A Position Paper by Richard Mollet, Chief Executive of The Publishers Association
The current copyright framework, that is to say the underpinning structure of exclusive rights and exceptions, most emphatically is fit for purpose in the digital age. Moreover, digital technology is so superlatively beneficial to copyright that it borders on the absurd to suggest that copyright should be abandoned or radically weakened in reaction to it. However, that is not to say that every single strut, plank and adornment which is attached to the underlying structure is perfect. Like any system of law, changes and small adaptations have to be made from time to time.
The copyright framework can trace its lineage back to 1710 and during this time its robust and flexible nature has coped admirably with the advent of numerous new technologies. Digital tools are simply the latest in a long line of new ways to communicate and reproduce. The copyright framework is totally indifferent to the medium in which works are being conveyed. Fundamentally core to copyright is the granting of exclusive intellectual property rights to the creators of works, which as well as returning just rewards for their talent and endeavour are the ignition spark of economic activity by others, be they publishers, record labels or film studios. Those exclusive rights can be shaved, trimmed or expanded as befits contemporary mores, but the moral, legal and economic logic which underlies their existence is unshakeable.
It is a commonplace to say that digital technology has been hugely transformative to our society and economy. In western societies at least, even the most Luddite technophobe is touched by the digital transformation in some way or other, in spite of their resistance. Given this sometimes overwhelming rate of change it is understandable that some conclude that the only response is to redesign core aspects of our legal framework. Similarly it is understandable for some to conclude that laws need to be rewritten given their belief that the internet is, to borrow the coinage, “a vast copying machine”. Their logic would appear to be that since the acts of reproduction and distribution have become so facile, then any laws which seek to restrict or prevent such acts are axiomatically obsolete.
These reactions, whilst just about comprehensible, are both wrong and they are so because they fail to apprehend properly what copyright and intellectual property laws are there to do. Copyright merely grants rights to the creators of works; it does not take rights away from other people. Moreover, copyright does not confer rights on anyone other than the creator of a work. Nor does copyright arise simply from that which is technically possible. These are vital distinctions and it is the failure to grasp them which leads opponents of the copyright framework down their false trail.
Technology as an Enabler of Copyright
By setting out and granting exclusive rights, copyright law establishes where and in what circumstances the creator can legitimately assert ownership of their work – their property -and thereby assert the right to control what happens to whatever they have created. These rights are, rightly, circumscribed, by time and other conditions on use. What digital technology does is greatly enhance the creators’ ability to exploit these rights. It does so in remarkably positive and innovative ways: it makes reproduction quicker and cheaper; distribution more targeted; communicating to the public global; processing remuneration more efficient. Digital devices and services are the steroids of the creative world, and they are injected directly into the veins of the body of copyright law. In these ways, digital technology is the perfect partner to copyright.
But of course, as well as enhancing the ability of creators and producers to exploit their rights, digital technology increases the opportunity for others to exploit works too, even when they do not have the right to do so – in other words, infringing them. The internet may be a “vast copying machine” (although its other attributes are more important) and, just as in the pre-digital world where we had only small-scale copying machines, on occasion the copying which goes on will be against the wishes of the creator of the work. Such infringement of copyright is, sadly, a given in any system. But again, copyright works precisely because it establishes clearly what sort of copying is permitted and which is not. In a world in which works can be reproduced so easily it is vital that the creator of a work has a strong and fixed reference point from which to determine what is right and what is not. The alternative view – that there are no such things as “infringing copies” and that anything which takes place on this galactic-scale photocopier is fair game – is nonsensical in any context in which recognition and reward is to be paid to the creator.
It should also be noted that digital technology provides some excellent solutions to creators keen to monitor and prevent the infringement of their work. The internet is not so much a double-edged sword as a Swiss Army knife, with any range of tools available to help tackle infringement. Opponents of copyright, I suspect, see the world the other way around. They maintain that where the copyright framework does not give rights to creators it gives them instead to users. So, for example, where a creator does not have the right to prevent copying of a work for the purpose of instruction, then – they would maintain – the person doing the copying has the right to do so. This is a false perception. One can search the various international treaties, directives and national laws in vain for any language which confers such rights. Copyright exceptions may provide the permission for use, and sometimes a defence for the infringer, but do not provide them with a right to perform an act.
Copyright is not unique in this respect: in no areas of law is a right subject to a tug-of-war between its beneficiary and the population at large. By analogy, consider the Representation of the People Act. Where a person is deprived of their right to vote because they become a member of the House of Lords, that right is not distributed around the general electorate. I do not experience a micro-increase in my enfranchisement because the newly ennobled James Palumbo has lost his. So equally, a user does not begin to acquire the right to do something at the point at which the creator’s right is curtailed under copyright. Surely, a user has abilities to do things and the copyright law acts as a guide to when doing such things is legal or not. But the user is not in possession of the same class of exclusive right as that held by the creator.
