Friday, March 22, 2013

Wild laws

An advertisement in the Times of India Delhi (20-March-2013) with a photograph that violates copyright apart from being of the wrong species (showing a Tree Sparrow instead of a House Sparrow)
A newspaper carried a government advertisement last week. A politician declared the house sparrow as the bird symbol for a state but the picture chosen was just picked off the Internet, was of the wrong species and was a case of unethical reuse. A simple image search via Google allowed me to find the person who took that photograph, Dani Studler, and he confirmed that he was never asked for permission to use that image. This is a violation of the law - the Indian Copyright Act 1957 clearly should be something that the government should have known about. Governments however are not known for being law-abiding.

A training in science and biology does not help in making one a fan of the legal system or indeed of traditional governance and authority. One instead seeks to derive one premise from another. One can consider a principle of fairness. Determining fairness in most cases involves examining if you would approve of an action if it was done by someone else. The actions of legal institutions however is not morality based but driven by other forces - those of economics.

Copyright laws, it turns out grew out of the lobbying first in support of printers. Printing presses came to England in 1476. In later times the booksellers lobbied to change this. There was the Statute of Anne (Wikipedia has an excellent entry on the history of copyright law) in 1710. There were also other controls on the printing press, mostly in the form of censorship. Prior to the Statute of Anne, the printers had a perpetual monopoly on their rights to print copies. The Statute introduced a time limit and this meant that material older than a certain age would go out of control - that is - go into what we call today as the Public Domain. For reasons unknown, the Indian media and government officials routinely use the phrase "public domain" to mean merely that which is publicly available or accessible. Perhaps the government's failure to respect the laws passed by them comes out of this reasoning. Now the legal system spends most of its time taking archaic laws and constantly beaten it into shape to fit the whims-and-fancies of contemporary authorities and cases. The digital revolution however actually requires a complete shake-up of such laws and it was very nice to see an enlightened and refreshing take on the topic.

When material is placed on the Internet - there are so many "copies" - there is one on the server, there are copies on the networks, cached copies in your computer and so on. Search engines like Google makes copies, creates derivatives - indexes that allow searching and so on. So when you browse there are thousands of inadvertent copyright violations happening, if one were to take a strict interpretation. Other sites mix material from multiple sources and completely radical content produces like Wikipedia involve little acts of creativity from large masses of people which make ideas of ownership and authorship increasingly difficult to define. It was therefore of interest to see what William Patry, a Copyright Counsel for Google had to say in How to fix copyright (2012). Like many other things done in Google-style it starts from first principles - his introductory chapter is titled "Unlearning Copyright". Here he notes:
Copyright laws arose out of eighteenth-century markets and technologies, the most important characteristic of which was artificial scarcity. Artificial scarcity was created by a small number of gatekeepers, by relatively high barriers to entry, and by analog limitations on unauthorized copying. Artificial scarcity was important because it created monopoly value: not profits earned above costs of production, but rather profits disconnected to costs.
The spirit of copyright laws is that it protects acts of creativity, however the law does not distinguish the forms of creativity. For the law - a piece of software code, art, music, writing or photography is all creativity. Patry is especially enraged by copyright law advocates who claim that creativity is encouraged by the law. He asks if publishers are involved in creativity when they actually make money out of authors. A devastating case he makes is that of the movie industry and here he cites economist Edward Jay Epstein on the funding of the movie Lara Croft: Tomb Raider. Through international transactions on paper with investments leases and retransfers the movie company makes big money which is completely unrelated to the real process of creativity. However he notes that Copyright law gives the assurance to allow the financing that occurs. With tax deductions and other sops, a lot of the money is actually made through taxpayers! Well that is about the private industry but what about the government itself. Exactly what is the idea behind government?

