Copyright is the property right the law gives authors/creators and those taking ownership from them to control the copying and other forms of exploitation of their creations or “works”. The traditional view is that copyright arose out of lobbying by printers to prevent the piracy of their books. So in one sense it was a response by vested economic interests to the growth of a new technology. The first UK copyright statute dates back to 1709. The current statute, the Copyright, Designs and Patents Act (“CDPA”), dates from 1988. A lot may have changed in 300 years or so but it remains the case that those who exploit their creativity (or that of others) continue to use copyright to fight a battle against piracy and the pirates become ever more sophisticated in their approach.

Digitisation is yet another new technology copyright is coming to terms with. The most significant recent legislative development was the adoption in Europe of the so-called Information Society Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167/10 22 June 2001) in May 2001 and its implementation into UK law by the Copyright and Related Rights Regulations 2003 (SI 2003/2498).

Copyright has a number of justifications – that it is right and just to reward and recognise creative skill and effort, it provides an incentive to creators, and law-makers recognise these. Digitisation continues to pose fundamental challenges to copyright which have only been partially addressed by the 2003 Regulations, important though these are, although case law continues to develop especially through the CJEU and further more limited legislation in this area is arising from recent UK and EU consultations and initiatives, in the UK in particular the Hargreaves Review.

Digital technology has put copyright at the cross roads. There are two conflicting ways ahead: the death of copyright or the consolidation and revision of copyright to address the digital future.

The death of copyright?

Unlike a book or a painting which can be viewed or read without any need for infringing copies of it to be made, digitised works require electronic copies to be generated (whether transitory or not) in order to be accessed or used. This raises several possibilities for digital works.

First, the growth of file swapping/peer to peer services such as Napster and Gnutella together with their later incarnations (such as Grokster, StreamCast, KaZaa and Newzbin), the use by pirates of service providers such as eBay and Google/YouTube to distribute/communicate infringing material, and also DVD piracy, indicate copyright cannot effectively regulate the digital environment in any event: as a result more and more digital content will be encrypted or copy-protected; breaking or hacking the copy protection or encryption to access and use the work will be made illegal or unlawful whatever the motive – to read for personal use or to distribute commercially. Also strong laws will be in force to prevent access to the internet to those who infringe copyright along the lines of “three strikes and you are out” – the solution to prevent serial infringers of copyright is to deny them access to the internet by way of a warning email and then a graduated response with denial of access the ultimate sanction for non-compliance. So in France, for example, there is now the controversial 2009 HADOPI law) and in the UK the Digital Economy Act 2010).

Secondly, users will also be required to enter into binding licences with rights owners in order to be permitted to access and use digital content – the use of digital material will be regulated by contract not copyright (although law-makers are now waking up to this risk with steps being taken to ensure that in certain cases contract cannot take away copyright “exceptions” – see eg recent UK proposals on copyright reform which become law on 1 June 2014).

In each case technology, contract or stringent anti-piracy laws will effectively prevent users from benefiting from the fair use/fair dealing exceptions to copyright infringement. Copyright will become redundant. Taken to an extreme, digital content could be effectively locked up and no longer be available for legitimate private study or research, criticism or review, etc. Digital information will become privatised.

Or a revised, fit for purpose digital copyright system

Legislators have become increasingly aware of the need to preserve the public domain, or, as it is often called these days, an “intellectual commons”. Also is copyright “fit for purpose”? The Information Society Directive empowers member states to take action to ensure access to copyright-protected works for limited “public good”-type purposes regardless of technological or contractual restrictions on their use. However, the language in the Directive enabling this is vague and difficult to construe. Much depends on its implementation in the various EU states.

Initiatives such as the Information Society Directive indicate that copyright’s power and flexibility as an intellectual property right is not yet dead.

Some argue for a much more simplified copyright system aimed at the digital environment with one key copyright – the right to control the dissemination or exploitation of copyright works. This would replace the existing “bundle of rights” approach to copyright (ie today copyright covers many rights such as the right to control copying, adaptation, broadcasting, transmission, etc). Such a single right should be technologically neutral whatever digitisation and other new technologies bring. There would also probably be a breakdown between the current classification of copyright works as films, sound recordings, artistic works, etc to one all-encompassing class of “multimedia” work (Perlmutter, “Convergence and the Future of Copyright” [2001] EIPR 111).

Others see an International Copyright Code as the solution to the harmonisation and effective enforcement of copyright in the digital world (Sterling, Draft International Copyright Code, Queen Mary Intellectual Property Research Institute, University of London 31 May 2001).

Digitisation may also lead the way to new collective ways of administering rights. “Micro payments” and other internet technologies could play a part in enabling proper remuneration for rights holders. For example, in the UK a digital copyright hub is being established to assist in rights clearance.

Finally, some people want to keep the copyright system in place but construct licensing models to allow the collaborative and open exploitation of digital works. The best known examples of this are the “open source” or “copyleft” movement and Creative Commons.

Concluding thoughts

It is unclear where copyright will end up: an irrelevance in a world of technological and legal locks and keys, or a simplified and rejuvenated intellectual property right. Much will depend on how the courts and legislators balance fair use and free speech arguments against contractual, legal and technological measures restricting access to content. But for the moment at least, news of copyright’s demise remains greatly exaggerated. Certainly since the first edition of the author’s book Digital Copyright Law and Practice when these comments were first made, copyright, far from being an irrelevance, has taken centre stage with ongoing legislative reform to seek to make it fit for purpose in light of technological change.

Nevertheless, rights owners need to take account of the pressures digital copyright protection is facing. In practice digital copyright law and a combination of technical and/or contractual steps will need to be applied or at least considered when protecting digital content.

Summary

• Digital copyright law involves the application of existing “analogue” copyright rules to the digital environment and new digital rules.
• The primary purpose of digital copyright law is to protect the investment and/or the skill and effort of the creator of the copyright work.
• Gaps in the existing copyright rules are being plugged in a piecemeal fashion to deal with digitisation.
• The bulk of European legislation dealing with digital copyright is now in place following the adoption of the Information Society Directive.
• The UK implemented the Information Society Directive on 31 October 2003.
• Unfinished and/or ongoing legislative business includes better ways of dealing with international copyright disputes and the ongoing modernisation of copyright law in the EU and UK.
• The jury is still out whether digital copyright has a long term future or whether technical locks and keys and/or contract law will displace copyright from protecting digital content. But at the moment copyright’s future seems secure.
• Content owners will want to use a mixture of digital copyright, technical measures and/or licences (ie contract law) to protect their content.

Simon Stokes is a partner in the IP technology and media team at Blake Lapthorn and a Visiting Research Fellow at Bournemouth Law School. His copyright practice spans software databases, images and publishing.

Email simon.stokes@bllaw.co.uk.

This article is an edited and much shortened version of Chapter 1 of the author’s book Digital Copyright Law and Practice (Hart Publishing, 2014).

Digital Copyright: Law and Practice 4th edition
by Simon Stokes was published in January 2014 by Hart Publishing at £45 + p&p.

This book helps put digital copyright law and policy into perspective and provides practical guidance for those creating or exploiting digital content or technology.

For further details please visit Hart Publishing.