... in copyright

Towards an auto-generative Public Domain?

A couple of days ago,  I came across the website generated.photos (via the Verge) a new service that offers 100.000 computer generated portrait images and positions them as an alternative to traditional stock photos. The Verge article highlights the fact that the pictures can be used “royalty free” and the generated.photos website claims that “Copyrights … will be a thing of the past”. This made me postulate on twitter that we might very well be witnessing the emergence of an “auto-generative public domain”.

It has since become clear that the creators of generated.photos do not intended to contribute the output of their algorithms (or for that matter the algorithms themselves) to the public domain: By now the website has been updated to note that the images are available for non-commercial use only. A new terms and conditions page states that “Legal usage rights for content produced by artificial intelligence is a new, largely unknown domain” only to go on to list a number of restrictions on the use of the “materials and software” made available on generated.photos.

As noted in the terms of conditions the copyright status of images (and other types of artworks) that are autonomously created by AI-powered software is largely unsettled. As Andres Guadamuz notes in his excellent overview post on the topic, there are generally two schools when it comes to the question if computer generated artworks are (or should be) protected by copyright. One school argues that copyright protection only attaches to works that have been created by humans and as a result computer generated artworks can by definition not be copyrighted. The other school points out that such works are not created without any human intervention (someone needs to start up the software and set basic parameters) and that whoever initiated the generation of these works should be considered the creator and receive at least a minimum level of (copyright) protection as a reward for their investment.

In the case of generated.photos it is evident that the people behind the project have made a considerable investment into the project. The website states that they have shot more than 29.000 photos of 69 models that have subsequently been used as a training set for the software. Judging by notes on their website, the 100.000 images made available on the website have been created using the open source generative adversarial network StyleGAN that is freely available via GitHub. It remains to seen if creating photos (which are copyright protected) that are then used to train a out of the box GAN does indeed mean that the output of the network is (a) protected by copyright and (b) that the copyright belongs to the entity that trained the GAN.

While it seems to be at least possible that the creators of generated.photos do have a legitimate copyright claim in their output, that does not necessarily invalidate the idea that we are witnessing the emergence of an auto-generative public domain, i.e circumstances in which computer algorithms produce a (possibly endless) stream of artworks, that are indistinguishable from human created works and that are free from copyright and can be used by anyone for any purpose.

In terms of quality, the images provided by generated.photos are still far from indistinguishable from human made stock photos, but it is clear that it is only a matter of time before the technology gets good enough to produce high enough quality outputs at scale. Projects like the next Rembrandt illustrate this development is not limited to stock photography but will likely happen across the full width of human creative expression.

The future: AI driven on demand creation of visual assets

Such a development would dramatically upend a large number of creative professions. It seems like it will only be a matter of time before stock photography and other forms of creative work where the primary draw is not the specific style of a particular creator will be replaced by AI-generated output that will cost almost nothing to create. Once AI powered systems will be able to deliver high quality creative output at zero marginal cost the question if these outputs are protected by copyright or not will be largely meaningless (a single system releasing its output into the public domain will render any attempts to enforce copyright futile).

From the perspective of those making a living by creating stock photos, background music and other forms of creative work that is about to be eaten up by AI, the emergence of this “auto-generative public domain” must feel dystopian. Under these conditions the primary question that we must ask ourselves is not how we can fit works created by computer algorithms within the framework of copyright law. Instead we should ask ourselves how we can create the conditions for human creators to leverage these technologies as tools for their own creative expression. Instead of mourning a future in which humans are no longer employed to shoot endless variations of the same stock photos, we should look out for entirely new forms of creative expression enabled by these tools.

Leaving Kennisland (pt. 2)

The text below is an adapted version of a text first published on the Kennisland website under the title “Time to move on: what we have done to improve copyright and access to cultural heritage”. Both texts are identical except for the last section. The version published here provides a more in depth reflection on the challenges ahead for digital policy making.

At the end of 2018 we will end our activities in the areas of copyright and cultural heritage. Kennisland has been working on these themes for over a decade but with the departure of Paul Keller, who has been leading these efforts, we have decided to focus our energies on innovation in Education, Cities and Care.