The normative idea of government is that it enables the welfare of people within its borders. The laws of India are however not ones derived bottom up but those that have been adopted from its "rulers". The Indian Copyright Act 1957 is based on Crown Copyright and one of the most stupid clauses in it is that nearly all work done by the government is copyrighted (for a period of 60 years). That for instance means the taxation rules published by the government may not be legally duplicated by anyone. Maps by the survey of India cannot be recopied or modified - no wonder users who want to use maps or any other useful sources are forced to use freely licensed material such as OpenStreetMaps which are made by volunteers. So all the taxes paid and used by the Survey of India are then a complete waste. Similar can be said of things like the Zoological Survey of India, Botanical Survey of India and the hundreds of other government organizations. Contrast this with the laws of the United States of America - examine 17 USC 105 - Sec. 105. Subject matter of copyright: United States Government works :
HOUSE REPORT NO. 94-1476 Scope of the Prohibition.The basic premise of section 105 of the bill is the same as that of section 8 of the present law [section 8 of former title 17] - that works produced for the U.S. Government by its officers and employees should not be subject to copyright.
The provision applies the principle equally to unpublished and published works.
The general prohibition against copyright in section 105 applies to "any work of the United States Government," which is defined in section 101 as "a work prepared by an officer or employee of the United States Government as part of that person's official duties." Under this definition a Government official or employee would not be prevented from securing copyright in a work written at that person's own volition and outside his or her duties, even though the subject matter involves the Government work or professional field of the official or employee.
Although the wording of the definition of "work of the United States Government" differs somewhat from that of the definition of "work made for hire," the concepts are intended to be construed in the same way. A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant.
It is hard to see why India cannot follow such a simple bit of wisdom especially since we do have many talented and visionary people in the judiciary.

Now to get back to the spirit of copyright - that of creativity and examining the principles of fairness - it is hard to see what creativity is involved for instance in recording the song of a bird. All that it means is perhaps an investment in equipment which might be related to the quality of the sounds captured. Wildlife photographers often claim to be non-consumptive but even so-called eco-tourism has been shown to have huge negative impacts. Recent studies of Indian wildlife photographers and the destruction caused by them (see for instance this on a grassland near Bangalore and this on lorises ) through intrusions and  uncontrolled use of SUVs (remember that diesel is subsidised by taxpayers) across the few wilderness regions raises concerns. The application of copyrights to photographs of nature is in a way immoral. When a fashion model is photographed, the model too holds rights. The rapaciousness of wildlife  photographers is unlikely to be controllable by law or through self-regulation. Had the Ministry of Environment and Forests gone the American way, it would have made use of its humongous resources to make available photographs in the public domain (and it is well worth examining what that phrase really means ) of such things as House Sparrows. The government being a recalcitrant entity, one can only hope that at least some enlightened photographers (those that are really interested in preserving the environment) will make available (say on flickr/Wikimedia Commons) their best photographs under a Creative Commons attribution license, allowing all forms of use including commercial use, so as to demonetize and destroy the motivation for competitive photography that leads to damage of the environment.

It is very interesting to see that countries like Bolivia and Ecuador have taken steps towards being more moral in their laws. Bolivia passed a Law of the Rights of Mother Earth in 2010. It is only by accepting our biological roots that we can hope for greater morality and ethics. To assume that all humans should have a name that can be transcribed, a surname, gender, an address, a religion, an education and so on is pure arrogance. An organization like the Unique ID authority of India that asks for an address or a fingerprint is just violating human rights - in one case that of nomadic livelihoods and in another those who are  handicapped. One merely needs to see whether a rule can be extended to every other human and every other organism, if it does not, it means that the law is not based on fairness or moral foundations.

Further reading
Postscript: The Government advertisement shown above is copyrighted (in spite of being a violation of Dani Studler's copyright) and will go into the public domain in 2074, however I use this under the fair use claim for the purpose of review/critique that the Indian Copyright Act 1957 allows.

1 comment:

  1. This is not the first time Delhi Government has used images without permission. One wonders how serious the efforts for conservation truly are.