Thank goodness the pornography industry got here before the software industry (the attendant disrepute might help kill the ever increasing recognition of clickthru EULAs as consensual contracts).

Here’s the latest wretched revenue mechanism for persuading punters to pay for the porn proactively published to them:

• Punter Wants/Vendor Offers: Vendor’s porn.
• Vendor Wants/Punter Offers: Punter’s money.

Both ‘agree’ to a EULA/‘clickthru contract’ to exchange money for porn, secured by, wait for it:

Surrender of the punter’s PC to the vendor, primarily its operational effectiveness, but also its resources as a node in a pornographic file sharing system.

See MBS Porn Billing

So, what lesson must the law relearn?

Contracts cannot be entered into ‘on approval’ by dint of inaction or ignorance. Both parties must actively demonstrate voluntary, deliberate and special expenditure of effort to make and consummate any contract – in order for the contract to be binding.

• The unwrapping of a package’s shrinkwrap does not constitute special expenditure of effort to enter into a contract beyond or distinct from the purchase of the product already made.
• A DVD player’s forced display of a DVD’s legal notices does not constitute the viewer’s acceptance or recognition of those notices.
• The opening of a book does not constitute agreement to the terms set out in the frontispiece.
• The opening of a door to a publicly accessible gallery and unopposed browsing of works exhibited therein does not constitute acceptance of an entrance fee. However, the gallery may of course deny admission to those unwilling to pay the fee.
• The unopposed web browsing of an image gallery does not constitute special expenditure of effort, irrespective of inferred acceptance of ‘clickthru contracts’.
• The clicking through of hyperlinks (whether in button form or not) does not demonstrate agreement to, reading or understanding of, any attendant terms or conditions.
• Disclaimers may be informative, but they cannot affect any relationship entered into by dint of correspondence or publication. They cannot absolve either correspondent of any responsibility they would otherwise have, nor can they impose a burden or duty upon either. Similarly the lack of a disclaimer cannot impose burdens that could otherwise have been avoided.

As I’ve said before, art worth paying for is art the audience wants to pay for. So you don’t need to trick or con the audience into paying, nor hold their PCs or privacy hostage until they do. This applies to porn as much as any art…

Porn worth paying for is porn the punter wants to pay for.

Karl Fogel makes a great counter to Mark Helprin’s May 20th Op-end piece A Great Idea Lives Forever. Shouldn’t Its Copyright?

However, I picked Karl up on his point here:
“The idea that owning creative works is somehow a natural right thus founders on the rocks of physical reality”.

Here follows our conversation:

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Don’t mistake copyright for IP

_{Submitted by Crosbie Fitch on Mon, 2007-06-04 10:22}

Owning the works one creates is a natural right, and it does not founder on the rocks – only copyright does.

There is a natural right to intellectual property. It is this natural right that has been abused to serve as the illegitimate foundation for copyright.

This is how the abuse goes:
“Nothing is more a man’s property than the product of his mind”: Yes. Absolutely. 100% agree.

“Therefore, unlike any other craftsman, the author should enjoy the ability to stipulate how their works may or may not be used by those who purchase them, and to prevent anyone else subsequently reproducing them”: Eh? Where the heck did this illogical claptrap appear from?

Beware of dissolving intellectual property in your laudable questioning of copyright. The property bit is fine, it’s the copyright that’s claptrap.

The problem with copyright is that it unethically grants the author of creative works a commercial privilege to control use of their property even after they have sold it, i.e. they obtain control over someone else’s intellectual property.

Ditto for patents.

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Re: Don’t mistake copyright for IP

_{Submitted by kfogel on Mon, 2007-06-04 17:20.}

Sorry, but I completely disagree.

After all, what does “property” mean? Why do we have the concept in the first place? We have it because we must make decisions about the allocation and use of limited resources. But when the resource is not limited — when it can be infinitely replicated at virtually no cost — then treating it as property doesn’t make sense; it isn’t useful for society. That’s the premise on which this entire website is based.

I didn’t understand this part:

The problem with copyright is that it unethically grants the author of creative works a commercial privilege to control use of their property even after they have sold it, i.e. they obtain control over someone else’s intellectual property.

