Center for Interdisziplinary Research

ZiF Research Group Workshop

Closing Conference: Copy Ethics in Theory & Practice

Convenors: Reinold Schmücker (Münster, GER), Thomas Dreier (Karlsruhe, GER), Pavel Zahrádka (Olomouc, CZE)

Date: 11 - 14 July 2017

With their fifth and final conference, the research group The Ethics of Copying returned to Bielefeld in mid-July, 2017, almost one year after the end of their residency at the ZiF, to present results of their work and discuss them with an international group of experts and practitioners. The title of the conference indicated both theoretical debates about and in the ethics of copying, and arguments concerning the practical relevance of certain normative principles in the ethics of copying as well as suggestions for possible implementations of such principles.

Martin Hoffmann opened the metaethical discussion about the status of the ethics of copying within the field of applied ethics. He argued that the moral conflicts about the legitimacy of, or necessary restrictions on, certain (types of) acts of copying, or copying practices, are indeed relevant and, at least in some crucial aspects, independent of those treated in other domain-specific ethics.
Margit Sutrop noted that the relationship of copy ethics to other subfields of applied ethics needs further clarification: Which sui generis concepts or problems of (or in) the ethics of copying cannot be wholly explained by appeal to the best knowledge of other existing subfields? Dieter Birnbacher objected that transferring normative insights from one domain to another may in some cases be perfectly justified and an informative approach to moral problem solving.

Reinold Schmücker argued for a principle of permissible non-substitutional copying, stating that acts of copying are morally permissible if they do not result in an entity that could substitute the template with regard to at least one of its principal purposes. One of the implications of such a principle would be that any copy or adaption of smaller or even larger parts, elements or aspects of copyrighted works should be allowed free of charge and without a need to ask for permission. Quotations of parts of published texts, images or sound sequences should be allowed insofar as such quotes cannot substitute their sources with regard to any of their respective principal purposes.

The ethics of citation and partial copying was also discussed by Thomas Dreier. His argument for the freedom of citation is based on the most indispensable requirements of societal communication and interaction, which include that we should be entitled to invoke past authorities and that it must be possible to hold past speakers accountable for what they have said. The right to cite from third parties? published works also covers images, designs and all kinds of expression protected by copyright, and justifies, according to Dreier, also an exception from photographers? exclusive rights in photographs depicting a work or a part of a work that a later work refers to. Dreier appeared less confident about moral arguments regarding cases of partial copying when it is neither privileged as a citation nor by any other privilege such as mere private copying. Whenever more than one ethically well-founded rule can be stated regarding certain kinds of cases of partial copying, it might be reasonable and ethically sound to leave the decision about which of these rules shall be implemented as law to the discretion of the legislature.

Further arguments concerning limitations and exceptions of exclusive rights, in particular concerning chances of access to scientifically relevant knowledge and data, were presented by Amrei Bahr and Johannes Grave. According to Grave, prohibitive prices charged for the access to non-substitutable contents can lead to a situation where copyright no longer promotes but stifles scientific progress. According to Bahr, this is aggravated by structural injustices in the distribution of chances to access the relevant content and work with it. In such a situation, privileged agents have special moral responsibilities to compensate for the disadvantages produced by the system from which they profit, and thus, for example, holders of copyrights in scientific publications can be morally required to accept exceptions from their exclusive rights for the benefit of certain groups of disadvantaged users.

The legitimacy of substitute copies in the visual arts, in particular in museum contexts and with regard to preservation concerns, was discussed by Antonia Putzger and Susan Douglas. Grischka Petri analyzed a couple of recent cases where public museums tried (in some cases successfully) to claim an exclusive right in photographic reproductions or depictions of works from their collection, where no copyright subsist in the depicted original works which are in the public domain, but the property right of the owning institutions is used to prohibit any private photographs of objects from the collection, and the authorized photographers? copyright in their reproduction photos is used to re-monopolize those public domain works.

Andreas Bruns discussed conflicts about cultural appropriation and argued that the wrong-making features of acts of copying criticized for cultural appropriation appear in any case to be contingent features of the respective practice, and that sealing cultures off against each other and refraining from cross-cultural adaptations will not help overcome racism and power imbalances.

Generally, it won?t suffice for the ethics of copying to appeal to individual agents? moral convictions and actual behavior in dealing with copies, with certain acts of copying or with restrictions of the freedom to copy. We have to take into account more general policy decisions and relevant regulations on a larger societal scale, and on this level, too, it will not be sufficient to merely focus on normative measures such as legislation. As Niva Elkin-Koren pointed out in her keynote lecture, the ethics of copying should also take into account the design of technological systems and algorithms that establish far-reaching decisions both about what counts as a copy in the first place and about the scope and enforcement of intellectual property rights or of censorship regimes. With regard to the ongoing development of Automated (and increasingly Autonomous) Decision Making algorithms (ADM), Elkin-Koren emphasized the need for accountability of law enforcement regimes which requires in any case: transparency, due process rules and public judicial oversight. As Elkin-Koren suggested, we need a new Bill of Rights for the digital age.

Aram Sinnreich underlined the fundamental incompatibility between a legal system based on judgment, nuance, culture and contextual specificities, and algorithms as the ultimate form of mathematical reduction of human practice to a chain of yes?s and nos. He warned that the convergence between adjudication and law enforcement in Content ID or similar instruments will be no less dangerous in algorithms than it is in authoritarian regimes.
Problems of algorithmic governance were also addressed by Pavel Zahrádka in his talk about geoblocking, or restrictions on the accessibility of certain contents online, based on the area code in the IP address of the client demanding access, as well as by Wybo Houkes in his discussion of Digital Rights Management (DRM) interfering with long established sharing and lending habits, and by Eberhard Ortland (Bielefeld) in his paper on censorship, access restrictions and surveillance of communication.

Some practical implications of copy ethics for academic publishing in the digital era were discussed by Martin Hoffmann and Reinold Schmücker. They criticized dominant business models in academic publishing for violating the principle of a fair and impartial balance which requires that limitations on the admissibility of acts of copying can only be legitimate if they are governed by rules that establish a fair and impartial balance between the interests of authors, exploiters, users or consumers, people who might potentially copy works, and the general public. Hoffmann and Schmücker went on, arguing that research does, in fact, not need the filter effect of publishing houses and journals. They demanded that no one in academic life should be discriminated against due to where a paper was published. According to Hoffmann and Schmücker, at least a part of the problem with academic publishing could be solved by a reform of doctoral procedures such that finished theses should first be presented online to the public for a certain time, inviting feedback and objections from anyone interested, and the reviewers would be asked to take into account in their grading of the theses any noteworthy aspects raised in such feedback notices. Such a procedure would make unnecessary the publication of many books, which is mandated by current regulations governing doctoral proceedings. It would allow for a more effective allocation of resources, and it would also contribute to improve the quality of academic research.

From various angles (Elkin-Koren, Schmid, Zahrádka, Grassmuck, Ortland, Kreutzer, Bahr, Grave, Kuhlen), the ethics of copying was discussed for its possible relevance regarding another emerging topic demanding further research, namely the ethics of access. Obviously, copying and the distribution and use of copies are and continue to be crucial for access to the respective contents. But what if access can be attained without producing and storing copies: Which kinds of conflicts about regulations of copying practices would remain relevant, and which would reappear in new configurations?

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