The framers of copyright law are forever behind technological change. For 30 years or more the law has trailed virtually every major change in technology, usually allowing widespread theft of intellectual property with impunity or with remedies so cumbersome as to be useless. Audio tapes, photocopiers and VCRs were major examples. People copied without paying copyright and for years there was no sensible administrative means whereby they could pay copyright even if they wanted to until the law caught up by imposing tape levies and permitting sampling of educational and government photocopying.
Now another major technological change has happened and those who frame the law are working out what to do. As with previous technological changes, they are aware of the problem, but whether that awareness will be translated into law in the next half decade is another matter.
The technological change is convergence.
Present copyright law still talks about literary, musical, artistic, photographic, and film works as if they are separate things and as if the way they are reproduced or copied is different. Nowadays, of course, they are all the same thing and can be copied and reproduced the same way: digitally.
Beethoven’s Ninth, the photo on Page 1 today, these words and so on can all be reduced to computer files, copied and reproduced exactly.
Multi-media and CD-ROM technology shows children that every day throughout the world.
The Recording Industry Association of America is alarmed.
The association’s David Leibowitz said, “”We are very troubled about how easy it is to upload sound recordings and other information” and put it on a bulletin board or the 20 million-member Internet for anyone to download.
Why go to the music store when you can get your CDs over the phone line?
The association groups the major US record companies. It has set up an anti-piracy task force.
Leibowitz said Internet might be a lost cause. “”It seems uncontrollable,” he said. “”the possibility of creating electronic Swiss banks is really troublesome”.
At a copyright convergence seminar in Canberra last month, some pertinent points on the issue were made by Tim Conway, representing Electronic Frontiers Australia Inc.
He said the issues paper put out by the Federal Justice Department’s Copyright Convergence Group had kept the distinctions between the various artistic works and suggested that the law be amended separately with respect to each.
“”I call this law-making by backfilling,” he said.
“”We are always playing catch-up to technological change,” he said.
The issues paper said there was a difficulty with multi-media products because they do not fit any of the existing copyright categories. One suggestion was to broaden the category of “”cinematographic works”.
A further problem, it said, was the status of copyright works used by multimedia developers in creating new products (Madonna music, words of a Carey novel and some clip from a film melded into a new creation, for example).
Conway attacked the issues paper for assuming that the “”transmission” and “”broadcast” methods will be the main way information is delivered.
This was very business driven and assumed the business provider would determine what was sent out.
Conway suggested an equally valid model was to look at things from the consumers’ perspective. This was driving the computer-based models _ “”based on the consumer exercising choice and the creator making information accessible which is located, collected and downloaded by the consumer”.
When the copyright issue is viewed that way, purely legal solutions to the copyright issue are hopeless. There is no point in giving people rights to sue for breach of copyright that are for practical purposes unenforceable.
A technological solution as well as legal one is needed.
Piracy by audio tape, for example, was addressed not by catching and fining or suing the pirates, but by leaving the tape they bought and later by delivering music on CDs which until very recently were not easily copied.
Now technology moves on and the law-makers and administrators are left in floundering in the wake again.
The usual result is that the big-time mass producers get the intellectual property of their artists protected some of the time but the smaller artists have no hope in invoking the costly remedies provided by copyright law.
This time, at least the problem has been acknowledged reasonably early.