Copyright, Piracy, and Distribution
The expansion of digital technology, which allows universal and unlimited access to a variety of items, good and services, has been coupled with the concern that this new medium will allow for piracy, and hence, violation of existing copyrights held by owners of creative works. With new devices that could potentially allow one person to create, and distribute, multiple copies of one work not his own, and tools that would permit several individuals from different locations to simultaneously peruse one piece of creative work, with minimal, if not nil, investment, artists, their producers, and policymakers are concerned that this would adversely affect the flow of creativity, since minimal compensation could be derived from a work that required cost, financial and otherwise, to create, produce, package, and distribute in the first place.
An opposing school of thought, however, views the expansion of digital technologies as a potential fertile ground for the growth of creative industries, since it would allow consumers from all parts of the world access to products that were formerly limited by spaces in shops, or by the physical distance of the place of production from the consumer. They further hold that the existing protection afforded by copyright is too stringent in scope, and too broad in duration, as to limit the number of individuals who could produce, and access, creative works. This same school advances the proposition that, to the extent that we must protect copyrighted materials, they must eventually become part of the public domain.
In this paper, I contend that digital technology has created an unbridled, uncontrolled avenue for distribution of creative works, adversely affecting distribution strategies for media companies. Copyright ownership of creative works, which required substantial investment in the first place, must, and need, be protected, to a limited extent, from unscrupulous and unfair use by other individuals. The degree of protection, however, that it would, and should, provide should be viewed in the context of the constantly expanding digital technologies available today. A balance must be struck between the present restrictions of copyright and the ever expanding digital technology. Artists and producers of creative works must view emerging technologies as allies, than threats, in delivering these products to consumers worldwide. Finally, our concept of copyright, and public ownership, over certain products must be modified with the changing times.
Technological advancements have, to varying degrees, caused significant impact—both advantageous and detrimental—to every aspect of our daily lives. Digital technology, and the Internet in particular, has opened for us novel avenues that might have been thought impossible before. The notion that the world has become a smaller place is truer now than before, when a few clicks of the mouse allows us to enter a digital network that connects all places and peoples imaginable. Lee notes that the Internet virtually allows anyone with a computer and a telephone line anonymous access to a veritable and diverse collection of anything and everything anywhere, anytime, repeatedly, at minimum cost, in the shortest possible time, and with very few constraints as to the form and content of communication being passed through this medium (2001).
The impact of digital technologies to the creative media industries—motion picture, music, art, printed material, gaming—is immense, double-edged, and is brought about by he features described above. On the one hand, the present technological advancement will allow a decrease in the cost of creativity, while at the same time providing for new avenues for distribution, even free distribution, since the power to create is offered to a wider range of individuals (Lessig 2002). Musicians, for instance, will be allowed by the Internet to touch base with their fans since the Internet does not pose the same limitations in space (i.e. in record stores) giving everyone worldwide instant access to music (Love 2000). Hopefully, this new setup will provide more artists better chances of earning a living, despite less spending by fans, compared to the status quo which, although is capable selling considerable amount of records, only permits a limited number of artist to really succeed (Love 2000). Without question, however, these same features of the Internet that were deemed advantageous are also potential sources of harm. The Internet, through fast and widespread dissemination of content comparable to the original, facilitates piracy and makes stealing—in a way stealing unknown to the originator, since, compared to stealing something from a house, stealing from the internet does not disturb the Internet copy—easier (Band 2001; Lessig 2002, p. 616; Gips 2006). In short, it serves as a medium for copyright infringement—the activity, whether intentional or accidental, of performing functions exclusive to the copyright owner or his authorized representative (Lee 2001). The solution to this problem is not yet within sight because of the wide scope of materials being circulated in the Internet and the low level of restraint imposed on the system, making it presently difficult and improbable, if not entirely impossible to determine which material in the Internet has been granted copyright clearance (Lee 2001). Furthermore, the egalitarian and anonymous character of Internet users precludes determination of individual liability vis-à-vis copyright infringement.
The unbridled dissemination of protected materials through digital technologies runs contrary to the very principle espoused by a copyright. A copyright is a form of protection for original works of authorship, including the right to reproduce, prepare, distribute, perform, and display these original works (Thompson 2005). By granting owners exclusive, but limited, rights to reproduction, distribution, performance, and display of their works, the copyright law, in a way, provides for a system of economic benefit to authors of original works, which is hoped to serve as an impetus for other individuals to contribute, through ideas espoused by their creations, to our general wealth of knowledge (Lee 2001; Shapiro 2003). This is consistent with the original intent of copyright, which is the promotion of scientific and artistic progress by encouraging creativity (Shapiro 2003). Natanel notes that, in the absence of copyright, we might suffer from a scarcity, both in quality and distribution, of creative expression (1996).
