The 300 Year War of Copyright

‘If one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law. [..] My real message was, let’s not just put enforcement bills on the table and then be surprised when the public doesn’t understand. We’ve got to tell a better story.’ 

Pallante (2013)

Two years into her role as Register of Copyrights and Director of the US Copyright Office, Maria Pallante made a speech calling for a comprehensive revision of copyright law. 

The technological and social changes of the 21st century mean that the law is not doing its job and risks losing its moral authority. Progress is likely to be slow due to the complex and arcane provisions of statute, the intensity with which interested parties promote and defend their positions, and the public’s confusion, if not aversion, on matters of copyright.  

Even so, merely tinkering with amendments to existing statute is not palatable.  A better story needs to be told.

Some may regard Maria Pallante’s call for reform as an invitation to open a can of worms, but it is a can which has perhaps never been satisfactorily closed. 

Copyright has been a contentious topic for more than 300 years, and the debate erupts ferociously from time to time, especially when technology changes, or when the balance of power between trade, state, and culture becomes unstable. This is because the topic challenges three quite fundamental conceptions:

• of the creative process, 

• of human rights,

• of the organising principles of society. 

There is a certain degree of consensus in the basic principle that some form of economic protection of creative labour can act as an incentive to promote innovation which is good for society. Thereafter philosophies diverge fairly quickly about how the conflicting interests inherent in the creation of 'artificial scarcity' should be balanced within copyright law.

I am going to return to the assumption that narrative is a way in which intractably polarised dilemmas can be more manageably conceived and negotiated. At certain times, all parties to an issue become fully engaged in a debate or dispute and can easily recognise the shortcomings of simplifying narrative mechanisms. However, once one story emerges as more compelling it gets repeated so often that it becomes culturally embedded as a masterplot, sometimes embedded in statute, and it lies relatively dormant and uncontested until something new comes along to resurrect the contest. 

Digital technologies and the internet have been such a catalyst. They resurrect the storytelling contest because much, if not most, of the technological and social infrastructure for expressing, sharing and developing the products of human thought, creativity and ingenuity has moved on. It has changed beyond what could possibly have been imagined when the foundations of today’s statutes were laid.

My simplification of the polarities of the copyright dilemma is framed in the diagram at the bottom of this page. Some of these elements are less polarised than others, but I find it helpful to group them in this way. Most, if not all arguments made in the 21st century digital story-telling contest can be mapped to these discursive repertoires, directly or indirectly. 

Most of the terms used in the image below should by now be familiar with the reader, but before I comment on them further, I want to pick up where we left the pre-history of intellectual property in an earlier chapter, with the demise in 1695 of the monopolistic licence granted to printers and booksellers. For the following 15 years, there was widespread printing without the consent of the author, and beyond the control of the printers and booksellers. Desperate for some reinstatement of structure which they could control, and recognizing that a discourse of authorship was on the rise, the booksellers de-emphasized talk of their own rights. They strategically positioned themselves as logical stewards of authors’ rights. 

Being able to campaign for their own interests, but under the banner of author’s rights, was an effective strategy. It remains an effective lobbying strategy for content-owners today. 

The first statutory protection of copyright

The Act commonly referred to as the first copyright legislation was the Statute of Anne (1710). 

In fact the word copyright does not appear in it, and only emerges 25 years later. The statute was titled An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein Mentioned. In its opening line it refers to ‘the very great detriment, and too often the ruin of them [authors or proprietors] and their families’, caused by non-consensual printing. 

Though not obvious from its title, the Act represented more of a victory for booksellers and publishers than it was for the recognition and protection of authors’ rights. In practice it legitimated the publishers’ monopoly and destroyed any right (if one ever existed) to authors’ perpetual copyright in their published work. 

The term awarded was 14 years, which was renewable for a further 14 years if the author was still alive. Works already in print when the Act was passed were given a protected term of 21 years.

Extensions to the term of copyright (1710 to 2013)

As a pragmatic resolution of an unstable situation, the various interested parties were reasonably satisfied with the Statute of Anne. The arguments were relatively settled for the next 20 years, until the first copyrights began to expire. Then began the ‘battle of the booksellers’, a sustained effort to extend copyright term and argue that a common law right in perpetuity pre-existed the Statute of Anne. 

A number of legal cases are often cited as the focal points, such as Tonson v. Collins (1762) and Millar v. Taylor (1769), culminating in the ruling in the case of Donaldson v. Beckett (1774) which held that the Statute of Anne restrained or removed any perpetual author right which might have existed in common law. The ruling upheld the 14 year copyright term, but did not definitively close the debate on the possibility of longer terms. 

Over the following century economic and philosophical arguments were heatedly exchanged, not just in Britain, but also in France, Germany and the USA. 

In Europe, the Romanticism movement fuelled the perception of author as original genius, and the metaphor of his output as property became more culturally and commercially embedded without much alternative championing of the public domain. Publishers had little objection to the strengthening of author property rights, as rights were easily acquired or relatively cheaply licensed to corporations, giving them exclusive control. Consequently, by 1842 the copyright term had lengthened to a 42 year minimum, or the life of the author plus seven years. 

