Copyright in the 21st century

In 1557 the guild of stationers was granted a royal charter and became the Stationers' Company, leading to the creation of the stationers' copyright, which was a private agreement “granted by a group of businessmen who agreed to allow one of them the exclusive right to publish a specific work in perpetuity” (Patterson & Lindberg, 1991, p22) rather than an actual law. This copyright was created for two purposes; to protect the publishers of works and to aid the government in its attempts at censorship. (Patterson & Lindberg, 1991, p25) Modern copyright differs in its goals and execution, but is in some ways based on that first version.

A more direct antecedent of modern copyright, however, is the 1710 “Statute of Anne” which “[created] the public domain” (Patterson & Lindberg, 1991, p29) by limiting the term of copyrights and eliminating the monopoly on printing that had been held by the Stationers' Company. This law was exported to the US and serves as the basis for modern copyright law, intended as “a limited right in the interests of society … [granting] a limited trade monopoly in exchange for universal use and access” (Collins, 2008).

This trade monopoly “provides a vital economic incentive for … creation and distribution” of creative works (Netanel, 2008, p3), but in the age of digital media and participatory culture, where the line between consumers and producers is blurred (or erased), questions arise as to the applicability or validity of traditional interpretations of copyright (Collins, 2008). In the contemporary media environment, traditional applications of copyright may be becoming unworkable.

One response to this has been the introduction of Digital Rights Management (DRM) software, which “looks to technologies themselves to regulate or make unavailable those uses of content traditionally handled through law” (Gillespie, 2006, p0). Such software seeks to literally prevent unauthorised reproduction (or use) of copyright material rather than attempting to discourage such use or reproduction through penalties after the fact.

This has the potential advantage for publishers of bypassing much of “the bureaucracy of enforcement and adjudication ... [and extending] well beyond copyright regulation” (Gillespie, 2006, p1), meaning that they no longer have to spend money persuing copyright violators through the legal system and have greater control over the ways that consumers can use media. However, such advantages may not actually be realised in practice.

In fact, some believe that DRM software is actually injurious to the very businesses that make use of it. Citing the example of the monopoly on telephone equipment formerly held in the United States of America by AT&T, Doctorow (2008, p13) states that “when that ban was struck down, it created the market for third-party phone equipment … billions of dollars of economic activity that had been suppressed … [and] AT&T was one of the big beneficiaries of this”.

Doctorow (2008, p13) considers DRM the digital equvalent of the “closed hardware interface” that gave AT&T its monopoly and therefore a barrier to increased opportunity and profits for business. But this is not the only issue for businesses wishing to make effective use of DRM. A second problem arises in that DRM systems often fail to live up to expectations.

“DRM systems are usually broken in minutes, sometimes days. Rarely, months.” (Doctorow, 2008, p7) This is why copyright holders turn once again to legal recourse. Laws such as America's Digital Millennium Copyright Act (DMCA) make it illegal to circumvent DRM protections (Electronic Frontier Foundation, n.d., para 1) and to “[distribute] tools and technologies used for circumvention” (Unintended Consequences, 2013, p2). This raises questions of user agency and the ways in which one is allowed to use one's own property. This is “fundamentally at odds … with [broad] cultural presumptions about technology” (Gillespie, 2006, p8).

Typically, if someone buys a product it is then wholly the property of that person and they are free to do with it as they wish. They “may investigate, change, break, or rebuild, so long as [they] do not endanger others in the process” (Gillespie, 2006, p8). The legal restrictions inherent to the DRM-based copyright protection philosophy change this dynamic, effectively making it a crime to even fully understand one's own property and how it works, as the intention is to secure devices against the people who legitimately own them and make it a crime to “hack” one's own computer (Doctorow, 2008, p12).

The issue here is that in an attempt to curtail illegal activities, these measures have also erected barriers to what is considered a reasonable and expected use of private property. They can also diminish the value of the product to the consumer by “[adding to] costs … [and interfering] with normal computer functions and can be highly intrusive” (Colman & Dyer-Witheford, 2007, p940) which could naturally lead to a reduction in the demand for these products.

But the effects on business are only one side of the problem. The issues for consumers and “content producers” (authors, computer programmers, filmmakers, etc.) are much more pronounced, and in the modern age the distinction between the two is being blurred.

