SIX SHORT YEARS OF MONUMENTAL CHANGE

Between 1995 and now, (late 2001) the Internet has changed the environment for intellectual property almost completely. It is true that, at the international level, pressure is still being mounted by the US and the UK for countries to remove all barriers to entry of their entertainment products. And there is still resistance. Canada’s Minister of Canadian Heritage, Sheila Copps, has taken a lead role in attempting to establish an international agreement that sets apart cultural production entirely from the rigours meant to stimulate of international trade and hence competition in the marketplace. Mexico is one of those nations that has expressed interest. Yet the dynamics of the Internet impose their own dynamics which inflect this struggle.

The Internet is a public communication system not a mass communication system. A mass communication system provides opportunity for corporately financed, industrially organized, state regulated, high technology companies to produce leisure entertainment and information to an unknown audience in the form of privately consumed commodities in modern print, screen, audio and broadcast media (cf. Lorimer and Gasher, 2001). A public communication system provides much greater possibility for members of the public to make information and entertainment available to all others who access the Internet. It also makes it possible for anyone with the determination to take any digital product owned by anyone and make it freely available to the world. Even products that are not digital, such as printed books, can be digitized and similarly made available worldwide. This, in a word, if the material is copyrighted, is piracy.

In a world of fantastic archives of information and entertainment products; in which the mass production and dissemination of these products that make some people vastly rich; and in which some nations are incredibly rich and some incredibly poor; and in which these differences are increasing rather than decreasing; actions taken by single individuals to share freely what they have already purchased, or, put another way, to make available the intellectual property of those who are already rich and powerful does not appear to be a criminal act. Nor does the content (i.e., the meaning of the content) of some of copyrighted material being appropriated contradict the motivations of the pirates.

In the context of vast financial wealth by certain copyright holders and in the context of a wealth of information it is difficult for many to be convinced that copyright is a valuable foundation for societies to build their knowledge and their cultures. This is especially the case when the technology allowing one to ignore copyright law is sitting at one’s fingertips and the knowledge of how to use that technology is fairly simple and at the command of vast numbers of individuals, including many of the young. And indeed. as copyright law now exists. especially in the context of producer-driven trends in international trade, may not be best designed to serve both creators and society. In short, the Internet pirates, the best know of which was Napster before it was effectively shut down by the recording companies, are putting tremendous pressure on copyright law. Nor will that pressure cease, because the centrally provided access to copyrighted materials that Napster provided is now being provided by a decentralized sharing facilitated by such organizations as Gnutella which facilitates access of one user in search of certain content to another user’s hard drive who has that content. In the world of science, preprint servers are being joined by scholar-owned and controlled journals and boycotts by scientists of pricey commercial journals to bring pressure to bear towards change.

This scenario of members of the public limiting the power of market interests of global producers can be seen in a variety of ways. It can be seen as pressure on the producers to catch up with technology and use the Internet for the distribution of their products; or as pressure to create products (e.g., access to hit single songs) for which there is demand rather than packaging those products with less desirable material (a album of otherwise undistinguished songs); or as a rebellion of consumers against the concentration of rewards to powerful corporations and celebrities of the mass marketplace. Moreover, this scenario is not restricted to popular music. It is being played out in film, books and, as noted, scientific, technical, medical and professional publishing.

What then are the implications of the manner in which the Internet is being used by individuals around the world for copyright? It is perhaps ironic that the loudest voices rejecting copyright come from the U.S. where the rights of the individual are not strongly protected. For, after all, copyright protects most strongly the interests of the owners. Yet, another equally valid background context, in two senses, might be land ownership. As we have seen throughout the world, the concentration of land ownership in the hands of too few leads not only to vast poverty in an agriculturally based economy but also to inefficient use of land as a resource. On the other side of the equation, exploitation of an unowned resource, whether land, air, water, or the ozone layer can lead to the tragedy of the commons, that is overexploitation and despoliation.