By the time of the Berne Convention (1886), there was some acceptance of the benefits of laws which could be internationally harmonised and binding. The Berne Convention stipulated that parties to it must have a minimum term of author’s life plus 50 years. In 1996 the UK term was extended to author’s life plus 70 years to harmonise with the European Union. In 1998 the US Copyright Term Extension Act also extended to life plus 70 years. 

So in practice this means that today, for a 20 year old taking a photograph, writing a song, a blog, or a computer program, if she lives until she is 90, then she and her dependents will by default enjoy 140 years of copyright protection.

The historiography of copyright law

In the introduction to Privilege and Property, Essays on the History of Copyright, Deazley, Kretschmer and Bently (2010) invite more work on the historiography of copyright, i.e. a study of the narratives about the changing construction of copyright history at various periods. Most importantly they encourage scrutiny of the question: ‘which justificatory goals are served by historical investigation?’

This might seem an esoteric and overly intellectual exercise, but it is relevant if one wants to unmask the dominant narratives which might potentially stand in the way of the kind of reforms urged by Maria Pallante. One of Pallante’s predecessors at the US Copyright Office claimed that it was ‘of debatable significance’ that copyright originated in England centuries ago:

‘This was a period of great religious ferment and political unrest during which witchcraft and devil-worship were at their height, and repressive measures against all forms of heresy were widespread. [ ] I don’t agree with the charge that copyright originated as a marriage between tyranny and greed, arranged by the devil. [ ] ..the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors’. 

The Demonology of Copyright, Barabra Alice Ringer (1974)

If the Statute of Anne had taken force in 1695, immediately after the lapse of the Licensing Act, these comments might be more convincing. But the statute came into force after the experience of 15 years of open and unregulated publishing activity, i.e. of unprecedented freedom of expression. The aim was to restore quality control and integrity to the generation of knowledge by authenticating attribution, and to provide a living for authors and publishers. Seemingly ignoring that 'inconvenient' period, Ringer invokes a fearmongering and slightly anachronistic 15th and 16th century image of witchcraft and devil-worshipping to rhetorically support an interpretation of copyright history which aligns with particular political and ideological goals. 

I quote Ringer as an example of why one should approach historical copyright references with a critical eye.

Returning to the diagram at the bottom of this page, the first and perhaps the most profound oppositional construct to be reconciled by copyright is that of the creative process itself. 

What aspects of the process of creation entitle an author or an artist to own, or exclusively to control, the product of their labour? This must be addressed as a social and philosophical question before it can be considered as a legal one.

There are two popular metaphors which are useful to describe the alternative views: 

1. ‘standing on the shoulders of giants’,

2. ‘giving birth to new ideas’. 

Both metaphors can be traced back many centuries and it is not contentious to say that both are culturally embedded. 

Standing on the shoulders of giants

The first is a metaphor which presumes that art and invention are built on what went before. It is often an expression of humility. Its first appearance may be in 1159 as an analogy: ‘we are like dwarfs on the shoulders of giants, so that we can see more than they’. According to Wikipedia, this is attibuted by John of Salisbury to Bernard of Chartres. 

Other notable versions include Isaac Newton, Samuel Taylor Coleridge and Stephen Hawking. It is also the motto for Google Scholar and is regularly referenced by the free software movement. It is engraved on the British two pound coin. In more recent popular culture it can be found in the movies Jurassic Park and The Social Network, and in the title of an album by British rock band Oasis. 

Philosophically, this view of art, creativity and innovation is that it is largely derivative. It emerges from the mastery of a craft, a product of dedication to learning from others and from practice. Only occasionally is it punctuated by flashes of untraceable originality, insight or ‘genius’. 

It may not be in question that great artists possess, at birth or through early nurture, extraordinary talents which make their commitment to their craft more fruitful than others. But Mozart is unimaginable without the influence of Bach and Haydn, or Lady Gaga without Madonna and a host of others. 

Nietzsche took a slightly different view on the dwarf-giant analogy at least as regards philosophy, seeing the ancient Greek masters as monolithic, devoid of conventionality, and in magnificent solitude: ‘each giant calling to his brother through the desolate intervals of time. And undisturbed by the wanton noises of the dwarves [academic scholars] that creep past beneath them’ Pearson and Large (2005). 

Yet even this metaphorical usage does not undermine the view that the vast majority of what passes for original expression is derivative.

Giving birth to new ideas

In contrast to the idea of the creative process being mostly derived from what has gone before, the alternative view is that of the birth of an original idea. 

The assertion of an author’s unique origination and ongoing responsibility for the integrity of their words is well expressed using the birth metaphor, e.g. the brain-child, though if the author is making a maternal claim, rather than a parthenogenetic one, one might argue that the seed of an idea came from elsewhere, i.e. an earlier dissemination. 