Internet access, civil society media and open content

Over the past fifteen years our efforts to create an open, knowledge driven society have taken a lot of different forms. Driven by the conviction of our founders that the technological revolution started by increasing access to the internet presented a lot of benefits to an open, inclusive and diverse society, we have worked on a wide range of projects that tried to leverage new technologies for social progress. This ranged from initiatives to improve internet access in disadvantaged communities like Digitale trapvelden (‘Digital playing fields’) to ideas ahead of their time like WIFI in de trein (‘WIFI in the train’)1.

The main catalyst in this area turned out to be the Digital Pioneers programme we ran from 2002 to 2010. Through this programme, designed to support small civil society organisations in setting up technology driven activities, we learned a lot about the potential and the challenges posed by the rapid digitisation of society. One of these challenges that we identified early on was how copyright and other forms of intellectual property were not evolving at the same speed as technology. This meant that technology enabled many activities that were in conflict with copyright and other laws. Therefore, in 2003, we started the project DISC (Domain Innovative Software and Content). Together with Waag Society we helped civil society organisations to leverage the power of open source software and open content. Our involvement in the emerging field of open content led us to set up Creative Commons Nederland, which Kennisland ran (together with the Institute for Information Law) from 2005 until 20182.

Working on the development and promoting the use of the Creative Commons licenses was our first step into the area of copyright, and brought us in contact with the copyright establishment. In the fall of 2007, after years of discussion and relationship building, we launched a pilot project with Buma/Stemra that for the first time allowed members of a collective management organisation (music authors) to share some of their works under an open license. This breakthrough later provided the basis for a flexible model that gives Buma/Stemra members more say over how their rights are managed.

Opening up cultural heritage

Also in 2007, Kennisland, together with the Dutch Institute for Sound and Vision, the EYE Filmmuseum and the National Archives embarked on an ambitious project to digitise the audio visual memory of the Netherlands. At the time, the project called Images for the Future was the largest digitisation project in Europe. Kennisland was responsible for the copyright, communication and business model aspects of the project. During the project (2007-2014) the project partners restored, preserved and digitised over 90,000 hours of video, 20,000 hours of film, 100,000 hours of audio and 2,500,000 photos.

As one of the initiators of Images for the Future our priority was to make sure that the digitised works would become available online under conditions that would allow reuse. With regards to this objective the project turned out to be less successful. Regretfully only a small percentage of the overall collections could be made available online, mainly because of unresolved copyright issues. Copyright turned out to be a much more thorny issue than we had expected. The original project plan was based on the assumption that copyright owners would provide permission for the digitised material to be used in return for payment. In reality, most of them did not, as the economic incentive never materialised3.

However, we did manage to demonstrate the impact of making cultural heritage collections available under open licenses through platforms such as Open Images4 and the collaboration between the National Archives and Wikimedia. The latter illustrated that by sharing content on open platforms, institutions could reach new and larger audiences. These experiments around opening up collections for reuse became very influential for the nascent OpenGLAM movement. Realising that opening up GLAM collections (Galleries, Libraries, Archives, and Museums) was primarily a matter of working with public domain works and metadata, we worked with Creative Commons on developing the tools to facilitate this5.

From 2009 onwards we also worked with collective rights management organisations on a number of pilot projects that explored the possibility of extended collective licensing as a mechanism to get more digitised cultural heritage available online. These projects proved to be successful and in response in 2013 cultural heritage institutions and collective rights management organisations joined forces (article available in Dutch only) to ask the Dutch legislator to provide a legal basis for extended collective licensing6.

Based on our work in the cultural heritage sector we were an early partner of Europeana, the EU funded platform that brings together digitised cultural heritage from thousands of libraries, archives and museums across the EU. Europeana provided us with an opportunity to apply the lessons that we had learned in the Images for the Future project on a wider scale. Together with the Institute for Information Law and the Bibliothèque Nationale de Luxembourg we developed a licensing framework that ensures full reusability of the metadata aggregated by Europeana. It encourages institutions to make their collections available for reuse under open licenses7. Today, ten years later, Europeana is the biggest aggregator of openly licensed cultural heritage resources, hosting more than twenty million freely licensed works8. The success of the Europeana Licensing Framework, which focuses on clear rights information for end users promotes reuse, has inspired other cultural heritage aggregators around the globe9, such as the Digital Public Library of America. Over the years of our collaboration Europeana has developed into one of the leading voices advocating for open access to cultural heritage and for the protection of the Public Domain10. We are proud to have been a driver of this.

