Hollie Glover

Media BA(Hons)

05.A04. Technology

Intellectual Property

Flickr: Horia Varlan

A Brief look at copyright and piracy in the digital age

As with most aspects of the digital age, technology has made it easy and relevantly cheap for the-man-on-the-street to access, acquire and interact with technology that until now has largely been beyond his means. This includes access to artistic works such as novels at a basic level. We no longer have to wait for a publisher to physically print a book onto paper, have it bound and transported to either a shop or our homes for us to be able to read the content. Now we can download a copy and read it often without the need for a publisher at all. This ease of access to the publishing world introduces not only the general-public to new works but also the number of people able to produce the art and make it available. Questions regarding copyright, piracy and what a consumer is actually buying, are a matter for debate, both moral and legal and I aim to look at some of the facts within these debates.

According to the Intellectual Property Office “Intellectual property (IP) is any form of original creation that can be bought or sold” (Intellectual property office why use IP, 2008). If an item can be bought or sold, it therefore has to have value. Something of value can be owned. Ownership in the case of intellectual property usually belongs to the artist and copyrights for the work are awarded to the creator. Under British law the author and owner of copyright is said to be

“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” Copyright, Designs and Patents Act 1988

If something is owned and has a value it can, and probably will be copied, this copying is often thought of as piracy. Piracy in turn is thought of as a serious crime, one of major theft, and morally wrong. Plagiarism, the name given specifically to the theft of an author’s work, is taken from the Latin word plagiarius, which means kidnapper and was first used in the first century AD concerning literary theft. Highlighting the seriousness of this moral crime, “the kidnapping of one’s life’s blood, ones ideas, ones words, one’s child” (Levinson, 1998, p. 189)

“McLuhan (1967, p.122) notes that the notion of copyright was a consequence of the printing press” (Levinson, 1998, p. 189) European monarchs to some extent feared the new printing press which resulted in a need for royal control. In 1485 the first English Royal printing press opened its doors, and the Tudor Royals then proceeded to control printing for the next century “by a series of royal grants authorizing the exclusive publication of specified books” (Levinson, 1998, pp. 189-190). This method of control worked as a kind of censorship as well as an early copyright, although the aim was to protect the King not the author or publisher. It was not until 1710 and Queen Anne’s Statute of Anne did authors gain any protection of their work, but only of new books, which had not previously been printed for a period of fourteen years, followed by a further fourteen years should the author still live. A similar allowance of twenty-one years was allowed for previously printed books. An act for the encouragement of learning, The Statute of Anne was the first copyright law in the world and although it protected the rights of those with the knowledge to write, print or produce books, its primary goal was education.

If the use of another’s work as your own is plagiarism and the copying of another’s work is piracy, without the ability of every new creation to be unique, we are left with the question ‘how far away from the original, does one need to be, to not be thought of as a pirate?’ A simple question with not such a simple answer, today’s copyright laws are extensive and through necessity have to cover every form of creativity. “Under most countries’ copyright laws, creative works receive a copyright from the moment that they are “fixed in a tangible medium” (hard drives count), and this means that the pool of copyrighted works is so large as to be, practically speaking, infinite” (Doctorow, 2008, p. 68). This, in realistic terms, means whatever you create, in whatever form, the chances are high that your work is going to be close to that of another work, and in some way developed from another work(s). The general concept in any new art form then cannot be copyrighted; the protection therefore has to be more specific to each piece of work, the actual wording, the exact flow to a story or the specific melody in a song.

Lawrence Lessig explains that the idea of ‘Any copying of someone else’s work is wrong’ is, to a point, a new concept. One of the most famous artists of the twentieth century, Walt Disney, is known for borrowing ideas and building on them to make something new and exciting. Steamboat Willie, known worldwide as the first Mickey Mouse film, was built onto the ideas of others. “The key to success was the brilliance of the differences”. (Lessig, 2004, p. 23) Indeed many of Disney’s major motion pictures are built from the work of others. The Grim Brothers’ Fairy-tales, for example, come alive with hope and goodness under Disney’s expertise, without losing the moral of the original tales.