What do you mean by “after they have sold it”? What exactly are they selling? When I sell you a sandwich, you actually take a physical object from me in exchange for the money. When I sell you a trademark, you take (and I lose) an exclusive privilege to use certain symbols and phrases in certain contexts. But in the transaction you’re describing above, I can’t tell what is being sold, if not the copyright… In today’s system, when someone sells their copyright, they don’t retain control of the use of the “property” after selling that copyright. Instead, the purchaser now has control.

So, you lost me there… :-)

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Reproducibility does not destroy property

_{Submitted by Crosbie Fitch on Mon, 2007-06-04 18:38.}

The fact that we can copy at insignificant expense does not prevent ideas or intellectual works from being property.

Simply because you could make a copy for ‘no cost’, doesn’t destroy the property rights of the person who owns that which you’d copy.

If you want a copy of some of my intellectual property, perhaps a published recording I have of a singer we both admire, then irrespective of whether you can make a copy of it at no cost, it remains my property and I, and only I, will decide if you can make a copy (or that I make one and supply it to you). I may well ask for $10 for such a copy. Alternatively, I may give you a copy as a gift, but the fact remains that it is entirely my right to determine what use is made of my property.

Of course, once I’ve sold or given this copy to you, it becomes your intellectual property. Similarly, the copy I still posssess remains undauntedly, my intellectual property.

As you know, copyright interposes, suspends our natural property rights (as an incentive to the author) and stipulates that all these copies must be made with the permission of the copyright holder.

Admittedly some people corrupt “intellectual property privileges” into “transferable intellectual property rights” and then contract that into “intellectual property”.

Furthermore, the fact that copyright is transferable can mislead people into thinking that copyright is the intellectual property, but this is a wicked conflation intended to persuade people that copyrighted intellectual works belong to the copyright holder rather than the purchaser.

You buy an authorised copy, you own the copy – but copyright says you can’t copy it yourself without permission.

You buy an intellectual work, you own the intellectual work – it is your intellectual property. But copyright says you don’t necessarily enjoy (ALL OF) your rights to this intellectual property. (SOME OF) your property rights are suspended and to be enjoyed by the copyright holder instead.

But for copyright, as the owner of the intellectual work, you’d enjoy all of your intellectual property rights – none of them would be suspended to be granted (for limited times) to the author.

So, the abolition of the privilege of copyright actually results in the restoration of everyone’s intellectual property rights.

That IP maximalists overreach through copyright and patent and subsume those commercial privileges into the definition of IP does not invalidate IP. We just have to remind people that IP loses that corruption when copyright and patent are abolished.

If you like my basket I’ll weave you a copy for a dozen eggs and it’s yours.
If you like my software I’ll make you a copy of the source code for a chicken and it’s yours.

Whatever it is, physical or intellectual, until you pay for it, it remains my property. And when you’ve bought it, it’s truly your property, without let or hindrance.

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Re: Reproducibility does not destroy property

_{Submitted by kfogel on Tue, 2007-06-05 13:12.}

Hmm. I think I see what you’re saying: that in order for me to copy something from you (or, in the digital age, duplicate a bitstring), you need to make the data available in the first place. But “property” seems like the wrong word to use for this; “access” or “display” might be better.

I must admit, I also don’t see the relevance of this to anything under discussion here. I mean, sure, for person B to copy something from person A, person A must grant access. But weaving a basket is totally different from making a copy of a bitstring: one requires time and effort, the other is essentially zero cost.

You can use the word “property” to describe all these things, if you want, but it’s just going to result in a lot of misunderstanding, since most people will assume that all the other connotations of “property” apply.

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A gift of property may be easy, but ease doesn’t invalidate sale

_{Submitted by Crosbie Fitch on Tue, 2007-06-05 15:01.}

You don’t copy my intellectual property. It’s not yours to copy.

Instead, you ask me to make a copy of my intellectual property and give it to you.

I can automate this such that when you make a request to one of my agents (publishers or webservers) that they make a copy on my behalf, and supply it to you free of charge.

I can also offer copies of my IP for sale.

