Last night, I went with my fiancée and her family to see Canadian legends Barenaked Ladies in concert. Near the end of their set, they launched into what I later heard called a “mashup of pop songs”: a delightful medley of everything from current pop hits, to Bohemian Rhapsody, finishing with a wild rendition of Let It Go. A performance that connected with most everyone in the audience, and was for some their favourite part of the show. By quoting from the culture around them, they created a piece that resonated deeply with the audience.

Part way through, my fiancée turned to me and said, “Stop thinking about copyright infringements.” But I wasn’t. I was thinking about how sad it is that they would never release something like that on an album.

You see, I wasn’t thinking about infringements because none were obvious. The venue where the concert took place has an up-to-date license from SOCAN, the copyright collective administering compulsory licensing for musical public performance in Canada. They could thus perform any song or derivative of a song that they wished to, because the license has already been cleared. This gives performers an avenue for free expression at their concerts without fear.

Then why might they not be able to record the piece? In Canada, there is no compulsory license for recordings of music, only for public performances. In order to record this kind of music the group would have to trace each composition they wished to honour, find the current copyright holder, and negotiate a license. A negotiation that the copyright holder is not even required to engage in. If any holder of any song cannot be found, or simply is not interested in participating, then the project dies. If they’re lucky, the songs are covered by a licensor like CMRRA, but they will have to research each individual piece to find out. If they want an International or radio release, then more research must be undertaken in each new jurisdiction, since licensing regimes are different everywhere.

Even with a major label behind them, this kind of task is quite daunting. And so, this kind of culturally-resonant art stays confined to concert performances and bootleg YouTube camera videos (which eventually get taken down, because they are infringements).

This is just one poignant example of how productive arts are often strangled by the lack of culturally-relevant works from the commons to quote, and a lack of legal structures to empower artists.

Let’s say there is a proposal (like parts of TPP) to extend copyright and strangle the Public Domain for a time. This sounds bad, but let’s say it gets defeated. What are we left with? A copyright term of life + 50 years (or longer) is already strangling the progress of useful arts and culture in most of the world.

So, we lobby for a term reduction, right? Good luck. Don’t get me wrong, I’m all for a term reduction. I’m all for many of the reforms that get proposed. I just don’t really see it happening in my lifetime. There are treaties and lobbies and too many things preventing meaningful progress in this area.

Same goes for what should be unrelated policy areas like copy protection enforcement. We can (and should!) decry expansions that criminalize legitimate security research and legitimate unlocking uses. Again, however, each victory leaves us in our existing place of defeat.

We need a back door. A way to promote art, culture, science, and innovation without climbing up the waterfall. It begins with the understanding that the length of time a work is protected for under a copyright regime is a maximum. Creators can at most any time, and for most any reason, provide the public with a license to their work under much more friendly terms than the default.

If you’re familiar with the Free Culture or Free Software or other communities, this is not news. Some creators already choose to provide the public with a license to their work. This, however, is based entirely on creators knowing about the choices available to them, understanding the advantages, and making a decision that sometimes will benefit others more than it benefits themselves.

This is where public policy can come in. Many governments already provide funding to various artistic or innovative ventures based on policy goals. If a government can be convinced of the benefits of an expanded Public Domain (say) we do not have to convince them to shorten copyright terms to achieve that goal. Much easier to implement is to use (some of) their arts funding to fund projects that will be required to (perhaps after a reasonable period of time passes, much shorter than the normal term of copyright) provide the public with a license to their work under reasonably liberal terms, and distribute without copy protection of any kind.

Instead of trying to reform the entire landscape, and instead of only hiding in our corner creating the few things we can, we carve out just a piece of policy and focus it on bettering the overall situation. Things still get much better, and with a lot less change.