TOLL OR TOIL ON THE
Text of a paper presented to a meeting in Venice of
the International Committee of Entertainment & Media Unions (ICEMU)
on 28 August 1998 and last modified on 26 July 2002
Executive Summary Introduction What Is Copyright? What Is The History Of Copyright? What Is So Different Now? What Is The EU Doing? What Is The USA Doing? What Are The Views Of The Creators? What Are The Views Of Content Providers? What Are The Views Of Electronic Carriers? An International Trade Union View Meanwhile .. Some Cases
"Whenever a copyright law is to be made or altered, then the idiots assemble".
Mark Twain's Notebook, 1902-1903
There have always been difficulties about the definition and enforcement of copyright, but the current digital, on-line environment creates many new problems. Copyright material in digital form can be perfectly reproduced and electronically transmitted anywhere in the world. Therefore at national, European and world levels there need to be new laws and new regimes to protect copyright while promoting public access to creative material.
Many of the relevant issues have been addressed in recent Treaties promoted by the World Intellectual Property Organisation (WIPO) and in the European Commission's Copyright Directive which implements the provisions of the WIPO Treaties in the Member States of the European Union. The USA has taken its own action with the Digital Millennium Copyright Act (DMCA). However, there are very different concerns on copyright among the various players.
Creators fear that large multinational corporations increasingly wish to own copyright and, worse still, copyright material is being illegally reproduced and electronically distributed on a massive scale. Content providers wish to own copyright themselves and promote an economic model in which transactions take place directly between the consumer and the central service provider. Electronic carriers do not wish to be made liable for infringements of copyright by third parties using their network but over which they have no effective control.
Clearly a balance of interests needs to be struck. Such a balance would provide new protection for copyright owners in the digital, on-line environment while making public access to creative material easy in terms of both technology and price. Key elements might include a 'notice and take down' procedure and an on-line dispute resolution procedure. Meanwhile copyright on-line is becoming a legal battlefield.
This is not a legal paper on the definition and enforcement of copyright. Such a paper is beyond the competence of this author but, in any event, there are plenty of such texts available for those who can understand them.
Instead this is a discussion paper designed to concentrate on broad principles, in particular :
WHAT IS COPYRIGHT?
Copyright is the "intellectual property" produced by the originator of a new piece of work when that piece of work is created. Copyright protects the form in which the work is expressed but not the underlying idea - a concept usually called "idea-expression dichotomy".
Decisions on the awarding of copyright are not always easy or obvious. For instance, a particular painting of Diana, Princess of Wales, could be copyrighted, but the English courts have ruled that Diana's name or image as such cannot be copyrighted. In the USA, the family of Martin Luther King has sought - so far unsuccessfully - to persuade the courts to grant them copyright in respect of his famous "I have a dream" speech.
Copyright applies to literary, dramatic, musical or artistic work as well as radio and television programmes and films. Once a work has been copyrighted, it cannot be reproduced without first obtaining the permission of the copyright owner who may require payment of a usage fee or sell the copyright outright.
WHAT IS THE HISTORY OF COPYRIGHT?
Copyright is a relatively modern invention. There was no copyright law before the development of the printing press.
In the United Kingdom, the first copyright law was the Statute of Anne of 1710. The statute granted rights to authors rather than printers and provided that such rights would lapse after 14 years. Since the Statute of Anne, the length of copyright protection has steadily increased.
The Copyright Act of 1911 was the first comprehensive code and later the Copyright Act 1956 encompassed radio, television and film. The current relevant legislation is the Copyright, Designs and Patents Act 1988. This set the period of copyright to be the life of the author plus 50 years.
International protection of copyright and related rights is the subject matter of three main multilateral agreements :
The World Intellectual Property Organisation (WIPO) in Geneva organised the Diplomatic Conference of December 1996 which led to the adoption of two new treaties in the area of intellectual property:
Both treaties were adopted by consensus by over 100 countries.
It should be pointed out that there are fundamentally different approaches between the Anglo-Saxon tradition of copyright as illustrated in the British 1988 Act or the American copyright regime and the French tradition of copyright - known as the droit d'auteur regime - which is the inspiration for mainstream international law as expressed in the Berne Convention.
