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Controlling Copyright: Stifling Creativity, Innovation and Growth?

January 12, 2012 | Comments: 0 | Views: 130

Debate over copyright is not a matter of new. However, since the Sonny Bono Copyright Term Extension Act ("CTEA") 1998 came into law in the US and The Duration of Copyright and Rights in Performances Regulations 1995 (SI 1995/3297) was introduced in the UK, (implementing the European Economic Community, Council Directive No.93/98/EEC), controls over copyright have been a matter of contention.

Copyright protects software, literary and artistic creations. It is a branch of intellectual property law, that protects the skill, labour and time spent in the production of creative cultural works (the 'intellectual property'), also referred to as 'public goods' because of their availability in the public domain. Copyright protects the intangible asset imbedded or fixed within a physical object, for example, the text within a book, or the music on a CD rather than the book or the CD itself.

Historically, it has never been easy for any author of literary or artistic creations to successfully sell their cultural works without a contract from a large media corporation such as a major book publishing company, film studio or recording label. During the 1950's and 60's, the music industry in the UK, in particular, saw many independent labels (often set up by producers and artists as outlets for their work), fail as commercial enterprises or simply get taken over by larger corporations, as a result of the power held by these major companies. The inability of any author to fully exploit the rights vested in their works has generally meant they are forced to sell or assign their rights to a third party who has the means for production and distribution of those works. This essentially led to the growth and development of media enterprises that now exist as large powerful, media corporations. These corporations who buy copyright from artists, or invest and commission production of such products, concentrate copyrights within their own institutions. These are the organisations who are most concerned about misappropriation of copyright material and who have been seizing control through the use of technical protection measures (TPMs) and content management systems (CMSs), with the full backing of the law.

Legislative changes in favour of commerce

The ease with which copyright material can now be copied and disseminated, particularly via the internet means the cost of enforcing the law within and beyond national boundaries is a burdensome task for any State. Media corporations who have invested in intellectual property, are primarily concerned about protecting their investments, and the threat perceived to be posed by cyberspace has driven industry to lobby the state for changes in the law to protect these investment. As a result, the responsibility for enforcement of rights has shifted to the author to determine access as they see fit, the legal foundations for this having been laid down by law.

Following on from the Berne Convention, the WIPO Treaty of 1996, established the initial framework, providing authors of literary and artistic works, the "exclusive right of authorizing any communication to the public of their works, by wire or wireless means"; it provided contracting States, the power to employ "effective legal remedies against the circumvention of effective technological measures" which the authors may use to exercise their rights and "effective legal remedies" against unauthorised removal of electronic rights management information and distribution, broadcast or communication of any material that has been subject to removal of rights management information.

For some time now, corporations have been employing TPMs (electronic means to protect against access, i.e. encrypted material that can only be accessed after purchase of key) and CMSs (visible or non-visible material design to track use of copyright material) to control use of their intellectual property. The film and tv industry have also initiated public campaigns to make people more aware that unauthorised copying or downloading of copyright material is theft. Many in the UK, will be familiar with the "knock-off Nigel campaign", initiated in 2007. For some time, the finger has also been directed at ISP providers to cooperate in the war against copyright theft and in 2010, the UK introduced the Digital Economy Act. This acts grants powers to rights holders to work in conjunction with ISP providers, to facilitate tracking down and suing persistent infringers of copyright. The process involves the rights holder gathering IP addresses of acts of infringement, supplying this information to the ISP provider who in turn is requested to provide an anonymous list of all subscribers deemed to have reached the threshold level of infringement (as determined by Ofcom). This information is then presented before a Judge, for a Court Order requesting the names of the subscribers, and from this, litigation against the alleged offender can be instituted.

Are we moving in the right direction?

It is not unreasonable to expect there to be fair compensation for the time, effort, labour and skill invested in cultural works. However, a balance needs to be established between commercial rights and society's right to gain access to knowledge and information. The fundamental flaw of a system in which law passes enforcement to the hands of commerce is that with their self-interests at heart, public interests are not a consideration for these private companies. This contradicts the basic and historic principal purpose of copyright as a means of incentivising creation, encouraging learning, and enabling the cultural enrichment of society. Simply put, a vested right to the author and user.