“'Fair use' is a crucial part of our copyright system [allowing] any of us to quote and reproduce … copyrighted works, if the use advances creativity and democratic discussion” (Heins & Beckles, 2005, p0) but copyright enforcement in the modern age threatens this freedom by allowing copyright holders to “cause the suppression of speech they don't like without ever going to court” (Heins & Beckles, 2005, p5).

The problem here is that this legally protected right requires that we be able to access and modify the material, but the existence of DRM and the laws that protect it make it a crime to gain such access, and so “fair users will be found liable for 'picking the lock' and thereby violating the DMCA, whatever the merits of their fair use defense” (Unintended Consequences, 2013, p11).

Even where no DRM violations exist (or can be proved), the DMCA allows for companies to order material to be taken down by web hosts (such as ISPs, search engines, streaming video services, etc.) on the simple basis that they believe it contains copyright material owned by them.

“There is widespread support for fair use and free expression, and discontent with overzealous IP enforcement efforts” (Heins & Beckles, 2005, p54) but as it currently stands, “because the DMCA does not mention fair use, [there is] no requirement to consider it” (Collins, 2008) so companies can order the removal of both illegal, copyright infringing content as well as fair use content which would never be considered an infringement by the courts.

The core of this over-zealous enforcement is the assertion that forms the basis for the DMCA, that “ every reading or viewing of a work on a computer should be considered a reproduction requiring copyright permission” (Heins, 2003, p24). This assumption makes it reasonable to conclude that even copying material from one device to another for personal use is a violation of copyright, and if that is the case then DRM preventing the user from making backup copies of discs or files should be protected. But this new law sits alongside traditional copyright law, which specifically allows copies to be made for personal use.

The result is a situation where it may be legal to make a copy of a copyrighted work under fair use provisions, but to actually do so would require the breaking of DRM protections, which is a crime. To exercise your rights you must break the law, which effectively means that one law removes the rights granted by the other. It seems impossible to eradicate illegal copyright infringement such as piracy (of software, music, films, etc.) without “some infringement of intellectual freedom” (Heins, 2003, p34).

This presents a dilemma for lawmakers. It seems obvious on the one hand that the rights of authors and publishers should be protected, but “there is no question that ... anti-circumvention laws stifle legitimate research, communication, and use of creative works” (Heins, 2003, p34), and those uses are also worthy of protection.

Historically, “whenever a new technology has disrupted copyright, we’ve changed copyright” (Doctorow, 2008, p20) and today's digital technology and global media has certainly exposed some flaws in the existing copyright framework, and DRM serves only to prop up that failing framework (Doctorow, 2008, p21). DRM is not the solution, traditional applications of copyright are no longer suitable for the world in which we now live and it is past time for a shift in the concept of ownership of ideas. We need a system that works in today's world, not a way to force today's world to revert to the world of the past.

Collins, Steve. (2008). Recovering Fair Use. M/C Journal 11 (6). Retrieved from http://journal.media-culture.org.au/index.php/mcjournal/article/viewArticle/105

Colman, Sarah & Dyer-Witheford, Nick. (2007). Playing on the digital commons: collectivities, capital and contestation in videogame culture. Media, Culture and Society 29 (6), (pp 934-953).

Doctorow, Cory. (2008). Content: Selected Essays on Technology, Creativity, Copyright, and the Future of the Future. San Francisco, US-CA: Tachyon Publications.

Electronic Frontier Foundation. (n.d.). DMCA. Retrieved from https://www.eff.org/issues/dmca

Gillespie, Tarleton. (2006). Designed to 'effectively frustrate': copyright, technology and the agency of users. New media and society Vol. 8 no. 4, 651-669. http://hdl.handle.net/1813/3471

Heins, Marjorie. (2003). “The Progress of Science and Useful Arts”: Why Copyright Today Threatens Intellectual Freedom. New York, USA: Free Expression Policy Project.

Heins, Marjorie & Beckles, Tricia. (2005). Will Fair Use Survive? Free Expression in the Age of Copyright Control. New York, USA: Brennan Center For Justice.

Netanel, Neil Weinstock. (2008). Copyright's Paradox. USA: Oxford University Press.

Patterson, L.R., & Lindberg, S.W. (1991). The Nature of Copyright. Athens, Georgia: University of Georgia Press.

Unintended Consequences: Fifteen Years Under the DMCA. (2013). San Francisco, US-CA: Electronic Frontier Foundation. Retrieved from https://www.eff.org/document/unintended-consequences-fifteen-years-under-dmca

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