Viewpoint by Marc Furstenau — Copyright Conundrums

Copyright legislation has been in the news a lot lately. There have been stories of bitter legal battles and over-heated debates. There is a stark divide between Internet libertarians who argue that “information wants to be free” and powerful corporate interests who want to “lock down” all content. “Digital locks” would make it legally impossible to make copies of songs purchased legitimately or to lend or resell an “e-book” like we could with a paperback. These are rights that have, over time and through custom, become deeply ingrained in our culture. They need to be preserved but it is not clear that the “libertarian” approach is the best means to do so.

There seems to be little common ground between the two extremes. However, where both sides agree is that copyright legislation needs to be reformed. It is clear that the law, as it exists, provides inadequate protection for copyright holders and too few rights to those who acquire and use copyrighted materials. The laws were written long before digital technologies appeared. It’s become easy to transform any text — books, paintings and songs — into numerical code, which can be instantly distributed by electronic networks. Once copied onto those networks, there is no easy way to control where the objects go and how many more copies are made.

There is now a discrepancy between copyright law and the new media. In the past, legal protections afforded by copyright legislation were effectively enforced by the material limits of the old media. The physical character of books, records, photographs and films meant that they could be copied but it was not easy. Copying meant reproducing the text or object in another material form — from book to photocopied pages, from record to cassette tape. Copying itself was a “physical” process and this slowed and limited reproduction and redistribution.

That has all changed. Now copying and redistribution occur in the “immaterial” realm of the computer over the Internet. The law is no longer buttressed by the limits of physical matter. What is astonishing is that, so late in the history of digitization, copyright legislation has yet to be properly amended to reflect the new reality of how people get their information. This is because it is a far more complex process than anyone could have imagined. It may be that the very foundations of copyright law will have to be reformed. Given that its origins are in the pre-digital age, and considering the profound differences between old and new media, the original assumptions about copyright may have to be rethought. We may need to rewrite copyright legislation so that the very form of digital media contributes to the enforcement of the law, in the way that pre-digital media effectively enforced traditional copyright law.

There are many debates along these lines. Some, for instance, imagine that Internet content will now be free — free of cost and free to endlessly circulate. This, after all, is the new digital reality. The networks themselves would have to be the income-generating mechanism — ads would proliferate at the margins of your screen, subsidizing your unlimited copying and transmitting. At the other extreme, there are those who argue that all content will have to be securely locked down and that each use will incur a pay-per-use cost.

The proponents of each scheme argue that their vision is the inevitable consequence of digitization. But we can’t succumb to the idea that there is anything inevitable about technology. The public must understand that any copyright legislation will be shaped by the interests of those who want technology to be used in specific ways. We must ensure that the full potential of new information technologies are realized and that our uses of new media are governed by appropriate legislation which reflects this ever-changing technological world. The answer must lie between the extremes of absolute liberty and complete control.

Marc Furstenau is an assistant professor in Film Studies and is a member of the Copyright Committee of the Canadian Federation of the Humanities and Social Sciences.

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