Uses and Abuses of Copyright


Contents List:

Introduction
The Downside of Money
Technological 'Blurring'
'Intellectual' Property
Economic Viability
Intrusion on Privacy

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Introduction

As I understand it, the principle underlying the concept of copyright is that whereas ideas may occur to anybody at any time, the individual who elaborates upon an idea in a work of art or literature for the benefit of a larger public is worthy of a reward in recognition of the time, skill and labour devoted to the task.

In this respect, there is a close similarity between copyright and the granting of a patent to the inventor of a practical application of a scientific discovery in a way that benefits other people. Just as there can be no copyright in an idea, a discovery cannot be patented because it is implicit in nature. Patents were originally granted in order to make useful practical applications of ideas and discoveries widely available to anyone who paid a licence fee and thus rewarded the inventor in proportion to the usefulness of the invention while benefiting the world at large. It is an ironic comment upon our materialistic culture that the patent is now more likely to be looked upon as a device for limiting access to an invention by giving the owner of the patent the exclusive right to exploit it in ways likely to produce greater financial return than would be likely to accrue from licence fees. The emphasis has sadly shifted from public service to selfish greed.

The Downside of Money

One of the disadvantages of the invention of money is that its acquisition tends to be looked upon as an end in itself, regardless of the value to the world at large of the activities in respect of which money may be acquired. Money not only distracts us from paying attention to more fundamental values but also facilitates many variations on the theme of theft.

Technological 'Blurring'

There is further irony in the fact that modern inventions have in many cases blurred the formerly obvious distinction that could be made between an invention and a work of art or literature. A computer program may be considered an invention in that it enables a machine to perform a useful activity; but it is like a literary work in that it can be written down and recorded on magnetic and other media. It is thus a moot point whether a computer program is an invention that could or should be patented, or a work of art or literature that could or should be covered by the law of copyright.

Inventions of machines that enable true copies of literary works, facsimiles of paintings, recordings of musical performances, and even holograms of sculpture, to be made quickly and cheaply have rendered the practical application of copyright law virtually unenforceable.

'Intellectual' Property

In a probably futile attempt to 'keep people honest', lawyers have dreamed up the notion of 'intellectual property'. I call it a 'notion' because I cannot attach any real meaning to it. It does everybody a disservice by further blurring the distinction between ideas and artistry, between discoveries and inventions. It may serve as a fig leaf to disguise the extent to which technology has replicated, and so replaced, human skill; and it enables lawyers to seek 'damages' in the courts in respect of the tiny proportion of breaches of copyright that are actually detected as having been perpetrated by entities which have the capacity to pay financial penalties on a scale sufficient to compensate the lawyers (if not the actual plaintiff). But its ultimate effect is to criminalise and drive underground an activity that cannot be stopped, not merely because of financial pressure from the vendors of various types of copying devices and accessories but primarily because it has tremendous potential for mass education, enjoyment, and enrichment of human life. Thus the notion of intellectual property is an artificial obstacle to progress in civilisation.

Economic Viability

It may be no bad thing that copyright is no longer viable as a means of doing justice to the author, artist, or composer. It seems to me that we human beings should remain productive and economically viable throughout our adult lives. Economic viability implies that we should in some way be of sufficient practical, emotional or sentimental value to other people that they will want to support our continued survival. I have never felt entirely comfortable with the idea that somebody who writes a 'blockbuster' in youth should be able to live unproductively on royalties until 'ripe' old age. So I expect that some form of patronage will re-emerge as the preferred means of encouraging and supporting the continuing efforts of writers, artists, musicians, and others. This already applies to many who are in full-time employment, i.e. enjoying the patronage of their employers. There may be a need to devise some alternative forms of patronage for others who prefer a more 'freelance' way of life: if there is such a need, some free spirit somewhere will invent a means of satisfying it.

Intrusion on Privacy

However, while copyright law is no longer effective as an instrument of justice for artists, there is one important area of human life in which it could be applied to great and good effect. I refer to curtailing the activities of 'paparazzi'.

The copyright in a painting quite rightly rests with the artist — unless otherwise agreed in a contractual arrangement between the artist and another entity. Anyone who uses a machine to make a facsimile of the painting without the knowledge and consent of the copyright holder is clearly guilty of an offence. When a photographer uses a machine (a camera) to make a facsimile of a human subject, should the subject not automatically have the copyright in the image he or she presents to the world unless and until the copyright is formally transferred by contract to the photographer or some other party? And should publication of an image of the subject without his or her knowledge and consent not constitute an offence?

Now I concede that blanket application of this principle would be impractical. It would be very difficult to obtain consent to publish from all the members of a crowd pictured at a great public occasion or of everybody in a street scene captured by a security camera. But it should be relatively easy to frame some simple legislation to make it unrewarding for photographers to hound newsworthy figures such as the late lamented Princess of Wales. All that is necessary is to limit the application of the principle to cases where the main subject of the picture is an identifiable human individual or small group not exceeding, say, six in number, and where the picture is proposed for publication. It would be an offence for the editor of the publication in question to publish the picture without the specific prior consent of all the human individuals portrayed therein unless the photographer had previously obtained some form of written permission covering the occasion on which the picture was taken.

If implemented internationally, such an application of the law of copyright in the interests of personal privacy would put an effective end to keyhole photography in hope of financial reward and compel freelance photographers to seek a more worthy means of earning a living.