January 1998
An editorial from our webmaster:
The US Congress has been looking at drafting a revision of the copyright law to lengthen the protections offered by the law. This is largely motivated by the US movie industry whose copyrights on some blockbuster movies will begin to expire in the next decade. If Congress moves toward this kind of revision they should take the whole of the copyright legislation into consideration. Especially then needs of the software industry for which copyright is an uncomfortable fit.
Over the next few months I will try to explain some challenges and threats made by technology on intellectual property rights. Both this and next month's installment deals with copyright law, it is a bit long, but the subject requires it. Next month's editorial will deal with software protection, and the demands the internet places on intellectual property rights. Later in the year an editorial will deal with software patents and the death of patent law.
Laws that can't be enforced are laws that are ineffective. If a law is enacted that requires too much enforcement and that enforcement is taken seriously then the costs to society burgeon and the society becomes repressive as well. So making effective laws requires one to use underlying assumptions that match reality or these laws may become either ineffective or fascist. Assumptions behind laws stay fixed while the society and technology change with time. Eventually this forces changes to existing laws to match reality.
"Intellectual property rights" is the handle of a fork which groups together four prongs which give protection to individuals who invent, create, perform, or market things. Corporations are usually treated differently than individuals in intellectual property rights matters. The prongs in the fork include copyright law, patent law, trade mark law, and trade secrets. Each has its function in the overall scheme. Copyright law protects the expression of an idea. Patents protect the idea. Trade mark law protects a commercial symbol used to represent an idea, goods, or service. Trade secrets are a last resort, if nothing else fits.
Of these four prongs half -- and probably the most important half -- are being eroded by technological changes in our society. The two prongs that appear safe are trade mark law and trade secrets. Both are based on what appear at this moment to be stable principles. However the other two prongs have a good chance of completely failing in the next few years; in some senses they are already dead, because they fail to protect a new major area of intellectual activity: computer programming.
Unrecorded in the text of copyright law is a assumption about the real world; but the assumption is nevertheless as real as if it were written there. Copyright law assumes that it is difficult for an individual to make a copy. Difficulty is easy to define: copying is difficult if it is more expensive for an individual to make a suitable copy than to buy the commercial product. "Suitable copy" is a little harder to define with any precision. However it ranges from an exact copy indistinguishable in form and content from the original to a gross approximation. How much is "suitable" in any circumstance depends on the user and what he is willing to pay for the item. The better and cheaper the copy, the more an individual is willing to make and use the copy rather than buy the commercial product.
Copyright is enforced by legally going after companies and institutions that reproduce and sell copies. That is: a copyright owner can go after a pirate publisher. It is nearly impossible for the publisher to go after individuals who violate copyright law. If copies are easy to make, then copying can be done by everyone, and the law becomes impossible to enforce except in a scattered and selectively unfair way.
When copyright law was first enacted early in this century, copying most
things that fell under copyright was difficult. Media often comes in read-only
form. Books, phonograph records, compact disks all were mass media that
were difficult to copy at their inception. Because they are difficult to
copy, the ownership of the material on them can be controlled by commercial
interests and can be enforced in law. But as technology advances, these
media become easily duplicable.
One component of copying is the size and quality of the item to be copied.
Books have survived the assault of the copying machine, in part, because
they can be made long enough so that it is relatively costly to make a copy,
even today. This has led to the expansion of material in books, they tend
to be bigger today than they used to be... (or is it just my imagination
running overtime). Books today have wider margins, often with a marginal
notes style that pushes up the number of pages while keeping content the
same. Color in books has also become common, in part because the cost of
duplicating a color picture is higher. For a book publisher anything that
makes the book more difficult to copy is better; especially if it also makes
a book more attractive to buy. Certain markets are more dangerous than
others, for example, college books are at a higher risk of being copied
than professional books in, say, medicine.
With music, copies are inferior to the original; this has saved the recording companies. That is until digital audio tape(DAT) arrived on the scene. However DAT has all the disadvantages and unreliability of tape, so it is still not an equivalent copy. However, with low cost writeable CDs becoming available and cheap, the read-only advantages held by the CD have ended or will soon end.
It is now time for a new non-writeable media to come and save the recording companies. The Digital Video Disk(DVD) has just arrived to try and save the scene. One company likes to call it the Digital Versatile Disk, just to make sure everyone gets the point about it being a great music, and ROM media as well. DVDs contain a new audio standard which requires much more space. The DVD has more bits/sample and a higher sampling rate. If the consumer believes that with DVDs he hears more, or that what he hears sounds substantially better than a CD, then the recording industry will be saved for a few more years. Of course, if consumers are happy with the sound of CDs, and they don't buy into the media hype, then the industry is doomed anyway.
To make DVDs that sound better, the recording industry should be pushing the edge of technology, recording new material in the new high standard, and embarking on a new program of recording the standard classical pieces. Not many recording companies are making any effort to do this. So the standard of sound is not likely to make a big upsurge in the near future. This means that CDs will probably be adequate to carry the music the industry has to sell. This also means that the dire predictions made in the last paragraph are more likely than not.
How can this happen? Let's take some hypothetical figures for prices and see how you might react. Assume the price of a writeable CD drops to $1 or under (it's only about $6 now) and the price of a machine to write it is less than $300 (it's only about $600 now), a friend drops by and plays a new CD he just bought for $15. You would like a copy. Do you go to the store and pay them $16 (with tax) or do you just drop it in your computer and make yourself a copy? Notice you don't get the liner notes and jewel box this way, it's an inferior copy. But it is a CD you can play in your car or on your CD machine in the living room. It only costs another $1 to copy the cover and stuff it in a nice clean $0.50 jewel box. Now you have an almost exact copy of the CD for, say, $2.50. Ah... I know you are honest and go to the store so that the store, the distributer, record company, the artist, and the composers can make money off you.
