I attended a conference on copyright law last week and,
while there, I pondered the divide between those who wish to be compensated for
the use of copyrighted material and those who wish to see such material
distributed free (both in terms of remuneration and restrictions on further
use).
The divide and debate has been around for a period of time
much longer than I had originally known. Take this quote from the 1785 English
case of Sayre v. Moore, wherein Lord Mansfield stated, in part:
…We must take care to guard against two extremes equally
prejudicial; the one, that men of ability, who have employed their time for the
service of our community, may not be deprived of their just merits, and the
reward of their ingenuity and labour; the other, that the world may not be
deprived of improvements, nor the progress of the arts be retarded.
Personally, I like the following statement by the Canadian
author H.G. Fox (at pp.3-4 of the text “Fox Canadian Law of Copyright and
Industrial Design”):
Eminent jurists such as Lord Mansfield and Sir William
Blackstone have take the view that intellectual creations are to be secured to
their producers and their sucessors in interest to the same extent as other
kinds of property, and that the public has no more right or justification to
take away or impair the originator’s property in his mental creation than it
has to deprive him of any other of his possessions. According to this view
copyright is not the mere creature of statute but a natural and civil right to
protection at common law.
The opposing theory is that the producer of a work of the
mind has no natural property in it and has and enjoys only such rights in
respect thereof as the public through the legislature chooses to confer.
According to this theory a creation of the mind is merely a contribution to the
common stock of knowledge and enjoyment of mankind in which the public have a
heritage. … [C]opyright is an artificial right – a creature of the municipal
law of each country to be enjoyed for such time and under such regulations as
the law of each state may direct …
I am not sure the later point is correct. Before Canada
adopted its copyright legislation, copyright was, in part anyway, a creature of
the common law and would undoubtedly continued to evolve.
Regardless, those who own copyright in works (whether books,
music, art or otherwise) deserve to be compensated for their efforts but
users/consumers do not want to pay an exorbitant cost for such wares and/or do
not generally want overly prohibitive use restrictions placed on the things
they buy.
I do not think that anyone who seriously suggests all
digital content should be free has really given thought to the notion. I cannot
imagine that a band would put years of effort, practice, expense etc., to give
their music away for nothing. Assuming such a band exists (and there are
undoubtedly some) the quality of music in the world would decline drastically.
The same goes for movies, books, you name it. An author sequesters herself away
for 6 months (or a year) to write a book and then gives it away for free? Or sells
a copy if it with the knowledge that it will get copied for free forever after
that? Doubtful.
All of which reminds me that there are numerous examples of
very restrictive conditions placed on the use of copyrighted materials and
which work very well. For example, Agatha’ Christie’s play “The Mousetrap” is
currently showing in London’s West End and been since 1952. In 1954 the movie
rights to the play were sold on the proviso that the movie could not be
produced until after the play’s run in London ends.
Back to me original topic…
The issue here, it seems to me, is one where the old
business model no longer applies and rights holders (whether corporations or
individuals) need to adopt, in certain circumstances, to the changing times by
tailoring their products to the new market place. It may be that there is going
to be more of an emphasis on volume based business models (where margins are thin but quantity is
large) – but that is life. Grocers have been living in this sort of world for
many, many years.
At the end of the day, you cannot stop people from making
copies of music, movies, books or whatever. Even if you create a perfect TPM
(technological protection measure) someone could still make a copy of an album
using mechanical means (ie. playing the disc on a high end sound system and
physically recording the music).
I suppose someone might be able to create a sound recording
that cannot be mechanically re-produced but this gets back into the
create/compensate issue. In other words, I create some roadblock and someone
figures out a way around it so I create a new roadblock and someone figures out
a way around it, and so on, and so on…
The point here is that someone can always make a copy of
something. Given this reality the goal should be to sell the item at a price
and in such a manner as to make it pointless to do something illegal to achieve
the same effect. Anyone could commission someone to make a fake Picasso but why
bother when you can get a good quality print for $50.00. Why bother spending two
hours photocopying some book when a decent quality copy can be procured for a
reasonable sum? Or use the library. Back in the days of LPs you could technically
make copies of an album (I think) by making a proper plate of the album but I
suspect that such a thing would have been prohibitively costly for the average
person.
However, if an album had cost 100.00 a shot, I bet you would
have found people figuring out a way to physically copy them. Why? Because the
cost of the product was too high.
The same goes for music and movies. A business model that
makes it reasonable to buy the music instead of pirating it is the way to go it
seems to me. This does not mean I am against TPM’s incidentally. I just think
that the wrong measures have been put in place and the wrong business model is
in place.
To my mind what is needed is a music file that is priced
reasonably and is sold in a manner that protects the rights holder and give the
user an experience that is the same as if they had purchased a disc. In other
words, the owner of the song can sell it, give it away, have it stolen, destroy
it – all without restriction. BUT, there has to be some mechanism whereby the
user cannot make more than a single copy of the original download. I am not
sure that such a protection measure exists but I am sure that someone is
working on it if not.
Now, some people will circumvent such measures and I believe
there should be penalties for such conduct. Whether the State should legislate
such penalties or whether that should be left to rights holders is a matter
for another day. However, if the price is right and if the penalty is harsh,
the proportion of people who will undertake such activities will, I suspect, be
small. After all, the legal alternative should be satisfactory.
When all is said and done, I believe that a solution exists
that will accommodate those who sell copyrighted material and those who wish to
acquire it.
Those are my two cents – all arising from my musings
while reviewing some conference material.
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