Copyright in a frictionless world
First Monday

Copyright in a frictionless world: Toward a rhetoric of responsibility by Brendan Scott

Abstract
In this paper, the author reviews the history and application of copyright and concludes that, although promoted as being in the interests of authors, it is designed in such a way as to be primarily a right which benefits distributors and publishers. The author identifies a number of difficulties faced by distributors and publishers in enforcing their rights in an age where the various sources of “friction” which once limited infringement are being constantly reduced. In particular, in the emerging frictionless world the typical targets of the holder of a copyright monopoly (distributors pirating for profit) are being overtaken by a new breed of target (individuals with a cost reduction motive) and it is uneconomical for a holder of a copyright monopoly to pursue this new breed. The author argues that recent extensions to copyright monopolies add little to the illegality of the infringing acts nor any stigma to the performance of those acts. Instead, they exacerbate one of the main causes of infringement — consumer cynicism as to the benefits to society of the copyright monopoly. The author argues further that, rather than driving further cynicism through more expansive rhetoric relating to rights, holders of a copyright monopoly should instead seek to mollify consumer sentiment and encourage compliance by emphasizing a rhetoric of responsibility in the exercise of those rights. The author proposes three possible principles of responsibility that copyright monopoly holders might evaluate and endorse.

Contents

History of copyright
Issues for copyright going forward
The court of public opinion and the rhetoric of responsibility
Principles of responsibility
Conclusion

 


 

History of copyright

The current state of play

Copyright is a (legislative monopoly) right to copy. It is not a right to create per se, but does include elements of a right to derive from an already existing creation. In its current form copyright vests in the creator of a work on the creation of that work. For copyright to subsist in a work that work must fulfil a number of qualifying criteria. These criteria include such things as the work having been reduced to a material form, and that it is sufficiently original and creative. Of these last two the bar is set very low to satisfy.

In theory the copyright monopoly does not extend to ideas. Rather, copyright only protects the expression of an idea in the material form to which it has been reduced. This is known as the idea–expression dichotomy [1]. The rights comprised in copyright also encompass a number of secondary rights such as the right to authorise the making of a reproduction, the right to perform a work in public and the right to create an adaptation of the work (Australian parlance — a derivative work in United States terminology).

The copyright monopoly is one of the most malleable and durable monopolies known to humankind — almost infinitely so. It can be sold in whole or in part, it can be sold in relation to a specific time period or a specific geography, it can be partly licensed and partly sold and can be dealt with in any conceivable combination of any of these modes of dealing. Even after you have sold something imbued with your copyright rights, you may still be able to exercise control over it [2]. Further, each copyright monopoly has a remarkable permanence. For the vast majority of works in which a copyright monopoly subsists (everyday writings of people all around the world) that monopoly over the work lingers on long after all copies of that work have been lost to the annals of time. Indeed, copyright ordinarily lingers on for years, if not decades after the death of the person who created the work in which copyright has vested. However, despite all of these things, copyright is nothing more than a legislative monopoly. Copyright is not, and never has been a property right per se — copyright can be infringed, but it is impossible for it to be stolen. There is no such thing as “copyright theft” [3].

History of copyright

The first task of this paper is to identify the origins of this magical creature copyright, what it has historically protected and how we have arrived at the current state of play. Fortunately, for people in a Common Law System [4], England has the oldest history in relation to copyright. So, apart from a brief diversion into Greek, Roman and Medieval times we will be concentrating on the law of the United Kingdom as it developed from the fifteenth through to the nineteenth century. In relation to the twentieth century we will make some general comments on the development of copyright in other countries. The brief diversion into earlier times consists only of this observation: that during Greek and Roman times there was a general feeling that plagiarism was bad, but there was no provision within their law which could be identified as relating to copyright as we understand it in the modern sense [5]. Perhaps the most technologically and socially advanced nations of the time, China, also lacked (until recently) any rights in favour of printers or authors over the distribution of works [6].

In the ancient world the copying of a book or some other work occurred through a scribe obtaining access to an original work and meticulously copying that work by hand. At the time, copyists felt at liberty to “improve” the text of the original author or to simply forge the text or a large part of it [7]. This might include the addition of embellishments from the copyist or the omission of certain parts of the original author’s text as the copyist acted as a censor. As a result the earliest copies of a work were the most accurate and therefore considered the most valuable [8]. Provided that a person had both the time and the skill to copy a book there was no legal prohibition on them doing so. In fact, the main restriction on the production of copies of a work was securing sufficient access to the physical original in order to complete the copy. The most optimistic among the promoters of copyright’s ancient lineage point to the apocryphal tale of St. Colmcille (latinised: Columba) copying of a psalter around 561. The myth goes that Colmcille secretly copied the psalter and that a king gave ownership in the copy to the owner of the psalter from which the copy was made. It goes without saying that records from the Dark Ages are not that great at the best of times and that this case is no exception [9]. While useful as a conversation starter at dinner parties, the vagaries of the case (not least of which being that it may never have actually occurred) render it a precedent of desperation in any serious consideration [10].

As societies such as that in England emerged from the general lawlessness of the Dark Ages, trading concessions emerged as a means of securing a commercial advantage over competitors and of encouraging development of the domestic economy. Such concessions could take the form of specific monopolies over trade in specific items (such as dice or playing cards) by petitioning the monarch and having letters patent from that monarch issued in your name. These documents [11] represented an ad hoc approach to a protectionist development of the economy and the granting of these concessions. Often political influence played a strong part in securing the grant of such documents. Prior to the sixteenth century there was no general principle by which these monopoly rights would be awarded and there was no legislative recognition of any rights akin to copyright. Copyright only first sprang to life in response to a new technology. In fact, it was in response to a technology that promised to make the communication of ideas as simple and as easy as the internet promises us today. That technology was the printing press with moveable type which Gutenberg gave to the world [12].

The rise of radical ideas

Gutenberg’s press was invented in 1445 [13]. Prior to this time printing was possible, but it was done through use of solid wooden blocks for the whole of the printed surface. To create a new pamphlet one would need to carve a whole new block. What Gutenberg’s device permitted people to do was to rearrange the letters, thus making pamphlet printing substantially easier. In 1455 the Gutenberg Bible was produced and in 1476 the first printing press was introduced into England. The invention of the printing press played a crucial role in the ferment of religious conflict during this period. Of particular note is the conflict between Roman Catholics and Protestants which was to rage both on the continent and in England for hundreds of years — and which, ultimately, are (with some assistance from various vested interests throughout history) responsible for modern copyright law.

The printing press is credited with sparking the creation of many great works of literature inspiring social change. The events of the age show it as a time of great political and religious upheaval. In 1517, we see Luther posting his 95 theses on the door of the Church at Wittenburg. We see such people as Machiavelli positing the principle that might is right [14] and we also see Henry VIII acting upon it. One of the main weapons of change during this period was the communication of “radical” ideas to other people who might show them some sympathy, and, in particular, the communication of Protestant views. It was considered at the time that one of the most effective ways of doing this was the distribution of pamphlets. There are records of a vast variety of polemics and political pamphlets having been printed and distributed during this period. Of course, when one suggests to the established authorities that, perhaps, they don’t have the legitimacy that they have been telling everybody they have you create the real possibility for more than a simple difference of opinion.

While there are many early prohibitions on the publishing of seditious or treasonous works [15], from the middle of the sixteenth century came a veritable rash of legislation and proclamations aimed at preventing the publication and distribution of books relating to heresy, sedition or treason [16]. For example, the Treasons Act of 1534 contained the following [17]:

“if any person or persons ... maliciously wish, will, or desire, by words or writing, or by craft imagine, invent, practise, or attempt any bodily harm to be done or committed to the king’s most royal person ... or slanderously and maliciously publish and pronounce, by express writing or words, that the king our sovereign lord should be heretic, schismatic, tyrant ... [they] shall suffer such pains of death and other penalties, as is limited and accustomed in cases of high treason.”

These forms of proclamation formed the basis for the later development of copyright law [18].

In the same year Henry VIII granted letters patent to the Chancellor of the University of Cambridge to appoint three printers who, within the University, could print and publish any books of which the Chancellor and three doctors approved [19]. This is a very early example of a licence being granted to one or more persons to determine whether works were fit to print and, further, to be able to print them. After some time the King realised that there was the possibility of making money out of the printing process if an appropriate monopoly was put in place. Thus, in 1547 Edward VI granted a monopoly to the King’s printer over a number of specific categories of material. The monopoly was granted over Acts of Parliament, books of the rights and services of the resettled Church of England, Bibles and testaments, law books and year books, almanacks, educational works and Latin grammars [20]. This monopoly in favour of the King himself was, some years later, followed by what we might call an industry self–regulation scheme if it was established today.

In 1556 the Stationer’s Company was established by royal charter [21]. The year 1564 saw the birth of William Shakespeare, while 1566 saw an ordinance passed by the Star Chamber for the censorship of the press [22]. The effect of the Stationer’s Company charter and the ordinance of the Star Chamber was that the Stationer’s Company was given a monopoly over printing and broad powers to enforce it. For example, the ordinance of the Star Chamber prohibited any person from printing any book against the force and meaning of any ordinance, law, injunction or letters patent and the Stationer’s Company was authorised to enter onto premises and inspect a printer’s printing operations to ensure compliance with these regulations as well as to act as customs officials to intercept trade in books. Further, because of the manner in which the Stationer’s Company was established — that is to enforce a censorship regime, it necessarily followed that their powers were perpetual. If you ban a book you don’t want to have to keep rebanning it at regular intervals. The period from 1587 through to 1616 saw the productive life of William Shakespeare [23].

The 1600s were a time of great turmoil, particularly in England. In 1605 Guy Fawkes attempted his gunpowder plot to destroy Parliament. In 1616 William Shakespeare died and in 1625 Charles I ascended to the throne of England. During this period generally the Star Chamber was criss–crossing the countryside meting out justice. From time to time this justice, as necessary, included the execution of traitors and the torturing of confessions from citizens [24].

In 1637 the Star Chamber took it upon itself to codify what it understood to be the existing procedures and conventions as they related to books and pamphlets. That clarification included the following aspects [25]:

(a) no person was to print any book or pamphlet until it was lawfully registered with the Company of Stationers;

(b) that licensees must testify that the book contained nothing that was contrary to the Christian faith and discipline with Church of England, nor against the State or Government, or contrary to the good life or good manners;

(c) that every printer of books must have his own and the name of the author printed upon the book; and

(d) every printer must deliver a copy of every book printed or reprinted to the Bodley Library in Oxford.

We note here that the key aspects of the Star Chamber’s decree were more concerned with censorship than they were with preserving the profitability of the publishers of books, and were certainly totally unconcerned with any rights that the author of such a work might have in the exploitation of that work. This is not to say that the interests of book publishers were not well represented. Indeed, the decree vested immense market power in the Stationer’s Company in that an author had to secure registration of the book with Company before being entitled to print it. The Stationer’s Company itself controlled its members through by–laws giving exclusive rights in certain books to certain publishers. To publishers the breadth of things which may be legally published is quite irrelevant provided that their monopoly control overarches the entirety of that breadth. The second item listed above is clearly simply aimed at censorship. However the third item is also a censorship method. Printers were required to include their details and those of the author on their books not so much as to permit the consumers of those books to order their next copies but, rather, in order that the King knew whom to flog or hang if later events revealed the book as a work of dubious political quality. In this way early rights of attribution were something of a two–edged sword. We also note here that from a very early stage in the development of the copyright law the interests of libraries and, through them, the public have been well represented [26].

