Responding to the gatekeeper theory of author’s rights

ian   August 17, 2010   Comments Off on Responding to the gatekeeper theory of author’s rights
This post began as a reply to John Degen’s blog post about the Book Liberator. In particular I want to respond to the idea that photographing books is somehow an attempt to steal control of a book’s soul from it’s author, that doing so is a violation of human rights as set forth in the UN Declaration of Human Rights, and that every act of copying is a clear violation of copyright. Readers interested in other responses to the piece can find them in the comment section of John’s post.

In Re Soul Stealing

We seem to be talking at cross purposes here and I think some of that stems from different beliefs about control. In your original post you talk about the difference between a “work” and the “copies” of that work. The overall thesis seems to be that the author retains control over the idealized “work” as a basic human right and that they make money as authors by selling little bits of that control as permission, permission to print a hardbound edition to one person, permission for a movie adaptation to another, etc. There are a couple of complications with this “author as gatekeeper” picture of copyright. There are other rights to consider, like the right we all have to share in the cultural life of the community, a right mentioned in the very first clause of that UN declaration article to which you refer. Even focusing only on the rights of the author, it is not as simple as saying that authors’ interests should be acknowledged and concluding that the particular set of copyright policies we currently have are either the most appropriate or effective means of securing those interests. The EU vs. US dispute about Moral rights is one longstanding example of such a disagreement, and Cory Doctorow is not the only example that giving away things in a digital world is a more effective way to make money than attempting to control each use. The free software movement, and the creative commons licenses offer a different view of what control might mean to an author. I find it particularly interesting that the most basic requirement of all creative commons licenses, the requirement to acknowledge the author in all uses of a work, is also one of the Moral rights enshrined in European legal tradition. If you write a play, there seems to be wide public agreement that you should be credited as the author of that play. Whether you get to charge someone money to perform your play, or control how much they charge for tickets, who gets to see it, etc, those are not things we all agree about, and they never have been. We have always had a more nuanced set of rules for how copyright works than the simple gatekeeper model describes. The VCR, Tivo, tape deck, and CD ripper are all examples of common consumer devices whose entire purpose is making copies without asking for particular license to do so. Scale and purpose do matter. That is why we have legislation like the Audio Home Recording Act and court cases explaining that recording TV shows to watch them later is an acceptable use of new technology. Under a simple gatekeeper theory, all of these uses are tantamount to theft and each one is a violation of a recognized human right. Judging by the widespread adoption of these technologies over the last 40 years, that is not a position for which we can assume universal support. As to the BookLiberator in particular, we can discuss whether people digitizing their own books for purely personal use is a problem under our existing copyright. I offered a number of points for that discussion: most works that I care about are not available digitally, digital versions of my faded works are easier to read, digital versions are also more portable and accessible. I would also like to point out an essay on DRM in the eBook market and how the technological restrictions that publishers place on “licensed” eBooks take away many of the rights we have historically enjoyed with the physical books that we purchase. The rules for format shifting books are going to be an important topic of discussion over the next few years, whether we come to that discussion because we are talking about digitizing print books or because we need to convert eBooks from our old e-Reader format to something our cell phones can understand. This is a discussion we need to have, but it is not as simple as the gatekeeper model makes it out to be and the human rights you refer to for support are not so one sided as you make them seem, nor are they wedded to the particular copyright statutes that will inform our discussion. As always, copyright is a balancing act. Update on 2010-08-25: Consumer digitization appears to be coming first to Japan.