Since 2016 we have also worked with Europeana on making sure that the ongoing EU copyright reform will improve the ability of cultural heritage institutions to make more of their collections available online. While the reform process is not concluded, there are indications that the EU copyright reform package will finally provide a workable answer for the copyright problems faced by libraries, museums and archives engaged in large scale digitisation efforts.

But our fight for better copyright rules11 extends further than improving the position of cultural heritage institutions. As a founding member and core contributor of the International COMMUNIA Association we have been advocating for a more user-friendly and modern EU copyright framework. Together with our partners we have been advocating for Europe-wide rules12 that benefit educators13 and scientists, and encourage innovation and broad access to knowledge and culture. The fight for a more sensible copyright system remains an uphill battle. The legislative fight over the Digital Single Market Copyright Directive14 is still ongoing, and while it looks like we (together with our partners) have achieved substantial improvements for the cultural heritage and the educational sectors, it is also clear that copyright will continue to serve as a major barrier to unlocking the full potential of digital technologies for public institutions and civil society at large.

What’s next?15

As we look back at almost fifteen years of activities, it is clear that many of the hopes that drove us to invest in these areas have failed to materialise. Instead of contributing to a more decentralised, democratic and equitable society, the digital revolution has brought us an increasingly centralised digital space that is undermining democracy and personal self-determination. At the same time, the rapid advancement of artificial intelligence is likely to raise an entirely new set of issues.

So why are we stopping our activities in this area when there is more urgency to act than ever?

We feel that after fifteen years we have exhausted our ability to intervene in meaningful ways. As an organisation that is entirely project-funded we need to find funders that are willing to pay for our interventions. Most funders that we have worked with prefer to fund activities/interventions that directly address a specific problem or issue that is relevant to their own mission (such as cultural heritage institutions for whom we have worked on copyright reform) or business (such as tech companies who have supported our copyright reform work). Such funding is usually tied to concrete opportunities or threats (like the ongoing EU copyright reform) and as such a lot of our work in the past years has been reactive to these kinds of threats and opportunities.

This has allowed us to change a lot of things for the better for the organisations and sectors that we have been working for. At the same time it is clear that we (as part of a bigger movement) have failed to counter the general trend towards an online space that is more and more dominated by a small number of powerful platforms that have built their dominance by extracting more an more of our private and public information. This situation poses a challenge for those like us who are part of the open movement. By advocating for opening up access to data, culture and information we have contributed to a favourable environment in which these platforms have come to dominate the online space.

If we want to reverse these developments and double down on our efforts to create a more decentralised, democratic and equitable society, there is a clear need for developing a more strategic, forward-looking policy agenda that furthers the policy objectives of the open movement.

Despite our long and successful track record in this field, Kennisland is no longer the place where this can happen. Both the funding model (dominated by relatively short-term project funding) and the relationship with our network of partners with whom we work on concrete social challenges (and who expect us to deliver concrete interventions in their immediate reality) drove us to the conclusion that Kennisland is no longer the place for long-term strategic policy work with an international focus. This is why I have decided to take these ambitions elsewhere.

Over the course of 2019 I hope to develop the foundations for a new entity that can be the host for these ambitions and that can become the basis for policies that rethink the digital environment in the light of what we have learned over the last decade and a half.


  1. Our 2005 project proposed to install WIFI networks in all trains. It took more than ten years before a majority of the Dutch trains were equipped with WIFI. These days most of them (with the notable exception of the “Intercity direct” service between Amsterdam and Rotterdam) broadcast our old project name as the SSID of their free WIFI networks. ↩︎

  2. In 2018 Creative Commons Netherlands was relaunched as a chapter of the Creative Commons Global Network. The Dutch chapter is chaired by Maarten Zeinstra (who previously worked at Kennisland) and our own Lisette Kalshoven serves as the global network representative. ↩︎

  3. You can find a more in-depth analysis of the results of the project in our publication ‘Images of the Past – 7 years of Images for the Future’. ↩︎

  4. Open Images became an important source of historical video content for Wikipedia, with large audiences. For example, in October 2018: 5,6 million pageviews↩︎

  5. In 2010 Creative Commons launched the CC0 public domain waiver which later became the de facto standard for sharing cultural heritage metadata. In 2010 Creative Commons launched the Public Domain Mark intended to label works that are in the Public Domain. ↩︎

