The debate: digital creatives face a copyright battle as the Internet, and advanced copying tools, mean work is under threat like never before. So, are stronger copyright controls with harsher penalties the answer, or should we walk away from copyright controls altogether?
Chris Lightfoot, Geophysicist, free software author, and campaigner for fairer copyright law
Campaign for Digital Rights
English copyright was invented in 1709 to encourage creativity, especially among authors who were complaining about rampant ‘piracy’. How times change. Copyright law lets the creator of a work say when it may be copied, so they can control and profit from its distribution; creators can stop others from copying their work without permission by suing them for infringement.
Artists don’t absolutely need copyright to work – there were designers and design before there was copyright law, and the absence of copyright didn’t stop Beethoven or da Vinci (though they were both paid by wealthy sponsors, and had no need of royalties). Designers producing work for hire rely on contract law, not copyright, for their income.
Copyright can make the distribution of creative work a profitable business, which is great for those making a living out of it. Before copyright, the publisher of a book couldn’t stop pirates from reprinting and selling it themselves. Copyright solves that problem, and the copyright era has seen an explosion in distribution of all kinds of art.
However, the power to control the distribution of works has a cost. Little art is completely original; most takes inspiration – or more – from the work of others, whether by quoting a poem in a novel, using a sample in a song, or a photograph in an illustration.
There are a few ‘fair dealing’ exceptions, but the same restrictions apply to using part of someone else’s work in your own as would apply to copying their work outright, which can make the creative process legally fraught.
The Verve forfeited all royalties from Bittersweet Symphony because it used a musical phrase inspired by a Rolling Stones track; Andy Warhol was lucky not to be sued for infringement of copyright in Campbell’s soup can labels.
Some copyright protection is good for designers, but too much inhibits their work. But now copyright controls are being strengthened.
Firstly, the term of copyright has been extended to cover work until 75 years after the death of the author, rather than 50 years as before. This harmonizes British law with other European law. In the US, the extension was demanded by film studios, particularly Disney, who are desperate to keep Mickey Mouse out of the public domain.
This is terrible for designers, very few of whom can expect that royalties will still be supporting their heirs 50 years after their deaths, let alone 75. But the extension of copyright terms – which is retrospective, so that some public domain work returns to copyright, as with Edward Elgar’s music – severely restricts the amount of 20th century material designers may use in their own work.
Secondly, protection is being given by copyright law to ‘copy protection’ measures that are supposed to ensure that computers handle works only according to the wishes of copyright holders.
Already there are copy-protected CDs, which are supposed to be impossible to copy onto the Internet – or, annoyingly, loaded onto an MP3 player. The same protection can apply to photographs, films and text, and the European Copyright Directive and US Digital Millennium Copyright Act make it illegal to get around the restrictions – even when doing so wouldn’t infringe copyright.
This isn’t a big problem for designers yet, but it will be.
For instance, Adobe Photoshop CS users recently discovered that the program won’t load scans of banknotes, instead showing a warning against counterfeiting which is unlikely to stop the hardened criminal. It’s perfectly legitimate (with some restrictions) for designers to use banknote images, and Photoshop’s nannying will annoy many users without preventing any forgery, since the restriction is easy to circumvent.
Although Photoshop’s anti-forgery measures aren’t just about copyright, they show us what copy protection may be like in the future. Software will be slower and more irritating to use, and will waste your time trying to stop you from making legitimate use of the work of others. Imagine a Web browser that doesn’t allow you to save a photograph (or view the source of a copyright HTML page), or movie players that prevent screenshots from being taken.
Copy protection won’t prevent piracy or so increase income for creators, as it is meant to. Pirates, who are already breaking the law, will not be deterred by having to circumvent copy protection. It’s unlikely that copy protection will increase designers’ incomes.