In 1640 the Star Chamber was abolished [27] and two years later saw the beginning of the English Civil War [28]. In the same year as the country was being plunged into civil war, the House of Commons required that no printer was to print any pamphlet without the consent of the author of that pamphlet. However, there is no record of any action being taken under this decree [29]. The following year, the House of Commons authorised a committee to search for printing presses where “scandalous and lying” pamphlets were printed, to destroy them, and to commit to prison the printers and vendors of such pamphlets. Again, in this time of war, the Government was engaging in a system of press censorship in order to support its war-time aims. Unfortunately for Charles I, the English Civil War ended with his execution in 1649 and the beginning of the period known as the “Interregnum” or the English Commonwealth. The Commonwealth lasted for 11 years until 1660, when Charles II was restored to the throne. During that time however, the Commonwealth passed an Act, in 1650, declaring offences that would be considered to be treason under the Commonwealth. One of those offences was “that if any person shall maliciously or advisedly publish, by writing, printing, ... that the said Government is tyrannical, is usurped or unlawful ...” [30]. We can see here that the new Commonwealth was quick to adopt the existing censorship mechanisms. Charles II was to continue this tradition by passing a Licensing Act in terms similar to the Star Chamber decree of earlier that century. The Licensing Act was expressed to have a term of two years and was renewed periodically until the 1690s [31].

With 1688 came the Glorious Revolution, which finally decided (in the favour of Protestants) the question of English sovereignty over which Papists and Protestants had fought since the time of Henry VIII. From that time William and Mary of Orange were set on a course of reuniting England and soon after their ascension (in 1689) the Bill of Rights was consequently passed [32]. The Bill of Rights provided for approval of taxation, freedom of speech in Parliament [33] and that there would be no standing army (among other things). The upshot of all this was increased freedoms for the people in general and, in particular, freedom from censorship for the first time in over 100 years. In this new climate of freedom there was no longer any need for strong Crown control over the press and, in 1694, the Licensing Act, which regulated the printing of material, was finally allowed to expire with no renewal [34]. From this time forward there was no legislative monopoly on the printing of any material. It was the last legislative monopoly on printing founded explicitly on censorship. In that same year the Stationers Company passed a by–law to enforce provisions similar to the provisions in the earlier Licensing Act on all of its members [35]. As the Stationer’s Company controlled all, or almost all, of the presses through the use of this by–law the Company was able to maintain de facto control over the publishing of most works even in the absence of a legislative monopoly. Augustine Birrell, in his work at the end of the century before last felt it would be harsh to describe the actions of the Stationer’s Company as being “honour among thieves” [36] but there is certainly this undertone in the action. These days we might describe it as an anticompetitive agreement between competitors — perhaps as an illegal cartel had modern anti–trust laws applied.

In 1707 Scotland and England joined in a union [37]. At the time of this union the printing of works within England was strongly under the de facto control of the Stationer’s Company in that their members owned all of the printing presses and were colluding by not publishing a work if it was claimed by another of the members of the Company. As a result, some individuals would travel to Edinburgh, have their material printed by a Scottish printer and return to England in order to sell those copies at a profit greater than that afforded to them had they approached an English printer. The English printers, not being too keen on their Scottish rivals, sought to have the Scottish printers removed from competition. Such was the birth of the Statute of Anne in 1709 [38]. The opening words to the Statute of Anne read as follows:

“Whereas printers, book sellers, and other persons have of late frequently taken the liberty of printing ... or causing to be printed ... , books and other writings without the consent of the authors or proprietors of such books and writings, to the very great detriment, and too often to the ruin of them and their families; for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty ... .”

While mentioned here, the encouragement of “learned men to compose and write useful books” does seem to be something of an afterthought.

The key features of the Statute of Anne were:

(a) books in publication before the Statue were protected from “printing or disposal” for 21 years from 10 April 1710;

(b) other works were protected for 14 years from first publication;

(c) if the author was alive at the end of the first 14–year period the protection extended for a further 14 years;

(d) the price of books was subject to review and price capping;

(e) nine copies of each book printed upon the best paper were to be sent to the Company of Stationers for the use of the Royal Library, the libraries of Oxford and Cambridge and a number of other libraries; and,

(f) the Statute did not apply to books in Greek, Latin or any other foreign language.

In the mid–1700s, copyright granted under the Statute began to expire. It is not surprising therefore that this period was witness to a rash of private suits bought in relation to books arguing that there existed a common law copyright in relation to works [39]. Perhaps the most famous of these was the 1760 case of Tonson v Collins [40]. In this suit, the Stationer’s Company manufactured a set of facts to put before the Law Lords and, indeed, paid for counsel for both the defence and for the plaintiff. The judge at first instance referred the matter to a hearing of the full bench. After it had considered the facts, (and was literally on the verge of handing down its judgment) it was informed of the collusion behind the suit and of the fact that the Stationer’s Company was financing the whole of the litigation. In the circumstances it declined to give any judgment in the matter.

After the debacle of Tonson v Collins came the case of Millar v Taylor in 1769. That case, to the great delight of book sellers within England, held there was a common law “copyright” which existed in perpetuity [41]. It should be noted here that the question answered by the judges in Millar was not about rights to copy per se, but rather about ownership of copies once they have been made [42]. Millar v Taylor was followed five years later in 1774 by the case of Donaldson v Beckett which overturned the earlier case. While there is some argument as to the authority of each of these cases [43], taken on their face their practical effect was that copyright in English common law, for a period of five years between 1769 and 1774, existed “in perpetuity” (!) and that immediately thereafter it vanished without trace. In Donaldson v Beckett Thomas Beckett characterised his action in the following way: “Donaldson, under colour of my right, is committing trespass on my property and is selling on his own behalf my goods” [44]. Mr. Donaldson was a publisher from Edinburgh. In fact, he was probably just the sort of person that the Statute of Anne was aiming at. The works he reproduced bore the mawkish titles so abundant of that age, such as “The Seasons”, “Ode to the Death of Sir Isaac Newton”, and so on. Beckett’s copyright, when measured under the statute, was out of time. However, flushed by the court’s decision in Millar v Taylor, he decided to attempt to enforce his common law copyright. In Donaldson v Beckett the court, among other things, decided that: an author at common law had the sole right of first printing and publishing a work (10–1); if the author had such a right it was not lost on the first printing or publishing of that work (7–4); and, whether the author had those rights, they were extinguished by the Statute of Anne (6–5) [45].

In the following decades and centuries the ambit of copyright protection was gradually extended to protect different kinds of work and then to secure mutual recognition with other countries. Of interest within the U.K. are the Engraving Copyright Act of 1734, Sculpture Copyright Act of 1814, Dramatic Copyright Act of 1833 and Fine Arts Copyright Act of 1862. In 1790 the U.S. Legislature passed a Copyright Act which granted limited rights only to U.S. authors. This insularity remained totally unsullied until 1891, [46] when limited protection was given to foreign authors and still largely unsullied until World War II when the United States began to provide commensurate reciprocal protection to foreign authors as to domestic ones. Indeed, for the nineteenth century United States printers felt no shame at reprinting the works of English and continental authors — and almost revelled in it as a patriotic duty [47]. The U.S. Supreme Court in Wheaton v Peters [48] also held that, even if there was a common law copyright in England, that common law copyright was not inherited into U.S. Law primarily on the basis of technicality relating to the timing of the English decisions against the timing of the establishment of the colonies in America [49]. One commentator argues that a “statutory copyright that gives the copyright owner complete control of public access to the work following its publication has no constitutional basis” by reference to free speech requirements in that country’s constitution [50].

The U.K. Parliament discovered that the works of its authors tended to be of some demand around the world. One parliamentarian in 1837 remarked that “every work written by a popular author is almost co–instantaneously reprinted in large numbers both in France, Germany and in America” [51]. In order to address this “leakage” the United Kingdom Parliament passed the International Copyright Act of 1844 [52]. The International Copyright Act established a system under which foreign authors would be entitled to protection under English copyright law if English authors were protected by the copyright laws of that author’s country. In this way, the U.K. began to establish a network of bilateral agreements protecting the copyright of its authors in foreign jurisdictions.

In 1878 the International Literary Association was created [53]. Its 1883 meeting in Berne produced a draft International Copyright Agreement. That meeting was followed by a convention in Berne in 1886 (the 1886 Berne Convention for the Protection of Literary and Artistic Works). Under the Berne Convention, member countries were required to provide the same protection to authors from other member countries as it provided to its own authors and also put in place certain minimum levels of copyright protection, including setting the period of copyright protection at the life of the author plus 50 years. Soon after, the U.K. passed the second International Copyright Act in 1886 unifying copyright throughout the colonies and ratifying the Berne convention. In 1893 the Bureau for Protection of Intellectual Property (BIRPI) was established [54]. BIRPI was later succeeded by the World Intellectual Property Organisation (WIPO) in 1967.

The rules of the Berne convention were quite simple — each country was accorded one vote without taking account of the relative economic power of that country or of the works produced by that country nor whether the country was a net consumer or net producer of works. As a result, over time, as more developing nations became members to the Berne convention they formed voting blocks which were able to outvote the developed countries on resolutions. One consequence of this was the Stockholm Protocol in 1967 which gave developing countries broad access rights to copyright materials. Ultimately it was actions such as this which prompted the United States to shift copyright and similar negotiations out of the WIPO forum into other forums such as the GATT talks. Sensing the opportunity for U.S. firms to secure profits from its lead in the computer revolution, the United States, in 1981, during the chairmanship of the then head of Pfizer Corporation on the Advisory Committee for Trade Negotiations the committee created its Task Force on Intellectual Property [55]. The long–term goal of that task force was the placing of copyright and similar negotiations within the GATT. At about this time, the United States began to use its GSP (Generalised System of Preferences) mechanism to apply economic pressure to nations with “inadequate” intellectual property protection. In 1984 the United States amended its Trade Act to include Intellectual Property for 301 Trade Processes. This was later supplemented in 1988 with Regular, Special and Super 301 Processes. In essence, under these arrangements, the United States identifies countries which have regulatory regimes which the United States considers to be inappropriate and enters negotiations with those countries to modify those regulatory regimes. Where those negotiations do not meet with a sufficient level of “success” over a given period, the U.S. then applies economic sanctions to that country [56].

By targeting the individual countries beforehand, the U.S. was able to remove developing country resistance to the TRIPS initiative in the 1994 Uraguay Round of GATT. On 15 April 1994 the Marrakesh agreement establishing the World Trade Organisation was signed. The TRIPS agreement (Trade Related aspects of Intellectual Property Rights) formed Annex 1C to the Marrakesh Agreement. As at 1986 the GATT had very little coverage for legislative monopolies such as copyright. However, in the 1986 Ministers Meeting at Punta del Este, initiating the Uruguay round, a specific new negotiating group was created. The focus of the group was:

“In order to reduce the distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, the negotiations shall aim to clarify GATT provisions and elaborate as appropriate new rules and disciplines.” [57]

From this very limited mandate to “clarify [existing] GATT provisions and elaborate as appropriate new rules and disciplines” has evolved the most sweeping legislative monopoly regime for copyright and similar rights and one which was previously absent from GATT [58]. TRIPS is perhaps now the single most important document the creation of legislation for the new economy [59]. However, it was signed when the Internet had existed for a decade or two as the research tool of academics and, in its next evolution, the World Wide Web had only barely begun to register on the general community’s radar scopes. For those of us who are able to remember the hype, 1994 was the year of Information Superhighways. The TRIPS agreement only postdates the creation of the U.S. Government’s first Web task force, the National Information Infrastructure Initiative of 1993 by one year and, due to the nature of agreement at an international level, had been in train long before that date. Furthermore, the TRIPS agreement was negotiated in the context of what is essentially a trading organisation (in fact, the World Trade Organisation) and one which has been widely criticised as poorly representing consumer interests.

