The Problem With Copyright In The Digital Age
This essay focusses on copyright which, as we’ll see, is intrinsically linked to capital. The aim is to discuss the ways which copyright policy and jurisprudence are stuck- they’re outdated. Copyright is a tool used by big businesses to suppress innovative and useful information technologies. Copyright has been used as a weapon and tool for control by big businesses to secure their economic positions and ensure growth for decades, and centuries even. As laissez-fair economics have taken hold in the 20th century, copyright policy has become led by corporate needs. Along with influencing policy, big business has pushed forward its conception of ‘creativity’ as the magical act of conceiving original ideas from thin air and claiming ownership over them for life and beyond. This essay traces back the origins of copyright — how it came into existence and under what circumstances, discusses copyright’s modern evolutions as well as contemporary movements, and questions its validity in the digital age arguing that copyright is the transference of collective expression into private individual ownership.
1. Copyright — an origins story
Only a small subsection of people could read and write when the printing press was brought to Europe. The religious and political class used writing to enshrine doctrine and the educated, letter-writing elite wrote out of leisure. A laborious method of reproducing texts using wood blocks existed, imported from China, but the written word had a long way to go before becoming commodified. In 1440, Johannes Gutenberg developed the European iteration of the printing press which enabled Venetian merchant capitalists to lay the groundwork for the transformation of the book trade along capitalistic lines. At the inception of the book trade, book manufacturers were awarded exclusive printing privileges (patents) by state authorities as a way of stimulating economic growth, in exchange for political loyalty. Of course, at this point in history, writing wasn’t a profession or leisure activity as it is today. In fact, relatively few people were engaged in writing and this new business focussed on the production of ancient works by Greek and Latin authors. This here marks the beginning of the private appropriation of intellectual creativity, made possible by intellectual property laws as agreed by the state and merchant class.
In England, the early book trade was characterised by a monopoly awarded to the Stationers Company (circa 1476). The Stationers Company kept a registry of every publisher and title printed, and as a result was able to control what was manufactured. In other words, censorship emerged with primitive copyright laws. It’s worth mentioning at this point that these early copyright laws were very different from today’s. The growing economic rewards from the trade flowed only to publishers, printers and booksellers. Authors’ rights weren’t recognised until publishers started reaching the limits of classic and medieval works in the proverbial public domain. Having encouraged the expansion of the reading public (aka proved a market off the back of stolen works and created demand), they began looking to new authors and original works to stimulate growth. Fast forward to the end of the 17th century and being an author became an activity to pursue for personal recognition and financial gain. In this same period, the printing monopoly was gradually dismantled, and copyright evolved to endow authors with a natural right to their works, as the fruits of their own labour (natural right meaning a perpetual right beyond the authority of any government; impossible to repeal by human law— a universal, inalienable right). In response, and to safeguard its exclusive control over valuable literary works, the copyright industry reasoned that; individuals must be free to alienate their property rights since these rights are not only to be enjoyed and used, but also to be disposed of, exchanged and alienated. The publishing monopoly accommodated authors’ natural rights into its modus operandi but managed to avoid any significant damage to the industry by arguing authors must transfer their rights in perpetuity in order to be published and commercialised. Legal challenges in civil courts were unsuccessful.
In 1710, almost three centuries into book printing, the first modern copyright law was passed: The Statute of Queen Anne. Existing titles would be copyright protected for periods of 21 years, while new ones for an initial period of 14 years, renewable for a further 14 years. (today, most copyrights last for 70 years after the death of the author, or in the case of multiple authors, the death of the last living author). The Statute of Queen Anne also only concerned the right to copy and had the effect of protecting against piracy.
By the late 1700s, 12 out of the 13 original states of the United States of America passed copyright laws based on the Statute of Queen Anne. Their iterations of intellectual property laws emphasised the need for legal security of the fruits of learned and ingenious persons’ study and industry. Americans cemented the idea that human beings require economic reward to be intellectually or artistically creative. Amazingly, five states went even further in democratising access to knowledge and, in order to avoid a copyright monopoly, set a “just price” clause. This clause allowed courts to set reasonable prices for books where copyright owners overcharged. Also, if a copyright owner tried to limit the supply of a work, the court could grant a license to publish it to another party. In sum, this era of copyright continued to be a publisher’s economic right regulated in service of the public, without any rights for authors. In 1790 the United States’ copyright laws went federal.