  6. In 2015 the government responded by announcing that they intended to introduce Extended Collective Licensing into the Dutch copyright act. In the light of the 2016 EU copyright reform proposals this process is currently stalled. ↩︎

  7. To set an example, we developed Art Up Your Tab (together with Studio Parkers and Sara Kolster), a browser extension (plug-in) that shows users inspiring hi-res images from the rich collection of Europeana and the MET with every new tab or browser window that they open. The extension generates over 6 million views per year. ↩︎

  8. Since earlier this year our former colleague Harry Verwayen serves as Director of Europeana. ↩︎

  9. In 2016 together with Europeana and the DPLA we launched rightsstatements.org to better allow cultural heritage institutions around the globe to clearly communicate the copyright and reuse information of objects in their collections. ↩︎

  10. As expressed in the 2009 Public Domain charter which Kennisland drafted for Europeana. ↩︎

  11. Over the years we published numerous opinion articles on the subject of copyright reform. Read more about our efforts to modernise copyright law in the EU↩︎

  12. See copyrightexceptions.eu for research on the fragmented nature of user rights in the EU copyright framework that we have undertaken in 2016. ↩︎

  13. The education community (teachers, educators, lawyers, researchers, librarians, activists, experts on copyright) joins forces to ask for a better copyright for education. Check out the campaign website copyrightforeducation.eu ↩︎

  14. A controversial proposed European Union directive intended to ensure “a well-functioning marketplace for the exploitation of works and other subject-matter … taking into account in particular digital and cross-border uses of protected content.” Read more ↩︎

  15. You can find the (much shorter) original version of this paragraph that provides the perspective of Kennisland on the Kennisland website↩︎

© Piet Mondrian, 85 Waterloo Street Warrenton VA 20186, USA

15 Oct 2018 | 863 words | copyright art united states business travel

On the 16th of July 2015, a couple of hours before flying back to Amsterdam i rented a car in downtown Washington D.C and drove for a about an hour to Warrenton, VA to take a photo of a residential property located on one of the main thouroughfares of the small town:

85 Waterloo Street Warrenton VA 20186, USA

So what triggered my interest in this rather unremarkable building in an unremarkable town? The house on Waterloo Street was home to HCR international, a company that since 1998 has been managing the copyright in the works of the Dutch born artist Piet Mondrian (1872 - 1944). As a result the name of the company featured prominently in the copyright notices alongside reproductions of the works of Mondrian on Museum websites and exhibition catalogues all over the world.

I had developed an interest in HCR international when we were working on the “Wiki loves Art/NLpublication in 2010. During the work on the book i became aware of the somewhat dubious reputation that a certain Hillary Richardson (presumably the H and the R in HCR international) had among museum curators who dealt with works by Piet Mondriaan. Apparently Ms Richardson was rather demanding when it came to providing permission for preproductions of Mondrian’s works. Not only was she known for asking high royalty rates (see this 2015 NY Times article for examples), she was also known to be very specific with regards to the copyright notices. According to a 2011 art magazine article, HCR generally demanded that copyright notices are placed vertically alongside any reproductions, that Mondriaan name must be written with one ‘a’ (the original Dutch spelling is with ‘aa’). Evidence from around the web also seems to indicate that she insisted that HCR international is named in all copyright notices.

So how did the copyrights of the most famous 20th century artist from the Netherlands end up in a residential house in Warrenton, Virginia? Like many other artists from continental Europe, Mondriaan had to flee from the Nazis. During a short stay in Paris in 1934 he became friends with the American artist Henry Holtzman. In 1940 Holtzman arranged for Mondrian’s passage from London to New York City, where he rented an apartment-studio for Mondrian. During the next three and a half years he was one of Mondrian’s most intimate associates.

When Mondriaan died of pneumonia in 1944 he willed his estate (including the copyrights) to Holtzman. Holtzman continued to live for a considerable period but eventually died in 1987. His estate, including the Mondriaan copyrights, fell into the hands of his three children, who set up the Mondrian/Holtzman trust. In 1999 they hired the art historian Hillary Richardson to manage the copyrights on behalf of the trust and, as a result, from 1999 onwards HCR international managed Mondriaan copyrights from the House in Warrenton, VA.According to its website (2015 version), the Mondrian trust…

… aims to promote awareness of Mondrian’s artwork and to ensure the integrety of his work. We intend to carry forward his legacy and influence a new generation of artists by managing and encouraging copyright use for Mondrian’s artwork. The trust grants licenses and copyright permissions to those whishing to reproduce Mondrian’s images.