The direct impacts of the TRIPS agreement have already begun to be felt, with the passage of legislation such as the Digital Millennium Copyright Act (1998) in the United States and the Copyright (Digital Agenda) Act 2000 (Cth) in Australia. The most controversial aspect of these acts are the anti–circumvention provisions which, some argue, are a violation of fundamental personal freedoms. Consumers in the United States have the constitutional protection of their First Amendment — freedom of speech and it is on this basis that the Digital Millennium Copyright Act has come under fire there [60]. This is a constitutional protection not necessarily enjoyed by consumers of other nations. The irony will not be lost on the rest of the world if, through exercising their fundamental constitutional rights, the consumers of the United States escape the full effects of a law that their government (in conjunction with the EC) imposed on consumers of the rest of the world [61].

 

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Issues for copyright going forward

As we have discussed above, the copyright law is primarily designed to protect the publishers and distributors of copyright works. Originally, the key purpose of the precursors of copyright law was to serve a censorship function, so the focus on distribution was entirely appropriate. Even after the demise of this function, much of the pre–existing structure was co–opted to support the new legislation protecting publishers and, indeed, this has remained the case up until the twentieth century. However, towards the latter half of the twentieth century we have seen the emergence of a number of distribution mechanisms which are “pull” technologies and which had not been previously anticipated by the law. The most famous of these technologies is, of course, the Internet. On one view, the Internet is a system of “self distribution” in which only the creators of content, the consumers of content and the providers of telecommunications infrastructure are relevant to the equation. From the content consumer’s perspective, any distribution or production costs over and above those imposed by the telecommunications infrastructure provider (with perhaps some allowance for sorting and evaluating works) are of no value, being pure inflation. Similarly, from the content producer’s perspective, if there is an established market, then these distribution and production costs are equally irrelevant. As a case in point, it is not unusual for the artist of a CD to recover 10 percent or less of the sale price of the CD, with the balance of the sale price going to the retailer, the record label, producers, marketers designers the distributors of the CD and a host of others (which are often subsidiaries of a vertically integrated conglomerate, so profit from each of these steps is really profit of the conglomerate). Both the consumer and the content creator of a CD have an incentive to pare back excess costs to a minimum. If, a consumer doesn’t watch or doesn’t like the video that accompanies a song, why should they subsidise the additional production costs which are involved in producing that video (and which are bundled into the price of the CD)?

That said, third party intermediaries do play substantive roles in the production of things such as music, books and films. In particular, they play a “gatekeeper” role by selecting and identifying commercially viable content and giving it preferential treatment over non–viable content. Further, they provide an administrative function for the collection of royalties and other payments on behalf of the author of a work. On the Internet, we see these functions being, in part, overtaken by community–based alternatives. For example, consider the purchase of a camera. A consumer proposing to purchase a camera can conduct research into that purchase by approaching a number of different camera stores seeking their opinions and also approaching the major manufacturers of cameras within their price range for written material and specifications on their cameras. However, by engaging in this exercise, they are likely to discover that the information they tend to receive is biased in favour of the person giving the information (in all these instances, their interest is in securing a sale), either through the overemphasis of certain aspects of the information or through the omission of pertinent details. They are also likely to discover [62] that it is difficult to receive a comparative evaluation of one brand against another. In short, the traditional system of research doesn’t provide information which is of use to the potential purchaser.

Compare a similar research task conducted on the Internet. The potential purchaser, assuming they have adequate Internet research skills, are likely to discover a wealth of knowledge and experience. Many other people are likely to have asked exactly the same questions, received a variety of responses and, what is more, will have summarized the key issues highlighted by those responses. While some of those responses will clearly be biased for one reason or another, they are each biased for different reasons (rather than each being biased in favour of securing a sale) and, as there is no sales motive to disguise the bias, those biases are more easy to discern. As a general statement also, information on the Internet is usually open and honest and likely to include pertinent information relevant to a consumer which they might not have thought of themselves. Assuming they are confident of being able to make their own assessment as to the credibility of the various reports available on the Internet, ultimately making their purchase on the basis of that information is going to lead to a result which better fits their needs. This form of assessment goes by the name of “community rating”. Its basic premise is that the contribution of disinterested individuals (perhaps on a massive scale) is more effective than targeted “marketing” material propagated by those seeking to influence the ultimate purchasing decision.

The introduction of monopoly interests in relation to information undermines the independence of that information and, consequently, consumer trust and confidence. This in turn increases the transaction costs incurred by consumers for the acquisition of information. One result of this is the implicit creation of large barriers to entry in the information market.

Shareware

We noted above that one of the functions provided by a publisher is an administrative one to recover payments. The Internet and its precursors have seen the creation of a new kind of licensing system known as “shareware” to address this function. The essence of shareware is that the author of software permits its distribution to as broad as possible an audience with a request that those who use the software pay a shareware licence fee. In many cases, this is nothing short of pure, unadulterated trust in human nature. As the system cuts out the middle man, distribution costs are non existent (being borne by the end user) so returns are almost pure profit. Consequently the producer of the software may only need to sell 10 percent of what they would have had to otherwise in order to break even. There are a number of instances of shareware companies which have shared the same measure of success as jealously proprietary ventures [63]. There is even a professional association for the makers of shareware. A variant of shareware, known as “Crippleware” exists in which some of the features of the software are reduced, or only permitted to be used for a short period of time. In order to acquire the full version, the consumer must pay an upgrade fee. The shareware experience indicates that it is possible to return a profit even in the absence of enforcement mechanisms. Another effect of shareware is to broaden the scope of choice available to the consumer, which may ultimately lead to a reduction in the overall end cost to the consumer of acquiring software.

In some instances, the concept has been taken one step further through the use of “Adware”, in which advertisements are embedded into the software which is freely distributed and a fee is paid to acquire a copy of the software which has those advertisements removed. In this instance, it is not the consumer of the software who ends up paying the producer of the software - rather a third party (i.e., the advertiser) will pay a price to the author of the software based on the number of “impressions” returned to the advertiser as a result of the use of the software. While this may appear to be all upside for everyone involved, its practical effect is to aggregate all purchasers into a single purchaser (the advertiser) who may be able to discipline prices in a manner different to the action of a number of independent users.

Globalisation and a service–based economy

One of the catchcries of the globalised world economy is that advanced economies are those which have moved away from the provision of products and place an increasing emphasis on the provision of services. Services are seen as the cornerstone of the next evolution of the economy. In the emerging business model, businesses incur start–up and investment costs which are sunk and later recovered through the sale of services or improved products over time. The more businesses [64] come to see software development costs as sunk costs the less reliant developers of works will be on the protection afforded by copyright. Licence fees may become a competitive disadvantage. Companies such as Red Hat [65] have used this model with some success. Anyone ever involved in licensing of software (other than shrink wrap) will know that licence fees are structured more for tax reasons (or are simply plucked out of the air) than by reference to development costs plus a margin (as the “incentive to produce” theory of copyright would lead one to believe). They will also know that the costs of ongoing maintenance are often a substantial part of the payments required to be made.

In the current market place, a failure to innovate is equivalent to rendering oneself uncompetitive. For example, in some variants of the freeware model, after there is an installed base of users, the author of the software may charge for service in the form of updates and new releases. If the innovation is simply part of the minimum to play required by the market, legislatures may consider it appropriate to reduce or discontinue incentives to innovate or to encourage them through means other than monopoly rights [66]. Legislatures may also pay attention to the chilling effect that such monopoly rights may have on independent or collaborative innovation. Whether monopoly rights are appropriate spurs to innovation is also taken as an article of faith [67].

Content — Queen or handmaiden?

“What would the Internet be without ‘content?’ It would be a valueless collection of silent machines with gray screens. It would be the electronic equivalent of a marine desert — lovely elements, nice colors, no life. It would be nothing.” [68]

So remarked Edgar Bronfman (then President and Chief Executive Officer, Joseph E. Seagram & Sons, Inc., the owners of Universal) to the Real Conference in San Jose, in May of 2000. These comments are a good example of the self affirming attitude of the content industry to the Internet. Similar sentiments fuelled the “information superhighway” exuberance throughout the nineties, and, during that time, appear to have completely entranced investors and legislators the world over. Throughout the late nineties vast amounts of money were spent on business models seeking to deliver “content” over the Internet. The orgy of financing which continued during that period culminated in the tech wreck of early 2000 — shortly before Mr. Bronfman’s comments. Throughout that period no one was (nor is now) under any misunderstanding that end users were not prepared to pay for content. It is almost that simple. Rather, individuals are more interested in using communications media for being active interactors rather than passive consumers. This argument is put at length by Odlyzko in his paper “Content is Not King” [69]. However, its basic truth should be obvious. If exiled to a desert island who in their right mind would prefer to have unlimited cable TV or radio in preference to being able to talk to their friends and family? [70]

If interconnection is the main use of communications media, then legislation, such as copyright, which imposes transactions costs on interconnection, by requiring administrative procedures to be put in place to monitor, identify and/or stop traffic in copyright material, is effectively a protectionist subsidy to the content industry by all users of the communications infrastructure (through increased usage charges). In Australia, the High Court has effectively required as much in the Telstra v APRA case [71]. It remains to be seen how far legislatures resolve for continuing their protection of the content industry will extend.

Increased accountability

To date, the beauty of the copyright monopoly (at least from the point of view of the monopoly holders), is that it has no real basis justifying its existence. Rather, the proponents of copyright make deft use, as the circumstances require, of a variety of different justifications, from innovation, to giving just rewards to the author, to promoting culture (among others). As a result of this nebulosity copyright has effectively been detached from means of evaluating and testing its usefulness with the consequence that it is difficult, if not impossible to verify the effectiveness of copyright and similar monopolies in providing the benefits they claim to provide. Further, should it be possible to contradict one of the bases of copyright, copyright proponents are able to adopt an alternative justification, given that simultaneously contradicting all justifications will be a herculean task. That said, there has been a growing demand within the community for accountability from legislative monopolies generally, with some monopolies, particularly in relation to utilities, being revoked. Effectively, to date, copyright proponents have said to legislatures something along the lines of, “protecting us as an industry is good for society as a whole, but we can’t give you any evidence which supports us on this and, in fact, there’s actually no way to even measure the benefit that such protection brings to society, so you’re just going to have to trust us.” Of course, this is a similar argument made by all industry sectors seeking protectionist regimes. What is different about the copyright monopoly is that, while legislatures have been aggressively slashing protection for other industry sectors, they have (surprisingly) been cheerfully increasing it for this sector. This is true even given the historically pityful track record of industry predicted apocalypses throughout the entirety of its history — the Stationer’s Company continued strongly after the repeal of the Licensing Acts in the late 1690s, it continued to grow despite the absolute censorship monopoly being converted to a time limited monopoly in the eighteenth century, the English book trade survived rampant borrowing of American industry in the nineteenth century, the book publishing industry continued to prosper with the advent of the photocopier, and the music industry has not died a terrible wasting death in the face of home tape recording — nor in the 10 years of the Internet nor the more recent years of the Napster experience (being the equivalent of the Internet on steroids). Indeed the 1980s was not only the heyday of software piracy but also the era that catapulted Microsoft from non–entity to the point of supremacy it has reached today — in some cases in the complete absence of copyright protection [72]. While legislatures currently appear to be completely captured by this industry sector, it is reasonable to expect the copyright monopoly will come under increased public scrutiny including that protections for this industry be removed in the same manner as they have been removed from other industries and to require these monopolies to be justified on fixed, objective, criteria rather than on the slippery and nebulous grounds which currently underlie it.

The period of protection

The initial period of protection afforded by copyright to an author by the Statute of Anne was between 14 and 28 years. Over time, partly as a result of the influence of Continental events and philosophies emerging from the French Revolution, that period has increased dramatically, to the life of the author plus up to a further seventy five years. To a consumer outside it, this is perceived as an unjustified level of protectionism given protection to the content industry. Should a craftsperson spend a week creating an object, that craftsperson is able to amortise the costs of production factoring in an amount for profit, only on the sale of that object. This is true whether they bring one year or 50 years of knowledge and experience to the task and whether it is an individual or a team of craftspeople doing the work. However, the equivalent worker within the content industry is able to amortise those costs over a vastly longer period.

