How technology killed copyright

Saturday, January 2nd, 2010

In a digital age of file sharing, writers, musicians and other artists must find new ways to earn a living from their work

Gillian Shaw

Mira Sundara Rajan, a professor at UBC, has written a book on copyright law and has a second one on the way. She says the role of publishers as middlemen has decreased because of artists’ ability to publish work online. Photograph by: Jenelle Schneider, Vancouver Sun

Copyright infringement has stirred the souls of artists and publishers since the time of Charles Dickens, who went to the United States in 1842 to ask the Americans to stop pirating his works.

His books were being reprinted there without his receiving a penny, but the Americans told him to jump in the lake.

How the world has changed. Now America’s a bastion for the defence of copyright and the country that once rejected international copyright laws is relentless in enforcing them.

However, 2009 might have marked the year when the enforcers lost valuable ground.

“I think 2009 was a watershed year,” said David Gratton, founder of Work at Play, a Vancouver digital agency and creator of DEQQ, an online service in which artists like David Usher and Nelly Furtado connect directly with their fans. “You wound up seeing industry almost give up the fight on this and realize we now need to think differently.

“It is not the death of copyright. I think the intellectual property that people have is going to be monetized differently. It is a fundamental change.”

Technology has forced the change, one in which there is no turning back.

Digitization makes it possible to reproduce, copy and disseminate material without necessarily getting the assent of the creator — just as American publishers did to Dickens.

Attempts to close the door on technological advances have been largely unsuccessful and Gratton sees the coming decade as one in which new models will take the place of ones that have failed to adapt.

“[American composer and conductor John Philip Sousa] was terrified of player pianos taking away business from real musicians, it was the same thing with phonographs,” said Gratton. ” Yet it led to a groundswell of new musicians and new business models growing up.”

Gratton sees two factors that will lead to new and innovative business models. One is people’s willingness to pay for convenience. “The other one that people are willing to pay for is around experience,” he said. “What is the connection I have to that content?”

Gratton says that while people immediately think of such things as attendance at a concert or movie theatre in exchange for the content creators’ willingness to share, those are only some examples. “You are seeing a lot of experimentation on copyright materials that are being delivered in unique ways, in ways that are very experimental,” he said.

While the copyright debate is often seen as one with traditional stakeholders on one side and new media types on the other, an incident that occurred as I was writing this story aptly demonstrates that the issues cut across all lines.

In Vancouver, high-profile blogger Rebecca Bollwitt, known online as Miss604, found a freelance post she had written for a local tourism organization on NBC’s Olympic web-site. At first the story still carried her byline, but when that was dropped Bollwitt e-mailed both organizations and mentioned it to her followers on Twitter, who took up her cause, calling for recognition of her work. Her byline was later restored.

For Bollwitt, who has a Creative Commons licence on her blog, lack of payment wasn’t the issue — it was lack of recognition.

“For me monetization comes with having my name on it,” said Bollwitt, whose Miss604.comblog helps build exposure for the WordPress and social media company sixty4media she cofounded, and for writing and speaking engagements. “For me it is all about the exposure and lassoing that back in and making business opportunities out of it.”

Mira Sundara Rajan, associate professor and Canada research chair in intellectual property law at the University of B.C., has written a book on copyright, Copyright and Creative Freedom, and has another one due out this year.

“The usual things that copyright used to be able to restrict in the pre-digital environment cannot be restricted any more, just as a practical matter, unless people are willing to participate and that is the key,” she said. “The relationship between the copyright owner and the public has changed fundamentally.”

Sundara Rajan said it is really a three-way proposition with the author, the copyright and the public — although it is often characterized as a relationship only between the author and the public.

The publisher’s role as a middleman isn’t as necessary any more, she said, since people can choose to publish their work online.

“Any time you get into a situation where you can’t control the act of people making copies, you are talking about a situation where copyright can’t apply any more,” she said. “The death of copyright law as we know it has definitely happened.

“The cat is out of the bag on that one, I don’t think there is any chance of going back. People have had a taste of digital media and they know what is possible.

“The idea of shutting off people’s access to digital media is not a feasible alternative.”

But that doesn’t mean that Sundara Rajan is advocating a free-for-all in which there is no value placed on creators’ content.

“The copyright concept should continue to exist because without it there is no way to recognize the author of the work,” she said. “All of that has to change because the technology mandates it, but we need to have some method of recognizing the value of what is contributed by an artist or author.

“Copyright law of the future will be fundamentally different. Maybe it will be where the author is paid for the initial transfer to digital media and after that everything is royalty or free.

“For the model of the future, what that means is the initial sale or initial transaction to a publisher or digital medium is the only one where an author can expect to make a substantial amount of money.”

In Europe, the highly successful music provider Spotify has proven people are willing to pay a monthly fee for the convenience and availability of a music service, even if it is possible to download music for free from other sources. ITunes has demonstrated the same.

The recording industry’s strategy, said Sundara Rajan, “has been wrongheaded from the beginning. It has been resistance to technology rather than using it and embracing it for the transformation of the industry.

“Instead of taking a moderate approach to the changes going on, the approach of the industry has been really extreme. They have tried to convert every new technology into a way they can monetize — an element of corporate greed has run away with the industry and they have paid the price in alienating the public. They have been taking an extreme approach to a subject that demands moderation and a willingness to change.”

Michael Geist, Canada research chairman on Internet and e-commerce law at the University of Ottawa, says the issue of copyright must be divorced from business models.

“There are going to be some winners and some losers and it’s not going to be copyright that is going to determine that,” he said.

Industry stakeholders who are putting pressure on the Canadian government to adopt their ideas of copyright reform are arguing they must have that to survive.

“There is little evidence to suggest the reforms they are seeking are anything more than a Band-Aid solution,” said Geist. “They’ve been in place in a number of other countries for a number of years now and there are no dramatic differences in the marketplace between those countries and Canada. So the notion it is copyright that can somehow come in and save the day is undermined.”

Canada ranks as the sixth-largest music market in the world. In the digital music market, it is seventh — not a significant enough difference to suggest that Canada is lagging.

Performers have benefited from the digital shift, no longer limited in their access to potential fans and audiences, and Geist said there will be winners in the recording industry that recognize the opportunities and embrace the change.

“I think there have been a lot of creative ways for people to both purchase and get engaged. The winners become those who think out of the box and envision and provide new opportunities that consumers either expect or don’t even realize they want,” he said.

The movie industry has proven that online availability doesn’t spell an end to delivery by other means. Geist points out that despite home theatres and peer-to-peer sharing, the industry has had a record year even in a recession.

There is no one answer, although one thing is sure, Geist said: the growing move toward mobile data.

“I think anybody who tells you they know where we are going to be in 10 years from now is lying,” he said. “Look how much has changed over the last 10 years.

“It highlights the need for flexibility and a willingness to adapt.”


Mira Sundara Rajan’s new book, Moral Rights and New Technology, will be published by Oxford University Press in the spring of 2010.

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