British law views copyright as "a property right", or a commodity to be treated in economic terms, whereas the Berne Convention sees copyright more as "a moral right" to enable the creator to protect the manner in which his or her work is used.
WHAT IS SO DIFFERENT NOW?
The so-called information age carries new problems for the application of copyright. These problems derive from the switch from physical form to electronic form in the case of so much copyright material.
There are three main types of problem :
Copyrighted material in digital form can be copied perfectly without any damage to or diminution in the quality of the original. Indeed it is possible to create an infinite number of master copies. Such copying is increasingly easy and increasingly cheap.
Electronic transmission adds a further dimension to this problem. Products that can be transmitted on-line can be easily copied and, if such a product is on the Internet, it can be copied anywhere in the world. One author - Diane Coyle in her book "The Death of Distance" - has written "The Internet... can be considered one gigantic copying machine".
Such piracy constitutes a particular problem for the entertainment and software industries. Such products sell, not for what it costs to make a physical object (such as a book or a compact disc), but for a price that may reflect heavy research costs (as in the case of databases), an ingenious idea (such as movies or books), or spending on branding (as with rock groups). Therefore they have high development costs but low production costs.
It is becoming much harder to enforce copyright for several reasons :
Payment for use of digitalised material is difficult when the material can be re-used, transformed, and distributed in so may different ways.
Any new payment system will need certain characteristics:
One specific example of DRM is to be found in relation to digital versatile discs (DVDs). DVDs employ a DRM standard called the content scrambling system (CSS) which limits the type of DVD player on which one can see the film. Another example of DRM is a music CD that cannot be played on a PC.
WHAT IS THE EU DOING?
The European Commission published a Green Paper on copyright in July 1995 and a Proposal for a Directive in December 1977. The agreed Directive was finally published in June 2001 [text here click here] and Member States are required to give domestic effect to its provisions by December 2002. The Directive attempts to protect copyright holders while permitting private copying of audio and video material. It allows for "technological measures" such as encryption, to prevent unauthorised copying, and makes it illegal to circumvent these measures.
The Commission saw the need for action in two particular areas :
The Commission identified four issues requiring immediate legislative action.
Although all Member States provide for an exclusive reproduction right, the copyright laws of individual states are very different, especially as regards the precise acts of reproduction which are protected. Many laws focus on material reproduction, raising legal uncertainties as regards to the coverage of electronic acts of reproduction and especially temporary acts of reproduction in the on-line environment.
National laws are clear on the distribution of physical copies of copyright material, but many such laws do not cover the act of electronic transmission of copyright material, as opposed to the physical reproductions which may subsequently take place. A key problem here is that the user, operating on-line interactive technology, controls the time and place of use.
On the one hand, new computer and communication technologies provide new risks of piracy of copyright material. On the other hand, technological identification and protection schemes may process personal data about the consumption patterns of protected subject matter by individual consumers and threaten the right to privacy.
Not all Member States have the same regimes in relation to the distribution right of certain electronic work. Furthermore not all Member States meet the Commission's wish to see exhaustion of the distribution right on the first sale of the article in the Community.
WHAT IS THE USA DOING?
In the United States, copyright has been lengthened 11 times in the past 40 years. By 1997, it was the life of the author plus 50 years. However, in 1998, the US Sonny Bono Copyright Term Extension Act lengthened the period yet again to life plus 70 years. Company-owned copyright was extended from 75 to 95 years, as were all copyrights for works produced before 1978.
A crucial piece of further legislation is the Digital Millennium Copyright Act (DCMA) of 1998. This Act was designed to implement the treaties signed in December 1996 at the World Intellectual Property Organisation (WIPO) conference in Geneva. The Act provides that:
Most creators - whether journalists, authors, musicians, actors or photographers - see copyright in terms of moral rights: a right to control the use of his or her material and to be identified with his or her material. This encompasses the right to be paid for the use of that material.
Creators wish to see strong rights for two reasons :
In the context of the information society, creators have two great fears:
British Music Rights - which encompasses the Alliance of Composer Organisations, the Music Publishers Association, the Mechanical Copyright Protection Society and the Performing Rights Society - wishes telecommunications companies and Internet service providers to be held responsible for rights infringements perpetrated using their systems.
