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"Copyright as a Challenge to the Freedom of
Access to Information and Freedom of Expression"
(Copy of a
paper given by Nick Smith, Executive Officer of the Australian Digital Alliance
at the International Federation of Library Association Annual Conference in
Jerusalem 2000)
Copyright could be described as a system of law
which protects creators from those who would copy their works. The notion that
creators needed such protection is a relatively new one. In pre-modern times,
both in Europe and China, imitation of past masters and the reworking of old
stories were accepted as the core business of being an artist.
Shakespeare is famous for his recycling of the plots and themes of
others while a brief tour of a pre-modern European art museum should convince
you that originality as we understand it today was not highly prized.
In China, the 17th century artist, Wu Li, went so far as to say: 'to
paint without taking the Sung and Yuan masters as one's basis is like playing
chess on an empty chessboard, without pieces.' Indeed, an Englishman was
bemused in 1903 by the attitude of the Chinese, to whom copyright law 'was but
the haggling of the harlot over the price of shame.'
Copyright's
beginnings are rooted in the invention of the movable type printing press. Only
when Gutenberg was able to print the Bible at the staggering pace of 200 copies
in three years did copying start to become efficient enough to warrant the
attention of the law.
Copyright's relationship to freedom of expression
and freedom of access to information has always been complex. The world's first
copyright statute, Britain's Statute of Anne in 1709, grew out of the monopoly
on printing granted to the Stationers' Company guild system. 'The primary
interest of the state in granting this monopoly was…the establishment of a
more effective system for government surveillance of the press.' The primary
interest of the printers was the maintenance of their closed shop.
Once
copyright emerged more fully from its printers' protection racket beginnings,
it came to the aid of freedom of expression and of access to information.
Copyright provides an incentive to authors and publishers to create their works
and make them available. A right of freedom to access information means nothing
if there is no information to access.
And by providing this incentive,
copyright provides an economic base from which a person can express their
views. Without such a base, only the rich or those willing to endure poverty
are able to share their creations with society. (Of course, most writers must
be willing to endure poverty anyway but at least they can hope.) Copyright thus
allows a wider and more diverse group of people to contribute to our stock of
knowledge. By imparting some freedom from hunger, it enhances freedom of
expression.
It becomes a mechanism, as the US Constitution puts it, to
promote the Progress of Science and useful Arts. However, because this is
achieved by granting the author some right to control who accesses their work,
this will obviously have implications for freedom of access to information and
even our freedom of expression.
The first important thing to be aware
of in terms of copyright as a barrier to access is that copyright protection
seemingly only increases, it never decreases. Once copyright laws are in place,
as a rule it seems, the only way is up.
The European Union Copyright
Term Directive 'harmonised' the different copyright terms throughout the EU,
trying to find a happy medium between Germany and Austria with their life plus
70 copyright terms and nations such as Spain which offered just 60 years. That
happy medium was of course the upper limit, life plus 70, despite the fact that
most EC countries adhered to the Berne Convention requirement of life plus 50.
The United States, which spent a large part of its history as a
copyright pirate nation to the despair of authors such as Charles Dickens,
originally offered a copyright term of 14 years with a second 14 years being
available upon renewal (the copyright in the renewal period returned to the
author even if it had been assigned to a publisher, a nice idea). In 1831, this
was increased to 28 years with a renewal period of 14. In 1909, it was
increased again to 28 plus 28. In 1976, it was 'harmonised' with the Berne
Convention to life plus 50 and then in 1998, under the Sonny Bono Copyright
Term Extension Act, the term was further increased to life plus 70 to
'harmonise' it with the European Union.
There is now some pressure in
Australia for us to extend our term so that we can be in 'harmony' with the US
and Europe. It's strange how harmony only works in one direction. One day the
whole world may find itself in harmony with German copyright.
This
extension of the term has serious implications for access to information,
pushing the public domain with its guarantee of universally accessible
information ever further away. In the 1950's the US Copyright Office did a
study of the renewal of copyrights that had first been registered in 1927. Bear
in mind that copyright works had to be registered upon publication to receive
any protection at all. Those works whose authors or publishers could not be
bothered to register fell immediately into the public domain.
The
average reregistration rate was just 9.5% rising to a giddy height of 43.7% for
motion pictures and 45% for published music with just 4.1% for books and
pamphlets and just 5.4 % for periodicals. This means that for all book
publishers whose book was of sufficient value for them to register it in 1927,
fewer than 1 in 20 thought it was still worthwhile to re-register for copyright
protection just 28 years later.
And yet, as the law stands in Europe
and the US today, material that would not have been worthwhile registering for
copyright protection even when it was first published will be copyright
protected until 70 years after the death of the author. This suggests that
there is a massive amount of material to which the public is restricted access
by reason of copyright that was not worth protecting in the first place.
The chief means by which public access to such material has been
guaranteed while it is copyright protected is through libraries. Libraries
acquire books and other material and make them available to the public.
Copyright permission is not required but this activity is often contemplated in
copyright laws. The Copyright Acts of the USA, UK and Australia require the
deposit of published materials with their respective deposit libraries. A
number of other countries, including Canada, Denmark, Finland and Japan also
have legal deposit laws, though not as part of their copyright regimes.
