If it's truly original... then it's an aberration
Welcome to our new blog. Our intention is to write about software in general, but I'm starting with a topical thought prompted by the current "raging" debate (raging, in some quarters at least) on copyright and digital rights.
Could we be creating a situation where photographers could be forced to take their own pictures off their own sites? And what actually constitutes "original" content?
Not wanting to roam over-trodden paths I'll just briefly state that there's a transnational push to re-assert the traditional copyright ownership model across the internet.
Worldwide there's the Anti-counterfeiting Trade Agreement (ACTA) under negotiation; in Europe there's seemingly endless negotiations regarding copyright, trademark and patent protection for software; and in the UK the Digital Economy Bill is passing through parliament. All could have a lasting effect on media delivered over the net.
One problem I see is that most of the proposed legislation is focussed on enforcement, without wider consideration of the ownership model.
I understand the need to protect ownership of ideas and reward creativity, to a large degree at least. It's a fundamental pillar of contemporary society. But I also see that competition is vital to both innovation and protecting consumer interests in a free market.
Personally I believe an enforcement-driven approach could stifle innovation and threaten consumer interests, plus have wider ramifications on human rights if pervasive tracking and monitoring technology is deployed. That said, I don't believe in a free-for-all therefore we need to value intellectual property and promote or develop mechanisms to reward creative content.
But what constitutes creative content? And is creative content distinct from "original"?
This thought was prompted by reports that photographers could soon find themselves being forced to take down their own photos from their own websites if they capture as a [lesser] part of the photo any trademark or copyrighted works of others.
I'm not talking about a picture consisting mainly of someone else's work - that would be a photostat - but incidental use. If laws are created to strengthen protection afforded to rights-holder's, then could The Ridgeway Bakery request I remove this photograph? Mercedes Benz to have a publication veto for any snap of a car bearing their trademarked logo?
Or, chillingly, with public and armed services starting to protect uniforms and insignia using trademark and copyright laws, could a police force soon have the power to demand any images of their officers be taken down? And if the site owner refuses, would the hosting service be forced to act, outside of the judicial process?
Which brings me on to the title of this entry. On one level a photograph is nothing more than a snapshot of objects arranged in a particular way at a specific point in time. As an amateur photographer I know this to be an over-simplification, but will the law understand the subtleties when an award-winning photograph of a car plus a policeman is blocked from publication by a copyright tribunal?
Years ago I studied Artificial Intelligence as part of my degree, where I was encouraged to see the brain - or more correctly the human body as a whole - as nothing more than a complex processing device. The outputs were merely a product of the inputs.
In this model, the primary "randomising" factor is long-term memory. Every one of us has a unique set of memories. Because of this, stimuli such as hearing a particular song or viewing a photograph, can have a wide-range of differing effects depending on the subject.
But in the simplest form we are human animals - programmed to survive. We're hungry, we eat. Tired we sleep. We know how to find food and we know how to make shelter. In our rawest form nearly all human beings will behave similarly in comparable situations.
Creativity may seem a long way removed from fight-or-flight but in essence most creative output is based on the sum of the author's sensory input over time.
We may think that each of our favourite bands, artists, composers etc. has a unique sound, but an objective analysis of the music will show massive commonality. Guitars, drums, 4/4 time, octatonic scales, riffs, slides, strings, brass, whatever. It's not "original".
And furthermore because many of our memories are formed through "massively shared experiences" such as popular TV or movies, I believe much of out "creative output" is not as unique as we like to believe. In short, if one particular artist didn't write that song, then someone else would write something similar in the not-too-distant future.
The crux of my question is this: how are the Beatles, Rolling Stones, David Bowie etc to be compensated for songs born of their creative input? Obviously, they're not, and nor should they be.
It has been said that, outside of a small number of unique geniuses, for most people truly "original" thought occurs only when our neurons misfire. Often the miss-firing is garbage that the rest of the brain filters, sometimes it manifests as harmless symptoms such as déjà vu, sometimes more serious psychological disorders. And occasionally as a truly original idea!
Philosophising aside, creativity, ownership and originality is an important theme in the software and digital media industries. Patents are granted and the company then owns that idea. What could be simpler!
One of the criteria for granting of a patent is "inventive step" - is the idea new? But this is such a subjective test; a test that often can only properly be judged by a leading expert but is usually applied by a bureaucrat. I think many in the industry would agree that the bar on the "inventive step" test is so ridiculously low that often it appears as though patents are awarded on a first-come, first-served basis. How can this be good for competition?
I read many of the numerous lawsuits filed over patent infringement, usually in the US where software can be patented without the strict criteria applied in the UK (basically for a UK patent the software must be part of a physical apparatus which works in a unique way) and my first thought is often OMG I can't believe they got a patent for *that*. In many cases I believe that any software designer worth employing would have solved the same problem in a similar way, therefore the solution fails the "inventive step" criteria and the patent should not have been granted.
Lowering the bar in this way can contribute to companies building a monopoly, forcing consumers to pay unrealistically high prices and ultimately stifle innovation. Ironic, as patents were first created to foster innovation, in a mechanical age when creating a new product required large capital outlay - outlay that deserved legal protection.
Of course we can't simply ditch the systems we have now: copyright, patents, trademarks; without an effective and improved replacement. But I worry that the politicians don't have a solution, and the enforcement-orientated fixes to the existing model may have profound unintended side-effects.
Creativity needs to be rewarded but do we need to continue rewarding on a scale of the 80's and 90's? Do the most popular musicians deserve an income 20-50 times the national average for their day job? Should large corporations be given the right to annihilate smaller rivals working fairly to develop competing products just because their engineers, given the same problem, came to the same logical conclusion in their solution?
Will I still be able to take a picture of a car in a public street, or the sign outside The Rigdeway Bakery?