A short guide to the Copyright Wars

My social timeline has been abuzz with the latest copyright decision regarding the Internet Archive, which lost its appeal in the copyright lawsuit from Hachette. In the words of a colleague, this is a “disappointing but not unforeseen” development; the lower court ruling left little room for an appeal to be successful. It is not the intention of this blog post to go through the decision, but I have been surprised by the poor level of some of the discourse surrounding the case. This is in part because the recent AI copyright lawsuits have turned everyone with a social media presence into a copyright expert, so we are constantly bombarded with confidently wrong statements on several aspects of copyright: “Thanks to Article 3 of the Berne Convention of the Constitution, the 2nd circuit of the EU Copyright Office is going to pass the Model Disgorgement Directive, which bans all memes, but excludes creative commons software”.

I don’t intend to imply that only experts can discuss copyright, and it is understandable that prominent cases such as this one prompt public debate. However, I’ve been struck by the degree of misunderstanding (and sometimes outright ignorance) regarding the context of this decision within the broader conflict we now refer to as the Copyright Wars. This may be due to age; many people were not around for the early rounds of the modern phase of the War. This is a conflict as old as the Statute of Anne, a war that has been Hot, Cold, and occasionally even a little mild. It involves large corporate and national interests, witting and unwitting proxies, paid shills, and sometimes the public. The modern phase of the Copyright Wars began with the rise of the Internet. I intend to cover this in two blog posts: the first will provide background, and the second will offer a history of the Copyright Wars.

So buckle your seatbelt, Dorothy, ’cause Kansas is going bye-bye.

The sides

There are two main parties in the Copyright War: maximalists and minimalists. This binary does not fully cover all of the complexities present in copyright debates, with many fringe positions, as well as some centrist approaches, but we can see some commonalities in these main parties.

Roughly speaking, the maximalists want stronger copyright protection: longer term of copyright protection, fewer exceptions and limitations (and/or erosion and further limits to the existing ones); increased liability for intermediaries; criminalisation for some types of copyright infringement, more exclusive rights for the author, more subject matter, more ancillary rights (and an enhancement to existing ones), anti-circumvention of technological protection measures, increased damages (minimum statutory damages if possible), more automated measures (notice-and-takedown, filters, website blocking), seizure of domain names, no privacy protection for infringers, extradition of infringers, and three-strikes measures (which eventually would kick out people from the Internet for infringement). Not all maximalists propose all of these, and there are some fringe opinions that few advocate, such as full criminalisation for infringement, and the complete removal of all exceptions and limitations.

The minimalist camp tends to be a rather big tent as well: the mainstream belief is an enhancement of exceptions and limitations, and wider implementation and adoption of existing ones; reduction of liability for intermediaries; hacking copyright by the use of permissive some-rights-reserved licences such as open source and Creative Commons, and advocating and adopting such licensing schemes to more fields of endeavour; reduction of the term of copyright protection (or at least to go back to the terms established in Berne), freedom to repair (which also includes specific technical exceptions for interoperability and tinkering); sharing as an ethical precept; enhancement and protection of the public domain; protection against copyfraud; opposition to automated copyright enforcement that doesn’t respect exceptions and limitations, privacy protection even for possible infringers, decriminalisation of copyright, reduced damages (and no statutory damages), opposition to any over-the-top enforcement measures, particularly three-strikes. Not all minimalists coincide with all of these, and there are also a few fringe positions; some people are full copyright abolitionists, while others believe that all piracy is ethical.

There are a few centrist positions that tend to be a matter of degree. There are also a few positions that tend to be surprisingly less controversial, such as moral rights, which are almost non-existent in Anglo-Saxon traditions, while they tend to be stronger in Continental traditions, leading to strange situations in which minimalists support stronger moral rights, while maximalists tend to ignore them. Some ancillary rights are also favoured by minimalists, such as performers’ rights. There are some techno-optimists which hold views that are difficult to classify, such as the tokenisation of copyright in the shape of smart contracts, and this can be either minimalist or maximalist depending on the actual implementation. So it’s all more nuanced than simply calling oneself a minimalist or a maximalist.

Long-time readers will be unsurprised to learn that I’m a minimalist, but I’ll try to be as objective as possible in trying to explain the Copyright Wars, but do take into account that my account of the War may still be biased.

The myths

One of the things that I have found most baffling in witnessing recent discussions regarding copyright in the public sphere is precisely how some people who have just become aware of the debate tend to get it completely wrong. There are in particular two myths that I see repeated all the time which need correcting.

The first myth is that there is a political split: maximalists are on the Right, while minimalists are on the Left. This used to be somewhat true, particularly during the early 2000s, mostly because minimalism also meant being sceptical of IP in general, and many of us were radicalised against patents by the abuses of the pharmaceutical industry and the access to medicines debate, where large US pharma corporations tried to block the exportation of cheap life-saving medicines to least developed countries. IP law in general was often seen as an Imperialist endeavour. There was also the fact that at least in early fights, the tech industry didn’t have the power that it has now, and it was mostly left-wing, something that has shifted now. Fast forward to the present, and there’s considerably less political certainty due to the debate surrounding AI. Many anti-AI people on the left have espoused copyright as a way to curb AI, while many tech entrepreneurs that are pro-AI have become advocates of minimalism, whilst being politically on the right. So political lines have blurred considerably.