WHAT ARE THE VIEWS OF CONTENT PROVIDERS?
Content providers - newspapers, radio stations, television companies or database operators - increasingly wish to own outright the works which they are providing to customers. For them, this simplifies the billing processes and maximises revenue flows and profit levels.
In the UK, assignment of copyright is demanded by Associated Newspapers, the "Guardian", the "Observer", the "Financial Times", BBC radio and BBC television, while punitive licences are given out by the "Sunday Times" and the "Times".
In calling for a simple framework for the exploitation of new and archive material, the BBC points out that it currently agrees 400,000 contracts each year and employs 330 people to manage rights at an annual cost of £12 million.
At the global level, there is a Digital Audio-Visual Industries Council (DAVIC), a consortium with more than 200 members which includes the BBC, Microsoft, Lucent (formerly Bell Labs) and telecommunications companies like BT. DAVIC envisages an economic model in which transactions take place between the consumer and the central service provider (with little or no involvement of individual creators).
WHAT ARE THE VIEWS OF ELECTRONIC CARRIERS?
Electronic carriers - whether radio or television companies, computer or software corporations, telecommunications network operators or Internet service providers - wish to fill their electronic 'space' with as wide a range of content as possible with the minimum of legal or tariff barriers. When the availability of bandwidth is exploding - through compression techniques on copper cables, the massive use of optical fibre, new radio techniques and - above all - the use of digital transmission technologies - electronic carriers are seeking more and more content to 'fill' more and more capacity.
Such organisations see themselves as "common carriers", promoting an open society characterised by a many-to-many model of communications of which the Internet itself is the quintessential example. They argue that an over-restrictive regime - including excessive concern for copyright - will kill at birth new services for which demand is as yet uncertain and unproven. They submit that, by contrast, a regime involving minimal controls will maximise the take-up of new services and create significant employment growth in new companies and new industries.
At the European level, much lobbying on the Copyright Directive was been carried out by a grouping called Alliance for a Digital Future, a group of 30 major companies and industry associations active in the sector of telecommunications, consumer electronics, and computer hardware and software. One of the leading members is BT.
A particular concern of the Alliance in respect of the original draft Copyright Directive was the belief that carriers were being expected to act as 'on-line policemen'. The Alliance argues that there is no justification for exposing legitimate intermediaries to threats from copyright owners on the basis of what it sees as technical infringements of the reproduction right or other rights because of acts by third party users over which the service providers have no direct control.
Many of the concerns of the Alliance revolve around the technology and, perhaps more importantly, the rapidly changing nature of communications technologies. It is argued that there are technical limitations on the ability of service providers to monitor their services or networks for third party infringements, remove the offending material, and trace those responsible for the infringement. Most especially, electronic carriers are concerned about any requirement to exercise prior control on content which they have no reason to believe is illegal.
AN INTERNATIONAL TRADE UNION VIEW
However arcane a subject copyright may seem, it is central to the interests of trade unions :
Furthermore, copyright is particularly appropriate for discussion at the international trade union level because :
Since trade unions - to a greater or lesser extent - represent workers in the creative sectors and the content providers and the electronic carriers, an international trade union view on copyright would necessarily require a balance of interests. Discussion then should focus on what that balance might be and how it might be produced and promoted.
On the key issue of liability for copyright infringements, it is desirable that any balance of interests takes into account the following factors :
Key elements might include:
Unless copyright owners feel confident that the law adequately protects their works in the digital environment, they will be reluctant to make such work available on-line. This would deny owners a financial return for their copyright and users the right of access to such work. Furthermore such a situation would severely inhibit the production of new premium quality content.
Conversely, if copyright owners effectively limit or block the use of their work, new, on-line services will not achieve sufficient take up to ensure profitability and the great potential for job creation will not be realised. Indeed, in such a climate, it would be difficult to find venture capital for investment in such high-risk markets.
MEANWHILE .. SOME CASES
Meanwhile copyright issues on-line are becoming a legal battlefield:
Recording Industry Association of America click here
The idea of a Creative Commons click here
Note : At the time that this paper was first prepared and presented, ICEMU was the International Committee of Entertainment and Media Unions which brought together representatives of the following six international trade secretariats :