The considerable impact of copyright’s presence—and conversely, of its absence—has prompted stake holders to take action. Media industries, in particular, have lobbied for greater copyright protection through legislation, and have taken action against individuals and groups infringing on the copyright of others. For instance, the 1998 Copyright Term Extension Act was recently upheld by the Supreme Court—a response to the present threat of digital piracy— effectively extending existing and new copyright terms nearly a century—life plus seventy years for individuals and to ninety-five years for corporations (Shapiro 2003). Within the same year, the Digital Copyright Millennium Act (DMCA), which carries a section known as the Coble Bill (Title II. Online Copyright Infringement Liability Limitation), was enacted, effectively amending the copyright law to keep it relevant in today’s Internet world, since it permits growth of the Internet as a communications medium, while at the same time providing protection to the rights of creators (Beams 1999). The recent redefinition of recorded music as works for hire under the 1978 Copyright Act abolished the previous 35-year-copyright clause, making each and every record a property of the company in perpetuity (Love 2000). Lemley and Reese (2004) has recently reviewed cases of copyright infringement filed against internet service providers and peer-to-peer file sharing networks such as Napster, Aimster and Grokster. The net effect of all these moves is to further the protection afforded by copyright to owners of original works. The response, however, of stakeholders and the entire digital community to this increased copyright protection have been varied.
Although beneficial form the point of view of big industry players, artists within the industry do not share the same optimistic outlook. Musicians, for instance, are not in favor of the redefinition of recorded music as works for hire, which has made it difficult for artists to reclaim their work as their own property since each and every record are, in effect, a property of the production company, not the artist who made it, in perpetuity (Love 2000). The net effect of this redefinition, according to Love, are active artists declaring bankruptcy despite having sold millions of albums worldwide, and retired artists, some writers of successful songs still being enjoyed today, living in poverty because they never received any payment for original works they rightfully own (2000). She further states that, from their point of view, swapping of music over the internet, or through gadgets and devices, is not piracy since, technically, recording artists, through various media in the old system, have been giving their music away for free (Love 2000). An additional benefit, according to Love, of the digital community—where public taste to an extent, dictates the music trend, compared to corporate decisions in the old system—is that it brings the artist closer to the people (2000). Only recording companies, who previously had control over the system, perceive the Internet as a threat, or as a form of piracy, since it essentially takes away the promotion function of recording companies, and hence, profit (Love 2000). Love (2000) concludes by saying that (1) artists deserve compensation for their work, but this compensation should be just and based on what people want, and what people are willing to shell out; (2) recording companies are still necessary parts of the music system, but it must provide artists the creative freedom to write their own songs and the financial equity that comes from these works.
Lessig (2002) holds the view that the current copyright protection principle has adversely affected the creativity of artists, since each and every item is now claimed by one person to be his property, and this has to go through a process of legal clearing. Most of the time, permissions for use of copyright-protected items are not granted, not because of objections from the parties owning the copyright, but most often because those who are vested with the authority to grant permissions (i.e. heirs of original copyright owners) must first be located (Lessig 2002). Natanel (1996) shares the same thought, saying that a narrowing of what constitutes public domain presents an adverse effect on the creation of new works, and could potentially impose additional, unnecessary costs on the public. Lessig further claims that the existence of copyrights, and their perpetual extension, also puts in the peril of extinction art works (i.e. books, motion pictures, etc.) that cannot be accommodated anymore in their standard forms (i.e. in libraries or museums), but which cannot be contained in the virtual world due to this very copyright protection (2002). The net effect of stringent regulation and tighter control by laws, according to Lessig, is increased cost of creativity, endowing a lesser number of people the right to create, and eventually, less works produced than before (2002). This monopoly in the market, held by the few owners of copyright, and which creates, in a way, an artificial scarcity in available copies, has resulted in a muted transformative expression since copyright tends to impose an additional unwarranted ‘tax’ on audiences and subsequent authors; and may be used as a form of censorship of criticism, whether political, social, or personal, hence stifling transformative uses of original works (Natanel 1996). Finally, contrary to common perception, the increased legal rigor we are observing has started a vicious cycle of prohibition, where ‘as regulation increases, deviation increases, inspiring more regulation, inducing more deviation, until the costs of the system of regulation far exceed any possible benefit’ (Lessig 2002, p. 617).