I cannot trace the first usage of birth as a metaphor for the process of creation or invention, but it undoubtedly pre-dates the English language. In the context of this book, John Milton is a useful example. The dominant metaphor in his 1644 speech Areopagitica is the representation of books as living persons, the progeny of their authors:

‘For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them. [ ] ..a good book is the precious life-blood of a master spirit..’.

To be clear, Areopagitica is a seminal defence of the freedom of speech against the oppression of censorship. It is not a claim for protection of intellectual property, a concept which would not emerge until over a century later. Nevertheless, positioning the author as progenitor rather than as dwarf, does provide a stronger case,socially and philosophically, for establishing stronger and longer authorial rights. Whilst Milton himself does not make the direct link from progenitor rights to property ownership rights, the link is more clearly made by Denis Diderot in 1763 in his Letter on the Book Trade. 

The point which keeps emerging throughout my book is that originality and innovation, whether in science or in the humanities, cannot be constructed as being the exclusive product either of derivative or of individual proceses. We saw this with the simultaneous invention of recorded sound in France and the USA, and in the emergence of audio file-compression and in filesharing technologies. In natural science we can see it in Alfred Russel Wallace's independent 'discovery' of evolutionary theory alongside Darwin. In art it manifests itself through the emergence of movements such as romanticism, realism, impressionism and modernism. 

Of course the agency of passionate and commmitted individuals is important. But without sensitivity and access to what has gone before, without collaboration, and without tuning into to the prevailing zeitgeist, creators and innovators would not thrive.

Dimensions of ownership - authorship and scientific invention

Ownership has more than one dimension of meaning. It implies possession which one which can enjoy, but in the domain of authorship it also comes with the heavy responsibility of accountability. To own a text means to own-up to having written it. In late 18th century revolutionary France, the character and integrity of the author, and the transparent authenticity of authorship, were deemed to be of the utmost importance. Textual attribution and integrity carried as much, if not more, personal risk than reward. Hence the French are often still perceived to have a continued higher regard than most nations for an author’s moral rights. German copyright history is also centred on the personality interests of authors and on their role of information broker for the benefit of society.

In the UK and the US the prevailing ideology was less author-centric. The wording of the first US Copyright Act (1790) was essentially the same as the Statute of Anne. The antipathy towards any legal construction of natural or property rights of an originator are famously expressed by one of the Founding Fathers, Thomas Jefferson. His rhetorical power has at least as much resonance for cyber-utopians today as when it was expressed during the industrial revolution. It is therefore worth citing an extract at length:

‘If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an Idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. [ ] 

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation.’ 

Jefferson’s letter of 1813 is actually on the question of a patent rather than a copyright. By the late 18th century, literary authorship and scientific invention were becoming talked about as similar processes, therefore deserving similar rights and protections. In principle, copyright protects the expressions of literary and artistic works, rather than ideas; patents aim to protect new and useful ideas. The distinction becomes more blurred and less intuitive in the 20th century: for example, computer programs are given the status of literary works. 

Campaigning against the concept of intellectual property

Patenting in one form or another had been around for centuries but had become outdated, inefficient, and arguably stood in the way of industrial progress. It was a license to litigate, and only offered protection to those who could afford to pay huge costs for complex and often incompetently-judged legal cases. These could run for years with the outcome being something of a lottery. According to Adrian Johns (2009) the Victorian campaign against patenting,which expanded to embrace copyrights, remains to this day the strongest ever undertaken against intellectual property. 

Whereas authorship was the domain of the educated elite, the patent debate introduced an element of class prejudice which was rooted in the perception that almost anyone could invent. The inventor was rarely a hero but more often a skilled workman who might simply have the good fortune to be in the right place at the right time:

‘..in the intellectual world, fitness of time and circumstances promptly calls forth appropriate devices. The seeds of invention exist, as it were, in the air, ready to germinate whenever suitable conditions arise; and no legislative interference is needed to ensure their growth in proper season’. 

Attributed to inventor and industrialist Sir William Armstrong)

Those who argued for abolishing the patent system included the revered engineer Isambard Kingdom Brunel. Their argument was that science and engineering evolved gradually, methodically and communally. As we saw in previous chapters during the evolution of recording technology, simultaneous or rival inventions are common. The patent system was therefore vulnerable to opportunists, schemers and gamblers who could themselves enclose the scientific commons and constrain industrial progress. 

The battle can be seen as quite polarised between industrial heavyweights (who had the capital and organisational infrastructure which gave them effective monopolies without the need for patents) and a growing class of expert and innovative engineers. At one point, the patent battle was very finely balanced and could have gone in favour of the abolitionists. But a change of government from Liberal to Conservative in 1874, and growing momentum towards including patents along with copyrights in international law (as enshrined in the Paris Convention 1883 and the Berne Convention 1886), led to a reform of UK patent law rather than its abolition.

Although one should be careful not to generalise too much about the parallel evolution of patent law and copyright law, the eloquent expressions of Jefferson and Armstrong are good examples of the view that particular intellectual property laws have come to be associated with distinct philosophical traditions. The US and the UK traditions are public-interest-oriented, or utilitarian. The French and German traditions are more originator-centric, and concerned with the preservation of the integrity of an originator’s personality and moral intent. 

