Online copyright wars not quite what they seem, says judge

"Copyright by contract" could develop between the producer and user of a work

It may be true that the internet has changed copyright forever, says Judge David Harvey. But this doesn’t mean those supporting its virtual abolition will win. Rather, Harvey believes, we could see “copyright by contract” develop between the producer and user of a particular work. This could be instead of, or as well as, general copyright provisions.

Harvey commented on the copyright issue during a panel session entitled, The internet has changed copyright forever, which was part of an Internet Safety Group symposium held earlier this month in Wellington.

Copyright is only a few centuries old, says Harvey, and enforcement problems only really arrived with the advent of fast, inexpensive duplicating and photocopying equipment. Before that, the chore of copying by hand, or the expense of printing and distributing, protected original works by default from illicit copying and transmission.

But now copying happens all the time in the digital environment, says Harvey. It is the means by which digital technology works. And copying something onto an internet site effectively “puts it instantly in the hands of everyone”.

However, the concept of “fair use” of copyrighted material, for the purposes of review and private study, has always existed. Some protection mechanisms now possible could, potentially, trespass on this ground, by adding a further degree of protection one that has been dubbed para-copyright, says Harvey.

This includes restrictions such as making it impossible to use DVDs outside a prescribed geographical zone.

Also speaking at the symposium was Victoria Pearson, from the Ministry of Economic Development, who summarised what is happening here regarding proposed copyright law reform.

These reforms could include provisions that allow “automatic copying”, such as takes place in web browsers; latitude for “format-shifting” between, say, a legitimately bought CD and a portable MP3 player; and a prohibition on the supply but not the use of techniques and equipment for circumventing copy protection.

The logic behind regulating the manufacture and supply of such equipment is that this would provide a single “choke point” of prevention – much easier than chasing up thousands of individual cases of circumvention.

“We [government officials] are conscious of the need for balance and the [preservation of] the ability to build creatively on preceding work,” says Pearson.

Mark Harris, writer and internet commentator, asserted that technology had rendered copyright “dead in the water”. The idea that not having work protected would inhibit creativity is erroneous, he says.

“We’ll keep writing whether anyone pays us or not.” Copyright, Harris says, was not really invented for the sake of the writers. It was 18th century printing companies, who wanted to protect their monopoly, were keen to back copyright.

“The digital paradigm is all about collaborative development,” says Harris. Copyright can inhibit this. Wikipedia could not exist if copyright law was strictly enforced. Harris also pointed to online author Cory Doctorow and to the BBC’s release of its archived works online.

Harris added that CD sales went up when Napster was in its heyday, leading to suspicion that recent falls in sales have nothing to do with the free distribution of music online.

Mark McCall of the Recording Industry Association of New Zealand commented that some people might indeed choose to disseminate their creative efforts directly and freely. “That’s one business model.” But most prefer the model that involves an intermediary skilled in management.

“Which business model entitles Sony to hack my machine?” Harris responded, referring to the now withdrawn rootkit-like software Sony used in its infamous CD protection scheme.

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