When people realised that their work had a value to others, as more than entertainment, it left many with the question; ‘why should someone else benefit financially from my work?

Unfortunately, what could be called the developmental stages of intellectual property, have long since passed by us, progressing so when someone puts pen to paper, the art they create is owned by them to the exclusion of all others. No longer can we expand or improve the ideas of our peers, or not without their permission and often at a cost. When people realised that their work had a value to others, as more than entertainment, it left many with the question; ‘why should someone else benefit financially from my work? In the digital age, it is becoming more and more difficult for an artist to protect their work from others and looking at the business policies of some companies, the technicalities of monitoring ownership of digital works is not as simple as it is for their paper counterparts.

Cory Doctorow asks “Why is it whenever a digital sale is in the offing, Amazon rolls over on its back and wets itself” (Doctorow, 2008, p. 65) as he further explains, this is the same Amazon who have legally won many major battles on behalf of their customers, even fighting the US Government in court to protect those customers. In another legal battle they went against the Authors Guild, who wanted Amazon’s used-book market negating. Amazon argued however

“When someone buys a book, they are also buying the right to resell that book, to loan it out, or to even give it away if they want. Everyone understands this.” Doctorow, 2008, p.63

Amazon’s understanding of this, Doctorow, argues seems to falter when it encounters digital media. The terms of use and programming for the Amazon Kindle prevent any sharing or copying of digital content. No book bought from Amazon in digital Kindle format can be lent or resold. An abrupt about-turn for the company; these clearly opposing rules, for what on the surface seems to be the same product, indicates a major difference in the actual products of ‘book’ and ‘e-book’. In the Kindle User’s Guide, it clearly states “the Content Provider grants you a non-exclusive right to view, use, and display such Digital Content an unlimited number of times, solely on the Kindle or a Reading Application”. In layman terms you are buying the right to be able to read the content you have purchased, as many times as you wish but only with the use of either one of the Amazon Kindle handheld reading devices or one of Amazon’s downloadable kindle reading programs. You are not, as in the case of a paper book, buying any rights to own your purchase. You therefore have no rights to share, sell or give away the content you have paid for.

The Oxford dictionary online describes a book as a written or printed work consisting of pages glued or sewn together along one side and bound in covers. Meaning that by definition an e-book is not an actual book, making it instead a file, like any other digital file. While no author would allow their work to be called merely a file, the name e-book seems to be confusing many people. Using a different name, such as e-novel, clearly indicating the nature and format of the text, could help alleviate the problems or perhaps explaining to the man-on-the-street why they cannot share their e-novels as they would a book of the same work.

Most people would not consider photocopying an entire print book to give to a friend, although they will argue that they should be allowed to copy a digital format of the same text, to give to as many friends as they wish

When you purchase a book, that book, is a solid physical object that can, as Amazon rightly says, can be shared, loaned or given away. However, when you loan your book to a friend or give it to the local charity shop, you no longer have it in your possession. It has gone and unless it is returned or you purchase another copy, you cannot reread what is in its pages. If on the other hand, you buy your e-novel and want to send it to your friend, by email for example; then, your email program sends a copy of your file to your friend. The original file is still available for your use; you could in fact be reading the new book you purchased, while your friend is also reading the copy you have made for them. You have then theoretically denied the author the sale of one book. Most people would not consider photocopying an entire print book to give to a friend, although they will argue that they should be allowed to copy a digital format of the same text, to give to as many friends as they wish. Although this type of sharing would be considered piracy, it is difficult to tell if the author lost any sales or if this type of sharing just decreased the time, it takes for a group of friends to read the same novel.

