What is deferred ownership

Intellectual property, property ownership, joint ownership and the property guarantee

Intellectual property, property ownership, joint ownership and the property guarantee

Recently, Swiss politicians want to “protect” free “replay TV” by copyright, i.e. make it impossible or difficult. It is currently being discussed whether this regulation should be better incorporated in the Copyright Act than in the Telecommunications Act. Because the collecting societies would like to introduce a new unjustified compulsory levy (“common tariff”) for all internet users in Switzerland as compensation for something that no artist has achieved and only a few use.

All Internet users can watch television with a time delay

Since the television makers have forced us to buy a lot of new devices with the switch to Internet television, it has become very easy to watch television programs at home with a time delay. For this I do not need any cooperation from any provider. If, as a Swisscom TV customer, I enter the URL rtp: //239.186.64.2: 10000 for network streaming in the VLC video player on my PC, I receive an SF channel. If I instruct the video player to save the stream as a film, I can watch it with a time delay and advance playback whenever there is a commercial. If I use one of the many useful ad suppression programs, I can even automatically remove the annoying commercial breaks entirely. And if I want to watch the whole thing on the TV screen, all I need to do is set up the PC as a display.

Intellectual property exhaustion

The propagandists of the term “intellectual property” use property fiction to secure their raids with the property guarantee enshrined in the constitution. In contrast to property ownership, “intellectual property” cannot be given away, rented or sold, it does not have to be taxed or declared. “Intellectual property” collides in many places with property ownership, to which the property guarantee primarily relates. So the politicians have also realized that an author's power of disposal over his text, his music, his books must come to an end if someone has honestly become the owner of a copy of a work. I am allowed to cut up a bought book, put parts of it back together differently and thus ideologically reverse it, put it under a table leg to prevent it from wobbling, burn it up, or use it as toilet paper without the author having a say. Jurists call this limit of the author's control over private property the principle of exhaustion of the rights to “intellectual property”. In the Swiss Copyright Act (URG), this principle is set out in Article 12:

Art. 12 Exhaustion principle
1 If an author has sold a copy of the work or has consented to the sale, it may be resold or otherwise distributed.
1 to Copies of audiovisual works may not be resold or rented out as long as the author is thereby impaired in the exercise of the right of performance (Art. 10 Para. 2 lit. c).
2 If an author has sold a computer program or has consented to the sale, it may be used or resold.
3 Executed architectural works may be changed by the owner; Article 11 paragraph 2 is reserved.

You can see that the legislators are having a hard time avoiding the collision between property ownership and “intellectual property”. Paragraph 2 is particularly interesting because computer programs are not actually property in the strict sense. Since the term “intellectual property” is used as a tendentious battle term for exclusivity rights to the distribution of an abstract work, lawfully acquired computer programs, e-books, audio CDs, video DVDs and, in general, digital data are referred to as bit ownership in this blog. These objects are not works in the sense of copyright law, but digital work copies. With the lawful acquisition of such information, the right of control of the rights holder is to be regarded as exhausted, as is the case with analogue copies of the work in the property.

Digital private area

All legally acquired information on data media that is part of the property of a person or that has been rented by him constitutes their joint ownership. The constitutional guarantee of ownership grants the owner the greatest possible control over their joint ownership. Part-ownership also differs from property ownership because it can be passed on and kept at the same time. Such a transfer is either a private copy or a publication under copyright law. As with a lawfully acquired book, I can do whatever I like with an equally lawfully acquired e-book: I can give it away (private copy), analyze and change it manually or with the help of programs, remove advertising, print it out on toilet paper or delete it.

AdBlocker

If a page of a website is stored on my PC in my browser, it is my joint property. Thanks to the ownership guarantee, I can do what I want with it. For example, it is allowed to examine the page to see whether it contains code that tries to reload unsympathetic advertising content from third parties without my consent, and to block this reloading. Because it could be a matter of contacting criminals who are enabled to collect data about me and to throw malicious code on me. The rights holders are up against such AdBlocker software and violate the property guarantee. In the past, rororo thrillers each contained a double-page cigar advertisement, which, like many others, I tore out immediately after buying it. The publishers therefore did not hyperventilate against users of ad blockers as they do today. Apparently it was already known at the time that unwanted advertising tended to be counterproductive.

