Leaders | Copyrights

A radical rethink

The best way to foster creativity in the digital age is to overhaul current copyright laws

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Reuters

CRITICS have derided a 1998 extension of American copyrights as the “Mickey Mouse Protection Act” because it stopped early images of the Disney company's mascot from entering the public domain. But such laws, they argue, are no joke. Extending and strengthening copyrights, they claim, will help a handful of big corporations crush creativity in the digital age. On the contrary, say Hollywood studios and big record companies. Without stronger copyright protection, a wave of piracy will destroy their industries, depriving consumers everywhere of a broad choice of movies, music and books.

Last week America's Supreme Court weighed into what is rapidly becoming a nasty worldwide battle about the scope and enforcement of copyrights, by rejecting a challenge to the 1998 law on constitutional grounds. But even as it upheld the law, the court expressed misgivings. Blistering dissents from two justices dismissed the 20-year extension of copyright as unwarranted, and even the majority's opinion hinted that Congress's decision may have been “unwise”.

The court's ambivalence is understandable. The growing quarrel over copyright is just one of the many difficult issues thrown up by the spread of the internet and related technologies (see our survey of the internet society in this issue). But of all these issues, the copyright battle is becoming one of the most urgent, and bitterly fought, because it could yet determine the future character of cyberspace itself.

Both sides have a point. Digital piracy does indeed threaten to overwhelm so-called “content” industries. As the power and reach of the internet continue to grow, the illicit trading of perfect copies may well devastate the music, movie and publishing industries. The content industries want to protect themselves with anti-copying technology, backed by stronger laws. So far, they have been at loggerheads with technology firms about how to implement such schemes (see article). But a deal between Hollywood and Silicon Valley is likely eventually. Critics are right to fear that, when such a deal is struck, it will be in the interests of big firms, not the public.

A grand new bargain

The alternative is to return to the original purpose of copyright, something no national legislature has yet been willing to do. Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right. Its sole purpose was to encourage the circulation of ideas by giving creators and publishers a short-term incentive to disseminate their work. Over the past 50 years, as a result of heavy lobbying by content industries, copyright has grown to such ludicrous proportions that it now often inhibits rather than promotes the circulation of ideas, leaving thousands of old movies, records and books languishing behind a legal barrier. Starting from scratch today, no rational, disinterested lawmaker would agree to copyrights that extend to 70 years after an author's death, now the norm in the developed world.

Digital technologies are not only making it easier to copy all sorts of works, but also sharply reducing the costs of creating or distributing them, and so also reducing the required incentives. The flood of free content on the internet has shown that most creators do not need incentives that stretch across generations. To reward those who can attract a paying audience, and the firms that support them, much shorter copyrights would be enough. The 14-year term of the original 18th-century British and American copyright laws, renewable once, might be a good place to start.

However, to provide any incentive at all, more limited copyrights would have to be enforceable, and in the digital age this would mean giving content industries much of the legal backing which they are seeking for copy-protection technologies. Many cyber activists would loathe this idea. But if copyright is to continue to work at all, it is necessary. And in exchange for a vast expansion of the public domain, such a concession would clearly be in the interests of consumers.

This article appeared in the Leaders section of the print edition under the headline "A radical rethink"

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