What consumers have begun to focus on is the arbitrary nature of the length of the monopoly rights which are granted. Any period would substitute just as well as life of author plus 50 or 75 years, the only consequence being that development costs are amortised over this period. For example, if the period of protection was six years from first sale, the amortisation period would be six years. Of course, the period of protection must be long enough to reasonably allow the amortisation of those costs (a one second protection period from first publication would effectively require it to be recovered on the first sale). However, where there is a monopoly period any longer than the shortest reasonable time over which to amortise development costs plus profit the "tail period" is pure rent/pure inflation, with consumers being required to pay more than what is, effectively, the marginal cost of production of the article. The history of book and music publishing indicates that this reasonable period is somewhere between six months and six years after first publication. Indeed, the vast majority of works the subject of copyright have a shelf life of 12 months or less. Consumers may press for legislative changes to reduce the time–price exploitation of consumers and require that monopoly owners ought to only be entitled to new payments when actually adding value after this point rather than simply resting on its laurels [73].

As consumers well know, the protection provided to the content industry has simply increased over time and there is no guarantee that that protection will not continue to increase, preventing forever the entry into the public domain of works [74]. Consumers have become increasingly restive about the absence of any legislative guarantee that anything of value will be returned to society as reimbursement for the monopoly rights they have ceded. In relation to computer software in particular, by the time that a work is released from monopoly control all value has been completely sucked from it, leaving only a dry husk of some historical, but little cultural or social utility [75].

Open source paradigm

Another innovation of the Internet age has been the creation of new methods of research and development. These methods seek to harness the collective input of a number of skilled individuals (often on a volunteer basis) in return for those individuals, or the wider community, taking the benefit of that research and development. An early example of this was the work of the Free Software Foundation and Richard Stallman in the 1980s. From this movement grew others such as the GNU (“GNU’s not Unix”), Linux and the Open Source movements. Under these arrangements individuals take on the responsibility to co–ordinate the coding of software by independent third–party programmers. So, where a project is identified, one person can define sub–projects and farm those sub–projects out for coding by third parties, possibly by third parties who are unknown to any of the other developers on the project or, indeed unknown to the project’s manager. Those third parties effectively either bid for the right to develop a particular piece of code, or simply go ahead and do it and submit the finished product, along with source code, to the project leader. Quality control is assured by other volunteers using beta releases of the software. Some of these initiatives, in particular applications such as Linux, have received a good reputation as being stable and functional. Indeed, the Linux operating system is seen by companies such as IBM as being of sufficiently industrial strength to base significant development projects around it [76].

Further, hardware vendors are waking up to the fact that the creation of software is often much cheaper than software houses would lead their users to believe — especially if the software is of broad, generic use. The fact that a potential purchaser must acquire software in order to make any use of hardware has effectively added a substantial percentage to the cost of their hardware sales even though they see no return for that additional cost. As a result, we see some hardware vendors engaging in their own software development projects to produce commercial standard software which is then bundled with a hardware sale, effectively reducing the total cost of the system to the end user. For example, it is possible to acquire a software package from Sun Microsystems (Star Office) which has all of the essential features of the Microsoft equivalent product except the cost. Star Office can be downloaded for free over the Internet [77]. Its producer is literally giving the software away. Similarly, word processing products such as WordPerfect have been given away in certain versions [78]. It is possible today to acquire a computer for use in the office which includes an operating system, word processor, spreadsheet application, e–mail package, and presentation functionality for only the cost of the hardware involved.

While the examples above are drawn from the software industry, the principle underlying them all is of generic application. For example in the music industry, there are numerous sites on which individuals are making their music, or other material available to the world for a fraction of the price of what a consumer would be charged by a record company. This suggests that it is not that there have needed to be incentives for creativity in the past. Rather, what copyright appears to have been compensating for has been the cost to market. With the removal of that cost we have witnessed a creative chaos previously unknown to humanity.

Anti–trust

There is a growing perception within the community that copyright and similar rights have been used to establish positions of monopoly exploitation, particularly by multinational monopoly cartels. For example, where companies have been in a position to either influence a technical standard to the extent that compliance with the standard requires the use of technology patented by that company or to create software which is reliant upon proprietary data standards, formats or interfaces owned by that company. Another situation where this arises is where a company has market power in relation to a market for a particular product or kind of product which it uses to leverage itself into markets for other products, safe in the knowledge that any court action taken to redress the exercise of that power will result in a decision, let alone have that decision put into effect, far too late. This is not helped by the frequent explicit exclusion of copyright and similar rights from anti–trust legislation [79].

There is also a feeling that the rights granted by copyright are overreaching in that they provide rights in excess of the rights held by an equivalent manufacturer of physical items. For example, if a person purchases a physical item they are able to make any changes to that item that they consider necessary or appropriate and are able to subsequently re–sell that item as modified to any person that they choose. The same, however, is not the case for items protected by copyright. Should a consumer consider that the way a director has cut a certain film is actually quite hopeless or prolix (or contains themes or scenes the consumer considers inappropriate for their community) they are not permitted to recut their own version of the film even if that recutting is for their own use — and definitely not if they intend to re–sell it [80]. The nature of the monopoly granted effectively creates restrictions on resale (through the absence of passage of title) which would be considered anti–competitive if applied to goods. Even in the case of real property, arguably the most hallowed legal concept of Western legal systems, courts have developed an extensive system of limitations on the rights of the owner of the property, through tiered concepts such as leases and licences, with, in the case of a lease, associated doctrines protecting the leaseholder [81]. The key aspect is that the factual situation determines the presence or absence of a lease, rather than the subjective intention of the property owner. With the copyright monopoly this is not the case. As the monopoly is an absolute one, tempered only by permissions given by the monopoly holder (i.e., licences), everything is at the whim of the monopoly holder [82]. There are no developed common law consumer protections, the only defences being legislative ones.

The Internet has harnessed the creativity of a number of individuals through the creation of fan sites and chat sites. These sites, almost invariably including copyrighted material without permission, are by and large illegal and some have been subject to legal action by the holders of the respective copyright rights. The problem faced by copyright holders here is the explosion of choice. No single choice available on the Internet would sate user demand, and, equally no choice would be commercially viable for copyright holders to pursue. Ironically, it is the lack of choice which breeds profitability for the holder of copyright. It is simply not profitable to attempt to cater for the wild profusion of submarkets and interests that proliferate in relation to any given object of copyright — especially if it is popular. This is less of an issue in relation to software in which items of no value to a user are simply not used. However, in areas such as film or music, where the consumer’s interaction with the work is more linear, the effects of this phenomenon can be pronounced.

The distributor problem and peer–to–peer sharing

Consistent with the evolution of copyright as a right to protect the interests of distributors, actions for copyright enforcement have historically been taken against the distributors of a copyright work. The main targets of infringement actions have primarily been those targets who are motivated by the “filthy lucre”. For example, people who produce vast quantities of counterfeited goods for sale at street stalls or from fly by night shopfronts. Where an individual comes to the attention of a copyright holder as being involved in an infringement of rights involving no for–profit redistribution, it is rarely worth the copyright holder’s time, money or effort to pursue that individual. The costs of such a litigation will ordinarily far exceed the amounts which will be recoverable from that individual in the event of a successful litigation. Usually the target of the action will have no means to pay any damages awarded against them in any event. While some companies do take action against individuals, this is often done purely for publicity purposes to dissuade other individuals from being so enterprising [83].

As a result it is the larger, slower moving targets which have received the most attention from copyright holders, whether they be distributors of illegal works, distributors of equipment to be used in circumventing copyright protection, companies with a large installed base who are directly profiting from their use of infringing items or people such as telecommunications carriers through whose equipment infringements of copyright may be being carried out. In this instance telecommunications carriers have been a problematical target in that they may have no knowledge of an infringement taking place over their system, and yet directly profit from that infringement through the usage and interconnection fees they charge. They are even more problematic in that they also have the resources to fight court proceedings.

The advent of the Internet is seeing the emergence of individuals as the key distributors of copyrighted works, with that “distribution” occurring purely to themselves. That is, there is no longer the filthy lucre element to the infringement which has historically been present. Put another way, a large part of infringement is being shifted from profit making activities to cost reducing activities. Where before a copyright holder may have had a distributor who was selling tens of thousands of copies of a work, nowadays that distributor has been replaced by tens of thousands of individuals all acquiring a single copy of that work from perhaps disparate information sources. The copyright holder in this situation no longer has an ability to sever the head of the demon infringement because, like the hydra, once the head has been severed, two new ones will grow back in its place. There are simply too many targets, no one of which is worth pursuing.

The Napster suit — Spitting in the wind?

Music swapping systems, such as Napster [84], Gnutella [85] and Freenet [86], are a prime example of the problems faced by copyright holders. Under each of these systems end users swap copies of musical works which they have recorded (or otherwise “acquired”). The critical aspect of this swapping is that it occurs directly between the two users rather than through each individual acquiring the work from a central store of works. As such, there is no central store which is infringing copyright and which can form the basis for copyright action. The Napster service has nevertheless been the subject of action in the United States, primarily as a result of two factors: (1) Napster creates a central store of information detailing from where copyrighted works can be acquired; and, (2) the main use of such a server is argued to be for the infringement of copyright. However, more recent systems such as Gnutella and Freenet have sought to implement pure client to client systems in which there is no central server at all, whether for the storage of primary material (such as sound recordings in the original server model) or indexing material (such as, under the Napster model, information as to where primary material can be obtained) and where connections to other servers are dynamically determined — i.e., if you are not on line at the time you do not exist to the network. Thus, not only is the contributory infringement or authorisation argument not available, there is not necessarily even any person against whom such an argument might be attempted.

The problems posed by this decentralisation of infringement action are exacerbated by the level of anonymity permitted by distribution over the Internet. Distributors of copyrighted works who are motivated by profit need to have an identifiable location in order to receive their payments of the filthy lucre, even if this is a post office box in the middle of nowhere. However, where individuals are acquiring copyrighted works for their own edification or cost reduction, they have no interest in disclosing their identity or location and, indeed, if they are involved in not for profit distribution of infringing works, have a positive disincentive to make that information known.

Sufficiently many of the Internet’s denizens appear to have deeply seated oppositions to copyright as a concept and are more than willing to engage in collective subversion of a copyright holder’s interests through the reproduction of copyright material to other locations once it has been targeted by a copyright holder. In some instances, the information may be moved entirely outside of the jurisdiction of the courts on which the copyright holder wishes to rely. At present this tends only to happen once action has been initiated against a given target, in the meantime the infringing material being the preserve of those “in the know”. If prosecutions become more commonplace infringers may commence the infringement cycle by distributing the code as widely as they can as soon as they can [87]. Similarly for every Napster which is attacked, there are two other services waiting in the wings to take their place once an injunction is issued. Hydra is again rearing its head [88].

Intolerance of format inflation

The mood of the consumer has also changed over the past two decades. In the earlier part of the twentieth century consumers were content to simply be able to have access to reproductions of works. However, as time has gone on we have seen a proliferation of data storage formats on which such reproductions can be held. While driven by technical innovation in its early stages, the cynical in the community have viewed some of these developments as merely a means to prolong the profitability of a work by requiring a user to repurchase it in different formats every five to ten years. In the music industry for example, records have gone through a number of stepped speed changes (72 RPM, 45 RPM, 33 RPM) before being replaced by tapes (reel to reel evolving to cassette) and CD audio disks which, in turn are being attempted to be replaced by minidiscs [89]. Consumers as a whole are beginning to rebel against this idea, asserting instead that their purchase dollars should be for a media independent right of use. One example of this can be seen in the case of MP3.com. MP3.com purported to allow its users to store on the Internet music which they had validly purchased, and to be able to download that music over the Internet as and when they wanted to. While MP3.com became the subject of legal action (and is of highly doubtful legality) it has spurred legislative initiatives in the United States to give effect to its key premise [90]. We see similar experiences in computer software with packages released which are not compatible with previous releases in some key respect, designed to require the community of users to be pulled forward by the adopters of the new release.