Just because it’s easy for me to make copies of my property, that doesn’t mean the copies aren’t valuable, nor does it entitle you to appropriate copies of my property without my permission. Indeed, the more keen you are to obtain one of my ‘trivially produced’ copies, the more valuable it is to you (and me), and the more I’ll be interested in realising this value and offering it for sale.

The critical thing to note is that once I’ve given or sold you a copy of my IP, it’s then your IP. Without copyright, I cannot stop you making copies or derivatives of your IP – irrespective of the fact that I authored it.

Relevance?

You say “Treating works of the mind as physical property fails at a basic logical level”. I’m saying that, on the contrary, treating works of the mind as if physical property succeeds at a basic logical level. The only thing that prevents this treatment of intellectual works as property is copyright.

People understand property. It is copyright that people are evidently having a problem with. “Wot? You mean I can’t copy this CD so I can play it in my car? EMI still own it? Flip that, sunshine. I bought it. They can sue me!”

I am evangelising the abolition of copyright so that everyone’s intellectual property rights are restored from notional suspension by copyright and other unethical privileges governing IP.

It’s your CD. It’s your intellectual property, and no-one else can stop you copying it, playing it, mixing it, or being inspired by it.

Rethinking copyright does not so much rethink copyright as provide evidence of how the thinking of copyright has mutated over the years and has effectively become rethought. Only by implication does it really suggest that consequently the reader or society should therefore rethink whatever understanding they had concerning copyright – whether better to accord with its ancient instigators, or perhaps to reform it anew in a new digital age.

So self-evident has copyright appeared to me as a state granted privilege of monopoly (that publication is otherwise the delivery of unencumbered knowledge to the public domain), that I have been astounded to be introduced by Deazley to the revelation that there is a predominant legal thesis to the contrary – that all authors have a natural right to exclusive control of their work howsoever it is diffused in society, and that it is only copyright that suspends this natural right.

One might think that this was in order to sequester some benefit for the public good: that the author only enjoys a dilute form of their natural right for the specified term that copyright allows, and that thereafter their property rights to their work shall be wilfully abandoned from protection by the state in order that spoils may be left to the public.

So from this perspective you can imagine how ethically enlightened the state must appear in extending the term and extent of copyright back to the author as a closer approximation of their natural right – leaving less for the greedy public.

Deazley spends the first half of the book, chapters 1-3, presenting detailed detective work with considerable citation and reference to a well researched historical record in order to show that successive legal treatises have been so selective (I can only conclude as negligence bordering upon dishonesty and commercial bias), they have steadily transformed the well understood natural right of an author to their secrets INTO the author’s ‘natural right’ to govern the use of their secrets even after disclosure – and after they have clearly ceased being secrets.

So, Deazley reduces this contemporary deceit into successive distortions of meaning and interpretation throughout history, whether through imprecise language or wilful conflation, and presents clear evidence that if the law corrects each one of these thousand cuts that it will arrive at the more honest understanding that the law originally recognised copyright as a state granted privilege, and that the natural default was indeed that publication constituted a surrendering of any natural intellectual property rights.

It seems to me that there has always been considerable commercial pressure from printers to institute monopolies, even before copyright. However, this inclination is not enough to demonstrate a natural property right. The teller of a secret may well wish to restrict its circulation, but unlike physical property, a secret once told is transformed from the intellectual property of its owner into the property also of its recipients – as it inevitably becomes public knowledge. The truth of its authorship may be absolute and inalienable, but the control of its circulation and reproduction is lost.

One thing I missed, but I presume Deazley deliberately chose not to address, is how those actors circumscribed by copyright have effectively been transformed from a few printers, able but content to abstain from infringing copyright, into the many members of the public today enthusiastically engaging in it (with the tacit blessing of their peers).

Law that initially had little impact upon the liberties of the public, and had the public benefit at heart, is now almost completely occupied with measures to restrain the public’s baser instincts to compromise and damage publishers’ livelihoods.

History simply whizzes by, and it is as if the law was always written with the intention of indoctrinating our children as how best to respect each other’s ‘natural right’ to determine how their artistic endeavours may be exploited. This is presumably to compensate for nature’s failure to instil such an instinct or power.

Copyright now governs the individual. That it was once intended to govern a select few fortunate enough to own printing presses is a vestigial curiosity.

