[free-sklyarov] Copyright in a Frictionless World

[James S. Huggins (Free Sklyarov)]

"Copyright in a Frictionless World"

http://firstmonday.org/issues/issue6_9/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]...