Access to information in libraries is further enhanced by various copyright
exceptions, the most famous being fair use or fair dealing which allow a
student or researcher to copy sometimes whole works to advance their education
or their research. Many Continental European countries similarly allow the
making of single copies of published works for private use as does the
Copyright Law of Japan.
Other exceptions also exist which ensure that
copyright does not act as too great a barrier to information in the print
environment. Chief among these are the exceptions found in Common Law countries
which allow libraries to supply copies of material in their collections for
certain purposes. These exceptions are strenuously resisted by publisher
interests but play a very important role in the flow of information in our
societies.
It is ironic that as we move towards the digital age where
information is more easily available than ever before, copyright is becoming an
ever greater barrier to the freedom of access to information. Copyright in the
digital environment frequently allows a level of control over information that
a totalitarian state would find attractive.
In the print world, a
single exercise of copyright underpins the book trade, the right of
reproduction. With this one right, a physical book is created which, once sold,
falls largely outside the control of the copyright owner, it may be lent,
re-sold and most importantly, re-read an infinite number of times.
In
the digital environment, with newly-minted copyright laws based upon the World
Intellectual Property Organisation Copyright Treaties, the level of control
over information is far greater and the exceptions which might balance this
control are under attack from publishers interests.
Let me illustrate
this new level of control. As I said, just one exercise of one copyright
underpins the entire book industry. Compare this to an e-book. Copyright
permission must be sought to reproduce it onto a server; also to 'make it
available to the public' (which is one of the new rights) on that server.
That's one act of uploading but two exercises of copyright. Copyright
permission must be sought for each and every communication from that server to
your desktop. If the e-book is to be downloaded to your hard drive, permission
must be sought again for that reproduction. But the real backward step hidden
in new copyright laws comes with respect to temporary or ephemeral
reproductions. These are copies which are made on your screen, in your Random
Access Memory or in your PC's cache. These are files which are automatically
made as part of the technical process of reading electronic material.
What is the significance of this? It's quite simple. If you need a
licence to make temporary copies on your PC then you need a licence to read.
The very act of reading becomes a copyright protected act. Electronic books
suddenly become very like yo-yos, put out there with strings attached. This is
in direct contrast to what happens with physical book. When a book is
published, a large degree of control over it is forever lost. A publisher can
generally stop other people from making copies of a book but they can't stop
people from using it.
In most countries, it was never clear that
such reproductions were ever part of a copyright owners's rights; copyright
laws normally require that reproductions have some kind of permanency.
But increasingly temporary reproductions are being viewed as the legitimate
domain of copyright owners. As far as I am aware, no jurisdiction in the world
has wholly exempted temporary reproductions from the copyright owners rights.
In Australia, there is an exemption that covers such exceptions made as part of
a communication but not otherwise.
The proposed EC Directive exempts
certain temporary acts of reproductions but only where such reproductions have
no 'separate economic value'. If controlling these reproductions allows
publishers to control the very act of reading: who can read, for how long, how
many times and under what conditions, then I would say that they have a
separate economic value.
In the United States, the recent case of
Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., put it this way:
"When a person browses a website, and by so doing displays the [copyrighted
material], a copy of the copyrighted material] is made in the computer's random
access memory (RAM), to permit viewing of the material. And in making a copy,
even a temporary one, the person who browsed infringes the copyright."
Copyright laws such as these make it much more difficult for libraries
to provide access. In the digital environment, there are no copyright free
zones as far as libraries are concerned. To provide services digitally that are
anything like services that are provided in realspace, libraries either need
licences or they need to be operating under a copyright exception of some kind.
There is no digital equivalent of just buying a book and putting it on a shelf
without having to worry about copyright.
In this environment where
copyright law has taken the control of information to new levels, libraries and
their users need more copyright exceptions than ever before just to preserve
our current rights to access information. But digital copyright exceptions are
fiercely resented by publisher interests as holes in their dotcom business
models. Legitimate fair use/fair dealing activities by libraries and their
users are characterised as piracy by some publishers. Furthermore, publishers
are moving to swathe their electronic publications in new technological
protections such as software locks which are themselves protected by new laws
under the WIPO Treaties, effectively putting 3 levels of protection between
information and would-be users.
And where freedom of access to
information is threatened so too is freedom of expression. Human expression
rarely emerges from a vacuum. Today's speech is made of yesterday's words. As
art historian, Leo Steinberg put it: there is as much unpredictable originality
in quoting, imitating, transposing, and echoing, as there is in inventing.' To
put it a different way, Harvard law professor Lawrence Lessig observed that:
'intellectual property is both an input and an output in the information
economy.' Today's output is tomorrow's input, and if we allow copyright to
unduly restrict that then we have harmed our freedom to express ourselves, to
output ourselves.
Unless Governments around the world can be persuaded
to maintain the current balance between the rights of copyright owners to
receive fair reward and the rights of user to reasonable access then copyright
will increasingly become a major barrier to the freedom of access to
information and ultimately our freedom of expression. |
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