Deazley doesn’t attempt to judge the distortions that have occurred throughout copyright’s history – or those who have made them. However, he does provide a possible excuse for those culpable. He suggests that it may be an unavoidable consequence of how law evolves, not necessarily merely from precedent, but also from how precedent is observed, and in turn by how observations are interpreted – that law is an aggregation of interpretation perhaps as much as, or more than an aggregation of judgement. And, I infer, those who interpret may not be entirely free of prejudice.

The foundation Deazley so painstakingly arrives at is this: copyright is not, and never has been, a natural right to be protected by common law.

Conversely, the right of first publication, also recognisable as the right of disclosure or divulgence, is a distinct right accruing from the fact that private creations or secrets behave as any physical private property whether incorporeal/intangible or not. This has always been understood as protected by common law – irrespective of whether copyright also recognises it. That a secret may often be divulged or disseminated through the manufacture of copies is a coincidence that, perhaps because of linguistic ambiguity, many people have conflated with copyright – and probably precisely in order to confer the natural right to own secrets as a natural right to invigilate their strict circulation.

Deazley shows that many have argued that if a secret is valuable, it cannot possibly be sustained that if its value results from its interest to the public, that the moment of its publication must necessarily result in the complete loss of this value to its author. I use the word ‘secret’ to clarify my interpretation, as you’ll not find it mentioned in this book. All who claim a natural right for an author to retain the value of their work upon publication emphasise their self-evident natural right to the value of their labour, and that it is the duty of statute to protect this value. No-one is interested in taking any clues from the fact that it is only by this means that value can be preserved at all, i.e. that there is obviously no natural right.

In the second half of the book, chapters 4-6, Deazley begins the process of proposing at least better attention to language, if not its reformation.

He discusses the concept of the public domain, and because the public domain has now been enclosed by a vastness of copyrighted works (that some insist remain within their author’s private domain – despite publication), Deazley sees fit to invent a new term, the ‘Intellectual commons’, and what was once the private domain is now termed the ‘Undisclosed domain’. Published works now fall into overlapping ‘public domain’ and ‘copyright protected’ areas.

Deazley observes that the term ‘public domain’, being the set of works or parts thereof to which the public has liberty, is not so much a legal construct (perhaps intellectual property rights of the public), as a term that has necessarily been created to describe what the law omits to recognise as its subject. Deazley suggests that it may be useful to focus a little more attention in this area, especially with regard to terminology. Perhaps also, that the law fails to embrace the fact that authors’ ‘rights’ do not exist in a vacuum, and that what is reserved for the author’s benefit necessarily removes equivalent liberty from the public – and consequently intellectual property from the public domain, and the public’s benefit.

It seems that Deazley’s key act of sedition, by way of the author appearing over the parapet of the edifice he’s taken such pains to erect, is his proposal that terms such as ‘intellectual property freedoms’ and ‘intellectual property privileges’ are more accurate, less liable to confusion (and misrepresentation), and are more honest with the historical record than arguably pejorative terms such as ‘intellectual property rights’.

And all the while, with a title such as ‘Rethinking Copyright’, I had been expecting the build up to an accusation that the emperor had no clothes…

I have argued in the past that intellectual property is an appropriate term per se, but only if one considers that one necessarily confers shared ownership of intellectual property when one conveys ownership in a copy (of its constituent information).

Thus, intellectual property may be privately shared (by contract), or publicly shared, through copying. It is the voluntary act of conveying the work without contract to a member of public that constitutes publication, given one thus surrenders any natural right to control further disclosure or reproduction by that recipient. Everything else (copyright and patents) that impinges upon this is an unnatural (and I’d say unethical) legal construct for the purposes of commercial expediency (originally supposed to be the public benefit).

I am not really sure Deazley is right that things will be improved by creating new, less ambiguous terms, than in attempting to reclaim original, or more honest meanings of existing terms.

I get the impression that Deazley is fearful to do anything except present all the evidence necessary to dispel any notion that copyright is a natural right. He appears to shy away from actually stating these conclusions, and when mention is made of copyright being a monopolistic privilege, it is not his assertion, but at most his question.

