Friday, January 1, 2010

Who Owns a Copyrighted Work?

In honour of European Public Domain Day (North America won't get a Public Domain Day until 2019) I thought I'd post some thoughts on copyright.

First, a disclaimer. For my whole career I have made a living from copyright. As a software developer, I rely on the existence of copyright to make the work I do worth being paid a salary. Some might think my opinions would be biased by that. But I have a second disclaimer. I am a consumer of copyrighted works. As a consumer, I recognize the value in keeping copyright limited. What I would like to see is a copyright law where there is a balance between the rights of the copyright holder and the rights of the consumer.

With that out of the way, I would like to ask all of you to think about a question. Before you go on reading, see if you can figure out who owns a copyrighted work. If you think the answer is obvious, I will point out that it is a trick question. You might want to look at the question again and make sure you fully understand what it is asking.

Have you got an answer? If you thought that a copyrighted work is owned by the copyright holder, I am afraid you get the wrong answer buzzer. The copyright holder owns the copyright on the work but not the work itself. A copyright is not the same as ownership rights. It is a limited monopoly on control and exploitation of the work. It is limited in terms of time and it is limited in terms of application through exceptions like fair-use rights. None of these restrictions are possible with ownership rights.

Now, IANAL but I have made a serious study of the subject. I believe I have an answer to the question of who owns a copyrighted work even while it is under copyright. To understand the answer, and to clearly understand the difference between owning the work and owning a copyight on the work, we have to take a journey through the world of Public-Private Partnerships, or P3s.

A P3 is an arrangement between a governing body and a private company whereby the private company gets to exploit some limited monopoly right in return for which they finance the creation of some public infrastructure. That description may seem a bit confusing, so here is an example.

Suppose a city wanted to build a bridge and they didn't want to raise the money through taxes to pay for it. They might approach a bridge-building company and suggest that the company arrange to finance building the bridge themselves. In return for paying for the bridge, the company would not only get the contract to build the bridge but it would also get the right to charge tolls on the bridge for some fixed period of time, say 30 years. The city might arrange for some exceptions in the contract. Perhaps emergency vehicles and buses get to pass through without paying a toll. If the bridge-building company decides that it will make enough money under those terms then a deal can be struck and the bridge can be built without affecting existing taxes.

The parallels with copyright should be obvious: a limited monopoly to make money that is limited both by time and by exceptions. In a sense, copyright is an early form of P3 done with a social contract between the government and those who create new works rather than with individually negotiated private contracts. The public gets all these new works, and the creators get to try to make enough money to make the effort to create a new work worthwhile.

So who owns the copyrighted work? Well, who owns the bridge? Certainly not the company collecting tolls on it. The answer is obvious: the public owns the bridge. To know this, you only have to look at who gets control of the bridge once the limited monopoly runs out. The same is true with copyright. Who gets control of a copyrighted work once the copyright runs out? The public. The public owned the work all along.

This logic may make you worry that people will use their ownership of a work to pirate during the copyright period, thus undermining any benefits derived from copyright laws. Think about the toll collection on the bridge, though. No one doubts that the bridge belongs to the public rather than the company collecting the tolls. That doesn't reduce the moral obligation to pay tolls when you cross the bridge.

Let's follow the analogy between the bridge and copyright a little further. Let's imagine that the city announced to the public that they were going to extend the period that the company could collect tolls by another 30 years. The toll money would still flow into the company coffers rather than being available to the city. Can you imagine the public outcry that would follow this announcement?

And yet the same thing has happened with copyright. The government has increased the time limit for copyright several times and the public remained all but silent. Why? I think it is because people are not clear about the fact that they in fact own the copyrighted work. If people realized that every time the government increased the rights of copyright holders they did so by thieving from the rights of the public, people would be up in arms about it.

So spread this meme about the difference between copyright and ownership right, and about the public's ultimate ownership of copyrighted works. If enough people change the way they think about their ownership rights of those works, it may be a way to return balance to copyright law.

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