In reality, as evidenced by the way that Ms Richardson operated, it is fairly clear that HCR international was not primarily concerned with Mondrian’s artistic legacy and integrity but rather interested in bringing in licensing revenue. In an email exchange between Ms Richardson and me in 2010 she declined an to contribute to our publication because “Mondrian is keeping me very busy!”.

Things changed when the Mondriaan copyrights expired on the 1st of January 2015. When i contacted Ms. Richardson again in early 2015 to see if she would be willing to talk about how  the fact that Mondriaan’s work was now in the Public Domain, she declined pointing out that because of the expiration of the Mondriaan copyrights, she was no longer working for the trust:  

Dear Paul Keller, Thank you for your inquiry. Due to the expiration of Mondrian’s copyrights worldwide–except for many in the US and in Spain, I decided not to renew my contract with the Mondrian Trust for the limited rights. That has given me the opportunity to consult for a producer of educational art apps and to use myart historical background researching works in private collections here in Washington, many of which span several centuries and cultures. They are new and rewarding challenges after 16 years working withMondrian’s incredible images …

That email was singend off with a new adress for HCR international:

HCR International 4100 Cathedral Avenue Washington DC

So when i visited the house on 85 Waterloo street in July 2015 both the Mondriaan copyrights and HCR international were no longer residing there. Still, looking at the house on that hot summer day, I could not stop but wondering how Mondrian, the 20th century icon of modernist abstract art, would had felt knowing that more that half a century after his death his copyright would be administered from a small residential property in rural Virginia.

More pictures of the house and Warrenton, VA in this flickr album

New Horizons (leaving Kennisland)

27 Sep 2018 | 731 words | work kennisland copyright future

For the last eleven and a half years Kennisland has been my professional home and base of operations (first high above the the Keizersgracht and since 2015 as part of Spring House). Today we have announced that it is time for me to leave to make place for the next generation to take over the helm at Kennisland. The past decade has been an amazing ride during which I have learned and grown a lot. Over the years I have had the opportunity to work with lots of amazing people both at KL and all over the world1 on making the world a little bit of a better place.

Most of my contributions in doing so have focussed on fairly nerdy and technocratic issues. The most impactful - and hopefully lasting - change that we have managed to achieve is that we have convinced large parts of the cultural heritage sector to embrace digitisation as a chance for radical openness instead of seeing it as a threat (or, even worse, as a business opportunity). We have changed many organisations internal policies from closed by default to open by default and at this moment it feels that there is enough momentum in the direction of open access to collections and other data for it to sustain itself.

But changing internal policies of public institutions is not enough if they operate in a legal environment that is stacked against them (and against individual users and creators). This is why, over the last six years or so I have spend an ever increasing amount of my energy to fight for better copyright legislation in Europe. As I am preparing to leave Kennisland this fight is nearing its logical conclusion, and the jury is still out to determine in how far our attempts to change things for the better will be successful. Right now it is not looking particularly good, but as the saying goes, it ain’t over until the fat lady sings.

I will focus my remaining time at Kennisland on continuing this fight and I am optimistic that we still have the chance to move the needle in the right direction. Even if the end result of this round turns out to be disappointing the struggle for a legal environment that prioritises the interests of individual creators and the general public over the interests of profit driven intermediaries (both legacy entertainment industry and our new platform capitalist overlords) will continue for the foreseeable future.

It is somewhere in this space that I see my post-Kennisland future to unfold but at this point in time it is too early to say what I will be doing next2.

Reflecting about my time at Kennisland also means to look at the darker moments: During my tenure at Kennisland, the Netherlands has become a more selfish and closed society that has shed lots of traits that once made it an attractive environment to operate in. Over the years we have seen a decimation of a support system for a vibrant, experimental and optimistic cultural sector. The feeling of embracing the future and shaping it through experimentation that was still very much present when I started at Kennisland is largely gone, displaced by a sheepish admiration for disruptive innovation that cherishes individual responsibility above collective imagination and solidarity.