Deazley does check the European convention of human rights, but I don’t think he comes to any clear conclusion as to whether it offers any opinion on whether copyright is a human right. From my reading, I think it rightly indicates that all should have an equal right to protection of any intellectual property they possess. It doesn’t specify what delimits IP, and certainly doesn’t require that humans have the exclusive right to control use of their authored works even after publication. If copyright is abolished tomorrow, I do not see any indication that the convention would require its reinstatement.

This book is a foundation stone upon which I suspect Deazley hopes further enlightened structures and propositions will be built. And whilst some may find the resulting archtecture an apparently radical departure from the present aesthetic, he lays the groundwork to demonstrate that it must actually be a more harmonious reprise of a classic tradition. Hopefully, Deazley lets reformers see where the bedrock of natural right ends and where the faux granite clad timber frame of privilege truly begins.

Another thing I felt the book might have covered a bit more concerns the overreaching nature of copyright. It doesn’t simply concern itself with copies, but also with derivatives. Copyright doesn’t only govern the reproduction of identical copies, but also, because of contagion by provenance, the derivation of new works. This may be in order to prevent a monopoly on perfect copies being circumvented by minor adjustment, but that seems to question the validity of the monopoly in the first place, rather than justify a prohibition on derivation.

There are also the strange differences between patent and copyright. Copyright protects by provenance, whereas patent protects by similarity. Patent embraces public enhancement, whereas copyright prohibits the preparation of derivatives. If these statutes arise out of natural law, why have they been interpreted to behave so differently?

So, why should you read ‘Rethinking Copyright’?

Well, if you need evidence that all is not as some lawyers would have you believe, then you’ll find it here. If you wish to understand how the present law has become such a distorted interpretation of its original incarnations you’ll have eminent pointers.

The biggest revelation for me was in discovering that copyright could possibly be considered a natural right. That in the absence of statutory copyright a stricter regime of a more absolute, natural copyright takes over, seems preposterous to me. However, Deazley gives the case of Naxos as an example where an old work, one might consider entered the public domain, conversely reverted into the protection of the ‘common law copyright’. It seems that it is only philanthropic observers of copyright law who infer that the term of copyright is intended to define the duration before which a work enters the public domain. On the contrary, copyright’s term only governs the period in which a work is subject to copyright’s jurisdiction – after that, all bets are off – the public domain is not recognised, let alone mandated as an inheriting beneficiary.

If you already thought copyright was crooked, this book will persuade you to rethink just how crooked it really is.

Otherwise, this book betrays the motives that give rise to the trajectory of copyright law that so conveniently and coincidentally follows the trajectory of technologies and actors that would otherwise threaten it.

And now, the ultimate threat, the public, threatens a law supposedly made for its benefit. Copyright vs the public – immovable incumbents vs unstoppable mob – not a pretty sight, but one we have to look forward to, and hopefully prepare for.

Inescapably, this book reinforces my suspicions that commerce has biased the evolution of copyright law, and strangely this does not persuade me that the solution to copyright’s conflict with the public lies in revealing this historical bias, but that providing a commercial solution will bias copyright’s reform, and may well be the only thing that can possibly achieve it. At best, the law is a product of well heeled philanthropists. Their less scrupulous successors are commercially financed lobbyists. The supposedly represented people can only revolt, although the Internet should facilitate a more peaceful collective action – such is my hope.

This book was well worth my time and I thoroughly recommend it to anyone wondering how so many lawyers can justify the inequity of copyright.

In Rethinking Copyright, Ronan Deazley does not so much challenge copyright, as demonstrate that it is a privilege that has been rethought as a right, rather than vice versa. It is on this foundation that we may then proceed to question the merit of such a privilege – for we cannot question rights. Let not the language favoured by commerce mutate privileges into rights in order to grant them immunity from challenge.

As the book’s subtitle indicates, history, theory, and language are all critically important aspects as far as copyright is concerned. Only after you apprehend them can you hope to apprehend copyright.

This apprehension begins with the laying of a foundation stone that consolidates the truth of copyright as a privilege. This is Rethinking Copyright.

