Beyond copyright or interesting new restrictions you never knew existed

Posted On: 17 September 2007

Author: Iain G. Mitchell QC

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In this article, which originally appeared as a guest Editorial in the influential German periodical "Multimedia Und Recht", Iain G. Mitchell QC looks at the implementation of the WIPO Conventions in the USA and in Europe and considers whether the practical effect is to extend beyond copyright to create a new right on the part of the entertainment industry to prevent access to material to which, under the law of copyright access is otherwise permitted.

Much ink has been spilled over the question of why we have copyright. The conventional starting point is that the creator of a work has a right to the fruits of his labours, but because those labours are intellectual, the only meaningful way that he can be given the chance to earn those fruits is if he is given a monopoly in the exploitation of his work. Historically, society has looked on monopolies of any kind with suspicion as tending to limit creativity (hence the present furore over patenting of genetic material) and, not to put to fine a point on it, to lead to unacceptably high prices. Thus, there is a kind of Faustian bargain struck between the artist and society: the artist enjoys a monopoly for a limited time only, and, whilst that monopoly exists, he cannot stop others dealing fairly with his material. At the end of the period, the work passes into the public domain and thus becomes part of the patrimony of all Mankind.

This model is under threat as a result of profound changes which, it is suggested, are sociological rather than technological. The technological changes are self-evident - we live in a digital age where copying is possible in ways undreamed of by our parents, but the really significant change is that the “authors” (in the Convention sense) of works are increasingly not poor artists starving in a Bohemian garret, but large and powerful corporations with armies of expert lobbyists at their command. This is not to say that they are not equally worthy of protection, just that they have the resources to lean on legislators to upset the balance of the Faustian pact.

The rise of code as code

The way the author makes his reward (or the corporation the return on its investment) is to take the one creation (a story, a song, a performance or whatever) and sell it over and over again. If there were no copyright, such repeated sale would at least be a great deal more difficult. However, if, notwithstanding the legal code of copyright, sufficiently large numbers of consumers just copied anyway, the ability to make repeated sales is likewise defeated. In response to that, the industry developed the notion of “code as code”, which is to say machine code as a substitute for legal code.

The problem is that, as it has developed, “code as code” has increasingly become a means of controlling access to digital material, rather than merely the copying of it. For example, creation of separate DVD zones, technology to allow an e-book to be read only on the computer on which it downloaded, to make a DVD unplayable after 48 hours and, (my favourite) to stop the viewer skipping the commercials, are all about who has access to material and on what terms (which, of course, are not negotiable). They have very little to do with copying.

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