Future shock

Alvin Toffler, in his book Future shock, posited that the world was changing rapidly and that the rate of that change was itself increasing. Toffler argues that society as a whole has difficulty keeping up with that change. If that was true of the world in the 60s, it is even more true of the world of the new millennium. The progress of the Internet is placing unwanted incentives on infringers. On the Internet “impact and presence” are everything, while legality is of only ephemeral concern. An Internet business can rise from nothing, prove its idea, float and explode across the world long before a contested legal action can progress through an interlocutory stage — even where the trial is being heard on a priority ticket. With the speed and rate of progress of the Internet, it is almost ill advised for someone with a brilliant new idea to approach their lawyers about it (who would tell them that what they’re doing is illegal and they shouldn’t even consider it) instead of adopting a “crash or crash through” approach. On the Internet Napster and MP3.com have so eloquently proven that he who hesitates is lost even in face of substantive adverse legal findings. Indeed court action may simply bring publicity and make the infringer “sexier” in the eyes of their target community.

The demise of pimpled youth

Sooner or later, hackers will cease to be foolish youths and will become adults with a mission. Perhaps the issue for copyright in the new millennium is a combination of all of the factors listed above, but expanded by the possibility that “hackers” may actually do some research about the structure of copyright law. To date these people have demonstrated that they are certainly talented and not lacking in intellectual ability. Equally in their dissemination of copyright works they have been more concerned with the technical capabilities of the Internet and the transfer of information from one point to another as quickly and easily as possible. It has not focused on the creation of means of dissemination which are specifically intended and designed to exploit weaknesses within the copyright law itself [91]. That is, no one has really attempted to do technically legal (but, in breach of the spirit of the legislation) what they are currently doing illegally. Such attempts as have been made have taken the naive path of asserting that copyright is dead (which it isn’t) or that it ought not to apply to a given category of work.

Consider, for example, recent indications are that there are literally millions upon millions of Web sites located around the world. Consider further a thought experiment involving the average novel, with on the order of 100,000 or 200,000 words. It would be interesting to see the Court reaction to a system which took each and every separate word of the novel and placed that word on a distinct and separate Web site. Would each of those individual words would be considered to be a reproduction of a substantial part of the copyright work? [92] The novel could be compressed first so no one piece of data could necessarily be associated with the original text then split and scattered. A similar argument could be made in relation to most computer programs, the majority of which are less than four or five million bytes in length. Under such a regime clearly the end users who download the full copy of the item will be breaching copyright. However, as we discussed above, this is not a great deal of use to the holders of copyright. Such a “scheme” is already standard practice in redundant storage technologies (e.g., RAID arrays) in which a file is deliberately and redundantly spread over a number of storage locations so that if any one is lost, the file will still be recoverable.

The interest of copyright holders is to eliminate the sources from which end users may acquire unauthorised copies of copyrighted works. As hackers continue to expend their energies in their attack on copyright it is likely that they will dream up far more inventive schemes to ensure the anonymity of end users who acquire copyrighted works, the relative untraceability of the servers that provide those works to those individuals and perhaps the elimination of altogether of any “distributor”. The unfortunate fact is that there is a discouragingly large number of malcontents out in the world who are willing to expend their time and energy undermining the statute given copyright monopoly and to do so without any prospect or intention of securing a profit or any kind of return from their activities. Indeed, the evolution of Gnutella and particularly of Freenet, simply represent the consumer community relying on self–help to the extent their resources permit (and those resources have been greatly increased by the degree of collusion permitted by the Internet). Their existence and use are strong evidence of consumer discontent with the current legislative regime. Having attempted to influence that regime and discovered they are unable to, consumers appear now to be quite content to play a purely spoiling game.

Toward the frictionless environment

We must not forget that we are currently not even 10 years out from the first use of the World Wide Web [93]. Further, it has been only 10 or so years since the use of desktop computers has become particularly widespread [94]. Nowadays consumer grade components are able to make perfect digital copies of CDs in five to ten minutes at a cost of less than A$2.00 per CD. Technologies are available to burn MP3 data onto a CD. These technologies can allow up to the equivalent of seven to ten ordinary CDs to fit onto one physical CD, albeit at reduced sound quality [95]. Under this scenario a person is able to copy the equivalent of ten CDs in the space of under ten minutes and to store that in a medium which will fit into their coat pocket for less than A$2.00. The more adventurous of the technically literate in our community can create “virtual jukeboxes” through the use of hard disks. It is possible to get trays which fit into a computer bay which allow hard drives to be slotted in and out of the computer without the need to open the case of the computer. A 20GB hard drive in Australia at the time of writing this paper cost about A$250.00. To copy such a hard drive when attached to a system would take something on the order of an hour. A 20GB hard drive could carry the equivalent of about 30 CDs at full CD quality or approximately 300 in an MP3 format. Put another way, today an individual could acquire a copy of 300 CDs from their friend while waiting for the BBQ to cook on one lazy Sunday afternoon [96].

In the past, the time, effort and expense [97] of reproduction have always induced friction into any piracy attempt. Such friction provided a natural limit to the amount of piracy that would take place and exclude those who lacked the will or technical expertise. Today there is still some element of that friction present, but much less so, and the future will only see that friction decrease. What will happen when these friction creating elements have disappeared? For example, five years ago a 2GB hard drive was something of a premium product. If this trend continues, by 2006 200GB hard drives may be the norm. To take the analogy to its logical conclusion, imagine a world in which a person’s entire life can be fit onto a device the size of a credit card or smaller and can be replicated with no effort whatsoever. Imagine a world in which technologies such as the successors to BlueTooth [98] or Radiata [99] have delivered a broadband wireless existence in which everyone is a walking server of themselves and mere physical proximity to a person allows you to access the information that they have made publicly available on their server — by which we mean a credit card–sized device on their body or in their briefcase. Think about how many people you might pass by in any given day. It would only take a handful of those people to have infringing material on them to create the copyright holder’s nightmare. Should you wish to actively seek out infringing material a short walk across a university campus would net you plenty to keep you occupied. Further, in such a world each computer in a house down a street could be a wireless server for its neighbours. There may be an entire sub–network of peer–to–peer relationships which do not rely upon the existing networks of telecommunications carriers [100]. It is a world in which there is no one “pipe” which can be watched to enforce copyright compliance. That is, the whole paradigm of telecommunications carriage may be undermined and there may be no static targets that could be the subject of regulation or litigation.

 

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The court of public opinion and the rhetoric of responsibility

Ultimately the argument for or against copyright will not be won in the legislature or in courts of law but, rather, in the court of public opinion. No matter how many malcontents there are in the world, their actions will be nothing if they are lacking the tacit support of the public. Conversely, no matter how much the forces of right and good are on the side of the holders and creators of copyright they are unlikely to prevail against broad based consumer complicity in copyright infringement. Legislatures around the world have sought to increase the certainty and security for the holders of copyright by expanding upon the rights that those holders enjoy. The TRIPS Agreement marks perhaps the most significant of these attempts.

Far from enhancing or securing the position of copyright holders, these moves by the legislatures may have only further soured an already cynical consumer population. What the MP3.com and Napster phenomena have proven is that the average consumer regards the legislative monopoly that is copyright largely with contempt — at least in the absolute form in which it has been expressed in copyright legislation. However, what these phenomena have also shown — for example through the subscription and payment initiatives proposed in the Napster–BMG merger — is that the average consumer is willing to pay (what they consider to be) a fair price for having access to music. However, they want to be provided with a fair rate for an “all you can eat” service rather than to be presented with differential pricing for separate options with premium rates being tacked on on top. The moves by legislatures around the world have not made the acts of infringers any more illegal, although they have created a situation where the same facts may give rise to multiple infringements greatly extending the protection provided to the information industry. Rather, they have mainly served to compound the cynicism that consumers already hold for the copyright law.

The holders of copyright monopolies have not helped their case by the manner of publicising their “losses”. In the 1980s copyright monopoly holders advanced their claims for increased protection by reference to ridiculously exaggerated claims in relation to their piracy losses and did so with great success. Seeking to exploit an obviously successful technique, in the 1990s they continued this trend, but have failed to note the shift in consumer tolerance for such claims with the coming of the new millennium. Admittedly, it is a very difficult to properly assess the loss suffered. Such figures are manufactured to serve different purposes, but methodologies which simply take the number of illegal copies and multiply them by the recommended retail price have begun to be regarded by consumers as deception, if not outright lying and are seriously undermining the credibility of copyright monopoly holders. Not only do these methodologies largely ignore the price elasticity of demand, it does not take too much thought to argue that such figures do not take into account the costs of production, marketing, distribution and administration that would be involved in the sale of those copies (and which are not incurred in the infringer's case) and which cannot therefore be considered a loss. Further, where those copies are in the hands of a person who simply would not have had the means to pay for them it is hard to see how to sustain an argument that those copies actually represent a lost sale [101]. Unfortunately the holders of copyright monopolies appear to have been beguiled by their own marketing, for they seem unable to comprehend how their aggressive advocacy is poisoning the opinions of consumers against legitimate initiatives.

Rather than securing the position of copyright holders through the addition of new rights in legislation, the effect appears instead to have polarised opinions and galvanised opposition to copyright more broadly. In particular, we are beginning to see more strident arguments against copyright coming from such areas as academia and libraries. In the United States, particular use is being made of the First Amendment in this regard. We should not forget that it is academics who are the “learned men” that the Statute of Anne sought to encourage in the production of “useful works” so many centuries ago and who are nowadays, by and large, abandoned by copyright law and increasingly electing to vanity publish.

What is now a simmering discontent with some particular aspects of copyright may, over the coming years, erupt into broad based defiance and opposition. Clearly, a substantial part of this is a lack of education within the community as to the costs borne by the creators of copyright works and the risks which they face in a competitive marketplace. However, equally blameworthy has been an over emphasis upon the securing of rights in favour of a copyright holder with too little attention being paid to establishing the responsibilities which, in the eyes of the consumer, are the natural concomitants of the possession of those rights. In the long term, it is through a combination of existing rights and the adoption of an ethic of responsibility in relation to their exercise by which copyright holders will secure broad based compliance within the community.

 

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Principles of responsibility

What it is difficult to determine is exactly where and how those responsibilities should be adopted. To establish principles of responsibility in a copyright setting would be a difficult balancing act between the interests of consumers (who, let’s face it, want something for nothing) and the interests of copyright holders. At present, for the reasons we have discussed above, consumers often believe that they are being simply exploited by the copyright holder, or by another copyright holder which the consumer identifies them with. Principles of responsibility would be aimed at sublimating that feeling and demonstrating a copyright holder’s commitment to the consumer personally and the broader community in which the consumer lives but would do so in a manner which does not undermine the profitability of the copyright holder’s business. Clearly this is not something which could be attempted lightly and it is not the intention of the present paper to propose a definitive list of such principles might look like. Rather, to complete this paper, we merely propose three principles which may be of use in furthering compliance through a rhetoric of responsibility.