But the darkest moment of my time at Kennisland was the fact that no matter how hard we put up signs, organised campaigns and tried to ignore the inevitable logic of the destructive carnage in Syria, we lost Bassel (R.I.P). Thinking about Bassel and the never-ending carnage in Syria puts whatever I managed to achieve during my time at Kennisland into the perspective of the world around us ever so slowly getting more unhinged.


  1. This is not the moment for thanking everyone who needs to be thanked but among all the people who have influenced me over these years two absolutely stand out: Chris & Jill. Without either of them and the strange magic of complementary characters between us i would not be where I am right now. Thanks! ↩︎

  2. While I have no definitive plan for what I am going to do next I have lots of ideas for future endeavours and I am still open for suggestions. If you have any ideas or plans that you want me to be part of, please feel free to get in touch↩︎

How the Bitcoin protocol could help ‘improve’ copyright

15 Apr 2014 | 346 words | copyright blockchain

Couple of weeks ago i posted the observation below on my tumblr. reposting this here since i have just come across an article in Slate (‘How the Bitcoin Protocol Could Help Improve Copyright‘) that makes the interesting argument that what i characterized as an ‘evil’ property might just as well be turned into something really useful.

have been thinking a lot about this short exchange from a planet money podcast on bitcoin from a few weeks back. Makes me suspect that the one bitcoin that i am keeping for my own amusement somewhere on my laptop is more evil than i initially thought it was (it is also worth much less then when i bought it but that is much less surprising)

David Kestenbaum: Ben why do you think that bitcoin does have a future? Ben Horowitz: So it’s a real computer science breakthrough. So this is a problem that we have been trying to solve in computer science since the early 80s, which is how do you prevent the double spending problem Ben Horowitz: How do you make sure that it is only in one place at one time Ben Horowitz: Right David Kestenbaum: One of the problems with trying to make digital money is that, like if you have a movie online everybody can copy it and it can be in a 100 different places at once, Money that cannot happen with, right you have to, it has to… Ben Horowitz: …that would be a bad problem, that would pretty much defeat the money. David Kestenbaum: So that was the break-through basically, someone figured out how to do that. Ben Horowitz: Exactly, exactly! David Kestenbaum: So that is one reason why Ben likes bitcoins: you cant make extra copies of them, there is no way to counterfeit them, no way for bad people to use the same bitcoin to buy two different things at once or 20 different things at once. It makes online cash possible.

Unsurprisingly there is a discussion on bitcointalk.org where people are hatching not so clever BC as DRM schemes.

How pushing for more copyright is harming the Internet

31 Mar 2014 | 365 words | commons copyright internet

Over on his blog Mike Linksvayer has reviewed a new paper titled IP in a World Without Scarcity by Mark Lemley. Based on his review i will definitely read the paper (i am writing this just after take off on a 10 hour flight and i am cursing myself for not downloading the paper) and it seems that so should pretty much anyone who is working on IP (or as mike would prefer: commons) issues.

In hs review Mike takes a small detour in which he lists the ways of how the Internet has been damaged by the IP owners’ fight against the Internet:

  • Chilling effect on P2P research, result: more centralization;
  • Services police user content; expensive, barrier to entry, result: more centralization, near monopoly platforms;
  • Services cut rare and unfavorable deals with IP owners, result: same;
  • Innovative services fail to cut deals, or sustainable deals, with IP owners, result:
  • less innovation, more Internet as TV;
  • Monopoly abets monopoly; creates opportunities for bundling monopolies, result: threat to net neutrality;
  • Copyright-based censorship provides cover for all kinds of political censorship, result: political censors have additional justification, doing what Hollywood does;
  • All of above centralization and monopoly makes dominant entities a target for compromise, result: mass surveillance and non-state cybercrime abetted;
  • Our imagination and expectation of what the Internet makes possible is diminished, re sult: DRM TV and radio and silos organized for spying are seen as the norm, information organized for public benefit such as Wikipedia, unusual; this flipping of democratic hopes for the Internet, a partial AOL scenario, is collateral damage from the IP owners’ war on the Internet.