There may be some value in a fuller recognition of moral rights and a de-emphasis on property rights. The difficulty with considering that possibility is that such a re-orientation is not in the interests of the most powerful copyright owners to consider.

*Canadian Centre for Studies in Publishing Simon Fraser University.

1. This paper was adapted from “Intellectual Property, Moral Rights and Trading Regimes” published in the Canadian Journal of Communication, 1996, Volume 21, Issue 2 (267-285). Permission to republish those sections of the paper that are repeated here, which constitutes most of this paper, was provided by the journal.

2. I am indebted to David Wedge for his explanation of the protection of intellectual property and to David Vaver for his close reading and comment on a previous version of this manuscript.

3. Berne is unclear where software falls whereas for WTO and NAFTA software is seen to be a literary work and thus the period of protection is 50 years after the death of the author.

REFERENCES

Acheson, K., & Maule, C. 1994. “International Regimes for Trade, Copyright and Labor Mobility in the Cultural Industries”, in S. McFadyen, C. Hoskins, A. Finn and R. Lorimer (eds.), Cultural Development in an Open Economy (Waterloo: Wilfrid Laurier University Press), 147-168.

Acheson, K., & Maule, C. (1994). “Copyright and Related Rights: The International Dimension”, in S. McFadyen, C. Hoskins, A. Finn and R. Lorimer (eds.), Cultural Development in an Open Economy, (Waterloo: Wilfrid Laurier University Press), 169-192.

Aide, C. 1990. “A More Comprehensive Soul: Romantic Conceptions of Authorship and the Copyright Doctrine of Moral Right”, University of Toronto Faculty of Law Review 48, no. 2, 211-228.

Benjamin, W. 1978. “The Work of Art in the Age of Mechanical Reproduction”, en Illuminations (New York: Schoken Books).

Collins, R. 1994. Trading in Culture: The Role of Language, en S. McFadyen. C. Hoskins, A. Finn and R. Lorimer (eds.), Cultural Development in an Open Economy (Waterloo: Wilfrid Laurier University Press), 123-146.

Damich, E.J. 1990. “The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors”, Intellectual Property Law Review, 547-642.

Gibbens, R. D. 1989. “The Moral Rights of Artists and the Copyright Act Amendments”. Canadian Business Law Journal 15, 441-470.

Kernan, A. 1987. Printing. Technology, Letters Samuel Johnson (Princeton, NJ: Princeton University Press).

Lorimer, R.,& Gasher, M. 2001. Mass Communication in Canada (Toronto: Oxford University Press).

Lorimer, R., & Duxbury, N. 1994. “Cultural Development in an Open Economy: An Orienting Conceptual Framework”, in S. McFadyen, C. Hoskins, A. Finn and R. Lorimer (eds.), Cultural Development in an Open Economy, 5-36.

Musa, M. 1990.”News Agencies, Transnationalization and the New Order”, Media, Culture and Society 12, No. 3, 325-342.

Rabinow, P. (ed.). 1984. The Foucault Reader (New York: Pantheon Books).

Roach, C. 1990. “The Movement for a New World Information and Communication Order: A Second Wave?” Media, Culture and Society 12, no. 3, 283-308.

Saunders, D. 1992. Authorship and Copyright (New York: Routledge).

Sinclair, J. 1990. “Neither West nor Third World: the Mexican Television Industry within the NWICO Debate”, Media, Culture and Society 12, no. 3, 343-360.

Vaver, D. 1987. “Authors’ Moral Rights – Reform Proposals in Canada: Charter or Barter of Rights for Creators?”, Osgoode Hall Law Journal 25, nos. 3-4, 749-786.

Vaver, D. 1989. “The Canadian Copyright Amendments of 1988”. Intellecutal Property Journal 4, 121-155.

Ze, D. W. 1994. Doing Book Business in China. Information Reports No. 1. Canadian Centre for Studies in Publishing.