No hoarding

One of the traditional justification for copyright has been that, after the expiry of copyright, the work the subject of copyright enters the public domain and society receives a benefit in return for the monopoly rights it has granted to the copyright holder during the life of copyright. However, in many instances as the copyright work nears the end of its useful life, copyright holders fail to maintain it and fail to maintain its prominence (because its profitability has fallen over time). These works may, as a result, simply disappear from history because they have not been properly archived, or that archive has not been made public. Many early computer programs might fall into this category. Historically there have been simple reasons of cost which have driven this behaviour, although in some cases, old material is withdrawn in order to not cannibalise or to promote another market of the copyright holder. In the new economy those costs are greatly reduced. Copyright holders should be encouraged to put in place processes which will make material which is out of copyright or is nearing the end of its useful life (whether within copyright or not) accessible to the public, presumably over the Internet. Where copyright has expired, this is not so difficult, but is too late. Rather, where copyright still subsists, but profitability has fallen, a copyright holder could permit end users to reproduce the material for their own purposes, while retaining the ability to charge for value–added services that the holder provides (assuming that they are adding value independent of their monopoly rights).

As an adjunct, copyright holders should be dissuaded from hoarding of copyright works, seeking to retain control over them through the physical control of the media on which they are recorded. Equally they should be dissuaded from seeking to prolong copyright in material which has expired by recasting that material in a different context (one method that has been popular in the book industry is to place in–copyright illustrations around out–of–copyright text), at least if it is done in such a way as to prevent the out–of–copyright work being extracted. Any work which is not sold because of the production, distribution and marketing costs involved would be a good candidate for this treatment.

Copyright is not censorship

Much of the modern tension underlying copyright law arises from the rise to prominence that copyright works have in our daily lives. Seventy–five years ago it would have been unthinkable that an author would require someone else’s permission in order to type up their manuscript, or communicate that manuscript to a third party. No one would have dreamt that they would need such a permission [102] to simply perform the ordinary running of their day–to–day business. Today the reverse is true. Where once such a permission might have occasionally been required, for example, in respect of patents for specialised processes within a business, today a veritable plethora of such permissions are now necessary, ranging from operating system software, to word processing software and even to transmission software that runs a person’s modem. The means by which people interacted and the topics of their interaction also would have been about their direct personal experiences. Today, the topics of interaction tend to be vicarious experiences manufactured by and mediated through one of the major channels of pop culture, be it television, radio or print. It is now normal for ordinary people to conduct conversations about the goings on of fictional characters in television series or movies and for these conversations to comprise a substantial proportion of their interactions. Indeed, the outputs of these channels of pop culture form the basis of a cultural substratum over which we are able to interact with other people — being common points of experience. Individuals in different strands of work may have difficulty relating to each other’s everyday experiences at work. However, they are likely to have some common experience through the media channels that they watch.

To some extent this form of communication has evidenced itself on the Internet through special interest sites devoted to various topics and which include such things as excerpts from copyright works and fan fiction or derivative works. Strictly speaking, these sites are illegal. However, consumers see it as going directly against common sense for them to be, effectively, censored as a result. While this involves a complex balancing act, where such sites have no commercial interest, whether through subscriptions or through advertising, and truly are fan or discussion sites, holders of a copyright monopoly should consider exercising their discretion not to shut such sites down to the extent an infringement is a natural concomitant of discourse. Equally resorting to copyright in order to suppress criticism is a tactic looked upon dubiously by the consuming public [103].

No charge without value

Discussed above was the issue of format inflation which has faced consumers of music. Copyright holders should not endorse marketing systems which force consumers to repurchase works which they have already purchased unless there is some true value adding involved by the copyright holder. So, for example, where the copyright holder is merely performing a function that a consumer can do equally well, the consumer should be permitted to perform that function once they have legitimately acquired a base version of the work from which to work. The most obvious examples are media shifting, format shifting and time shifting of material. In particular, after the holder of a copyright monopoly has had an adequate opportunity to amortise development expenses plus profit for the particular subject of copyright, charges should only be made where true value add is occurring. For example, by selecting or arranging works, rather than requiring a payment for the mere making of a copy (which the end user can do for themselves). Of course, if the making of a copy is actually the service provided, the charge should reflect the actual costs in making that particular copy, plus an allowance for profit.

Equally, copyright holders should not endorse systems which force a consumer to move on to a particular version or edition of a copyright work. Software vendors make particular use of this tactic, for example, by refusing to licence older versions of a particular piece of software or by creating deliberate incompatibilities between new and old versions in order to encourage upgrading. This may have the consequence not only of requiring new acquisitions by a consumer to be of the new version, but may also require the upgrade of existing old versions — and all this where there is either no benefit at all to the consumer involved in the upgrade, or where that the consumer considers that the upgrade is unnecessary. This example is more relevant in consumer grade and marketed software than in commercial licensing arrangements.

Copyright holders should also resist the temptation to self–help with such systems as CSS and watermarking or restricting the sale of equipment which will permit copying. Such self–help mechanisms were prevalent at the start of the microcomputer revolution at the start of the 1980s, with copy protection being the name of the game. Over time consumers became thoroughly fed up with these systems and they survived into the 1990s only in relation to high–value, low–volume products (such as CAD programs). These days it is not at all unusual for consumers to purchase a DVD player either modified at sale to become all regions, or to modify it themselves after purchase. That this may be illegal or criminal appears to be of little concern to consumers. Ultimately self–help through equipment restrictions are unlikely to succeed because there are a wealth of legitimate uses for copying equipment (e.g., backup of data and normal operations). Equally, copyright holders may be doing themselves a disservice through these systems. If they are effective, why is copyright necessary? The argument would be, if self–help is effective, why do you need the benefit of the copyright, and, consequently ought not copyright then be revoked?

 

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Conclusion

By emphasising a rhetoric of rights copyright holders are not serving their best interests in the long term. By analogy to laws relating to property, our system of property works not through vigilant compliance and self help programs, but through tacit acceptance by all players of the mutual benefits involved through respecting property rights. Property survives and prospers as a regulatory system because those who do not respect property are a miniscule minority. If everyone — or even only 10 percent of the population — woke up tomorrow morning and decided to disregard those rights, there is nothing anyone could do to stop them. No amount of enforcement action would be to any avail and, in the (not so) long term, all of society's participants would suffer.

Some proponents of copyright seize on the apparent prevalence of infringing activities in societies which respect property laws, decry the evil that lies in the heart of the person in the street that they could so debase copyright holders’ rights, and push for more stringent protections for the holders of copyright. This does not address the problem that consumers (however incorrectly) perceive copyright to be a legislative scheme which is fundamentally illegitimate, in that it is made by and for a special industry, it provides protection to that industry without adequately returning to them what they give up by that protection, and in that it robs them of their natural rights to communicate with each other as participants in a society. Indeed, this is perhaps the key pressure point for consumers in the new era — the protection provided to this industry threatens to intrude on normal social interactions — and this is also a point from which consumers have no fallback position to retreat to. By and large, the additional protections sought are merely restatements of the existing infringement act — the act in question was infringing before the additional protections and remain so afterwards, although perhaps with more dire consequences.

In the world of the future copyright holders face serious issues about securing a return on their investment. With the coming of the frictionless age, consumers will be faced with a simple moral equation over copyright. If they fail to respect it, they will not perceive any immediate victim, or, if they do, they will perceive a blameworthy multinational as that victim. The solution to this problem will not come through further escalating the consequences of infringing activity, through more virulent public attacks on infringement though privacy invasive rights management technology or through hand wringing over the lack of “morality” in consumers of today. Rather, it is going to come through fostering self–enforced compliance with the laws. The reason that property laws work is because they are self–enforced in the vast majority of instances. They are self enforced because the general populace can see concrete benefits from their observance of those laws — in particular in relation to their own property. There is no equivalent in the case of copyright. Copyright, in the perception of the average consumer, is a right which exists solely for the benefit of other people, [104] one which provides the private content industry with a level of legislative protection paralleled only by monopolies for public works and utilities, and one which permits them to be time/price gouged for the creation of works. These perceptions are buttressed by the profits that the content industry extracts from consumer populations. The key therefore is to secure buy–in from consumers of the benefits of copyright. Inflated rhetoric about rights is seriously flawed in that consumers can easily perceive that the rhetoric is perpetually about the rights of other people — copyright monopoly holders. Instead copyright holders can follow a more constructive path, by acknowledging that the holding of a right carries with it responsibilities and that they will honour their responsibilities if consumers honour their rights. End of article

 

About the author

Brendan Scott is a lawyer currently working with a major technology law firm in Sydney. He was admitted to practice in 1993 and has practised in the areas of telecommunications and information technology law throughout his professional career. During that time he has acted for a broad mix of clients, both vendor and customer in these areas. Brendan is the current president of the New South Wales Society for Computers and the Law. Brendan is on the editorial board of the Internet Law Journal and is a former editor of Computers and Law.
E–mail: bscott [at] gtlaw [dot] com [dot] au

 

Acknowledgments

An earlier draft of this paper was presented in Session 8 for The Fifth Biennial Pacific Rim Computer Law Conference, Sydney, 23 February 2001. Much of the research in this paper, and many of the ideas had their inception in a seminar presented as a College of Law CLE Seminar on 16 March 2000.

The author thanks Tim Gole and Anisha Travis for their assistance in creating this paper. Mr. Gole spent many hours researching this material and produced an early draft of issues which formed the basis of the March 2000 presentation for the College of Law. Ms. Travis assisted through identifying a number of references for this material. Of course, any errors in or views expressed in the paper are mine. The orthography of this paper is Australian English.

This paper is not legal advice and the views expressed are those of the author, not those of Gilbert & Tobin or any of its clients.

 

Notes

1. The idea–expression dichotomy has come under pressure ever since the extension of copyright to cover derivative works and increasingly after the extension of copyright to cover computer software.

2. For example, explicitly through licence terms and in the rental right newly introduced as a result of TRIPS.

3. Interestingly, if the right to make copies is a property right it is arguable that some copyright statutes could be constitutionally invalid in that they remove a right to copy from citizens without providing any compensation and vest them in authors or publishers as the case may be. For example, § 51(xxxi) of the Australian Constitution prohibits any acquisition of property (in this case, the individual’s right to copy) other than on just terms. Other countries have similar constitutional restrictions.

4. In particular, the author.

5. “Whatever charm is possessed by the subject of copyright is largely due to the fact that it is a bundle of ideas and rights of modern origin ... The Homeric Poems as poetry are beyond reproach, but they never were copyright. You may search through the huge compilations of Justinian without lighting upon a word indicative of any right possessed by the author of a book to control the multiplication of copies; and yet books abounded even before the invention of printing, and though the pirate escaped animadversion, not so the plagiarist. Nor can you, even after the invention of the movable types, which rendered the reproduction of copies an easy, because a mechanical, process, discern any moment of time marking the epoch when the Western World recognised the right of an author as such to levy dues upon the published product of his own brain and intellectual industry.” A. Birrell, Seven lectures on the law and history of copyright in books, Rothman Reprints Inc., 1899 (1971 reprint) at page 9–10. Birrell also places the first copyright laws of France, Germany, Italy and Spain at between 1793 (France) through to 1870 (Germany).

“It is the French Revolutionary Laws of 13–19 January 1791 and of 19 July 1793 that represent the first, forthright recognition in Europe of the rights of authors, dramatists, composers and artists.” S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Kluwer, 1987, at 5, see also page 6ff.

Henry of Bratton’s (also known as Bracton, c. 1210–1268) summary of the laws of thirteenth century England De Legibus Et Consuetudinibus Angliæ (On the Laws and Customs of England) does state that writings can be punishable “as forgeries and libels”, but does not otherwise have any references to rights in the nature of copyright.

6. See W. Alford, To Steal a Book is an Elegant Offense, Intellectual Property Law in Chinese Civilization, Stanford University Press, California, 1995, in particular the discussion at Chapter 2: “Don’t Stop Thinking About ... Yesterday: Why There Was No Indigenous Counterpart to Intellectual Property Law in Imperial China.”