Advances in digital technology, the internet and growth of social networking sites, have been instrumental in facilitating access to the means of production and distribution of cultural works enabling creators of such to market their work. The movie, Blair Witch Project,1999, was an early testament to this, and it is now easier to self-publish and distribute your own book online or make your music available to others globally. However, this technology has also created another avenue for corporations to seek out and acquire more intellectual property rights. A number of recording artists like Justin Bieber have been discovered, signed up, and packaged after being spotted on YouTube. This in itself can be a barrier to individual creativity, as the artist is generally obliged to comply with some formulaic economic marketing model designed and determined by the record company.

In exploring the argument that copyright laws stifle creativity, we need only look at the continued exploitation of works in the public domain by the Disney Corporation. This organisation strategically chose to create films from public domain material (such as Little Red Riding Hood; Jack and the Bean Stalk, and Snow White), because audiences were familiar with these characters (from traditional folk tales), and they provided an already established fan base, which created a safer economic bet that audience would come to see the latest version of the tale. A sensible, strategic commercial decision, most would agree. However, such was Walt Disney's commitment to using public domain works, he would wait until he was quite sure all rights had lapsed before proceeding with any project (the reason his Alice in Wonderland movie was put on hold until 1951). No doubt, using public domain material is a safe option in economic terms, but on the flip side, it thwarts effort in new creativity as what we have is a regurgitation, albeit adapted, of already existent material.

Harvard Professor, Lawrence Lessig, has been vocal about developments in the law thwarting creative expression. In a speech he gave at New York Public Library, on 26 February 2009, he spoke about the video of a 13 months old child dancing to music, that was uploaded YouTube by the child's mother to share with her mother, and how the rightholder demanded the social networking site remove this video because it infringed their copyright. He spoke also of a photo of Obama, which had been graphically adapted, and the rightholder subsequently demanding payment from the artist for the right to that creative expression. Lessig questioned where we are heading when "serious people sitting around a serious conference table" feel it necessary "to invoke the laws of congress" to such expression or personal rights of enjoyment (as in the aforementioned case). Equally I ask, is the direction we are heading really where we want to go?


The current system is without doubt weighted in favour of commercial interests in copyright. The objective of the Government is to encourage innovation and growth. However with the emphasis on infringement, and developments in the law that force ISP providers into becoming enforcers of copyright law (the Digital Economy Act, is a clear illustration of this), it is likely the direction we are heading will be counter-productive to innovation and growth. A system that is too weak can no doubt limit innovation and reduce the incentive to produce and supply cultural goods, by failing to provide the opportunity for a satisfactory return on investment. However, a system which overly protects IPRs can be both socially and economically counter-productive as it can hinder the dissemination of cultural works, and also reduce innovation by stifling opportunities to explore and develop new models that exploit the internet and digital services. Past technological developments are testimony to this. The popularity of television in the 60s was initially viewed as a threat to the studios, before they realised the potential revenue that could be gleaned from old movies left sitting in their archives. Equally so, video recorders, cable TV and DVD were seen as a threat to the studios until they recognised the economic windows of opportunity available through an extended distribution chain.

Balancing commercial interests in public goods against the provision of public goods for the cultural enrichment of society, whilst incentivising innovation and creating growth, is by no means a simple task. So, in trying to establish a system which balances both objectives, where should the focus lie?

The answer is likely to be found in exploring the concept that infringement is not the most critical barrier to innovation, and by revisiting current economic models and exploring options for developing new ones.

Industry claims some £400m a year is lost due to acts of copyright infringement in the UK, but does the amount of revenue claimed to be lost as a result of acts of infringement actually outweigh the costs of enforcement? Following a Freedom of Information Act request, Ofcom revealed, the cost of implementing the DEA between 2010-2012, to be c. £6 million. These costs are expected to be recouped from rightsholders and ISP providers who will be responsible for the cost of enforcement to the ratio of 75:25 respectively. Realistically, these costs are likely be clawed back from consumers, which means that prices would need to rise to accommodate this.

Perhaps we should take some lessons from the past, and consider the money spent on legislative changes, tracking down infringers, and the litigation and prosecution of individuals for acts of infringement, might be better spent in researching new ways in which the internet and digital technology can be exploited to provide new business models, and also putting in place more effective methods of working with consumers/the public at large to build respect for copyright. If energies were directed as such, maybe we would move much closer to a system which rewarded commercial investment in cultural works, encouraged innovation and growth, whilst facilitating fair and reasonable access for all members of society.

Rebekah Samuel BSc(Hons), MSc

Source: EzineArticles
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