Origins of Copyright
Three foundational ideas make up our modern conception of copyright:
- Regulating the printing trade
- The Right of the Author
- ‘Intellectual Property’
1. Regulating the printing trade
Originally, certain printers would be granted royal monopoly to print certain works in exchange for royal censorship and control. This became the underpinnings of a printer’s business within a territory. In 1710 in England, in response to a quarrel between London and Edinburgh printers, the Statute of Anne gave London printers a limited-term exclusive right to print books, with a balance sought between private commercial interest and the public good.
Copyright was a regulation of industrial activity: who had to the legal right to manufacture and sell within a particular jurisdiction. “Pirates” would print and distribute outside of this law, or more commonly, in another country, and then smuggle the books over the border—this was common with British Books entering the USA through Canada.
2. The Right of the Author
Authorship begins to have legal implications around the same time. In the 1660s in Britain, the fist scholarly journal is published: Philosophical Transactions of the Royal Society. “Phil Trans” kept a formal record of the public communications of early scientists and served as a kind of registry of ideas, establishing the “paternity” of innovation and experimentation.
In France, around the time of the Revolution (1790s), ideals of a “free press” were tempered by the need to hold authors accountable for what they wrote and published. The idea of an inalienable connection between author and work began to be recognized in law.
In countries with cultural ties to continental Europe, the right of the author (or Droit d’auteur) are encoded in law. In Canada, for instance, there is a “moral right” which parallels the economic right to make copies—the connection between author and the work is formally recognized, which not only maintains the creator’s credit, but also gives the creator some degree of control going forward. In the UK and USA, there is no such moral right in copyright law.
3. ‘Intellectual Property’
By the late 1800s, copyright, patent, and trademark laws began to be recognized as fundamental pillars of capitalist economies, and the widespread notion of “intellectual property” began to be articulated. The idea that intellectual and creative work could and should be treated the same way as physical property has clear benefits in terms of industrial regulation, and the concept of intellectual property proved to be a popular one in the 20th century. It also raises considerable conceptual problems, which are well understood by lawyers and legal scholars.
Copyright terms and exceptions
In its original formulation in Britain, France, and the USA, copyright was rationalized as a limited monopoly which was tolerable (where monopolies in general are to be avoided) in order to create an incentive to bring creative and intellectual activity to market. Because monopolies were seen as bad things, the grant of monopoly from copyright was to have a limited term: originally in the USA, it was 14 years.
Over time, and often in response to the lobbying by copyright holders, the term of copyright has been extended several times. Currently, in the USA, copyright lasts for the lifetime of the author PLUS 70 years (50 years in Canada). The last round of copyright-term extension legislation in the USA (in 1998) coincided with the original Mickey Mouse films passing out of copyright—and was therefore popularly called the “Mickey Mouse Protection Act”. Critics worry that, given lobbying and the record of extensions, major works from the 20th century may never pass out of copyright.
When the copyright term has expired, a work falls into the “public domain”—that is, no longer protected by copyright. Anyone can do anything they like with the work. This is variously seen as a legal black hole, or an important public good.
For works still under copyright, exceptions are made for particular uses such as scholarlship, review, criticism, private study, and so on, In Canada, this is called the “fair dealing” exception; in the USA, it is a broader exception called “fair use.”
Globalization of copyright law
In 1886, the Berne Convention was established, which sought to rationalize copyright law across international boundaries, ensuring that works protected in one country would have the same protections in another country—this was to curb international piracy. Although the USA didn’t sign on until the 1970s, this international agreement has done the most to shape international copyright. IN particular, the Berne Convention’s rules say that copyright automatically accrues to the creator, with no need for formal registration (as had previously been the case in the USA, for example). Automatic copyright, in conjunction with long copyright terms, has created a global situation where almost all creative works from the 20th century will remain under copyright for a long time to come.
Currently, there is a WTO copyright treaty, called the World Intellectual Property Organization (WIPO) which seeks to globally establish new copyright regulations based on the USA’s 1998 Digital Millennium Copyright Act. It has been accepted by many countries (including Canada), but not formally ratified not realized in national legislation. A series of Canadian copyright reform acts, including the current C-11 (2011, now before the house) have sought to reconcile the WIPO treaties with Canadian law. None have survived long enough to become law, yet.
The Problem posed by Digital Media
Since the 1970s, technological innovation has been making copyright a more complicated thing. The invention and spread of the photocopier made mechanical reproduction a personal matter rather than an industrial one. Copyright then begins to govern individual people’s practices, as opposed to regulating industry. The rise of the the Internet has made this problem much, much worse, as copying is not something we do hundreds of times a day, without even thinking of it. This creates problems both for traditional rights-oriented businesses, as well as for the law itself. As Wired Magazine founder Kevin Kelly put it, “the Internet is a copy machine” — the most efficient one ever invented.
In a sense, the Internet itself is an enormous challenge to the very idea of copyright. Ever act on the Internet is an act of copying. If we were to take copyright literally online, the Internet and WorldWide Web would instantly grind to a halt. This has posed major problems for legislators, often with ham-fisted results.
The American Digital Millenium Copyright Act (DMCA, 1998) added a number of new measures to US law. Notable is the criminalization of the breaking (circumvention) of technological protection measures—also known as “copy protection” or “digital locks” (this has appeared in the current proposal for Canadian law, in 2010’s bill C-32 and 2011’s C-11). This means that it is illegal to circumvent the copy protection in a device like a DVD, regardless of a person’s intent.
Digital Rights Management
Digital Rights Management (DRM) is a term referring to a variety of strategies for making software and digital media uncopyable (at least without permission). Much commercially-available digital media today has a DRM layer, including DVD movies, digital music (especially the older AAC music out of iTunes), TV and movies online, ebooks.
DRM has been almost universally panned as a pain in the butt. It is a hassle to deal with, limits convenience and often limits the kind of thing you might expect to be able to do with digital media (move it from device to device, make backups, lend to a friend, etc.). DRM has been more substantially critiqued as an ad-hoc restriction of previously available “fair dealing” and “fair use” exceptions and rights, since the software limits on what you may do with digital files may be considerable more restrictive than what copyright law allows you to do.
Protection of DRM (or “technological protection measures” or “digital locks”) in copyright law—by banning “circumvention measures” has been critiqued as an abdication of the law’s responsibility to seek a balance between the rights of creators (or, more accurately, corporate rights-holders) and the rights of larger society) by letting publishers and developers encode what rights are possible in the function of the software/media, and then criminalizing any attempt to get around it.
More importantly, DRM has been shown to not work. No copy-protection system is uncrackable, and it only takes one breach to make a work available on BitTorrent. In the meantime, DRM causes havoc for legitimate customers and fans, by treating them with suspicion and micro-managing their use of the work.
Canadian Copyright Reform
A series of copyright reform bills have been introduced into parliament since 2005. So far, every one has failed to pass into law because minority federal governments (Liberal and then Conservative) have failed each time. In 2010, the Conservative government introduced Bill C-32, which promised a balance between creators’ and users’ rights. The bill was received with mixed reviews. On one hand, it promised a whole new educational exception for fair dealing; on the other hand, it criminalized the circumvention of “digital locks,” even when the circumvention is for personal use already allowable under fair dealing exceptions. Canadian copyright analyst Michael Geist called C-32 “flawed but fixable,” with his main criticism the blanket digital lock provisions.
In late September 2011, the Conservative government (now with a majority) has reintroduced the bill, essentially unchanged, under the new label C-11. The educational exemption is still there; so is the criminalization of circumvention of TPMs.