All of the points that Mike lists here, but especially the last one do a great job in explaining why we are currently facing a situation wherein our policymakers are incapable of imagining the Internet as something better than a pervasive content delivery platform. This is something that i had complained about a couple of weeks ago (in the context of European efforts to modernize copyright rules) and Mike does an excellent job at explaining how we ended up in this situation. thanks Mike! (also read the rest of Mike’s review, it is really worth it).

An unlikely group of social innovators: The Amish

16 Mar 2013 | 433 words | business copyright economy religion

Planet Money has a gem of a story on ‘the Business Secrets Of The Amish‘. The story zooms in on how the Amish, who have made their living through small plot farming for centuries, have adapted to an environment that does not allow for this lifestyle anymore:

What you see in this hall is the transformation of Amish culture. Up until certainly the 1970s the vast vast majority of amish men were farmers. They lived at home, typical plot size would have been about a 130 acres, which is enough for a family, you know a dad and a few boys to farm using horse-powered machinery. But they lived in places like Lancaster county and Holmes county, Ohio where land prices have gotten bigger and bigger, the Amish have doubled in the last 40 years because the have so many children and what has happend is more and more kids can’t afford to buy farms and the fathers can only divide the farms so many ways. If you have 7 boys your 130 acres pretty quickly becomes too small to even be worth farming and then what happens to their boys? So for the first time ever a majority of Amish men in America are not farming, they are finding other ways to make a living.

So right trough the 1960s into the 1970s all of these guys’ fathers or grandfathers would have been farmers and there might have been in any community one or two guys who farmed but also did a little carpentry on the side or a little blacksmithing on the side. But now you have tens of thousands of amish businesses, tens of thousands of people who have industry, this convention center here in a few months this is going to be the Amish furniture show and it is not for the general public, it is not ‘oh lets go down to Amish country and get a nice dressoir’, this is serious business: Walmart, Sears, JC Penny come here to buy, to place orders with huge amish factories, this is serious business. […]

The flexibility that the amish have shown in adapting to this new social reality is quite remarkable (especially if you compare this to the way the entertainment and publishing industry react to the change in economic fundamentals in their business environments). Who would have thought that a 320 year old religion that is known for it’s adherence to a strict set of behavioural rules (referred to with the delightful Germanism ‘Die Ordnung’) would turn to what is currently hyped as ‘Social Innovation’ to ensure their survival?

The future of copyright will most likely not be determined by a cost benefit analysis

29 Jul 2012 | 238 words | copyright economics economy future review war books

So i finally managed to start reading the ‘Future of Copyright‘ anthology that contains the winning essays from a contest organised by the Modern Poland Foundation. So far (i have not read them all) my favourite essay is ‘Give‘ by Togi, which i read as powerful argument that systemic change (and not just reform) is not only much needed but also possible. While his overall line of argument is pretty convincing (to me), i have a bit of trouble following one of his (her?) central arguments (Mike Linksvayer makes a very similar point in his review of the anthology):

3.1.1.0.2

At the point where government profit from copyright/IP is negated by the cost of its enforcement (both in monetary terms and in terms of public goodwill), free culture will be permitted.

While this would be the logical thing for governments to do, there is ample evidence that governments don’t work like this. This seems to be especially true in conflicts that are rhetorically packaged as ‘wars’. The ‘war on drugs’ is the best example of this (if this does not make sense to you listen to the last point bought forward in this episode of the planet money podcast), but it is also true for the ‘war on terror’. Given this i think it is rather naive to expect (as Togi does) governments to succumb to rational economic thinking when it comes to the war on piracy sharing.

Public policy vs. ideology

Earlier this week i found myself in the bathtub reading through this list of voting recommendations by the ‘Audiovisual Coalition/EP CULT Committee‘ on the ‘Proposal for an orphan works directive’. The voting list makes voting recommendations with regards to amendments (proposals to change the text of the proposed directive) suggested by various Members of the European Parliament. In total it lists 230 amendments and recommends either to vote for them or against them. Here is one of them (amendment 195 by Jean-Marie Cavada):

CULT voting list on orphan works directive, amendement 195

For me these two boxes full of text pretty much capture a lot of what is wrong with public policy making in the field of copyright. But first, let’s recall what this directive is about:

  1. There is a large class of copyright protected works where the rights holders are unknown or where it is unknown if they are still protected by copyright.
  2. Copyright law makes most uses of a copyright protected work conditional on the permission by the rights holder(s).
  3. Such permission cannot be obtained when the rights holder is unknown when it is unknown if there still is a rights holder.
  4. As a result works without a known rights holder (‘orphan works‘) cannot be used without infringing copyright.
  5. This outcome is highly undesirable since it does not benefit anyone, neither the rights holders nor members of the public who might want to use such works.

