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Copyright through the Looking-glass

By Tom Rivers

Copyright and media consultant

Copyright through the Looking-glass




Copyright through the Looking-glass

“Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!” Lewis Carroll, Through the Looking-glass, ch. 2[1]

It may be hard to specify when the digital age began. But it is worth picking out some of the landmarks to help us see what it is that we are looking at.

A pebble at the top of the mountain: a prediction by Gordon E Moore, a co-founder of Intel.

In a paper published in 1965 Moore predicted that the number of transistors that could be accommodated at minimum cost on an integrated circuit would double every year. Subsequently, he adjusted the prediction to a doubling about every two years, and in that form it is now known as Moore’s Law and has proved stunningly accurate.

In practical terms Moore’s Law has meant that whereas the equipment comprising Manchester Mark I, the earliest full-scale implementation of a Turing machine, occupied three walls of a large lab at Manchester University in 1948, a consumer can now buy a laptop costing under £500. The distribution of computing power in consumer devices is a fundamental element of the digital age.

Conway and Mary Berners-Lee met while working at Ferranti on the first industrial version of Manchester Mark 1. Their son, Tim, born in 1954, is acknowledged to have brought the World Wide Web into existence in the early nineties – another landmark in the digital age.

According to UNCTAD mobile phone subscriptions in the continent of Africa grew from 54 million in 2003 to almost 350 million by 2008; in South Africa mobile phone subscriptions were equal to 1 per person; in Kenya the figure was 40 subscriptions per 100 inhabitants. The China Economic Review reports mobile phone penetration in China at 52.5% in the first half of 2009: this is roughly 670 million subscribers.

The picture then looks like this: we have a world which is more and more interconnected, and in which telecommunications, the internet and computer technology are putting more and more means of communicating into the hands of ordinary people. Is this something we should welcome? Is it something we should be afraid of?

Whatever our hopes or fears it is clear we cannot turn the clock back.

And what has any of this to do with copyright?

For some stakeholders there is a very straightforward answer: piracy. It is now much easier, they say, to steal content, and much more difficult to catch the thieves. One answer is to find bigger and better locks to put on the doors. Another is to persuade the distributors (the people who own the pipes and the portals) to enlist in the fight against unauthorised users.

In France and in the UK legislation is now on the statute book which places some responsibility on access providers for what their customers do.

But in a global economy, enforcement becomes a political issue.  Legislation if it is to be effective needs to have a multi-national reach. Many in the developing world see the TRIPS Agreement of 1994, which does provide for the possibility of trade sanctions, as a great concession which they made and which entitles them to pay back.  The debate in the World Intellectual Property Organisation has consequently turned away from a normative agenda, which seeks to modernise rights, to a development agenda, which takes up once again the Stockholm Protocol concerns – in other words, ways to carve out exceptions and limitations to exclusive rights. Rather similar dynamics are at work in discussions at WIPO on patents and on traditional medicine.

Other aspects are at least as important as the political.

In the old world, copyright was about authorship, ownership and market control. In the new world, authorship and ownership survive, but market control is contested. The business models which are being adopted by the owners of the new means of distribution provide for thinner slices of the cake for content. What this means is that more of the consumer spend is going on new equipment, leaving less for copyright products, which are in any case increasingly being bundled with the equipment. This might turn out to be a less material consideration for what in the old world would have been thought of as print-based products, because in a digital world some of the old costs have evaporated as the print product goes digital – no warehouses, no paper. But the film industry, for example, has long lead times for product development and requires considerable front-end investment. It is also uncertain whether on-line distribution can replace theatrical distribution.

There are on top the ideological issues – “wars of religion” we may call them.

Before market control there were other forms of control. The ruler always had an interest in orthodoxy, as did the Established Church. The Index, the Inquisition, Star Chamber, Licensing and Stamp Acts are all manifestations of the same purpose.

The system of licensing operated by the Stationers’ Company up until the legislation lapsed in 1681 gave the Company a monopoly of officially sanctioned publication. What was officially sanctioned by no means captures the entirety of what was available.

For instance, the thriving business of reporting parliamentary proceedings – not only not officially sanctioned but unlawful – involved the production of newsletters by scribes (no print) and more or less clandestine circulation to subscribers. Dissent, in the sense of religious and political opposition, was carried on in pamphlets, which were often scurrilous as well as anti-establishment. Gentlemen had copies of their poetry made to give (not sell) to their friends.

The Act of Anne does not seem to have made a great deal of difference in the short run to the practice of the established trade. It was other factors than copyright which were more influential. These included the rise in the level of literacy, the creation of a middling class of merchants and traders, and the emergence of a new literary form, the novel.

Meanwhile, traffic of the non-respectable kind continued to thrive: Tom Paine’s Common Sense which argued the case for independence for the American colonies was published in Philadelphia in 1776 and sold half a million copies in the first year – Paine donating his royalties to Washington’s Continental Army.

It is easy enough to see the potential tension which existed from the start in the US between, on the one hand, the power conferred on Congress by the Constitution “(t)o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” and, on the other hand, the First Amendment bar on Congress making any law abridging the freedom of speech or of the press.

Dissidents, when they put their case to the public, have always made the claim that their speech is “free” in the sense that it is unconstrained, uncompromised by corrupt influence, but also not a product of the market. Hence the “free” press (which in fact later simply meant advertiser-supported), the samizdat movement, the anti-establishment press (Iskra, Claud Cockburn’s The Week, I F Stone’s Weekly, Private Eye).

Some of the denizens of the blogosphere would perhaps claim these as ancestors.

Will copyright survive?

The cynic’s answer to that question is that efficient market regulation is indispensable within the borders of large geo-political entities. If this is true, then one would expect that the next 25 years will see countries like India, China and Brazil with fully developed systems for rewarding the intellectual productions of their own citizens.

[1] Alice in Wonderland and Through the looking glass, Collins Classics edition 1964, Page 164.

Tom Rivers

Tom Rivers has worked for the last fifteen years as a copyright and media consultant. His clients have included BBC Worldwide and the Association of Commercial Television in Europe. He has also contributed to a European Commission research project on the value of the public domain and has worked for the US Agency for International Development in Bosnia Herzogovina. He joined the BBC’s Legal Division in 1981 and was the Corporation’s Head of Copyright from 1990 to 1995. Before qualifying as a solicitor he worked in book publishing in London and New York and ran a small publishing company in Cambridge, Rivers Press.

28 April 2010

Abstract: Developments in computer and communications technology have put into the hands of ordinary people the means to join in a global interchange of information, ideas and forms of expression.

The problem of piracy in the digital environment can be addressed to some extent by technological means. Governments in western Europe have also taken legislative initiatives to impose some obligations on access providers.

Enforcement is made problematic because piracy is multi-territorial and therefore needs multilateral solutions. Developing countries are pursuing a different agenda at WIPO which is more focussed on exceptions and limitations than on updating rights or enforcement.

New business models squeeze the share going to rightsowners in the value chain.

The ideological issues relate to the control exercised by state and other authorities over the publication of dissenting material.  There is a tension, reflected in the US law, between free speech and the Copyright Clause.

Large countries are likely to want to continue to provide protection for the intellectual productions of their own citizens.

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