The French were heavily influential in the Berne Convention which embodied their concept of author rights (droits d’auteur). These distinguish between an economic property right and a moral right. The moral right includes the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the work which would be prejudicial to the author’s honour or reputation. The fact that the US did not become a signatory to the Berne Convention until 1988, may be seen as indicative of a certain discomfort with the potential constraints to open exchange implied by such an enshrinement of moral rights. More cynically, the US reluctance may have been more to do with the potential impact such moral rights have on the balance of power between the original author as rights-owner and the corporation as licensed rights-holder.

The 20th century poststructuralist view

The validity of the author-centric tradition was challenged in the second half of the 20th century. It began in France with post-structuralists Roland Barthes (The Death of the Author 1968) and Michel Foucault (What is an Author? 1969) who believed that the presumption of authorial authority imposed problematic limits on texts. 

In the poststructuralist view, texts are better understood as existing independently of their authors. Barthes preferred the term ‘scriptor’ to dissociate 'author' from 'authority'. The scriptor is someone who provisionally assembles words which already come loaded with a plurality of meanings from prior usage. Meaning, and assertions of ‘truth’ claims, are unstable. They are subject to multiple interpretations within each reader context. 

In this view, the reader creates the meaning as much as the writer. Martha Woodmansee’s The Genius and the Copyright (1984) and Mark Rose’s The Author as Proprietor (1988) are also well-cited works amongst many critical studies which have recognised that, within a long view of the history of knowledge, the presumed significance and authority of the author, and his proprietorial relationship with the text, is a relatively recent construct that may be less robust than is commonly accepted.

The explosion of literary output

The numbers of people who aspire to learn, to collaborate, to share, and to express themselves through cultural 'texts' of one form or another, has increased rapidly in the last 50 years. This was first through massively expanded access to education, and then stimulated beyond prior imagining by the cheap and easy technologies of home and mobile computing and global communications. 

This explosion of output is not all 'literature' in any traditional sense. Understandably the law has been challenged to adapt to the inundation of expression. Yet despite the late 20th century critical questioning of the validity of individual authorial identity , the old revered qualities of singular authorship and authority, whether in literary, musical or other forms of expression, still have a secure anchoring in the legal protection of cultural production. This remains in favour of an original creator and (via representation in most cases) the rights-holding corporation.

In an attempt to gain some perspective on whether the unchanging institution of copyright is really a problem or not in the digital age, it is useful to take a much longer historical view of human knowledge-creating processes. In doing so, I invite the reader to reflect on whether the post-Gutenberg protective practices represent social progress which must be preserved, or whether they have run their course, being something which in time will be regarded as an historical anomaly that empowered only a privileged sector of mankind.

Writing - does it have a shelf-life?

The 'long view' of Western knowledge and authority goes back at least as far as the 4th century BC, when Socrates (in Plato’s Phaedrus) tells the tale of the Egyptian God Theuth. In Theuth's debate with King Thamus the discussion centres on the pros and cons of granting the Egyptian people the benefits of writing. 

On the one hand, the technology of writing extends memory and wisdom. On the other hand it will:

‘create forgetfulness in the learners’ souls, because they will not use their memories...they will appear to be omniscient and will generally know nothing.’ 

Hence began centuries of a fragile alliance between wisdom and rhetorical eloquence.  Can true knowledge live in static, unresponsive text, or does it only emerge dialogically from a relationship between active human minds through spoken discourse?

We are born with the neural wiring for speech, but reading and writing are less ‘natural’ skills only acquired through education and through technologies such as the alphabet. Around one billion people today remain illiterate, though one might turn this around and comment on how remarkable it is that 7 billion of us are literate, and how we are increasingly expressive with text. After all, reading and writing were for most of their history kept within the control, tyranny some would say, of a small elite group of religious, political and academic authorities. 

Literacy expanded more rapidly from the 15th century, following Gutenberg's invention of the printing press. Yet, even then, the intellectual resources required for developing the extended productivity of the literary brain meant that reading and writing was still the domain of an educated minority until well into the 20th century. 

The linear literary mind

The linear literary mind is one attuned to learning, developing and communicating ideas through long-form written texts: books, essays and journals. It is not a timeless or universal attribute of humankind, but a particular Western phenomenon that dominated knowledge production throughout the second half of the second millennium. In his 2010 book The Shallows: how the internet is changing the way we think read and remember, Nicholas Carr points out that the linear literary mind is responsible for ‘the imaginative mind of the Renaissance, the rational mind of the Enlightenment, the inventive mind of the Industrial Revolution, and the subversive mind of Modernism’. 

Despite this powerful legacy, it is possible that through the 21st century we may see a rapid decline in both the appetite and the capacity of humans to source and re-produce their wisdom efficiently from long-form texts. This has profound implications for education and assessment, especially in the humanities. It may also usher in a new age of orality as the primary domain where humans can differentiate themselves from machines. It may be the more compelling medium to convey indvidual character and authenticity. 

