The Draconian Effect Of Copyright Law

‘Copyright’ was a term that first came into being after the Statute Of Anne in 1709 – this was intended to protect the publishers of books against unwanted pirating of their works. That statute allowed authors and publishers to apply for the exclusive right to create copies of books that were their intellectual property – however, instead of creating any automatic or perpetual right, this was originally for 14 years, and then another 14 if the copyright owner was still alive, and only applied if the owner made the application to have said copyright.

Furthermore, it only restricted the creation of absolute copies of the work – all ‘derivative works’ were originally okay, although this was soon changed to exclude works where one or two words of the original had been changed. Despite the protection it afforded to publishers, the London publishing monopolists strongly opposed the law (and even challenged it in Midwinter v Hamilton). Why? Due to a previous common law assumption that any copyright would be perpetual. They felt that this law was placing unfair restrictions on ‘their’ property – which was naturally based on the assumption that intellectual property should come with the same rights as physical property.

These rights are now held in the Berne Convention – which dictates that copyright must be automatic (I’ll explain the problems with this later) and has the provision that any copyright in one country must also be valid in all other signatory countries – and the ‘European directive on harmonizing the terms of copyright protection’. The key changes now from the original copyright system (which was fair enough, in my opinion) are that all intellectual property works are now automatically copyrighted, as said above, no longer have the requirement to be held on a register, or even display the © mark, that the term of copyright is now 70 years after death for individuals and 98 years for corporations, and most importantly, that nearly all derivative works are strictly regulated, except those which fall under ‘fair use’ guidelines.

Consider this. You are a budding computing student, studying at one of the top computing colleges in the world, and create a search engine, which will allow people to find other publicly shared files on the system, for the purposes of exchanging ideas, thoughts and information. You have savings of £12,000. Then, all of a sudden, you get an angry letter from the RIAA (Recording Industry Association Of America), threatening a lawsuit for an obscene amount in damages ($98,000,000,000) for files shared on your search engine. They offer to settle for £12,000.

Knowing that even if you win the case, you will be unlikely to be able to recoup your legal costs, and that legal aid is unavailable for you, thus you would end up spending around £250,000 in legal costs, what would you do? Whatever happens, you’re going to lose a silly amount of money for an action that is morally irreprehensible, hell, it’s a good thing to do, in that it helps others with no direct damage.

This may sound like a silly example, but that is what happened to a student in Michigan called Joe Nievelt. This is just one of many examples of copyright law allowing individuals to be victimised by corporations for actions which they either have not done, or could not foresee the consequences of. Another problem here is that the automatic copyright means that the DMCA (Digital Millenium Copyright Act) are suing people for sharing, or making derivative works of, art that the author did not give commercial value to in the first place; the responsibility is on the author to directly provide a license for such use.

The problem with the automatic copyright, which I just touched upon, is that it gives silly copyright terms to works which have no commercial value. It also means that works that are out of production will not be redistributed unless the copyright author sees fit to. It is estimated that only roughly 5% of works in copyright are in print; this leads to the conclusion that the wider enjoyment of art and culture is being prevented for technical statutory reasons, rather than actual moral or financial reasons.

The incredibly long copyright term is bordering on the ridiculous to begin with (especially for someone like me who is against inheritance of any property), and already begs the question of whether someone should be liable for millions of pounds in ‘recompense’ for the use of a work, of which the original copyright owner has died. But this is further exacerbated by the rate that Parliament, the European Council and Congress are increasing respective copyright terms, which is currently faster than copyright terms are expiring. I may be slightly off, but I believe that nothing has come into the public domain (free to use) since roughly 1980.

The first animated film with sound, Disney’s ‘Steamboat Willie’, and coincidentally, the character that brought Disney success (Mickey Mouse, in case you’re wondering), would neither be legal under our current copyright law, due to the contraction of the definition of fair use. You see, both derived from a Buster Keaton silent film (Steamboat Bill), and so under current law, Keaton would be able to successfully sue Disney for every penny he had.

And yet, this is the Disney that so strongly opposed ‘free culture’ champion Lawrence Lessig’s proposal that copyright no longer be automatic, yet must be registered – a simple change, with no real downsides. Yet Congress still has not enacted this, several years on, and the European Union is far behind. There is no logic to opposing it, unless one believes in the automatic perpetuity of copyright – in essence, the same status as physical property.

It is also now nearly impossible to find out whether a copyright owner gives permission to use a part of a work, the automatic aspect of copyright now meaning that there is no need to keep a record of who the copyright owner is. As copyrights can be sold, transferred, or indeed different parts of a work owned by different people, this can be a nearly impossible task, the price of which make it entirely unfeasible for non-commercial ventures. Even if the copyright owner can be found, and they would be prepared to allow use of the material, a written statement of permission is normal to obtain to prevent future legal action, and this may dissuade potential donors.

Finally, there is my more opinionated argument that the creation of art should be a pastime, and nothing more – it ultimately contributes nothing necessary to society, unlike the vast majority of occupations. I can understand the need to recoup costs, or indeed to find someone to stump up the money in the first place, but I cannot see the requirement for a profit margin in the creation of art, and with the Tories slashing the government subsidies available for artists (the UK Film Council is no more, for example), there is next to no prospect of artists ever getting a good deal in our current state of affairs.

This post was mainly inspired by Lawrence Lessig’s book ‘Free Culture’ (available, I believe, under a Creative Commons license). It is a great read – I would recommend it highly.