It appears that this is exactly what Amazon has attempted to curtail, to a point, with their Kindle and its associated Kindle store and Kindle digital content; it even went so far as to create a new kindle file format all with the aim of protecting the work of the authors and publishers. Amazon does however, tolerate a certain amount of sharing between friends or family, it is possible to share an amazon account, in the past this would have been to purchase physical objects such as books, you could then take it in turns to read said novel. When Amazon produced the Kindle, the same account sharing is allowed, although the number of Kindle devises is limited. Should a person by Kindle e-readers for both them and their partner, both devices can still be linked to the same account and therefore download the same purchases with only one payment. You would not however be able to buy a Kindle book and send a copy to a friend. This system of limited file sharing protects customers from the need of purchasing more copies of a digital file, than they would a paper book, without risking extensive file-sharing resulting in a loss of revenue for authors.

It is not only easier for an author to become known, but for a reader to find a genre they want to read, as opposed to one the publishers felt was safe to risk financially backing

Amazon has also developed the Kindle in other ways to benefit the author, now ‘self-publication’ of one’s work through the Kindle medium is an accepted, legitimate and productive way of selling said work. The poor representation of self-published works through vanity presses, while still a factor, is becoming less and less of a concern. Readers are more willing to “give an author a chance” as many of the new indie-authors are hard-working people, whose books go through the same editing and production process as any publisher produced novel would. “And it’s not just the Indies who benefit: the existence of successful independent artists creates fantastic leverage for artists who negotiate with the majors” (Doctorow, 2008, p. 70). Any competition is good, it ensures a minimum standard of production and keeps cost for the public as low as possible. Now that major companies, who between them have long held control of who and what was published, are under pressure to increase the range of available texts, not only from indies but also a range of smaller high quality, online e-publishers. It is not only easier for an author to become known, but for a reader to find a genre they want to read, as opposed to one the publishers felt was safe to risk financially backing.

This opening up of the market, through free competition has, for many increased the problem of piracy, illegal downloads are no longer a problem just for multi-national best-selling authors. Kindle’s no sharing, no copying only access to a text through a kindle program is one solution. Another is to allow the sharing of files. Doctorow (2008), explains how when he published his early science fiction novels, he also posted a free download of the same book online. Many people, he claims found out about the free download and use it as a taster for his work, before then going out and buying the book to read in comfort. This promotional sales method has proved popular and often very productive. With the new handheld electronic readers of today, as well as economic difficulties; it is likely not as many people are going to be willing to buy a paper copy of a book they can just as easily download free of charge and still read on the train going to work. Doctorow’s early practice of giving away e-books and allowing anyone to share his work, in electronic format, with anyone else, negates any piracy of that work, again in electronic format. It is not however a very good business model for those artists who only produce work in an electronic medium. For them the risk of piracy is becoming greater every year. There is also no longer the theory of ‘If your popular enough to be pirated you’re doing well’. Pirates are selling computer disks containing hundreds of e-books, many containing authors nobody has heard of. Doctorow’s theory could become relevant again here; if you acquire a book by an author you do not know and enjoy the book, you may in-turn research your newfound author and purchase more of her work.

Lessig uses the same argument with the piracy of Microsoft Windows in China, in the past; they used pirated copies of the operating system. Later, they were already used to the way in which the Windows operating system worked so started to buy from Microsoft, meaning in long term, Microsoft benefited from the early piracy. Had Microsoft fought the piracy and forced China to use a free operating system such as Linux, they would have lost the later sales gained through familiarity. This may seem like good a reason to allow piracy and file sharing. The problem remains though, not of how productive the system is but how legal and how moral. “It merely gives someone access to something that the law says he should not have” (Lessig, 2004, p. 66); and in many cases, something the owner doesn’t want him to have or certainly not via the method he is acquiring it.