The solitary, bookish, elite, and often anti-social aspects of developing the linear literary mind led Marshall McLuhan to claim (The Gutenberg Galaxy, 1962) that print is the technology of individualism that ‘detribalizes or decollectivizes man’.  Whereas the mnemonic packaging and ritual repetitions of the oral tradition were more concerned with preservation of collectively evolved cultural wisdom and order, the literary mind is driven by new possibilities, change and the idea of ‘progress’. Unlike the oral tradition where the wisdom is more important than its originators, the literary mind leads to a more ego-centric culture where originators expect attribution, honours and reward.

A new age of oracy

Building on Mcluhan, Walter Ong (Orality & Literacy, 1982) developed the idea of secondary orality to describe radio and television. Quite unlike the primary orality of pre-literate cultures, radio and television has a deliberate, self-conscious and permanent derivative dependence on literate culture and texts. It is claimed that McLuhan predicted that the new ‘electric’ media of the 20th century would lead to the dissolution of the linear quality of the literary mind. That prophesy seems particularly resonant with the advent of the internet, with its hypertext links which thrive on our predisposition for distraction, multi-tasking and the gratification of quick knowledge acquisition.

McLuhan’s prediction also resonates with the proliferation of mobile communications, where texting and tweeting might be metaphorically described as a kind of tertiary orality. The communications are not strictly oral, but their interactive, collective, and conversational qualities, and the phonetic shortcuts of text-speak, bear more resemblance to orality than to products of the literary mind. In many ways, new media and communications technologies are stretching and re-shaping our cognitive skills and preferences. Now even bulleted PowerPoint presentations struggle to hold people's attention, and almost no one is attracted by a good essay.

On the one hand, technology and new media can make us more able to multi-task and to cope with competing sources of information. YouTube, Instagram, Tik-Tok and a host of other applications have spawned a new generation of content-generators and social media influencers, some of whom are making an impressive career out of it. Maybe we are all authors now, even if many of us (especially the younger generation) are less aware of what it means to be 'published'. 

On the other hand, we are left in an almost continual state of overwhelmed distractedness, and (according to Carr) with less time, inclination and neural bandwidth to think, understand and remember. Johann Hari's book Stolen Focus (2022)  picks up on these alarming themes with some suggestions about how to fight to get our focus back. Whether we are more or less able to differentiate critically between sources of authority and authenticity, and whether the quality of our learning and new knowledge-generation is improving or deteriorating, are questions which are wide open for debate. 

These questions must be addressed in our education system, where orality, or oracy as it is now more commonly described, should be no longer seen as the poor cousin of reading and writing.  Oracy should arguably be uppermost amongst the accredited skills in the education system. Amongst other benefits, this would provide an alternative focus and encouragement that would be especially important for those who struggle to attain minimally acceptable academic grades. Often referred to as The Forgotten Third, these youngsters may be at an even greater disadvantage throughout their lives if they cannot exploit evolving artificial intelligence (AI) and Large Language Models (LLMs) such as ChatGPT or Gemini which are rapidly colonising the education sector. When human intelligence is less relied upon to create authoritative texts, will we not return to valuing our voices and our spoken interactions as more reliable source of authenticity and integrity?

The danger of simplifying narratives

It is difficult to conclude whether the public demand for greater author identity and authority, (and, by association copyright to protect it), is diluted or reinforced by the proliferation of user-generated content on social media and the internet. 

I find Michel Foucault’s words prescient and particularly apt for a 21st century world where meaning and relevance are ever harder to extract from the exploding babble of texts, images and sounds:

The author is therefore the ideological figure by which one marks the manner in which we fear the proliferation of meaning. 

What is an Author? (1969)

Fear is a key word here. How much meaning do we want, or indeed, how much can we cope with? 

This is a question which invites a narrative response. Aversion to complexity and plurality drives many people to latch onto simplifying narratives. This resonates uncomfortably with Karen Stenner's concept of an authoritarian disposition. Her work has predicted with alarming accuracy how such a disposition manfests itself in the rise of far-right political language used by authoritarian leaders to exploit the need people have to feel safe: 'Some people will never live comfortably in a modern liberal democracy.' (The Authoritarian Dynamic, 2005). 

That's a line of enquiry for another book, but returning to my diagram at the bottom of this page, I would draw attention to the hope and fear plot examples. These are part of a political repertoire where narratives of aspiration and desperation can be used as the context requires. The Wiki plots should by now be recognizable as they have formed the larger part of my book, but in the context of Foucault’s remark about fear of the proliferation of meaning, I wanted to emphasise the more complex distinctions between the hope and fear plots within the prevailing discourse on the right of the diagram.

The hope plot has become a familiar refrain for advanced societies who feel they have a competitive advantage in the creative industries. Creativity needs nurturing because it leads to innovation which leads to economic growth, jobs, prosperity and political influence. 