Rethinking Copyright – History, Theory, Language
ISBN13 978 1 84542 282 0

Ronan Deazley teaches in the School of Law, University of Birmingham, UK

Hat tip: William Patry’s review: Why UK Scholars Eat Our Lunch

Lawrence Lessig appears to agree with the classification of copyright as a tax.

Copyright is not a tax, but a suspension of the public’s liberty – affording the copyright beneficiary a commercially advantageous monopoly – provided as an incentive to publish.

Extending copyright cannot retrospectively increase the incentive. It is also unlikely to affect the incentive for new publications.

The value of a published work can be equated to the royalty it obtains its author in its lifetime (minus tax). This is because one assumes the author would be happy to receive the total royalty to place the work immediately into the public domain. Perhaps a bit more to finance promotional costs otherwise borne by publishers.

Enabling an author to invite their readers to offer this royalty upfront (or a significant proportion of it) in exchange for publishing their work copyleft, is the reasoning behind sites such as The Digital Art Auction and QuidMusic.

The alternative approach is to have a central committee appraise the value of each book, count the number of copies in circulation, and reward the author accordingly – sourcing the funds from taxation.

So let’s make sure we don’t get confused by tax and liberty eh?

1. Copyright is an imposition on liberty in exchange for incentivised publication.
2. Taxation is a compulsory commission on prosperity in exchange for security.
3. A free market enables artists and audiences to exchange art and money.

Let’s be very careful before we start including art in the list of things citizens should be taxed for. And let’s not kid anyone that we’re already being taxed for art, in order to sanction taxation of a new form.

Rather than the stringent protections copyright confers being applied to works by default, we are seeing many artists having to undo these defaults by specifying more liberal licenses with their works at the time of publication in order to facilitate promotional proliferation of their works when self-published.

We are also seeing the harsh penalties permitted by copyright being more widely used by publishers against unwitting citizens. There must be far clearer distinction of protected vs unprotected works made for the benefit of citizens if they are to be so severely punished.

Ideally, we need to restore copyright to its original purpose as a legal device enabling redress between commercial publishers, in order that they secure exclusive publication rights and enjoy this financial incentive to publish. To achieve this we need to allow the market to decide between freely redistributable works and stringently controlled works.

I therefore propose a reclassification of digitally representable works:

1. Private Intellectual Property: Unpublished works (possibly privately circulated).
2. Copyright reserved: Normally published works, automatically enjoying the option for protections conferred by subsequent copyright registration.
3. Copyright registered: Unpublished or copyrighted works registered by a publisher on behalf of the copyright owner for extended copyright protection.

Private IP enjoys the same protection as registered copyrighted works, but registration is optional, e.g. may be registered in advance of publication if the work is expected to be published.

In all works the author is granted inalienable moral rights (accurate attribution in copies or derivatives where attribution is given, either explicitly or implicitly), the right to choose whether or not to publish, and the right to choose whether to register their work, or permit derivatives to be registered.

Moral rights are not transferable and can only be possessed by human beings (individually or collectively). Being a matter of inalienable truth, moral rights concerning attribution accuracy persist forever. However, the privacy rights of an author (to veto publication of unpublished works and to remain anonymous with respect to published works) terminate upon the author’s death (though may still be subject to others’ privacy rights).

The key change to copyright is that public performance, reproduction, and derivation of unregistered copyrighted works are now permitted as long as moral rights are observed (attribution is accurate where given and that derivative works are either clearly distinct, obviously the work of the deriving artist, or true to the original). This means transformative copies may be made without altering the sense of the work, e.g. change in resolution/fidelity rather than Bowdlerisation (unless clearly identified as a Bowdlerised derivative by another artist at all times). What would have been permitted under fair use remains permitted, e.g. excerpts for review.

Unlike unregistered copyright works, registered works are considered wholly within the control of the publisher (irrespective of how practicable this is post-publication). Registration may also be transferred to another publisher. All moral rights remain preserved/unaffected, and operations on (including possession or performance of) the work require specific authorisation/approval/license from the publisher. This must either be:

1. attached to physical media containing the work,
2. securely encoded within the work,
3. possessed separately by the person or company in possession of a copy of the work (or conveying/transmitting/transforming it, etc.), OR
4. published by the registration authority (a public license).

