The document summarizes discussions from the FOSSa 2011 conference openness track regarding copyright and intellectual property in the digital world. Key points include: (1) Digitization and the internet have changed the economic and social rules by allowing near-zero cost copying and sharing; (2) Intellectual property artificially induces rivalry and may not be economically efficient; and (3) For orphan works where the copyright holder cannot be found, some propose making the works freely available online while paying royalties into escrow in case the rights holder appears.

1. FOSSa 2011 Conference
October 26-28, 2011, Lyon
Openness Track
Open Past : can books be opened
by digitization?
Copyright's Old Clothes
after H. C. Andersen
Bernard Lang
AFUL
AFUL : Association Francophone des Utilisateurs de Logiciels
Libres
produced with the free software

2. My ideology
Thermodynamics
efficiency – darwinism
Humanism
recognition of author and work ( incentive)

3. A phase transition in
the culture/knowledge ecology
● [ Digitization + Internet ] copy + send = $0
changes its economic
and social laws
● This enables new
economic, social, and
legal engineering
● It also disables former
economic, social and
legal devices
http://www.istockphoto.com/
Copyright / IP Engineering must be consistent with
underlying technical, economic and social physics

4. Inadequacy of Intellectual Property
in the digital world?
● Digital creation are non rival : No natural marginal cost
● Software Patents & Copyright : create marginal cost
=> Adulteration of natural economic properties
Intellectual Property artificially induces rivalness
Is it efficient ?
Should we find better ways of remunerating creation ?

5. Value and Usage
Value as social usefulness (rather than individual)
● Material goods are rival => limited use
(but property preserves value - tragedy of commons)
● Digital creations are non rival => unlimited use
but intellectual property limits use,
hence reduces social value
IP is socially less efficient, unless there is another factor
such as : Incentive to create – remuneration of creative work

6. IP is not a problem in material economy
(usually) and sometimes a solution
● Material goods are rival and have a marginal cost
● Royalties for patents or copyright do not significantly
adulterate possible economic models (usually)
Ignoring the fixed cost of prototyping
● Material production requires significant investment in capital
● IP offers a more secure return on investment
● Applies to both copyright and patents
● But there are no production cost in digital “production”
IP was created for professionals in a material economy
it is now applied to average people in a digital economy

7. The case of written creation
Copyright is the daughter of the printing press (~1450)
●
It started as a monopoly of stationers (16th and 17th century)
enforcing individual monopolies over the printing of books
The production investment was protected long before the
Statute of Ann (1709) transferred the monopoly to authors
who still usually return it to publishers, but receive royalties.
● Royalties are just a share in the cost of each book
and do not change much the economics.
● Obligation to pay royalties for making copies became a
basic assumption (nothing to be gained otherwise) and
still is to this day : Books cannot be free
Same reasoning applies to presentation rights (theater, ...)

8. International Copyright
Treaties : Berne Convention - WIPO Copyright Treaty - TRIPS
● Exclusive right to authorize or prohibit use / exploitation:
reproduction – making available – ... indexing ... ?
● The rights and its exploitation are without formalities for
rightsowner (except possibly in country of origin)
● Moral rights (disclosure, attribution, integrity, ...) may vary
● Possibility of exceptions or limitations to exclusivity,
constrained by the 3-step test
● Until 70 years after the author's death, never less.
(20 years at most, fees and formalities for patents)

9. Some issues
● Most works have a short economic lifetime
very short when materialized (shelf cost)
but longer when digitized : long tail
● Publishers have no digital rights before 10 to 20 years ago
● => many works are out of commerce
● Rightsowners are hard to find (no formality rule)
● Many works are orphaned – the rightsowner cannot be
found to authorize exploitation – but still are of cultural
interest. How can they be exploited ?

10. The rush on orphan works
● Orphan works have existed for a long time
● No one really cared
● Specific laws (Japan, Canada) were seldom used
● They are suddenly important ... because
Digitization causes technical and economic changes
– that make orphan works economically relevant
– that make orphan works culturally more relevant
easy access, search engine, global processing
– that should – and will – evolve the legal system
former solutions (no formalities) are now the problem

11. Some facts
about the digital world
● Copying is a technical part of the medium
including format shifting and non consumptive copies
● Making copies is no longer an economic activity
Though selling copies could still be
● Open / free access is now another normal exploitation
very relevant to research and teaching (green paper)
while commercial exploitation used to be the only way
● Petabyte data bases, freely accessible worldwide
at no cost to user, are now possible
==> Berne 5(2) “no formalities” is obsolete ... almost.
a problem rather than a solution (to a 19th century problem)

12. The Google Book Search Settlement
● Google scanned books to create an index - is it fair use ?
● Publishers and Authors sued
● It changed into a class action leading to a settlement
Publishers and Authors pretending to represent all
rightsholders (including orphan works RH)
● The proposed settlement is a Registry enabled to sell in
digital form all works under copyright and out of commerce.
the profit being shared between all parties, 30% for Google
and 70% for rightsholders registered with the registry.
● It covers more than orphan works (no search for owners)
● The settlement was rejected because it gave a de facto
monopoly to the Registry, including Google, over all orphan
works, and more generally unregistered works.

13. The French view
● Google and the Registry should not be allowed to infringe
the rights of foreign rightsholders (this is theft)
● French rightsholders are pushing a French solution, though
few details are available (secret agreement with ministry)
● The solution is ~ Compulsory Collective Management
● Which is essentially the Google solution without Google
allowing exploitation of orphan work without owner search,
and thus more than orphan works,
● to the benefit of other rightsholders (authors, publishers)
● And the theft is suddenly virtuous

14. The French motives
● Orphan works are competition to new works
● Orphan works are a good excuse for casual infringement
by professionals (“Droits Réservés” – DR )
(particularly for graphics and photos)
● The royalties of unreachable authors should be collected,
so as to protect their financial interest
● And the money can fruitfully be used for culture if they do
not show up.
They are adamant that any other solution to use of orphan
works should impose a costly diligent search of rightowners
In other words, they are not protecting the interest of
unreachable authors, but their own.

15. My view
● Authors increasingly favor digital visibility over royalties –
=> the royalties assumption is no longer warranted
● Their moral right of unreachable authors to see their work
survive and have a public has priority
● Financial return is secondary and unlikely to reach them
● Any cost or obstacle will reduce work survival
( diligent search, royalties )
unless it is a small part of the cost of non digital exploitation
● Berne “no formality” is obsolete and a convenient fiction
it can be replaced by a worldwide registration system
● And works need to be digitally available on a massive
scale, in the public interest.

16. Orphan Works directive proposal
● Diligent search for rightsowners is circumscribed
– To the country of origin of the work
– To a fixed set of sources in relevant country
=> it can be mechanized in a database (ARROW) :
=> diligent search can be cheap, certified, dated
● Orphan works can be made freely accessible by public
cultural and educational institutions for their public interest
mission.
● Orphan works can be used for profit upon payment of
royalties kept in escrow for resurfacing rightsholders ...
A reasonable compromise ...

17. Merci
“Auch wenn ich untergehe,
lasst meine Bilder nicht sterben,
zeigt sie den Menschen.”
“Even when I am gone, do not let my paintings die,
show them to the people”
Felix Nussbaum, German expressionist painter,
murdered in Auschwitz