The proposed directive on orphan works seeks to address this issue by allowing certain uses of orphan works on the condition that a diligent search has been carried out and that this search has failed to locate the rights holder. The core of the proposal is relatively undisputed. The discussion in the European Parliament (and in other places) centers on the scope of the above mentioned ‘certain uses’ and the question who should be entitled to make such uses.

This is where the above snippet from the voting list becomes intresting. MEP Cavada proposes (left box) to add a new article to the directive that would allow broadcasting organizations to use recognized orphan works (i.e works where a diligent search to locate a rights holder has been unsuccessful):

4a. For this Directive to be fully effective, broadcasting organizations need to be able to use recognized orphan works, under the conditions established by this directive, in the course of their normal activities.

In response, the voting list compiled by the CULT committee indicates that MEP’s should vote against this amendment and provides the following argument to support this recommendation (right box):

The inclusion of commercial broadcasters is not compatible with the public policy objectives of this proposal.

Now the interesting part of the argument is the reference to a ‘public policy objective’ that is said to underpin the proposed directive. As i have outlined above the objective of the proposal is to make copyright protected works that have been rendered inaccessible by a dysfunctional copyright system available again.

Available for the public to access these works, but also available for the public to re-use them, and to build upon them. So the public policy objective of the proposed directive is to provide access to these works and it should be self evident that (commercial) broadcasting organization are an important platform facilitating such access.

For some reason the CULT committee of the EP (and many other stakeholders in this debate) seem to have completely lost track of this objective. Instead of promoting access to works that are rotting away in archives (often at enormous costs to the public that is paying for archiving and preserving them), every possible effort is undertaken to limit access to orphan works as much as possible.

The general consensus seems to be that only non-commercial uses by non-commercial cultural heritage institutions who have the actual works in their collections should be allowed. Quite obviously this is not in line with any public policy objectives, since it keeps the works out of reach of most of the public.

The reference to the public policy objective in the voting recommendation perfectly illustrates to what degree the discussion about orphan works (and more broadly copyright) has been captured by special interests. Those trying to limit the scope of the directive are willing to risk enormous amounts of collateral damage in order to make sure that the ideology of unalienable exclusive rights of authors does not get undermined.

It is pretty disappointing to see that the CULT committee of the European Parliament seems utterly incapable to distinguish between special interest driven ideology and public policy here.

Economy 101

12 Oct 2011 | 264 words | copyright economy

Stumbled across this little hidden gem in an interview on ‘Tendencies and stakes of copyright’ that Lorena Boix Alonso (Deputy Head of Cabinet of Neelie Kroes) gave to the Forum D’Avignon (emphasis mine):

For example, according to recent studies many consumers are confused about what they are allowed to copy or record concerning content leading to negligible costs of reproduction they have legally, to the point that in many cases consumers are even paying for unauthorised access to content. Moreover, they do not seem to be aware of the value of IPR. With digitisation of content, users tend to forget the creativity part behind an item and do not measure the impact of their action. These factors make IPR enforcement difficult. This is why IPR enforcement actions by governments are often not understood by the users.

This is quite an amazing quote. as far as i understand economics, value is not something that is determined by the producer of a work and that consumers need to become aware of.

Instead value is something that is usually determined in market transactions between suppliers and consumers. As long as misguided ideas such as the one expressed by Lorena Boix Alonso in the interview above are used to structure the discussion about copyright in the digital age, we will never manage to resolve this discussion.

Instead of fabulating about inherent values of digital goods (and then leaning on policy makers to somehow enforce these fantasies), rights holders really need to understand that what they need to do is making offers to consumers that are attractive to them.

meanwhile... is the personal weblog of Paul Keller. I am currently policy director at Open Future and President of the COMMUNIA Association for the Public Domain. This weblog is largely inactive but contains an archive of posts (mixing both work and personal) going back to 2005.

I also maintain a collection of cards from African mediums (which is the reason for the domain name), a collection of photos on flickr and a website collecting my professional writings and appearances.

Other things that i have made online: