Contracts
We can all agree that copyright is not suited to the digital age, given that the UK law was drafted in an analogue era. The move to digital and the remarkable growth of the Internet forever changed the landscape to which copyright law applies. As the law has been slow to respond to this landscape, contracts and licences have stepped into the breach to serve as solutions in the interim period, controlling the use of works online. My knowledge of the complexities of contract law is not strong, but as far as I understand it, contract law in the majority of cases supersedes copyright law, particularly when it comes to taking a claim to court. In my view, it is probably easier to prove breach of contract than infringement of copyright, and possibly cheaper too. Now, if copyright were to be abolished, what of licences and contracts? Would they simply disappear? I think not; rights holders (including publishers and recording agencies) would continue to monetise content (to some extent) as a commodity through contracts. When you purchase a song online, you would still have to abide by the terms and conditions of the contract by which you purchase it. If that contract contained a clause which said “upon purchase of this work you agree that it is solely for your own private use”, then if the song was (say) shared online on a public website for free download, the publisher/rights holder would be able to sue the purchaser for breach of contract. And we would return to the inherent problem of organisations pursuing individuals for file-sharing.
Collecting Societies
For educational establishments, a significant element in the abolition of copyright would be their relationship with collecting societies, if they continued to exist. After all, the Copyright Licensing Agency (CLA) would no longer be able to keep its name in a world without copyright. It is difficult to see the need for collecting societies in a world without copyright; this makes the abolition of copyright rather attractive for education, which would save over £100,000 per year in licence fees. But on the flip side, would there still be an incentive for authors and creators to produce content for learning and education? Academics must produce journal articles to remain ahead in their field and to share research, so the incentive to create will not be removed, particularly as they are not independently paid to write. Books perhaps would be another matter; in a world without copyright, should an academic desire to write a book, getting it published could be difficult as publishers may be reluctant to invest in something which instantly could be made available for free across the world. Journal publishers too would become aggregators of a large amount of free content, and without the money they generate from licensing, would likely decrease in quality and perhaps eventually decline. In our capitalist society, people don’t like working for free. Businesses can generate advertising revenue, but publishers would have their livelihoods pulled out from beneath them, meaning no money for salaries and therefore job losses. Would authors write academic textbooks and similar for free? Some are very enthusiastic and may well do, particularly if they are already employed and don’t have to live off what they write, but others would have little incentive as the equation to them looks like a lot of time and effort for no reward.
Plagiarism
Perhaps most significantly: where does a world without copyright leave academic discipline? Copyright surely underpins the foundations of plagiarism, as there is currently a defence in copyright law that if a work of copyright is used for the purposes of examination, it does not infringe so long as there is sufficient acknowledgement. If I, as a student, could copy and use someone else’s entire thesis or dissertation, why would I have to reference it? Could I not pass it off as my own? And if so, where would be my punishment, as I have not done anything wrong? It may not be my original work, but in a world without copyright, why should originality matter? Would it matter if I got a First as a result of reproducing other people’s work? To my mind, there is a lot of injustice in this particular issue – it feels morally and ethically wrong to merely reproduce other people’s work and pass it off as your own, as it levels the playing field. A good plagiarist, who can remix and re-work other people’s work so as to create something sufficiently original, would be more commendable in this instance, as it shows independent skill and judgement, than one who merely spouts verbatim someone else’s work with little or no original intellectual thought.
The academic world seeks to encourage learning and research by building on others’ arguments. There is currently a means for this in copyright law. Without copyright law, what is the criteria for distinguishing a poor student from an excellent one? Writing style perhaps? But if this is copied from another’s work? This sets a poor precedent for the good of society, discouraging original intellectual process and carefully constructed arguments and replacing them with laziness. And with this comes the question of ownership: without copyright, would it matter who the author was? Could you even prove they were the original author? Would it be necessary to? No, for in a world without copyright, the author is bereft; the more appreciative of us would give a hat-tip to the original creator, but others would not. The easy replication and re-use of content means that one is at a loss as to who the original author actually is, and also negates the citation process.