It must be clear to a purchaser of a retailed license that use of the work is strictly limited and is subject to the strong protections enjoyed by registered copyright.

Because a copyrighted work may only become registered with the approval of the author (always the copyright holder if published), the author effectively retains the same abilities as they had under the old copyright regime, i.e. to elect to completely restrict their work, enjoy strong protection of these restrictions by the state, and license authorisation for various restricted operations as they choose.

In order to sanction such strong protection by the state, the work must be commercially valuable and this can effectively be demonstrated by an initial registration fee of £1,000 with renewal of £100 each decade thereafter. Copies of the works must be lodged with the registration authority at the time of registration (becoming public domain upon expiry). These works can be inspected/viewed by the public on appropriate premises in person subject to an administration fee – naturally, no copies are permitted. However, hashes (MD5) of the registered works in each released format can be supplied on request at no charge (in order to confirm possession of a particular registered work).

Once permission to register a work has been obtained from the respective living authors, it may be protected up to 100 years after the last author has died, subject to payment of registration and renewal fees (which lapse after 1 year of non-payment). If such permission cannot be obtained from the authors (they are dead and made no explicit instructions in their will) then their published works can never be registered. However, this does not preclude a distinct ancestral or derivative work being so registered (if the respective authors remain living). In other words, whilst an author is alive they control whether their work may be registered, and have veto over
others’ derivatives of their works being registered. Upon death their work defaults to becoming permanently unregisterable, and they lose veto over derivatives being registerable.

Once a work is registered it does not apply any control over copies of that work or derivatives already in public circulation from previous publication, except as far as vetoing derivatives becoming registered (unless permission has already been granted). Consequently, it is advisable to register an additional, digitally distinct transformation of the work if already published. Otherwise it may be difficult to establish the provenance of an unauthorised copy.

This can be compared to a work initially published under a copyleft license (such as CC-SA) and subsequently republished under full copyright.

Private IP must be clearly identified [PIP](for the benefit of those to which it may be privately circulated). Similarly for registered copyright, e.g. (Creg).

Copyrighted works may be optionally identified as usual with©, however may also be signified as permanently barred from potential future registration, by marking them appropriately, e.g. (U) for copyright unreserved (copyrighted, but unregisterable). Effective dedication of a work to the public domain in this way can be confirmed at no cost by supplying it to the registration authority (credentials are required, but no penalty is applied if dedication is subsequently determined to be invalid, e.g. insufficiently distinct derivative).

If it can subsequently be shown that a registered work has not obtained permission from all necessary authors then the registration is invalid, and costs may be awarded to the authors whose permission was not sought. It is an offence to register a work knowing one has insufficient permission, or failing to demonstrate due diligence.

The EUCD is revised to apply only to registered copyright.

The effect of the above changes would be to embrace self-publishing and the benefits of greatly facilitated cultural exchange, yet to preserve the ability of large, commercial publishers to retain their traditional business models (for as long as their stringent control requirements remain acceptable to the market).

As ever, an author retains freedom of choice:

1. To retain their works unpublished at no cost (with strong IP protection)
2. To self-publish, with all moral rights, at no cost – retaining the option to register.
3. Immediately or subsequently register their works for strong protection for a fee by appointing a publisher to do this on their behalf.
4. To self-publish and publicly waive their option to register – (equivalent public domain dedication)

The important thing is that the default protections should represent those able and likely to be self-policed by the populace in its own interests. Any more severe protections especially those with draconian infringement penalties should at least be explicitly requested by the author via their prospective publisher, and clearly brought to the attention of any purchaser/user.

It is considered that there is no longer any need to incentivise self-publication by applying draconian restrictions by default, and that where such incentivisation through restriction is required for works of high commercial value this option remains available, but only for works whose publishers are willing to assert their high commercial value in the form of a registration fee.

This proposal should apply to new works. Existing works may be freely registered (commencing at date of original publication) if within 10 years of this proposal being enacted, with a default public license equivalent to the original copyright restrictions, and if this is done within their original copyright term. Registration and renewal fees, however, remain payable if it is desired to extend protection beyond the original copyright term, or to enjoy the restrictions not originally granted by copyright – for which permission by respective living authors must be demonstrated.