The fear plot is more subtle. I would argue that the continuing symbolic relevance of the pirate narrative no longer primarily rests on unauthorised domestic downloading and casual file-sharing. That kind of ‘piracy’ has more or less stabilised. Yes, it is at much higher levels than historic unauthorised copying, but it is still at a level where rights owners can sustain a business from offering products and services for which those who can afford to, will actually pay. That fear of piracy has been replaced with a fear of the wisdom of crowds, and of those new players who know how to exploit the wisdom of crowds. It is a fear of losing influence and of a diminishing share in the marketplace for cultural interpretation, authority, authenticity, integrity, quality, insight and relevance. 

Given enough time to adapt, I have no doubt that in the long term big content-developing businesses could cope with much shorter and less restrictive copyrights. However, they crave more time to repackage their claim and their ‘right’ to be aligned with the origination process. Their larger threat of competition comes from the new giants of mass cultural distribution with whom old media companies have formed necessary but uneasy alliances. Apple, Amazon, Google and Facebook have each created products and services which are both empowering and thoroughly addictive, generating huge consumer loyalty and brand power. These are so addictive that even when the shine of their public relations becomes tarnished with allegations of price collusion, tax-avoidance, poor labour practices, privacy invasion, globally monopolistic ambitions for tracking public behaviour and manipulating serach outcomes , consumers are still not sufficiently concerned with these corporations that they would boycott their products.

In this environment, the piracy narrative becomes a useful subliminal element of a more subtle fear-mongering discourse of the potential anarchy, lawlessness and corruptibility of new media. Such a discourse is sustained by those, whether old media companies or politicians, who do not want to directly attack the new giants, but believe that the traditional world of rights-owning businesses represents a necessary check and balance to their growth; growth which is, directly or indirectly, fuelled by the same disruptive phenomena that threaten and weaken the old cultural intermediaries and guardians. 

At a political level, this discourse even extends to the fear that these new giant corporates have become more powerful than national governments, and may become new tyrants. Government and old media therefore have a mutual interest in preserving some of the old rules and equilibrium of the cultural economy.

If the roots of US and UK intellectual property traditions are more public-interest-oriented than author-centric, then over the course of the 20th century that interpretation of public interest changed. An assumption took hold that the extension of protection of what is mostly corporate investment in ideas, and the associated social and economic benefits of corporately-owned products, would serve the public interest better than simply making those ideas accessible and exploitable by the general public. 

The economic growth of media, technology and communications companies in the 20th century may be testament to the plausibility of this assumption, but it is a patronising assumption which is being challenged hard in the public sphere in the 21st century.

Eldred v. Ashcroft (2003) was a hard-fought and highly publicised US legal case which challenged (unsuccessfully) the US Copyright Term Extension Act (1998). The plaintiff’s argument, led by Lawrence Lessig at the Supreme Court, was that it was unconstitutional. The retroactive extensions of copyright rendered meaningless the Constitution’s statement that exclusive rights should only be granted for ‘limited times’. 

Lessig also argued that there had been insufficient scrutiny to ensure a fair balance between freedom of speech and the interests of copyright holders, and that there was no empirical evidence presented to demonstrate the public benefit of transfer of public property into private ownership. Eldred v. Ashcroft is just one example of a fast-growing body of opinion that copyright law, as a mechanism to benefit society, is increasingly obsolete and ineffective in the digital age.

Recognizing at least some of this evolution, institutions in the US, UK and Europe have very publicly acknowledged the need for copyright reform. I opened this chapter with Maria Pallante’s recent call for ‘the next great copyright act’. Similar calls have been made at regular intervals in Europe, such as the 2012 Lisbon Council address by Neelie Kroes, the Vice President of the European Commission responsible for the Digital Agenda. ‘The legal framework has to respond’ she demanded.

In the UK, the 2011 Hargreaves Review captured the political tone:

‘we have sought never to lose sight of David Cameron’s “exam question.” Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed .’

Although Hargreaves, via the British prime minister, implicitly invokes the Statute of Anne, the overarching principle of ‘the encouragement of learning’ has been clearly replaced by one of economic growth through innovation. Emphasising ‘the great national importance’ of the British creative industries, the report claims that their digital export value ranks third behind only engineering and financial and professional services’ (p.3). The report is balanced in its arguments, marginally in favour of the public interest over prevailing private interests, and comes up with ten well-argued recommendations for overcoming the identified shortcomings of the current law. Some are more concrete than others, but there are none which could be described as radical reform.

The first recommendation echoes that of previous government commissioned reviews: that evidence of measurable economic benefits should drive policy rather than the lobbying of interested parties. Although Hargreaves does not take a position on the most sensitive topic of copyright term, the report does cite the EU extension of protection on sound recordings from 50 years to 70 years as an example of policy-led decisions, rather than evidence-based policy.

Another issue requiring evidence-based assessment is the implementation of the Digital Economy Act’s (2010) new system of law which aims to track down and sue copyright-infringers, and to permit technical measures to reduce the quality, including the termination, of their internet connections. Since coming into force, the initiative to implement this key part of the Act has lost momentum, partly due to arguments over division of administrative costs between rights-holders and service providers, and due to the questionable benefits and demise of the similar Hadopi system which was earlier implemented in France. It is now questionable whether it will ever be implemented.