2. Copyright — Modern iteration of the law in England and Wales
Copyright today has long expanded from just books to include a great number of types of works like film scripts, typefaces, sculptures, industrial designs, software and so on. It is largely an automatic right meaning that once a work is ‘fixed’ in tangible form, no registration is needed. It is fleshed out across many international and regional agreements, and of course national legislatures.
In England, copyright law makes up over 200 pages of the Copyright, Designs and Patents Act 1988 and is complemented by many EU copyright policy updates. So what does copyright give you the exclusive right to do as an author?
In England, and broadly in the western world, copyright gives you the author the exclusive right to: make copies of your work, distribute copies, rent or lend copies, perform or play your work in public, and make adaptations. This refers to the entirety of any piece of work, or a substantial part at least. Any third party must obtain permission from the rightful copyright owner before exploiting works in the above mentioned ways. If not, you are a pirate and copyright infringer.
Any lawyer worth their salt will tell you quickly that copyright law and capital are intertwined. In practice, the reason intellectual property protection exists is so that individuals or companies can monetise by entering into business agreements, or suing others for infringing your rights. It’s important at this point to insert a caveat to say that within the capitalist paradigm copyright does have some positive uses and the intention is to critique modern copyright law, not to advocate a dismantling of the entire copyright industrial complex. Exclusive rights exist to enable authors to exploit the fruits of their labor commercially — to sustainably earn a living from their inventions, and to exclude others from gaining financially from work that is not their own. They’re like bargaining chips that they can choose to exchange with members of the mercantile class, like distributors or manufacturers. Copyright operates as a support system so that creatives, especially ones engaged in time consuming production (like scriptwriting) are able to dedicate sufficient time to it. Without the ability to earn a living from creative work, creation would be reserved for a wealthy elite and 9–5 workers creating micro-content in their lunch breaks and weekends.
3. Copyright as a means to suppress disruptive information technology.
Technology moves fast and it often reveals new ways of distributing, consuming and copying content. For example; in the 80s the VCR enabled individuals to record televised content and make copies of VHS tapes at home. Before the VCR, in the tightly controlled and highly commercial TV industry, people could only access content from TV broadcasts or by physically going to the cinema. Each content access point was monetised either by advertising or tickets at the box office. So when the VCR came along and people could own and watch tapes on demand after only paying the initial purchase price, the copyright industrial complex mounted a fight. In legal terms, the VCR allowed people to make copies of copyrighted films and programmes at home. As we saw above, making copies of works without permission is copyright infringement, so a huge debate was sparked over whether the millions of people using VCRs were breaking the law or not. The same thing happened with MP3s and p2p file sharing — more on that later.
The dilemma lies where these new technologies are not designed with the law in mind, but only to improve access to information. As law-making is a slow process it is often reactive to change and isn’t able to adapt quickly to new technologies. In this chapter I’m going to discuss three important Dutch cases that went to the highest court in the EU, which tried to clarify how the law can protect against new technological means of access to information - means that exploited blind spots in the pre-existing legal framework.
The Pirate Bay Case
The Pirate Bay (TPB) is interesting because technically none of it’s functionality constitutes copyright infringement. TPB are not making copies or distributing, broadcasting or renting any works at all. TPB is a decentralised platform that links up uploaders (”seeders”) with downloaders (“leechers”); hence ‘peer to peer’ (p2p). It’s a bit like a telephone exchange. With TPB it is the file sharers themselves that are committing the offences by distributing songs or films without permission. So what could the content industries do? A few countries have seen cases against individual pirates, hoping to scare the rest of us into stopping but that hasn’t really worked. The only hope of blocking access to this platform was to go to court and try and persuade a judge to interpret the law so it applied to TPB, kind of like bending the rules. And that’s what happened in the Court of Justice of the European Union.