Consumers, on the other hand, appear to be on the sidetracks of this current copyright problem, being passive players in the debate on copyright. Although technology has endowed us with the capacity to reproduce copyrighted material available in the Internet in high-quality, unlimited quantity, and low cost—in a way allowing us to bypass the limitations of hard copy borrowing such that people are actually gaining access to cultural works for free (Natanel 1996)—Jensen notes that copyright owners have repeatedly been confronted with the social fact that most individuals simply ignore copyright laws (2003). He cites, for instance, the fact that, even in the presence of stringent legal measures that could be taken against users, an estimated thirty to seventy million individuals visited Napster at its peak, and that about forty percent of internet users in the United States have, at least once, downloaded MP3-format music files (Jensen 2003). What accounts for this blatant disregard, if not ignorance, of copyright, in the face of possible legal sanctions that could be taken against violators, is the fact that, to an extent, a copyright infringement does not have victims—apart of course form authors who have been deprived of royalties they rightfully own—since it protects an abstract though that is just embodied through a material object (Jensen 2003). Gips (2006), on the other hand, attributes this to the common perception that anything on the Internet is free.
The solution to the present problem of copyright and piracy in the media industries, I believe, should involve a redefinition of the scope and duration of protection afforded by copyright to existing works. Furthermore, we must strike a balance between the present restrictions of copyright and the ever expanding digital technology, since it is technically difficult to police the entire digital network.
The present threat of the Internet to the recording industry must be defined from hard facts, since what we have so far point to the opposite truth: sites similar to Napster may actually drive CD sales by serving as a place where consumers can sample music first before purchasing the higher-quality CD (Band 2001). Furthermore, in the face of technological change that provides new avenues for expression of creativity, the industry always finds new ways of generating revenue, as is seen in the case of the Betamax or cable television (Lessig 2002). If, and when, this threat is real and present, any amount of new legislation passes will remain inadequate if it cannot be enforced (due to high cost) against the millions of individuals who use the Internet through their computers, and who are potential infringers of copyright (Band 2001).
Users of the Internet must be made to understand that copying from this medium is a form of copyright infringement. Jensen (2003) notes that what is needed, though presently unclear but present in copyright’s traditional balance, are shared values intended to sustain a self-enforcing copyright norm.
Copyright protection must, as it was originally intended to be, limited. Ideas must be allowed to flow freely (i.e. become a part of public domain) after the limited protection afforded by copyright has lapsed, since we have been empowered by the new digital technologies, to an extent unthinkable in the past, to create, ‘to build, to add, to rip, mix and burn this culture’ (Lessig 2002, p. 623).
In the end, what is needed is moderation from copyright owners (to allow their works to become part of public domain) and from users (to respect the limitations imposed by copyright).
Band J, 2001 (Winter), ‘The Copyright Paradox’, Brookings Review, vol. 19, no. 1, pp. 32.
Beams CCM, 1999, ‘The Copyright Dilemma Involving Online Service Providers: Problem Solved ... for Now’, Federal Communications Law Journal, vol. 51, no. 3, pp. 823.
Gips MA, 2006 (Oct), ‘Where Copyright Meets the Internet: The Internet's Freewheeling Environment Can Lead to Lax Attitudes about Stealing Copyrighted Materials. Companies Need a Policy to Protect Their Rights’, Security Management, vol. 50, no. 10, pp. 22+.
Jensen C, 2003, ‘The More Things Change, the More They Stay the Same: Copyright, Digital Technology, and Social Norms’, Stanford Law Review, vol. 56, no. 2, pp. 531-540.
Lee Y, 2001, ‘A Step toward Balance? Third-Party Liability in the Digital Millennium Copyright Act’, Communications and the Law, vol. 23, no. 1, pp. 1.
Lemley MA & Reese RA, 2004, ‘Reducing Digital Copyright Infringement without Restricting Innovation’, Stanford Law Review, vol. 56, no. 6, pp. 1345+.
Lessig L, 2002, ‘Innovating Copyright’, Ninth Annual Herbert Tenzer Distinguished Lecture in Intellectual Property given at the Benjamin N. Cardozo School of Law on 07 Feb 2002, Cardozo Arts & Entertainment Journal, vol. 20, no. 3, pp. 611-623, [Online], Available: http://www.lessig.org/content/archives/innovatingcopyright.pdf [26 Apr 2007].
Love C, 2000, ‘Courtney Love does the math’, transcript of speech delivered 16 May 2000 to the Digital Hollywood online entertainment conference, [Online], Available: http://archive. salon.com/tech/feature/2000/06/14/love/ [26 Apr 2007].
Netanel NW, 1996, ‘Copyright and a Democratic Civil Society’, Yale Law Journal, vol. 106, no. 2, pp. 283-387.
Shapiro AL, 2003 (Feb 17), ‘Copyright Monopolies’, The Nation, vol. 276, no. 6, p. 17.
Thompson KA, 2005, ‘Copyright 101’, Learning & Leading with Technology. Vol. 32, no. 7, pp. 10-11.