This self-copy scenario only costs the record companies one sale, multiplied by the number of individual offenders, of course. But how many teenage pirate operations will be willing to do the same thing for, say, a quick $5.00 sale in the school yard. How fast can you put them out of business? How many will replace them faster than you can prosecute them? Do you really want to prosecute teenage rebels? Can the music industry record, edit, reproduce, distribute, advertise and sell disks, with all that overhead, and make money at $5.00 per disk? That will require a much more efficient industry than the one we have now.
Video information has always been high bandwidth and difficult for an individual to copy. So far technology has limited the distribution of video information to the low resolution of video tape and the inherent unreliability of tape for long term storage and copying. The DVD has changed that. The movie companies now have a media that has too much information to copy easily and will provide reasonable resolution pictures to the masses. Copyright will still work for them -- at least for a while. In five to ten years a writeable DVD or some other equivalent media will be available. The packaging of DVDs favors commercial interests because it is harder to duplicate than the CD packaging. But it is also less convenient for the user and the packaging used looks cheap and ugly. It will probably give way to the CD jewel box; some DVDs are already available in this packaging. Note that the industry was not clever enough to pick a new size for the DVD disk; an important failing.
The design of DVDs also did another thing, the designers of the media isolated the region in which the DVD can be played. The world is broken into six marketing regions. Each region has a specialized player for it's region. You can't buy a DVD in London and bring it home and play it on your DVD player. This "feature" is designed to allow record and movie companies to charge differently in each world region. That is it will be $2 in Africa to buy Batman but you will pay $20 here. Nobody can go buy up the African supply, import them and sell them here for $5. It sounds like a full blown restraint of trade monopoly situation to me. I hope somebody takes them to court for that restraint of trade. Building in barriers for commerce should be illegal, if it is not now. Congress certainly should not make legal barriers for multi-format players that play DVDs from anywhere in the world, for these same reasons.
Copyright law should be designed to protect the original creative artist. It should not accidentally protect works stored by collectors of art. The British Museum, to pick one example among many other institutions and individuals, owns many manuscripts from centuries before copyright was even dreamed of, much less enacted into law. However, the British Museum does not allow anyone to copy their manuscripts except their own staff. They offer a photo copying service to the public, however they copyright the copies they make. Thus they effectively own the copyright on the public domain material they collect.
Under existing copyright law if you photograph copyrighted material then you are copying, and the photograph you make is subject to the original copyright. If you photograph public domain objects then suddenly you are doing creative art, and you have a new copyright on the photograph. Whatever legal reasoning led to this must have been arcane; it is certainly stupid.
The copyright law should distinguish copies from creative art, it currently does not. A copy of a public domain object to be considered art (and thus eligible for copyright) should exhibit a creative and innovative nature; otherwise it should remain public domain. How the law defines creative and innovative is something for the courts to determine, after all they have been working on the word obscene for nearly a hundred years. But if there was this kind of wording in the law it would clearly endow any copy aimed at verisimilitude with the same status as the original. This would also have the beneficial effect of eliminating another slime business, editing public domain musical scores and copyrighting the result.
This uncivil behavior, trying to husband and resell public domain art, is also a complete negation of the intent of copyright law, which was designed to allow public distribution of material while protecting the rights of the creative force behind the material. Thus, secondary copyrights should be banned by law. Just because you made a copy of something in the public domain should not entitle you to a copyright on the material.
Revision of copyright law is overdue. But proposals to extend copyright protection from 50 to 75 years are silly. If anything copyright for corporations should be reduced to, say, 25 years and public domain material held away from general public copying should be punished. That is owners of unique material that has been protected by copyright or existed before copyright law came into existence should be forced to allow copies to be made by the general public or copies should be made available by the owners of the material at current commercial copying rates.
Copyright should be viewed as a privilege not a right. If one avails oneself of the privilege with publication then the cost is public availability of the material at the expiration of the copyright protection. Public filing of published copyrighted material should be mandatory. This guarantees publication of the work at the end of the period of protection. Copyrighted but non-published work should become public domain items after 50 years.
With personal works, copyright must be explicit to distinguish it from private but non-published information. Thus individuals will have to mark works as copyright which will insure public access later, otherwise the material will be assumed to be private and not protected by copyright. How one handles unauthorized publication of private material should be considered and what rights private information enjoys.
Copyright law was based on a conception of the difficulty of copying that no longer has any meaning. As such it must be rethought on the basis of tomorrow's realities. Repression is not the answer. Doing business as we have done it for the last century will not work either.
Something new must be developed to protect the creative people from exploitation. But business may have to lose some protections they have enjoyed in the process.
Revision of copyright law is a non-trivial effort. It involves deep thinking about what needs protection and how to offer those protections without creating a totalitarian state. Rumor has it that a step towards that totalitarian state was enacted into law last month, December 1997, by changing the US copyright law so that copyright infringers are criminals and can be punished even if the offender made no money from the copies. If true, this moves copyright violation out of civil law and into criminal law; definitely a move in the wrong direction. It would be a repressive response to the pressures presented here. The response to these pressures should not be totalitarian, but rather cause the Congress to rethink the basis of the copyright law.
Because of the internet, copyright law involves not only the US but every country in the world with treaties and trade agreements. Congress must act quickly; copyright law is long past due for revision, and it must be a rational, humanistic, revision.
BUZ
Webmaster, ServeNet
© 1998 Robert Uzgalis. All Rights Reserved.