7. “Throughout twelfth–century Europe charters and title–deeds were frequently forged by monks, the experts in writing. They understood very well, from their experience in expounding and copying holy scripture, that a document which stated something untrue or unverifiable would continue to state it — and make it look authentic and proven — as long as that document existed.” (at 193).

“Forgers re–created the past in an acceptable literate form. They are best understood not as occasional deviants on the peripheries of legal practice, but as experts entrenched at the centre of literary and intellectual culture in the twelfth century. The most influential historical writer of the century, Geoffrey of Monmouth, probably invented most of the History of the Kings of Britain (written in c. 1136), although scholarly opinion will always differ about that.” (at 319.

M.T. Clanchy, Blackwell Press, Oxford, From Memory to Written Record, England 1066–1307, and more generally at page 318ff.

And, in relation to more recent history, see A. Grafton, Defenders of the Text, The Traditions of Scholarship in an Age of Science, 1450–1800, Harvard University Press, 1991, at 47 ff (although dealing more with intellectual dishonesty in interpretation of texts).

8. Grafton, ibid., at 63.

9. In researching the Columba legend one is apt to encounter the story repeated with little variation (an indication of common parentage) but to search in vain for adequate references. It seems poor old King Diarmaid only had an oral tradition supporting his history. One of the more colourful descriptions of the Columba story can be found in The Count de Montalembert, The Monks of the West from St Benedict to St Bernard, William Blackwood and Sons, London, 1867, Vol III, at page 118 ff, replete with a (credibility buttressing) description of the marvellous light springing from the good Saint’s fingers as he copied the psalter. Birrel, op.cit. at 42, specifically references this work and concludes that the legend “has been voted unworthy of belief”.

10. Compare: “By far his [Colmcille’s] most influential foundation, however, was the monastic settlement Colmcille [Columba] created for his own voluntary exile. In 563, two years after a war of which he was the instigator, he settled on the little island between Irish and Scottish Dab Riada which had up to that time borne the stark name I (‘isle’), but which thereafter in Irish has usually been called I–Cholmcille, and has otherwise been Anglo–Latinized lona. The war had been an unpriestly attempt to avenge blood with blood, when Colmcille roused his own tribe against King Diarmaid to requite the slaying of a cleric, and had led to a bitter battle near the present Drumcliff, beneath the slopes of Benbulbem.

Colmcille’s exile was apparently a self–imposed penance, but later Irish writers have often assumed it to have been the result of judicial sentence. Furthermore an intriguing and often–repeated story was invented to account for the war as arising from a breach of copyright. According to this legend, Colmcille surreptitiously copied a Gospel or Psalter which belonged to St. Finghin, and which Finghin had forbidden him to copy. In a subsequent lawsuit the decision was awarded to Finghin, the judgment being based on the laws regarding cattle ownership: ‘To each cow her calf, and to each book its son’ (mac–leabhair, ‘son–of–a–book,’ is Irish for ‘copy’). "Colmcille refused to surrender his book, and his clansmen rallied to his defense against the king. Such is the apocryphal tale.” (our emphasis) B. O’Hehir, A Gaelic Lexicon for Finnegans Wake and Glossary for Joyce’s Other Works, University of California Press, Los Angeles 1967, at pages 375–376.

11. Note that “letters patent”, from which the modern term “patent” has derived, simply means an “open letter”, albeit one signed by the King and backed by his authority.

12. Actually, to the Western world. “Historians locate the invention of woodblock printing [in China] between 590 and 650 and the development of moveable type by Bi Sheng at around the year 1000.”, W. Alford, op.cit., at 135 note 28.

13. For another, excellent, history of the origins of copyright law in England and the United States, the reader is referred to L. Ray Patterson, “Free Speech, Copyright, and Fair Use,” 40 Vanderbilt Law Review, 1 (1987).

14. The Prince was published in 1513 and was the first theory of a secular State based on political power.

15. For example, see note 5 above on Henry of Bratton’s (also known as Bracton, c. 1210–1268) summary of the laws of thirteenth century England De Legibus Et Consuetudinibus Angliæ, and also the Statute of Westminster I CAP XXXIV, where the reporting of “false news ... whereby discord ... may grow between the King and his People”, quoted in D. Pickering (editor), The Statutes at Large, From Magna Carta to the end of the Eleventh Parliament of Great Britain, Joseph Bentham, Cambridge 1763, Vol VII, at page 97.

16. Various proclamations can be found in E. Arber, (editor), A Transcript of the Registers of the Company of Stationers of London 1554–1640 (two volumes). From volume 1 of the transcript, for example are: (a) in 1555, banning anti–Catholic writings (the spread of “false doctryne ... agaynste the catholique fayth”) (at I. 52), (b) in 1558, banning books of “heresye, sedityon and treason” — if a person was found with such “wycked and seditious” books or, if a person discovered them and failed to burn them prior to reading them to another person, they were subject to being judged a rebel and executed (!!) (at I. 92); (c) in 1569, against writings drawing people “sediciously from their dueties and allegiance due to her Maiestie [Elizabeth I], as their onlye soueraigne” [that is, banning writings against Protestantism/Anglicanism] upon “payne of her Maiesties greeuous indignation, and to be punished seuerely, as the qualitie and circumstaunces of the offence shall require and deserue” (at I, 430); (d) separately in July and November 1570, banning seditious/anti-Protestant writings including “trayterous bookes and Bulles, as it were from Rome” thereby “with vntruthes and falsehodes, yea with diuers monstrous absurdities to the slaunder of the Nobilitie and Counsell of this Realme, ... to ingender in the heades of the simple ignoraunt multitude, a mislykyng or murmuryng agaynst the quiet gouernment of the Realme” under pain of being thrown in gaol (at I. 452–453); (e) in 1573, banning a book called Admonition to Parliament and books defending that book [an anti–Puritan proclamation] (at I. 464); (f) in 1576, banning seditious publications (at I. 474); (g) and, in 1583, banning specific books written by Robert Browne and Richard Harrison [both Puritans] (at I. 502). The general tenor of these proclamations strongly reflects the religious conflict going on in England at the time.

17. The Treasons Act 1534, 26 Henry VIII c 13 (quoted in Select Documents of English Constitutional History, Adams and Stephens (editors), Macmillan Company, New York, 1902, at 240).

18. It is of interest to note that the purpose of Acts such as these was specifically to restrict the production and distribution of books, pamphlets and other written materials — not to encourage it. We also note that Chinese law went through a similar “control of the press” stage which did not proceed to laws in the nature of copyright. Alford, op.cit,, at 13 ff.

19. A. Birrell, op.cit., at 36.

20. Ibid., at 55–56.

21. The Charter is quoted in full in Latin and translated into English in Arber, op.cit., at I. xxviii–xxxii.

22. Ordinance of the Star Chamber for the Censorship of the Press, 1566 Broadside No. 57 in the Library of the Society of Antiquaries of London, quoted in Arber, op.cit., at I. 322. See also, Prothero, 168, 169 quoted in Adams and Stephens, op.cit.. at 315.

23. It is often remarked upon that the works of Shakespeare, which are generally acknowledged as the pinnacles of English literature, were produced in the complete absence of a scheme for the protection of authors and, indeed, produced during a period in which censorship was the name of the game.

24. Birrell, op.cit., at 58, 59.

25. Ibid. at 60.

26. Ibid. at 60–63.

27. Ibid. at 64.

28. H. Kinder and W. Hilgeman, Penguin Atlas of World History, Vol. 1, at 267.

29. Birrel, op.cit., at 65.

30. Act Declaring what Offences shall be Adjudged Treason under the Commonwealth, 17 July 1650, Scobell, ii. 65, Gardiner, 388–391, quoted in Adams and Stephens, op.cit., at 400.

31. 16 Car II ch. 8 (1664); 17 Car II ch. 4 (1665); I Jac. II ch. 17 fl 15 (1685); 4 & 5 W. & M. ch. 24 flXIV (1692), cited in L Ray Patterson, op.cit. at 23.

32. Bill of Rights, 16 December 1689, 1 William and Mary, sess, 2, c. 2, quoted in Adams and Stephens, op.cit., at 462.

33. “That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”, ibid. at 465.

34. The Act was referred to a committee to review whether or not to extend the Licensing Act. The committee reported to parliament in April of 1695 pillorying the Licensing Act on a number of grounds — 7 W. III Journals of the House of Commons, at page 305–306.

35. Birrell, op.cit., at 80, 81.

36. Ibid. at 82.

37. Act of Union with Scotland, 6 March 1707, 5 Anne c. 8, Adams and Stephens, op.cit. at 479.

38. 1709 Copyright Act 8 Anne c 19.

39. Booksellers of the Company of Stationers cashed–up from their monopolies brought claims to wear down small booksellers.

40. W. Blackstone’s Reports, I, at 300.

41. Birrell, op.cit., at 111–120.

42. The questions answered in Millar v Taylor were “1st, Whether the copy of a book belongs to an author. 2nd, Whether the common law right of authors (if any) to the copies of their own works is taken away by 8 Anne, c. 19”, quoted in Birrell, op.cit., at 113.

43. or example, refer to argument and opinion in the U.S. Supreme Court in Wheaton v Peters 33 US 591 (1834).

44. Birrell, op.cit., at 123.

45. Ibid. at 124–127.

46. J. Barnes, Authors, Publishers and Politicians, The Quest for an Anglo–American Copyright Agreement 1815–1854, Routledge & Kegan Paul, London, 1974, at 262. Barnes’ work provides a detailed, if discursive, account of the history of the protection of foreign copyright in mid–nineteenth century America.

47. “As a country, nineteenth century America was akin to a present–day underdeveloped nation which recognizes [sic] its dependence on those more commercially and technologically advanced, and desires the fruits of civilization [sic] in the cheapest and most convenient ways. Reprinting English literature seemed easy and inexpensive, and so America borrowed voraciously.” Ibid. at 50.

48. 33 US 591 (1834).

49. It is a pity for U.S. copyright monopoly holders that no colonies were established between 1769 and 1774.

50. L. Ray Patterson, op.cit., at 63.

51. Hansard (1837) quoted in J. Braithwaite and P. Drahos, Global Business Regulation, Cambridge University Press, 2000, at 59.

52. Ibid. at 59.

53. Ibid. at 60. For a more detailed history of this period see Ricketson, op.cit., at 46ff.

54. Ibid. at 60.

55. Ibid. at 62.

56. Compare this with the United States’ rather more relaxed approach to its own “borrowing” of material from foreign authors in the nineteenth century (see note 47 above) or its reaction to the European Directive 95/46/EC on personal privacy which it saw on one level as a threat to its independence as a sovereign nation and fiercely opposed as an attempt to influence the laws of the United States.

57. Document MIN.DEC of September 20, 1986, pp. 7–8 quoted in D. Gervais, The TRIPS Agreement, Drafting History and Analysis, Sweet & Maxwell Limited, London, 1998, at 11.

58. “In comparing this text with the TRIPS Agreement, the work accomplished between Punta del Este [the meeting in 1986 which launched the Uruguay Round] and Marrakesh becomes readily apparent: the broadest and most extensive multilateral agreement in the field of intellectual property, covering basically the entire area and adding enforcement, acquisition and most–favoured nation obligations to new and existing rules and incorporating those rules in what could be considered the only truly effective and binding dispute settlement mechanism between States was negotiated on the basis of a limited initial mandate ... One could thus say that the entire TRIPS Agreement, with the possible exception of enforcement provisions destined to curb trade in illicit goods (which had been previously envisaged in GATT) rests on the final words on the first paragraph” ‘and elaborate as appropriate new rules and disciplines’.” Ibid., at 11.