Of course, a web provider is allowed to check whether I use such ad blockers and then refuse to send me further content. However, I am also free to disable its AdBlocker detection if possible. This is always technically possible when the web provider has hardly any contact with the advertiser.

Reverse engineering

If I legally purchased a DVD in Canada, its contents will be my joint ownership. If my Swiss DVD player refuses to play it because it contains the wrong continent code, then the ownership guarantee enables me to make a playable copy of my part-ownership with a different continent code without making myself liable to prosecution.

If I have legitimately come into possession of the program code, thanks to the ownership guarantee I can analyze it in order to extract key features of the source code, just as I can subject a purchased chair to a chemical analysis. Without a property guarantee for partial ownership, consumer protection and material testing of digital products would be illegal.

Streaming is copying

In the Federal Council's draft for the revision of copyright law, a new “protection” (ie a ban, criminalization or aggravation) of video on demand is provided. Video-on-demand protection for authors:

Art. 13a Making audiovisual works accessible

1 Anyone who legally makes an audiovisual work accessible in such a way that people have access to it from places and times of their choice owes the authors who created the audiovisual work a fee for this.

2 No remuneration is owed if:

  1. the author or their heirs personally exploit the exclusive right;
  2. the audiovisual work is:
    1. Company portraits, industrial films, advertising or promotional films, computer games, service or commissioned works by broadcasting companies or other journalistic service and commissioned works,
    2. Archives from broadcasting companies (Art. 22a),
    3. orphan works (Art. 22b).
3 The right to remuneration is non-transferable and indispensable and is only available to the authors; it takes the place of remuneration for the contractually agreed use of the audiovisual work. It can only be asserted by approved collecting societies.

4 Authors of an audiovisual work that was not produced by a person resident or domiciled in Switzerland are only entitled to remuneration if the country in which the audiovisual work was produced also has a collectively perceived remuneration claim for making it available for authors.

(The new articles in the URG are getting longer, more confusing and incomprehensible ...) And again the same thing in green for interpreters:

Art. 35a Making available performances in audiovisual works

1 Anyone who legally makes an audiovisual work accessible in such a way that people have access to it from places and times of their choice owes remuneration to the performing artists who have participated in a performance contained therein.

2 No remuneration is owed if:

  1. the performing artists or their heirs personally exploit the exclusive right,
  2. the audiovisual work is:
    1. Company portraits, industrial films, advertising or promotional films, computer games, service or commissioned works by broadcasting companies or other journalistic service and commissioned works,
    2. Archives from broadcasting companies (Art. 22a),
    3. orphan works (Art. 22b).
3 The right to remuneration is non-transferable and indispensable and is only available to performing artists; it takes the place of remuneration for the contractually agreed use of the performance. It can only be asserted by approved collecting societies.

4 Performing artists are only entitled to remuneration for their performances in an audiovisual work that was not produced by a person residing or domiciled in Switzerland if the country in which the audiovisual work was produced is responsible for making it available also provides for a collectively perceived remuneration claim for performing artists.

It was already the case until now that authors and performers are entitled to remuneration if their works are used. Why is it necessary for two new articles in the URG? The crux of the matter lies in the word “legally”! This means that authors and performers have already been paid and should now have a second chance to play. These are benefice guarantees for collecting societies, as can be seen from the Federal Council's comment:

“The remuneration claim for the exploitation of the online rights is intended to serve as a collective exploitation [URG speech for lump-sum compulsory levies on collecting societies H.T.] to be able to undertake, even if the exclusive right has been assigned to the producer. "

Allegedly, the Swiss authors and interpreters hope to improve their negotiating position vis-à-vis dominant video-on-demand providers (Netflix, Spotify, ...) from these new articles of the law. In reality, they worsen their negotiating position vis-à-vis the producers, who will reduce their fees by the amount that is now being paid directly to them via the collecting society (after deducting a “small” amount for wages in the administration ...). In addition, the negotiating position for the Swiss producers is deteriorating, since the American video-on-demand providers would rather not offer Swiss products than argue with collecting societies and an unreliable Federal Arbitration Commission about tariffs. In the end, consumers will pay twice for everything and receive an offer that is reduced to American content. With these additional obstacles, Swiss video-on-demand platforms will not stand a chance against foreign competition.

