18 May 2011

Copyright - robust or weak?

The Hargreaves review raises some interesting points about the strength of copyright protection in the UK. Strong IP rights have created a world class IP regime in the past but recently, due to technological changes, there has been an ever increasing strain on the legitimacy of copyright in particular.

Patent rights have its own issues which will be addressed in later posts, but copyright has been the main victim to the changes in technology. There are however, distinct advantages to the very same technological changes such as digital technology and the Internet. iTunes, Spotify and LOVEFiLM have clearly spotted the niche in the digital market and grasped it with both hands, creating viable and successful businesses using the 'root cause of piracy' - the Internet and MP3 players. Amazon has also successfully managed to tap into the digital market by promoting e-books and the Kindle.

Individuals now have access to various sources of information, many requiring little or no effort to access. The information is susceptible to unauthorised copying, not least because it is available to more people but due to misconceptions amongst the general internet using public. Misconceptions such as unauthorised copying CD' to MP3's breaching copyright in the UK, as well as other innocent uses of information protected by copyright like copying parts of news articles for discussion amongst friends and copying pictures found on the internet.

What the review will do is highlight these misconceptions and re-iterate the legislative stance on each particular matter. Whether the private copying exception is introduced or not is still unknown, its introduction however may reinforce what is legitimate copying and what is not.

The two main opposing arguments are:

  • Robust copyright - called for by publishers, record industries, some authors: copyright should be robust as a financial incentive to create more material. If the investment dries up because of a lack of faith in returns of said investment, the quality of material will be reduced.
  • Weak copyright - open rights organisations, individuals (consumers) and some authors: copyright should be weak because its entry threshold is so low. Permitted uses of material enables further creation of material because it can be easily accessed and shared amongst creators.

The arguments are both valid and finding the balance will never be a simple task, not only because of difficulties in deciding who should benefit most from copyright but because the boundaries of such are always changing. Previously it may have been suitable to have broad copyright protection because enforcing those rights were largely easier, now with the amount of individual activity (as opposed to organised crime - bootlegging) those same rights are more difficult to administer and also to justify.

The justification for copyright changes through time depending on the needs of the government, authors/creators, competitors and consumers. Currently those needs are all equal as there are no preferred interested stakeholders. The review may strike that balance perfectly, while failing to recognise the practical constraints on the recommendations and therefore transferring these recommendations into legislative provisions may prove more difficult.

Easy entry into the copyright protection realm should mean that the resulting protection that copyright offers is equal to and representative of that entry. Unlike patents, which are extremely difficult to obtain and worthy of the robust protection that IP rights give, copyright protection should be relatively weaker than the patent protection.

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