It is said that history is always a backdrop to understanding the struggles that we face in modern times and the historical development of the law of copyright is hardly an exception to this norm. As far back as the very first statute codifying rules to regulate the printing and publishing of literary works, it may be observed that businesses involved with the procurement of creative works to the general public have sought to use the law to enhance the commercialization of their works.
In more modern times, especially in these times when digital technologies threaten traditional methods of publishing and distributing creative works to the public, copyright industries have lobbied for stronger and more effective copyright protection. The arguments presented today before policymakers are not too different from the pleas and cries of the London booksellers before Parliament and the English courts in the 1700s when they had sought to retain control over the print industry through copyright.
This paper presents that there are alternative solutions to the changing technological environments in the copyright industries besides the strengthening of copyright protection for creative works and proposes a response from law and policy making bodies that relies on identifying the balance between protection and accessibility of creative works that ensures the successful commercialization of these works.
This paper is premised on the notion that the introduction of new technologies into the marketplace has the effect of causing industries to adapt and change as they respond to the new technology. The advent of the Internet and related digital technologies, such as video streaming technologies, peer-to-peer file sharing software and portable digital audio technologies.
This paper argues that law has a pivotal role to play in protecting private property rights and ensuring public access to motion pictures and sound recordings and at this juncture of the history of copyright law, the law is poised to identify a new balance between private property rights and the public interest in order that copyright owners may successfully commercialize their works and that the public is ensured of accessibility to works to facilitate general societal and cultural growth.
In its simplest form, modern copyright law protects authors' rights in a work of original expression. The law grants copyright in a work to an author to recognize that the author has property rights in the work so that the author may find means of using the work to reap rewards for their labor in the production of the work. The right is exclusive and is granted to the author to encourage the production of creative works for the general benefit of society.
As a result, the law constantly strives to achieve a balance between protecting property rights of the author and the public interest in having access to the work for the development and growth of society and culture at large. As new technologies emerge, copyright owners have sought to stretch the law to encompass new uses of their works. New technologies have consistently allowed for creative works to be more easily reproduced and distributed and the reproduction and mass distribution of creative works become more wide spread with a technology as permeating as the Internet and accompanying digital technologies.
Lawmakers are today constantly faced with the legitimacy of claims by copyright owners about the extent of their rights under the law. The basic tenets of the right to copy comprise rights that would allow a copyright holder to prevent another person from making copies of the work and these rights would include a reproduction right, an adaptation right, a distribution right, a publication right, a performance right and a display right.
These rights are said to be designed to give "some market-based financial compensation to people who create works, and to people who distribute them, without giving them extensive rights to prevent the use and reuse of those works by the public and by the authors of the future. " The value of these works at the end of the day lies with the public, the consumer of creative works, and the rights that are provided under copyright law provide authors with some control to exploit and commercialize their works for a limited time so that they may be rewarded for the creation of the work for the public's use.
As technologies develop, however, those who have not expended time or effort in producing the work may compete with authors and their publishers in the reproduction, distribution and sale of the work and because the copyist did not bear the cost of authorship in producing the original work, their entry into the market place in competition with the original author would undermine the commercial incentives that authors have in producing creative works.
Copyright law grew in response to the unauthorized copying of original works and restrains the making of unauthorized copies "for a limited time deemed appropriate to enable authors and their publishers to reap a reasonable return on their endeavors. " The kinds of creative expressions or works of authorship that copyright law protects are categorized to include literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, sound recordings and architectural works.
The motion pictures and sound recordings industries are large producers of such works of authorship and as these industries survive on the successful commercialization of motion pictures and sound recordings, copyright protection of these works is a primary concern for the industries. For most of copyright law's history, the law developed and grew around technologies that were built on an analog platform.
Analog platform technologies, whilst allowing works to be reproduced and distributed to a wide segment of the public, nonetheless allowed copyright owners to keep a better grasp on the reproduction and distribution of their works "with the relative ease of detecting unauthorized commercial-scale publication. " Digital technologies, on the other hand, provide a much more "versatile, although more porous, platform for storing, distributing and reproducing works of authorship," providing the content industries with new opportunities to commercialize their works and build new markets through the Internet.
However, the Internet also poses a severe threat to existing business models and industrial structures within the industries. Digital technologies allow users to reproduce and widely disseminate creative works as well as transform, modify and change existing works of authorship. The precise difficulty that copyright law faces with the advent of the Internet and digital technologies is that the previous balance between private property rights and public interests set by the limitations of analog technologies to widely reproduce and disseminate creative works no longer holds.