Conclusion
From the tone of this post, you may gather that I am not for the abolition of copyright, as I recognise its value to creators. But I also recognise the problems with it. Without copyright, truly original content would diminish significantly, and in its place would be remixes of previous content, in themselves no bad thing, but would we really just want that? We all lead busy lives, and I’m sure all of us at some stage have thought about writing a book, but would it really be worth giving up your weekends and evenings for several years to write a masterpiece if you knew you would receive little reward? There are some people who do this, and I don’t say that it is a bad thing, but they are few and far between. We are driven by capitalism, and that means making money wherever we see the opportunity. If content cannot be monetised, services would have to be more so, and so the trade off as a consumer would be to pay significantly more for the services of the creatives who once made a living from their copyright works. For the photographer, it would be the services of his photographic studio; for the musician, it would be the ticket sales of live gigs. For education? I would argue that academic discipline would be sacrificed, although educational establishments would save a lot of money in licensing fees. A world without copyright is akin to the “golden age” presented by Gonzalo in The Tempest (Act II sc.i), an ideal to aspire to but which cannot exist in a capitalist society where money is the driver and not morality and goodwill.
Hey Emily - nice post. Very balanced. I take issue with your section on plagiarism. If you in fact think about it, it's not really linked to copyright at all.
ReplyDeletePlagiarism is bad not because it's an infringement of a creator's right to recompense or control, it's bad because it's morally wrong to attribute the output of others to yourself. The recent Von Guttember saga illustrates this perfectly: the fate that befell the German minister that plagiarised the vast majority of his PhD thesis is not due to claims by rightsholders, but moral, public outrage. It's closer to criminal law in some respects - I imagine plagiarism is easier to tackle under the Fraud Act 2006, than trying to deal with it using copyright law (vs. fair dealing). In other words: plagiarism does not come down to property or monopoly rights at all. It's about moral rights and/or moral rules of conduct.
To me, it's very possible to imagine a world in which copyright (a rightsholder's monopoly right on the use of content) is absent, but in which (a) authors retain the right to be attributed for all which is copied (attribution right/moral right), and (b) that academic institutions declare that you face their own internal sanctions (plus peer rejection/shaming!) if plagiarism is proven.
Plagiarism actually has nothing to do with copyright - for the simple fact that attribution is a moral right not a property right. Most plagiarism enforcement is done because it breaches contracts/code of conduct at institutions/publications, and draws scorn and rejection from peers; nothing to do with rightsholders. The best illustration is the response to the Von Guttemberg saga in Germany over the last few months. The fate that befell the senior German minister who plagiarised the majority of his PhD thesis was the result of public moral outrage - at duplicitous conduct - not as a result of the action of any copyright rightsholder's threats to litigate. It's a dishonesty 'crime', not a property right infringement or an undermining of a legal monopoly. In some ways you'd be better off going after plagiarists under the Fraud Act 2006, than copyright (because fair dealing can apply, and it doesn't require attribution, AFAIK). Giving somebody a property right (a state-granted monopoly on what you can and can't do with your own speech, urge to perform, and devices and other property, no less!) to make sure they can enforce attribution is cracking an egg with an A-bomb - it's just not appropriate! And in fact, to me at least, I can foresee all problems with plagiarism resolved by maintaining author's moral rights to attribution, but doing away with copyright. Plainly said: we can avoid plagiarism by allowing them to take action for non-attribution, but they don't have the right to prevent you from making use of their work in the first place.
ReplyDeleteI should state, of course, that the above comment was purely whilst looking through Emily's "copyright against plagiarism" lens - she has many others and they are all worthy of individual consideration. Personally, I'm not absolutely against copyright. I feel infringement should draw (proportionate) response (not statutory or otherwise monstrous awards that bear no proportion to the real damage caused by the defendant!), last only so long as is required and adviseable (have a read of the amicus curiae brief by the world's top economists in Eldred v Ashcroft - views continuously ignored by copyright legislators), and facilitate noncommercial re-use of cultural keystones even before they hit the public domain (hence either importing Fair Use to the UK, doing it better, or even, as I've argued before, applying a statutory, opt-out-able (attribution-mandatory) licence for non-commercial uses for all new works. http://www.overthecounterculture.com/2010/default-public-licensing-of-copyrighted-works/
ReplyDeleteBut moral rights are bound up in copyright law. Granted, they don't prevent you copying the work in the first place, but the attribution right is strong, particularly in Europe, and affords the same legal protection (theoretically) if ignored. But I take your point about the Fraud Act, I hadn't considered that as an option. Interesting idea though, to have a Moral Rights Law instead of a Copyright one. Thanks for the comments!
ReplyDeletethey co-exist, they aren't "wrapped up" in one another. They share a single source: recognition of someone as an original creator of a work. From then on, it's largely different - you can have one without the other.