Many of the other UK issues requiring resolution identified by Hargreaves are similar to US issues outlined in Pallante’s speech, namely:

• a broader and clearer definition of limitations and exceptions to copyright, similar to the US concept of fair use, especially around library, archives, research, education, and data and text analytics,

• legislating to release for use ‘the vast treasure trove of copyright works which are effectively unavailable, so-called “orphan works” to which access is in practice barred because the copyright holder cannot be traced,

• the promotion of ‘extended collective licensing’ arrangements, whereby mass rights can be centrally and more efficiently administered, with rights owners having to opt-out, rather than opt-in. The aim of this is to give content-users the benefit of a ‘one-stop shop’ rather than having to spend impractical amounts of time seeking individual deals.

Whilst the recommendations are far from being non-controversial (not least because many of them are seen to favour the new media giants, especially Google), neither Hargreaves nor Pallante could be accused of being radical. Nevertheless, it is worth examining Pallante’s position in more detail.

As a supporter of the Stop Online Piracy Act (SOPA), the unsuccessful attempt in 2011 to further expand the powers of US law enforcement, Pallante may be regarded as being conservative, albeit moderately and pragmatically, on issues of copyright reform. My first reading of her reform speech led me to believe that she was being rather timid, and it is certainly the case that someone in her position has to tip-toe through a discursive minefield, given the sensitivities of the various powerful and entrenched stakeholders. 

But on closer analysis, I find seeds of a shift from the prevailing discourse towards a wiki discourse. For example, the emphasis is more on public interest and wider dissemination and usage than on issues of control. There is an explicit challenge to Congress to balance the equation of ‘what does and does not belong under a copyright owner’s control’, implying an overall diminishment of control, rather than an extension. With reference to Eldred v. Ashcroft, her remark that a court can only apply the facts and the law as it finds them, alongside a recommendation that Congress should re-weigh the equities of the public interest, is evidence of a certain degree of discomfort with the extra 20 years of copyright extension.

An explicit suggestion that the law should shift the burden by requiring the copyright-owner to assert and register their continued interest in order to achieve those last 20 years of protection is really quite radical, even if it may seem minor and remote to most people. If the principle of copyright-holder renewal were accepted, the conversation about shortening the minimum statutory term would become considerably less provocative.

Pallante also makes a reference to the case of Authors Guild v. Google which is worthy of comment. The case involved Google’s library project of mass book digitization, a process which began in 2004 and has reportedly scanned 30 million books as of 2013. Although the proposal was to show only small portions of the books, presuming it to be deemed fair use, they scanned whole books. This was seen by the publishers as a gross breach of copyright and brought lawsuits in 2005. Many of the books scanned were still in copyright, but out of print, i.e. not regarded as commercially viable by their publishers. The case was particularly interesting because Google seemed to be attempting to address one of the historic fears and arguments of the anti-copyright lobby: that copyright can have the effect of suppressing, whether for commercial or political reasons, publicly beneficial knowledge.

In objecting to the initiative, the publishers were in danger of scoring a colossal own-goal by giving a massive boost to the anti-copyright and open access movements. They therefore had to be pragmatic, and by 2008 Google and the publishers announced a settlement. It was a compromise which would let Google sell whole books and offered a subscription service for libraries and others to access the full database, with up to 20% of the book being available for free. The settlement was initially widely praised as a pioneering collaboration with far-reaching benefits for the greater dissemination and accessibility of knowledge. Perhaps unsurprisingly, it was not long before some started to object, the most ironic being Harvard University librarian Robert Darnton who had been an early supporter and participant in Google’s library project.

The perceived problems fell into three categories. The first is a curator’s concern with quality control, incompleteness or exclusion of visual materials, and integrity of scholarship, pointing out that in order to be valuable and truly accessible, digitization involves more than just scanning all available text. 

The second, somewhat louder, set of objections was from outside the US borders with complaints that the settlement agreement was a breach of international copyrights and treaties.

The third and loudest complaint was that by creating a single access system, the project was essentially a monopolistic attempt to create the largest library and publishing business ever imagined, despite its proclaimed openness and non-exclusivity. Opponents expressing these concerns included Microsoft, Amazon and other corporate heavyweights. They saw a very serious competitive threat from Google so successfully and so rapidly executing its mission to ‘organize the world’s information’.

Despite an amended settlement agreement which tried to address some of the opposing arguments, the agreement was rejected by Judge Chin in 2011, to the relief of some, but great disappointment of others - not just the defendants in the case, but those who were, on balance, more optimistic than cynical about the public benefits of the settlement. Whilst other mass digitization initiatives were underway, such as the Digital Public Library of America, and the Europeana open culture project, these were a long way from matching the scale, pace and reach of Google’s initiative.

