What if we’re doing this copyright thing all wrong? Well, we obviously are, but what if we acknowledged that fact? What if we acknowledged that copyright as it stands doesn’t make anyone happy or make the world a better place or actually reflect how people really behave? What if we, as New Zealand Judge David Harvey has suggested, throw out the basis and rebuild copyright on something that makes sense?
Copyright started out well. When it was invented in 1710 in England, it was an appropriate answer to the problems of that country’s social and technical world. A couple of things have changed since then, but the fundamental legal theory of copyright isn’t one of them. So, how do we update 300-year-old copyright? Judge Harvey suggests basing it on Article 19 of the Declaration of Human Rights, which reads in part: “Everyone has the right to freedom of opinion and expression... to seek, receive and impart information and ideas through any media...”
Right now, copyright is a monopoly property with a few exceptions for expression. Harvey suggests turning this around, that copyright shouldn’t be property, but an exception to the human right to expression and information. It doesn’t mean anyone could do anything they want with copyrighted material, but that normal digital use and sharing wouldn’t be criminalized anymore.
Making copyright an exception to speech is brilliant. It no longer makes sense to contract an infinite copyright or throw people in jail for breaking DRM when you have to justify infringing on their speech.
What’s even better is that it stops us from all being scofflaws. When normal life breaks the law, the law has to change—a principle we seem to have forgotten.
I don’t know if this kind of rewrite can happen politically, but it’s the first copyright that’s looked sane in a while.