Copyright laws for the Digital Age

I was asked to write a debate style short essay on whether Canada should change its existing copyright laws to achieve good public policy in an era of digital products and services. This was for a course on the Management of Intellectual Property. As a founder of Vitrium, this is obviously an issue that I’ve kicked around a fair bit. Those of you who know me well know that I love to debate and would often engage in both the pro and con side to any debate given the right environment and time. I particularly enjoyed writing this short essay – even though I was restricted to one side of the argument and the length of the essay had to be less than 800 words.

I argue that Canada should not imitate restrictive Copyright legislation governing the use and distribution of digital media but instead, require that business adapt to changes brought about by technology innovation. Copyright law bestows the exclusive right to control the distribution of an original work onto the author for a certain time period. Prior to the development of digital media, publishers of original works maintained control of copyrighted material by tying it to a physical medium (e.g. book, cassette tape). Furthermore, the act of copying analog data resulted in a degradation of quality of the original work. The physical medium and degradation of quality helped check copyright violations.

With the advent of digital media, original works are now freed from their physical medium and the copied material is indistinguishable from the original. This has greatly enhanced how licensees purchase and use copyrighted materials. Unfortunately, it has also contributed to rampant copyright violations as legitimate information exchange over the Internet is virtually indistinguishable from illegitimate without serious intrusion into the end-user’s privacy. Various industry associations have taken civil action intended to set examples of copyright violators and to strong arm infrastructure providers into monitoring the activities of Internet users. The industry has also responded with digital rights management technology that in some cases severely restricts what customers may do with a digital material. In addition to this, these industries are lobbying for changes to the Copyright act to deal with consumption of digital material and Internet distribution.

The strongest proponent of Copyright reform is the music industry. The book publishing industry provides a great deal of value add to an author through the editorial process. By contrast, the music industry is largely built upon the distribution controls of physical goods. It is therefore not surprising that the changes proposed to Copyright legislation are largely geared to preserving this business model.

Most users of digital media are not legal experts and may not distinguish fair use from copyright violations. Users have established behaviour patterns based on physical (analog) media. People often lend materials to friends and move materials from one playback device to another. The same behaviour patterns, when transposed to digital media often result in violations. This is because digitally copied materials represent an exact duplicate where both parties get to simultaneously enjoy the benefit of the material which is not possible with physical goods.

If left to fend for themselves, the industry seems to want to turn back the clock on innovation and strip consumers of the vast benefits of digital media. This is akin to trying to put the genie back into the bottle. The problem is not one of legal or technology innovation but one of business innovation. As technology evolves, new business opportunities are created while old business models fall by the wayside. Businesses have to learn to adapt to changes brought upon through innovation.

The software industry was arguably the first industry to experience copyright violations through software piracy. Today, the software industry has learnt to take a stick and carrot approach to achieving harmony between fair use, unintentional violations and outright violations. For instance, in addition to legal deterrents, the software industry requires that customers have legitimate versions of software prior to gaining accessing value added services such as product support and security updates. This evolution in business practices is a result of accepting the detrimental together with the beneficial aspects of digital media.

We are already starting to see changes as new businesses take a fresh approach on how to monetize copyrighted materials. For instance, there are now flat rate monthly subscription services that allow customers to listen to as much music as they would like. There are also new bands whose business model is to distribute music online for free and derive revenues through paraphernalia and live events. Perhaps the most interesting model was when the band Radiohead made their latest album available online and let fans name their price prior to downloading it. Interestingly, the average price paid for the album was the same as what consumers would have paid in stores – in this case however, all the revenues went directly to the artists.

Proponents of copyright law reform are taking a one sided approach and wish to go back in time. They wish to restrict the flow of digital goods and impose unto them the same constrains as physical goods in order to return to a bygone era. Instead there are new businesses that are embracing consumer behaviours and adapting to new ways of doing things. This new approach not only opens up the landscape for new artists and gives consumers an access to a larger variety of intellectual goods. It is best that governments do not hamper this natural evolution of technology and business through legislation.

(796 words)