Copyright and wrong-headed law

by CHRIS BARTON

If the growing numbers of users sharing files on the internet via the likes of Grokster, KaZaA and MusicCity are an omen, then you would have to agree things look grim for the concept of copyright.

Despite the best efforts of the copyright police - led by the bastion of democracy the United States - introducing ever more draconian laws designed to curtail individual freedom, copyright continues to be eroded before our eyes. But still the laws keep coming. Following the United States Digital Millennium Copyright Act of 1998 netizens must now prepare for the Security Systems Standards and Certification Act.

It's a law that would force all new personal computers and digital home entertainment devices sold in the United States to have Government-approved "security technologies" built in.

It also has punishments of five years in prison and fines of up to $500,000 ($1.2 million) for anyone who distributes copyrighted material with "security measures" disabled or has a network-attached computer that disables copy protection. Dubbed "policeware", the technology would restrict the use of copyrighted material on these devices such as music files, CDs, video clips, DVDs and e-books.

Our own Government appears to be headed in much the same direction, as seen last week by its decision to ban parallel imports of films, videos and DVDs until nine months after international release - a great leap backwards that smacks of protectionism and state censorship of when and how individuals may view movies.

True, individuals can still import movies via the internet to view at their leisure. So why prevent renting the same up-to-date movies from your local video store?

Arts, Culture and Heritage Minister Judith Tizard said the ban - which will come into force next year - was to protect the creators and distributors of movies.

She said the Government was concerned about the commercial rights of intellectual property holders to decide how and when their products were released.

The decision followed a recent High Court ruling that film distributors had the sole right to dictate who could rent out their products and when.

But Ms Tizard isn't protecting the creators at all - just the distributors who get fat for showing old movies under the protection of the state.

It seemed silly, she said, to promote a knowledge society while overriding the rights of those making and distributing movies.

But nanny Judith is quite happy to ride roughshod over consumers - who are expected to take this nine-month-old musty medicine and swallow it because it's good for them.

In an age where movies whiz around the world at the speed of light - and where kids can be watching a bootleg copy of a new-release movie the day after, thanks to a parent's speedy Jetstream account, how can Ms Tizard still be living in the dark ages?

What's out of step here is that copyright law is heading back to the time of the Catholic Queen Mary Tudor, who, in 1557, after a long struggle to control printing presses in England, issued a charter to a guild of printers - the Stationers Company. Their members were the only ones who could legally produce books. Copyright was born as an instrument of censorship.

It wasn't until 1709 and the Statute of Anne that the Crown bowed out and authors rather than printers gained a special right - the ability to decide which printer was to produce their work.

By giving the right to authors, it had to apply to the material they produced - the intangible work, rather than the physical books produced by the printers. It's a concept that still works today - especially as digital technology further disembodies the work from the physical carrier.

American copyright law followed the same principle and enshrined it in the constitution in 1790. As Siva Vaidhyanathan, author of Copyrights and Copywrongs, shows it was designed to embody four democratic safeguards:

* A guarantee that all works would enter the public domain when the copyright term expired.

* A collection of purposes that consumers could consider fair use, such as limited copying for education or research.

* The principle that, after the first sale of a copyrighted item, the buyer could do whatever he or she wants with the item, except distribute unauthorised copies for profit.

* The concept that copyright protects specific expression of ideas, but not the ideas themselves.

Copyright in this sense balanced the interests of authors, publishers and readers. Vaidhyanathan argues it was never meant to be a restrictive property right.

"But it has evolved over recent decades into one part of a matrix of commercial legal protections now unfortunately called intellectual property."

Just what Thomas Jefferson feared, writing in 1813: "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispose himself of it."

Which brings us back to the file sharers who happily dispose of received songs, images, videos - ideas - to everyone over this thing called internet. While draconian copyright laws paint them as thieves, a wider view may see them as merely readdressing an imbalance that for too long has favoured publishers and distributors.

There are signs, too, that authors and artists, rather than seeing the internet as a medium which erodes their rights, are finding a potential to gain back control of the distribution of their labours.

Variations on the "try before you buy" shareware model successful for some software makers, instantaneous payments to accounts such as PayPal, and subscriptions to online services are just some of the emerging methods for authors and artists to get paid.

For the concept of copyright to survive, digital lawmakers do need to write new rules.

But rather than introduce increasingly repressive laws, they could do well to return to some first principles.

Vest copyright first and foremost with the author and balance that with the need to move the expression of ideas into the possession of all.

* Email chris_barton@nzherald.co.nz

Digital Millennium Copyright Act

Security Systems Standards and Certification Act

policeware

History of copyright

Copyrights and Copywrongs

PayPal