The organised sharing of files through specific websites is often called peer-to-peer (p2p) sharing, and is a thorn in the side of many of the major production companies, whether that be film, music or literary. “The key to the “piracy” that the law aims to quash is a use that “rob[s] the author of [his] profit” (Lessig, 2004, p. 66) which as he further explains, means we have to establish how much ‘profit’ the author is going to lose by p2p file sharing. A number of factors come in to play here, not only is there Doctorow’s long-term gain from a short-term loss theory. But also, the question of ‘how many of the downloads are done by people who would have bought the item’ resulting in the loss of profit for the author; and how many of the downloads are done by people who would have never bought the item, whether digitally or physically, resulting in no loss of profit. Lessig describes four types of piracy downloads, although he makes no allowance for those who download content they would never have bought had p2p not been available to them. Out of his four piracy models, Lessig, claims only one would cost the artist money those who download instead of buying. If this is the case can it be said that, while the following are examples of piracy they are deemed harmless; downloading music no longer available; sharing samples of music already purchased by others; or sharing files the owners want sharing. It is also likely that they use the same technology to share content that on the surface of things appears to be legal or at least not harmful to an author’s livelihood.

It seems unfortunate that, even today, the intention of many controlling companies is not to look not towards working with new technology to protect itself and its artists, while expanding its own reaches, but to ban or control the development of the new technologies

The potential for loss of profit is at the heart of all copyright and piracy arguments. For some, such as the major producers, a percentage drop due to p2p sharing may well amount to millions of pounds, but is relatively a small loss when compared to the profits they make. When compared to the same percentile loss suffered by a self-published author, who still needs to pay her editor and cover artist etc. this could amount to a substantial amount of income. The industry is known for blaming new technology for any loss in profit. The music labels, for example blamed cassette players for the drop in music sales in the 1980’s. As the start of MTV proved, the sharing of music through copying cassettes was not to blame for the loss of revenue, but the lack of new and interesting music available for sale from the music giants. A fear of new technology and its potential for a loss of control by major players has always been a problem. It seems unfortunate that, even today, the intention of many controlling companies is not to look not towards working with new technology to protect itself and its artists, while expanding its own reaches, but to ban or control the development of the new technologies.

The sharing of information, films, music or books clearly affects the artist, publishers and producers of many works. More and more artists themselves, aim to earn a wage from their work; how detrimental this downloading is, seems to be debateable in itself. Although morally one could argue that there is no difference between downloading an album and steeling a CD from a store, the figures do not show the same numbers in loss of sales as in increased downloads. Many people it seems are downloading content to sample before choosing which they are going to buy. There is also economic difficulties, increased price and many other aspects to be taken in to consideration before sales loss directly related to illegal downloads can be estimated. As an industry there may or may not be a major effect of profit by illegal downloading, to the individual artist, author or song-write, this effect could have a much bigger impact on sales and earnings, again the actual figures are difficult to predict.

What is clear however is there is no change to the way in which ownership of said material works. If you make it, you own it, and it is yours to sell, licence or share as you see fit. Nobody is arguing whether or not an artist owns his work, or if he has the right to sell his wares. The discussion seems to fall on what exactly it is you buy when you purchase the work of an artist, what right the consumer has for further use of the work compared to what has been allowed previously with physical purchases and if sharing our purchases effect the amount of profit the author of a work could earn.

There are a number of contradictory discussions concerning how the digital medium affects the way in which we use the intellectual property of others. Some believe that allowing file-sharing has the potential to increase revenue, while major distributors may argue any download is a loss of profit, others consider illegally downloaded content to be used at least in part by those who would not purchase the product if downloading was not available to them; resulting in no loss and a possible future gain. Whichever model you subscribe to it is clear that the digital medium has increased all aspects of the industry, from the creators of art to the people wanting it and the people wanting to share it with others free of charge, whether or not that is legal or moral. It used to be said that only Science Fiction was loved enough to be pirated on the internet, now it would seem that all fiction is loved enough to be pirated especially on the internet, that surely is a positive start from which the industry can move forward.

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