of many years between the time it
goes out of print (maybe five years after first
publication) until the copyright runs out.

One possible solution is to sell the book over the
Internet.  Some few have done that, and they should
be encouraged.  Others have given away the book
to people who think highly enough of it to scan
it and make it available once again. But if a decision 
is not made, by default the law protects the work 
against copying.  Barbara gets her wishes, at least
until the copyright runs out, if it ever does.

Now, opposed to the "strong" theory of intellectual
property is another, more skeptical of both the
philosophical underpinnings, and the practical
consequences of policy for our society, of the
current theory.

This theory tries to value the public domain more
emphatically and realistically than does the other
theory.  For one thing, it points out that the
excessively long copyright terms necessitated
by the other theory lead to abuses such as 
recounted here and elsewhere.  Barbara could die
and in another 50 years it could be impossible to
determine who owns the copyright--even if there
is a great social purpose to having her ideas
available for public discussion at that time.

I do not believe it is required that the courts
throw out ALL our intellectual property law.
But it would help if there were some guidance
to recognize the rights of the public, for
example, to the public domain.  That way future
interpretations of the law would correspond to
the consitutional requirements in the U.S.,
not to the European law of copyright (moral 
rights, etc.)

The alternative to this, correct, course, is to
constantly make exceptions, to avoid the
contradictions.  For example, at one point the
law allowed farmers to save and reuse seed.
Now the law denies farmers this right, as it
is said to infringe on the intellectual property
rights of agrochemical companies.  This appears
to me just an ad hoc exception that can be
changed at any point to favor the interests of
one business over another, and it is hard to
see how it is consistent with their intellectual
property law theory.

In each area of intellectual property we find
that "authors and inventors" have been replaced
by corporations and corporate publishers.  They
have turned the creative ideas into commodities
that can be bought and sold.  In each domain
there is more monopoly control than ever in our
history:  there are just a handful of media
conglomerates that control publishing, just a
few agrochemical companies, just a few software
companies that control and crosslicense patents
and other intellectual property, and so on down
the list.

I believe this talk of the Romantic author who
should retain property rights to her creative
ideas is an illusion for the most part.  Then
why is it constantly repeated?  I can only think
that it is propaganda by those who own intellectual
property and try to use this old-fashioned romantic
myth as more justification for their greedy ends.

And this is why, I believe, there is such a savage
attack on those of us who want to use the Internet
and the web to publish free books and share a
global public library online.  Although we do
not intend to compete with publishing Stephen King
novels online, this is the best example they can
come up with to destroy us.  Essentially they
feel very threatened by people sharing books that
happen to be in the public domain--they first of
all want to make money from publishing and can't
see how to do that on the Internet--so they have
to change the laws in their favor to allow them
to lock up books and make them inaccessible again.
What happens to author rights when the publishers
really start publishing e-books?  What happens to
advances, royalties, derivative rights, and so on?

At this point I won't get into another area of the
discussion:  many published books are not the
novels by Stephen King, nor entertainment, but
rather scientific or technical works--which happen
to be copyrighted, but which in some cases might
as well be distributed for free if the publishing
and distribution costs were essentially zero, as
they are on the Internet.  The copyright is not
intended to allow the author to get rich, certainly.

And so we get back then to the Shetland water:
what is the point of branding and labeling water,
putting an expiration date on it, and so putting it
into a strange property state--isn't there some
paradox here of fetishism and commodities contradicting
the public domain?  (I can't vouch for the "real" facts
of the case in the Shetland Islands, of course, but
in any case one does need to try to understand why
it is funny--where is the joke?)


-- 
"Eric"    Eric Eldred      Eldritch Press
mailto:EricEldred@usa.net  http://eldred.ne.mediaone.net/
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