Currently, copyright law greatly benefits designers, although the fair dealing exceptions are too weak to allow many reasonable uses of existing work. But new, stronger regulations go too far and will frustrate the work of all creative professionals. The law should balance the interests of creators and users of works; new copyright laws upset this balance.
John Robinson, Director of services
Design & Artists Copyright Society
Copyright is now more important than ever for visual creators in the digital age. Technology now gives immediate and unrestricted access to the original thoughts, ideas, creations, and research of other people on a scale that was unimaginable even a few years ago. Can the law – and should the law – survive demands for unconditional access to knowledge and information?
Public policy justifications for unrestricted access to intellectual property, and skepticism over the moral arguments made by some business sectors, though sometimes persuasive, can occasionally overlook the position of the individual freelance creator of original copyright works.
The Design & Artists Copyright Society (DACS) is a not-for-profit organization that exists to promote and protect the copyright of visual creators in the UK and worldwide. Visual creators join DACS because they want to give access to their work on terms that balance availability with a measure of control and fair reward. We serve as an authoritative voice for visual creators within the copyright community.
We believe copyright law remains vital for visual creators. The underlying principles remain justified: to respect, promote, and protect individuals and their creations. At a time when intellectual property can be copied and disseminated around the globe in seconds, there is more call now than ever for fair, legal balances between creators of original work and those who wish to use it.
Copyright in artistic works is governed in the UK by the Copyright, Designs and Patents Act 1988 (as amended). This Act establishes a framework of rights and obligations, giving visual creators the power to make decisions about how their work is exploited, while providing opportunities to make a living from such uses.
So what is different in the digital era? The key is cheaply available technology capable of quality reproductions and speed of transmission. The economic and moral rights created under the CDPA remain relevant in the digital age, as the following examples illustrate.
Consider this: in an unregulated digital environment, a business makes a high-quality digital copy of a designer’s work, and make millions of pounds using it in an advertising campaign without her permission.
No control means no compensation, or even acknowledgement for our designer. But it’s not just about money. Our designer’s work was used to promote the arms industry, and an environmentally damaging new product. She has strong views on this industry and there is massive public outrage over the environmental hazards posed by the new product.
Our designer is now associated in the public mind with undesirable activities, products and politics, because there were no enforceable legal controls and no public perception that she should have a right to be asked before her work was used in this way.
Current law, however imperfect, would provide a platform from which our designer can legitimately exercise some control in these circumstances.
More positively, copyright provision fosters creativity and the sharing of knowledge. Without it, whole pools of knowledge may be withheld from the public eye, nervously guarded for fear of being exploited. Copyright law provides a framework within which creative products can be licensed and reproduced on terms that balance access with appropriate reward for the creator. In the long term, the public interest is served by the time-limitations placed on copyright protections. Eventually, all intellectual property will end up in the public domain.
Copyright skeptics make much of certain business sectors that mobilize copyright principles to justify restricting access to information and knowledge through excessive pricing or other practices. Copyright, so the argument goes, serves only unethical monopolists and extortionists, and should therefore be scrapped in the public interest.
This is the real challenge of the digital age for creators. Demand for cheaper, more accessible information places pressure on content packagers to drive prices down. Increasingly, this is achieved by passing the pressure on to freelance creators by seeking to acquire wholesale rights permitting unlimited exploitation, in formats yet to be invented, throughout the known and unknown universe with total surrender of creator control. Superior bargaining strength places economic pressure on an individual: if you won’t accept this all-rights grab contract, someone else will. Next....
So do we despair, agreeing that copyright is redundant and should be abolished? No. We need an educated public that recognizes that copyright is intended to benefit creators, because as a society we value what creative people do for us. We need an informed creator community that understands they have rights, and that the threat to them is not just from scenarios like the above. Rather, it may come from those who aggressively seek to defend and protect their own interests, while seizing with both hands the rights of the creators whose works form the basis of their content. How confident can we be that fair play would get a look-in if there were no legal framework for creators’ copyright at all?