To put it bluntly, when a work enters the public domain the exclusive right in it expires; it does not transfer to others, it evaporates.
Rights Are Based on Law not Technology
This leads on to a further sense in which copyright opponents mis-apprehend the nature of copyright. They say, in terms, “because digital technology has given me the ability to do something I therefore have the right to do it; but copyright laws are depriving me of exercising that right.” In this formulation (most often rehearsed in the “right to read is the right to text mine” debate), rights are acquired by an individual not by dint of the law but by dint of technology. A right is therefore held to be something which is attached to an ability.
The absurdity of such a world view becomes obvious in thinking through its logical consequences. An owner of a Formula 1 car does not have the right to travel the streets at 200 miles per hour; the owner of a mobile phone blocking device does not have the right to roam railway carriages shutting down others’ conversations; in futurology, the owner of an invisibility cloak would not have the right to enter unobserved into other people’s homes. The ability to do something does not confer the right to do it. Rights are generated by laws not by technology. To argue the converse hints at a rather unsavoury “might is right” approach.
The Real Aim of Copyright
“Ok”, may say the copyright opponent (again to put words into their mouth), “I agree but you are begging the question – your argument is precisely why I want to change the copyright framework in order that it does give me the rights commensurate with my digitally enhanced technical abilities”.
At which point we must return to the crux of what the copyright framework is there to do. Its ostensible aim is to facilitate the creation of useful works by providing rewards and incentives to creators. It is difficult to maintain an argument that such incentivisation would be maintained, let alone boosted, by a legal framework which removed from the creator the ability to control the reproduction of the work. Harder still to argue that companies like publishers, for whom copyright provides the incentive to invest, could remain engaged. Such a shift in the balance of rights away from creators would actually achieve nothing, other than to diminish the creator’s economic and social standing. Hence, the challenge back to the copyright-curtailer is therefore the simple one of asking why they should benefit at the expense of the creator.
It is insufficient for them to say that they are not harming rightsholders’ economic prospects, nor even that their acts of infringement might even somehow enhance them. For one thing, it is a rather patronising attitude of the infringer to suggest that the creator and their publisher doesn’t know what’s good for them, and that actually freely distributing their work to all and sundry would be a better thing in the long run. For another, it is self-aggrandising of the non- creator to claim a right at the creator’s expense. This is true even if their activity did somehow redound to the creator. A good follow-up question to cui bono is often “why should it be you?”.
Natural justice demands that there be a basis for a right. Moral logic requires there needs to be a reason for a person to enjoy domain over property. In most areas of life this right arises following the exchange of money on the basis of implied contract. When it comes to the creation of works, it is a long held view (from John Locke and others) that the product of a person’s talent and labour is justifiably theirs to control. What countervailing right could a user possibly point to? Some reach for freedom of speech. An important right to be sure, but nowhere in the annals of rights theory or practice is it a trump card: rights, when in conflict, must be balanced. In any case, it is notable that this most popular line of argument self-consciously eschews tussling over property rights. The proponent of the free speech argument makes no claim for ownership over the work to which they assert the right to give vent; rather they take the debate on to different turf.
It would appear then that the advocates of rebalancing exclusive rights away from the creator have no strong basis for their claims. There is nothing in their locker which can out- bid the intense moral connection between the creator and their right. And as we have shown, even an argument for rebalancing fails on these terms. Yes, it may be possible to trim some of the creator’s exclusive rights, but these shavings do not plop into the hands of the user but they disappear.
Copyright is fit for purpose in the digital age for three main reasons: it is sufficiently flexible to adapt to any new technology; digital technology is particularly beneficial for the exercising of copyright; and copyright provides the ability to determine which digital usages are permissible and which not.
Those who argue that copyright prevents digital-age users from exercising their rights as users are simply mis-understanding the word “right”. Similarly, those who argue that copyright prevents digital-age users from exercising their abilities are mis-understanding the concept of rights.
Fundamentally, copyright ensures that creators get rewarded for the great things that they create. Long may it prosper.
Richard Mollet became Chief Executive of the Publishers Association in October 2010. Prior to this he was Director of Public Affairs at the BPI (the representative body of the UK recorded music industry) where he was closely involved in the Digital Economy Act, the Gowers Review of Intellectual Property, and the wider debates around the value of copyright and the creative industries. Before joining the BPI Richard had ten years’ experience as a political communications consultant, working across a range of political and media sectors. Richard is Chair of the Alliance for Intellectual Property, of Book Industry Communication and of the World Book Day trustees. He studied PPE at Worcester College, Oxford University. He studied PPE at Worcester College, Oxford University. Richard is a visiting lecturer for the Hansard Scholars Programme at the London School of Economics.