59. It is somewhat ironic that the GATT, which is committed to the reduction of protectionism, was used in a protectionist way to secure the TRIPS agreement. In order to gain the benefit of the Marrakesh Agreement relating to the trade in goods and services, countries are required to agree to the newly introduced content monopoly protections set out in the TRIPS annexure. For its 60 or so year history pre–TRIPS GATT had little or no content monopoly provisions, and those which it did have largely related to trademarks. Effectively the regulation of trade in goods and services is subsidising a higher regulatory price for ip protection. In a startling display of doublespeak, this protectionism has not only been dressed up in the language of free trade but also integrated into the fabric of the GATT international trading arrangements. The negotiating strength of its proponents must have been extraordinary.

60. In Felten v RIAA (6 June 2001), Professor Felten, with the backing of the Electronic Frontier Foundation, launched a suit seeking a number of heads of relief, the main thrust of which is that the application of the Digital Millennium Copyright Act to the publication of scientific, academic or technical speech, including the publication of computer programs, violates the First Amendment to the United States Constitution. See http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010606_eff_complaint.html.

61. “This Strategy proved so effective that disputes over intellectual property issues during the Uruguay Round became disputes between the intellectual property triumvirate, the U.S., Europe and Japan ... It was the U.S., more specifically the U.S. business community, which made all the running on the matter of intellectual property”, Braithwaite and Drahos, op.cit. at 63. See also D. Gervais, op.cit. at 13 ff (in relation to the initial drafts of the TRIPS agreement being produced by the EC and the U.S.).

62. Probably as a result of such things as laws and rules against comparative advertising and misrepresentation.

63. Netscape, Napster, Id Software (makers of the computer games Doom and Quake) and Apogee (the makers of the computer game Duke Nukem 3D) are some examples.

64. Both for vendor businesses (in terms of what they are prepared to sacrifice to secure a deal) and customer businesses (in terms of what they are not prepared to pay for).

65. http://www.redhat.com.

66. Such as tax concessions.

67. As we noted above Imperial China innovated its way to be well ahead of the balance of the world in the absence of property rights over innovations.

68. Edgar Bronfman, Jr., Remarks As Prepared For Delivery by Edgar Bronfman, Jr. Real Conference 2000, San Jose, California, 26 May 2000, http://www.mpaa.org/copyright/EBronfman.htm.

69. A. Odlyzko, “Content is Not King,” First Monday, volume 6, number 2 (February 2001), at http://journals.uic.edu/fm/article/view/833/742. http://dx.doi.org/10.5210/fm.v6i2.833

70. While having perpetually available content might seem prima facie attractive, presumably it would be ultimately an empty experience, true enjoyment and fulfillment coming from interacting with other human beings, however restricted that interaction.

71. In this case, the High Court found, by reference to a specific section of the then Copyright Act 1968 dealing with “diffusion services”, that the provider of telecommunications infrastructure was liable when its subscribers played music to each other over that infrastructure — even where the infrastructure provider was merely a passive conduit for that music. In short, the infrastructure provider is liable and that liability translates into higher fees for all users — either by recouping the cost of licence fees, or recouping the administrative costs of regulating use of the service to prevent the payment of licence fees. More recent amendments to the Copyright Act have mollified this to some extent. Telstra Corporation Limited v Australasian Performing Right Association Limited, (1997) 191 CLR 140.

72. In Australia object code of software was not protected by copyright up to 1984, the High Court of Australia having held in the “Apple Case” that object code was not protected by copyright Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171. This was “fixed” by ad hoc legislative amendments to the Copyright Act in 1984 — the disparity in dates resulted from the Legislature not wanting to wait for the outcome of the case before patching the Copyright Act, however the court was determining the question on the basis of the unmodified Act.

73. Consumers may point to the disparate salaries earned by some members of the content industry, such as actors and musicians as evidence of this rent.

74. “For example, nothing that was created after 1910 has entered the public domain, because as the years went by, the term of copyright kept getting extended. But the copyrights created by technological restrictions are not even designed to end. There is nothing in the SDMI or CPRM spec that says, ‘After 2100 you will be permitted to copy the movies from 1910’.” J. Gilmore, Private correspondence to Ron Rivest 19 January 2001, subsequently distributed under the heading “What’s Wrong With Content Protection”, at http://www.chguy.net/news/feb01/gilmore-copy.html.

75. No one could seriously argue that the first version of MS–DOS will have any value when copyright on it expires decades after the death of Bill Gates, for example.

76. See, for example, IBM’s Linux Web page “For years, IBM has celebrated the non–proprietary nature of the Linux operating system and the Open Source movement in general. And now, it’s hit the big time. In fact, it’s rapidly becoming the operating system of choice for many of today’s critical computing workloads. And IBM is there to support it every step of the way.” See http://www-4.ibm.com/software/is/mp/linux/.

77. Follow the StarOffice links at http://www.sun.com. At the time of writing (February 2001), Sun has reported 4.4 million downloads of its StarOffice product. See also www.openoffice.org.

78. In particular, WordPerfect 8 for Linux. It is a fully functional word processor, but the licence is limited to non–commercial use; see http://linux.corel.com/products/wp8/features.htm#breakdown. Apparently Corel intends to leverage off this free download to sell its Office product for Linux.

79. Under Australian law copyright holders are able to enter into arrangements in relation to works in which that copyright subsists which would be illegal if entered into in relation to other goods or services. See section 51(3) of the Trade Practices Act 1974 (Cth) at http://www.austlii.edu.au/au/legis/cth/consol_act/tpa1974149/s51.html.

80. On 31 January 2001, the New York Times ran a story about Mr. Ray Lines and his chain of “Clean Flicks” video outlets in Orem, Utah. Mr. Lines uses video editing equipment to remove those scenes and swear words that Mr. Lines considers inappropriate. For example, the Times notes that Mr. Lines removed scenes of prisoners in Nazi concentration camps stripped of their clothes from Schindler’s List because “he felt their appearance overstated their dehumanization [sic]”. Mr. Lines’ argument is that he wants to provide an alternative for his community (who are mostly Mormon). Despite advice Mr. Lines has received to the contrary, he is probably breaching copyright by renting out the modified movies. However, Mr. Lines is probably on strong political ground if he were to fight any action by the respective copyright holders; “Utah Shop Offers Popular Videos With the Sex and Violence Excised”, New York Times’ Web Site at http://www.nytimes.com/2001/01/31/national/31UTAH.html.

81. Such as the right to quiet enjoyment of the property and non–derogation from grant.

82. Subject, perhaps, to certain provisions not being enforceable as being generally against public policy.

83. It is for this reason that copyright monopoly holders have sought (with great success) to shift breaches of their monopoly from the civil into the criminal sphere, thus converting their enforcement costs into costs borne by the public purse.

84. http://www.napster.com.

85. “Gnutella is an open, decentralized, peer–to–peer search system that is mainly used to find files. Gnutella is neither a company nor a particular application. It is also not a Web site; in particular, it is not this one, which is merely a hub for Gnutella information. It is a name for a technology, like the terms ‘e–mail’ and ‘web.’” www.gnutella.wego.com — note, not www.gnutella.com, www.gnutella.org, or www.gnutella.net as one might expect.

86. “Freenet is a distributed decentralised information storage and retrieval system. It is designed to allow the free distribution of information on the Internet without fear of censorship. To achieve this it provides anonymity to those placing information into Freenet, and those accessing information from Freenet. It is also totally decentralized, nobody is in control of Freenet, not even its creators. This makes is virtually impossible to force the removal of a piece of information from the system. Further, Freenet provides many efficiencies over more conventional means of information distribution such as the World Wide Web through its dynamic caching and mirroring of content.” See freenet.sourceforge.net.

87. When the MPAA commenced action against sites hosting the DeCSS computer code used to decrypt content encoded on DVDs the source and object code of that program was mailed to mailing lists around the world — a form of archival spam to ensure it would be available in the future regardless of the outcome of the case.

88. History may condemn RIAA as being particularly foolish in suing Napster, a service which is able to track infringers to some extent, because users will thereby be pushed in the direction of more anonymous and anarchic services such as Gnutella and Freenet where infringement is not so easily tracked (see quote in the earlier footnote about the design goals of Freenet) and where contributory infringement arguments are less readily available, if available at all. A more sensible approach might have been to reach a détente with Napster along the lines that BMG has sought. Properly managed, i.e., without the publicity surrounding the Napster case, and especially without an injunction shutting Napster down, a Napster/RIAA alliance could have been able to finesse a significant proportion of Napster users into a subscription type service and stopped leakage over to harder to track services.

89. Indeed, format inflation continues with industry pushing oversampled 48 or 96 kHz and 24 bit recordings to replace existing 44kHz/16 bit recordings. However only the expert human ear can discern the nuances of 44 kHz/16 bit recordings.

90. See the Music Owners’ Listening Rights Act of 2000 sponsored by Congressman Rick Boucher (Virginia) at http://www.house.gov/boucher/docs/molra.htm.

91. Distribution systems such as Gnutella and Freenet are designed to subvert tracking of infringement, rather than to provide a means of storage which is not of itself infringing.

92. There would, of course, be more ways than that to skin a cat. They might take all the vowels and put them somewhere, putting the consonants somewhere else. They might take the first two letters of each word and put them somewhere with the next two somewhere else and so on. However, the reader should get the gist of the idea.

93. Although its precursors have developed over a period of some decades. See e.g., Tim Berners–Lee, Weaving the Web (Harper, 2000).

94. To save you the maths, this is equivalent to saying use was particularly widespread as at about 1991. Arguments could be made to push this date back to, say, 1986.

95. Query whether the difference is perceptible or relevant.

96. As at February 2001. No doubt that has increased substantially by the time you read this, historically having doubled every 18 months or faster.

97. For example, in the 70s and 80s blank tapes of any quality would sell for anything up to 50 percent of the cost of an original tape recording.

98. http://www.bluetooth.com.

99. http://www.radiata.com.

100. For example, a house may have a network connection to its neighbours, and they to their neighbours and so forth. Alternatively, a person in a shopping mall may be networked to any other person within a ten metre (perhaps greater!) radius creating a network from a series of ten metre hops (the distance, centre to centre, for single fronted terrace houses in Sydney is about four or five metres, streets separate houses by about ten to twenty metres wide). It is not beyond the realms of possibility that such a network would include a large portion of the population of any average city (for those who work in yards, one metre is about 10 percent longer than one yard).

101. W. Alford, op.cit., at 129, note 13 gives the example of losses resulting from infringement by Chinese students calculated by reference to U.S. dollar list prices, which those students could not possibly afford.

102. That is, a licence, this being a more legal sound word for a simple English concept. The copyright monopoly is an absolute prohibition on the performance of certain acts, subject to that act being licensed (that is, permitted) by a person who has the right to grant that permission.

103. For example, as at July 2001, in order to listen to streaming audio of the Australian Parliament, it is necessary to agree to a “click wrap” agreement on terms which include the following: “Copyright of the material broadcast belongs to the Commonwealth Parliament and no unauthorised use may be made of that material. ... (i) The material shall not be used for: — political party advertising or election campaigning — satire or ridicule — commercial sponsorship or commercial advertising”. In effect, the copyright monopoly is being used to prevent the citizens from making political or commercial use of the proceedings of their own parliament — although this restriction is not, to the author’s knowledge, present when proceedings are streamed through other media, such as TV or radio.

104. This perception of consumers has a solid grounding in fact. Very rarely are consumers themselves also vendors of copyright works.


Editorial history

Paper received 10 August 2001; accepted 17 August 2001.


© 2001, First Monday.

Copyright in a frictionless world: Toward a rhetoric of responsibility
by Brendan Scott
First Monday, Volume 6, Number 9 - 3 September 2001
http://www.firstmonday.dk/ojs/index.php/fm/article/view/887/796





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