Returning to Pallante’s speech, she referenced Judge Chin’s rejection of the Google book settlement agreement as a further example of matters more suited for Congress than the courts. This again implied that she views the outcome as being a strict application of the law, but not necessarily satisfactory from the point of view of the public interest. Along with the question mark over the outcome of Eldred v. Ashcroft case, and her remark that the law is essentially unintelligible to most people, her position starts to take on the appearance of being more radical than at first glance.

To conclude on the topic of Pallante’s speech, which I imagine may ultimately carry more weight than has thus far been acknowledged, I would draw attention to what I believe may be a deliberately provocative reference. Acknowledging the duty of Congress to keep the interests of authors in the balance, she cites a New York Times article entitled Would the Bard Have Survived the Web? It is a provocative polemic which takes a peculiarly one-sided approach to the debate, presuming that all reformers are by definition against copyright and against the economic incentivization of culture altogether. 

The article argues that the structure of the Globe theatre provided a ‘cultural paywall’ and that its destruction in the mid-17th century by a censorious government nervous about the disruptive influence of playwrights, is somehow analogous to the effect of an insufficiently policed internet upon the expression of 21st century commercial authors. Seemingly oblivious to the 300 years of tampering, they declare that ‘we tamper with [copyright] rules at our peril’, ‘rules that were carefully constructed by people living in the long shadow of the Dark Ages’.

The vulnerabilities in the article’s argument are numerous and provide fair game for ridicule. For example, Shakespeare predated copyright by a century and survived very well without its protection. Indeed, if copyright had been in force, his well-known plundering of the ideas and literary material of others mean that he would have been undoubtedly caught up in time-consuming and potentially ruinous lawsuits. The better question is posed by James Boyle (2011): would Shakespeare have survived copyright, never mind the web? 

I find it difficult to imagine that Pallante’s citation from this particular article is anything other than a subtle exposition of the weakness in the narrative bias towards the defence of the status quo.  Strategically this bears similarities to Hargreaves position that ‘the UK cannot afford to let a legal framework designed around artists impede vigorous participation’ in other sectors of society.

I have chosen to focus on Hargreaves and Pallante because I find that they are the clearest political indications thus far of a meaningful shift, albeit quite small, towards the possibility of radical reform of intellectual property law. That said, reform of any substance will be slow and tortuous. Pallante herself acknowledges that. She refers to the fact that the still relevant 1976 US Copyright Act took two decades to negotiate, with Barbara Ringer, one of its key contributors, subsequently calling it ‘a good 1950 copyright law.’ 

Similar expectations require careful management as far as the Hargreaves Review is concerned. For example, one of its key concrete recommendations was the creation of an ambitious Digital Copyright Exchange, subsequently re-labelled the Copyright Hub. The laudable idea was that the hub would serve a number of functions, including:

• information and education about copyright, helping with navigation and signposting through the maze of copyright

• a cross-sectoral registry of rights

• a marketplace for rights clearance and licensing solutions

• a source for extended collective licensing (i.e. a solution to the orphan works problem)

Although the Copyright Hub launched, in a very modest way, it faced some very tough challenges. The first is pragmatic. Rights are more complex than most people imagine, and it will require the establishment of technical, data, and usage standards on which consensus will be difficult to achieve. Secondly it requires the collaboration of a huge number of powerful rights-holders who will be very tentative and anxious about interfacing with, and conceding to, any sort of user-focused functionality provided by an independent service.

By way of illustration, at EMI I was the ‘business-owner’ of a project called Global Repertoire which aimed to create a similar type of hub, but just for internal use and only for the rights held by EMI. Though reasonably successful, it was fraught with negotiations with internal divisions reluctant to even slightly loosen their tight grip on clearance approvals. It took three years to deliver at a cost of several million pounds. That was one company, in one sector, so one can only imagine the complications of building a useful and meaningful hub across not just the whole music industry, but all the other rights-owning industries. 

There is a third problem, which has some political sensitivity. Even if the Copyright Hub progresses, it is assumed that all rights-holders would voluntarily populate the database with their rights.

Although not made explicit, there was then be a danger that anything not registered in the exchange would be available for exploitation. For some this looks like a story of a shift towards the public interest. For others, it is a shift towards the interest of Google, Instagram and Facebook. The main potential losers are beneficiaries of orphan works, and owners of works which are generally onerous to register, or which are not subject to secure metadata tagging, such as images and photographs. Content-owner registration may not sound like an unreasonable requirement, but it implies a fundamental shift of burden, from the prospective content-user to the content-owner, signifying a return to the practice of earlier centuries, where rights had to be actively registered rather than arising by default from the moment of expression.

To wrap up this chapter, I would say that the current copyright reform agenda is modest and politically pragmatic. I fear that the time frame required to reach empirically-defensible conclusions which are rigorous, broadly-intelligible, and free of corporate and political interference, is much longer than can be accommodated by changing social practice. 

Much of this change will happen, sooner or later, with or without the law. This means that the law is in danger of losing authority and practical enforceability as it drifts further from social norms and economic activity. Adhering to the law will become (if it hasn’t already) a tactical decision based cost-benefit and risk analysis.