ReplyDeleteWhether there is such a thing as an original creator, now there's an entirely different kettle of fish! "Standing on the shoulders of giants" (Newton crediting others for his crucial discoveries), it says right here round the edge of my £2 coins ...
OK fair point, but they exist within the same legal framework and are offered (for the most part) the same protection as is afforded to copyright. 'Originality' is, as you say, an entirely different thing - in this world, is anything ever wholly original? According to the courts, originality is the key driver for discerning whether something is protected or not by copyright. All learning and research is based on what has come before..
ReplyDeletebut is it just learning and research? For a less obvious example: music. All musicians have their muses, influences and teachers, some more obviously than others (some sample, some are Elvis, some are the Artic Monkeys, and others perhaps do spontaneously invent something new)
ReplyDeleteP (@drycloud)
Bah humbug to that Newton quote - he was just being rude about (the notably short) Robert Hooke.
ReplyDeleteI favor intellectual property protections, but it has gone too far. Copyrights that go too long cause stagnation. The public domain is our cultural heritage. Consider Disney: they made their living by retelling public domain stories. Even Shakespeare was retelling older stories. If patents lasted forever, advancement would come to a crashing halt. It's the same with copyright. With no copyright, there is little incentive to create a new work, but if copyright is too long, creativity stagnates. With the current laws, a work created today could, if the author has a long life, not enter the public domain until will into the next century. That isn't a "limited time". Further, consider "orphaned works". No one knows who created them, so they can't be used. There probably is no one who knows that they own the copyright, so there is no one you even could ask! Only a small percentage of works still have commercial value after a few years, why should the great majority of works languish just for a handful? Perhaps we should go back to requiring copyright renewal, but allow multiple renewals for works that still have commercial value.
ReplyDeletewould you mind if I use your article as part of a case study i am doing for university?
ReplyDeleteI could do with your name please?
Yes it should be abolished and replaced with something else the provides incentive to create without the restrictions on free speech.
ReplyDeleteCopyright laws force us to trust others. Every time someone sends data through the internet, that action is judged by a law enforcer to either comply with "fair use" or not. Why should I trust the law enforcer to judge correctly?
The notion of fair use is very ambiguous and I don't think it's possible to exactly define it. Whether your actions comply with fair use or not depends on whether a judge/police officer thinks so.
I know many other laws depend on a judgement rather than being clearly defined, but in order to progress we should make our laws more clear so that we don't have to just trust people to judge correctly. A few big court cases that are transparent to the public are OK, but systematic stifling of free speech is not acceptable. When you're on the streets and a police officer makes a quick judgement to save you from some immediate danger, that's OK. But, we should at least have one place where we can fully express our ideas without restraint, and we can easily do this on the internet, because it doesn't have the same kind of dangers that are present in the physical world.
Sammy - sorry for late reply, yes of course! My name is Emily Goodhand
ReplyDeleteInsightful views onelineproof, thankyou! I agree, copyright law should not stifle free speech. The DMCA allows for the safe harbor provisions so I don't think that every time data is sent via the Internet someone is judging on whether it is fair use or not. Copyright law is designed to afford protection to original created works and to allow the creators of those works to control how they are used. In the digital world, admittedly, it becomes more difficult, but the same concept applies. 'Fair use' in terms of the US Copyright Act is actually broadly better defined than 'fair dealing' under the UK Copyright Act - at least it gives you pointers as to what might be considered 'fair', as opposed to being based on case law and precedent from EU courts. Plus, in the US you have Amendment rights, which courts would take into account.
ReplyDeleteI also wouldn't say copyright single-handedly stifles free speech; other laws such as defamation and privacy can also do that (note the flurry of superinjunctions recently).
I agree that the law has not kept pace at anywhere near the speed with which technology has developed, but with so many parties having a vested interest in controlling and exploiting their creative assets, a balance must be achieved somehow. And if everyone could understand the complexities of law, there would no longer be a need for lawyers.. ;-)
Before i respond to the specifics in the piece, my view on copyright is that it is first a theft from one of the most important public commons - knowledge and creativity. Second, it is unnecessary in the age of the internet "To promote the progress of science and useful arts" (US copyright basis). And third, it is counter-productive even for artists as a whole, and positively harmful in innumerable ways because 1.
ReplyDelete..and eliminating it would produce a cultural renaissance the likes of which has never been imagined.
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