Everything would be very simple if the joint ownership were properly considered: Whether I stream a video with a paid Netflix subscription or buy it as a DVD, it comes down to the same thing. Because it ends up as a stream in the memory of my device. This exhausts the control of authors, rights holders and collecting societies. I can save the stream, convert it to other formats, watch it a thousand times, or delete it, because it is my property. Thus, the remuneration for streaming is to be regulated in the same way as for DVD sales. A new regulation is superfluous.

Regulate publication instead of data creation

In general, private joint ownership is to be respected and not subjected to external control. As long as the data is not published (i.e. made available to a wider group), what to do with the owner is private.

Lawyers seem to find it difficult to respect citizens' privacy. You can see that in such incorrect designs as the EU's GDPR or global copyright law.

For example, the GDPR contains the obligation to inform affected persons when a data record is created. If you take such a rule seriously, you can bury investigative journalism! Even the police should no longer investigate suspects! The scheme is wrongly conceived because it does not respect bite ownership. As long as the journalist creates data collections on his own devices, his private area must be respected. The law may only intervene in a regulatory manner when it publishes such data.

In copyright law, too, data are classified as works when they are created. This leads to considerable taxes and a great deal of legal uncertainty. When I write a program, it is checked into a version control several thousand times. According to the Copyright Act, each of these versions becomes a new work and is the basis for new claims. The authors would lose nothing if the character of the work only emerged with the publication and registration of a work. As long as it is your private part-ownership, it is protected against theft and the like by the property guarantee. No copyright is required for this.

Regulation of replay TV

And now the time-shifted television should also lead to new flat-rate compulsory levies on the collecting societies! There will soon be compulsory levies for reading e-books with a delay!

Anyone who legally receives a TV stream saves it on their devices. So this is in his partial ownership. So he can do whatever he wants with it. Regulating time-shifted television would have to intervene extremely deeply in privacy.

In connection with copyright law, however, many lawyers argue that the right holder's control over copies of works does not end even if they are legally acquired. If you think this through logically, we are not allowed to “copy” any “work copies” in our heads from short-term memory to long-term memory without first having obtained permission from the rights holder. The omnipotence fantasies of politicians and rights holders aim at total control and total surveillance of the private sphere and the most intimate thoughts, which according to their laws should no longer be free, but should be severely punished. Memorization in school is forbidden!

Politicians sometimes succumb to a fantasy of omnipotence. In the early 1980s, for example, they believed that they could lengthen or shorten days at will, and they introduced daylight saving time. Yet almighty time and eternal fate are their masters as well as mine. Instead of lengthening the evenings, they only violated the ban on falsifying measurements and weights and forcing the population to lie about what time it was noon.

The “protection” (prohibition, criminalization, aggravation) of time-shifted television is also the expression of a misguided fantasy of omnipotence. If you discover that streams are easy to save privately, you will try to oblige the providers to conclude gag agreements with the users that forbid them to do so. Offering software that can save streams will be banned. There will be penalties for writing such programs. Because none of this is of any use, as with private copying, one will then resort to the means of a flat-rate compulsory levy without an upper limit.

The advantage of such a development is obvious: While copyright is a rather obscure subject today, which few understand and few interests, nationwide anger about this law and the parasitic collecting societies is sufficiently broadly supported that the undesirable developments can be reintegrated with a popular initiative can steer sensible paths.

Ceterum Censeo

Both the video-on-demand articles and the “protection” (prohibition, criminalization, aggravation) of time-shifted television are designed to protect collecting societies from benefiting.The only difference to the protection money demands of the mafia is that the compulsory levies of the collecting societies are stipulated by a mindless, inhuman law that violates fundamental rights.

Therefore, the right to flat-rate compulsory levies is to be withdrawn from them. The arbitration commission will then no longer be required and the URG will be reduced to half of its current size.