The second myth is that maximalism is pro-corporations, and minimalism isn’t, and vice versa. Both camps tend to accuse the other of serving the interests of large corporations. The truth is that no matter what your stance is on copyright, you will always be aligned with some corporate interests. The reason for this is simple: there are corporate interests on both sides of the debate, and that is inescapable given the fact that we live in a capitalist system bent on the accumulation of wealth. So whether you are a maximalist or a minimalist, you will hold a position that benefits one corporate block. That means to me that you should then consider other reasons for holding your position.

The parties

While there are two clear sides in the Copyright War, who is on which side can be fraught with interesting and weird players and alliances. We have established that this is not a corporate v non-corporate debate, and neither is it a Left v Right debate. So which are the parties?

The biggest two sides in the Copyright Wars at the moment are the corporate sides: the content industry (maximalists) and the tech industry (minimalists). The content industry comprises music, film, publishing, stock photography, media, software, and gaming. The reason for their maximalist stance is self-evident; these are industries whose lifeblood is made of copyright content, and anything that serves to protect those outputs has to be enhanced. The tech industry is made up of internet platforms, search engines, data brokers, software developers, venture capital, hardware, e-commerce, open source developers, and AI developers. The reason for the minimalism is also easy to see for the most part: AI needs large amounts of data to use for training, so it needs exceptions that allow them to do that; search engines need to scrape the Web to index it; platforms need to be immune from liability for infringement committed by their users.

As with everything, there are some interesting edge cases. Software giants started life strongly as copyright maximalists, with Microsoft being one of the biggest copyright infringement hunters in the world, but then the world changed when open source development won, so Microsoft stopped making money only from software sales, and became more engaged with other business models that place them more in the minimalist camp, particularly with regards to open source software, as well as putting a lot of effort into AI. There are other content industries that have been shifting into tech, so the same corporation could have both minimalist and maximalist interests; think Apple, which is both a content creator and a tech company putting their weight behind AI. We can expect lots of such strange alliances going forward. Getty is suing StabilityAI, a typical maximalist v minimalist fight, but at the same time it’s developing its own AI strategy. Adobe is another company that treads a fine line between both camps.

Outside of the corporate players, we have four main parties: individual creators (maximalists), trade bodies (maximalists), collecting societies (maximalists), and civil society (minimalists). Individual creators are writers, photographers, musicians, artists, actors, and an army of contractors and sub-contractors that fuel the creative industries. Trade bodies are organisations that represent the interest of individual creators, but also often of the industry in which those creators operate; these are bodies like the Authors Guild, the RIAA, the MPAA, Publishers Association, etc. The reason for the maximalism of all of the above is also self-evident; these are individuals and bodies which see copyright as the main source of their income, so anything that can protect copyright works has to be encouraged. Collecting societies collect royalties for individual creators: PRS, IFPI, CISAC, etc.

Civil society tends to cover specialist non-governmental organisations, GLAM (galleries, libraries, archives, and museums), the Pirate Party, the Free Culture movement, and academics. The reason for minimalism in this area is a bit more nebulous; some NGOs such as Creative Commons and the EFF arose specifically as a response against the excesses of the early Copyright Wars, so from the start they were dedicated to many of the objectives of minimalism, particularly the protection of exceptions and limitations. In developing countries, some NGOs such as Fundación Karisma in Colombia, or Derechos Digitales in Chile, were also dedicated to fighting specific maximalist excesses in developing countries, particularly with regards to access to educational materials, and excessive enforcement of copyright to try to appease maximalist directives coming out of the US Trade Representative (google Special 301 status). GLAM institutions are also by definition dependent on exceptions and limitations; without specific carve-outs in copyright law, it would be impossible for many such institutions to conduct some of their activities. If you want to find out who really knows copyright in any given organisation, look for their librarian. Academics tend to be also minimalist because a lot of what we do can be infringing copyright, which is why we rely on educational exceptions. And then there’s the whole thing with academic publishing that I have discussed before.

As with everything, there are interesting shifts taking place, making the Copyright Wars more nuanced.  Many individual creators despise copyright, or are indifferent. Not all academics are minimalists, and lots of legal academics are maximalists, particularly in Europe. While the music industry has remained staunchly maximalist, I think that there has been a marked shift amongst individual musicians against maximalism, particularly after streaming made it impossible for most musicians to make a living just from sales. Some musical lawsuits in the US have also shown us the dangers of maximalism, where musicians are being sued for copyright infringement for things that should not have protection. Civil society has also been moving in interesting directions; while it used to be staunchly minimalist, there has been a shift as many organisations become more sceptical about Big Tech, specifically large platforms and their push towards AI.

Concluding

This is a complex area, and this blog post is simply giving you a generalist view. I’m sure that I’m forgetting some details, or some of the examples given have exceptions, and I haven’t even gotten into international institutions and regulators. But for the most part this is as accurate a picture of the battlefield as I can paint. However, I should warn you, I can’t paint to save my life.