Who needs copyright?

It is a truism that the scholarly publishing industry needs copyright. The law provides a bedrock for the negotiation of contracts, both with authors and with users, and it is no surprise, therefore, that about a third of the words in Jones and Benson’s Publishing Law refer to copyright or related rights such as database rights and publishing rights. But it is also true that the whole notion of copyright is under pressure – my perception is that this pressure is greater than at any time since the late 18th century, when there was a strong move to abolish both copyright and patents by people who strongly believed in trade unrestricted by any barriers or monopoly rights. The reason for the pressure is clear enough: there is a whole new generation of people brought up on the Internet who accept or welcome its apparently anarchic philosophy of life. It has been claimed (and I see no reason to disbelieve it) that copyright infringement is the most common method of law-breaking today in Western society, even more so than breaking motoring speed limits. The analogy with motoring speed limits is apt. The reason why people break speed limits is because they perceive the law to be inconvenient and unjust, they perceive that enforcement measures such as speed cameras are simply devices to make money, they believe that speeding is not inherently dangerous, and they believe the chances of being caught are tiny. The same applies to copyright infringers. So we have to accept that a large proportion of the population believe that copyright laws do not apply to them, and that they can get away with infringement. The mere fact that rights owners complain that infringement is the most common legal offence today indicates to me that they have no confidence in copyright law as such. They show this by their increasing reliance on contract and digital rights management (DRM) systems. But there are other, arguably worthier motives for criticizing copyright. Many see copyright as a key barrier to the widespread free access to scholarly information and other information of use to the population at large. There are concerns about the allegedly high profits made by certain well-known publishers. And there are concerns that copyright owners, in response to the technological challenges posed by the Internet, have responded in a negative fashion, by pressing (largely successfully) for stronger copyright laws – stronger in terms of length of copyright term, the penalties for infringement and extension of the restricted acts, not to mention reductions in the exceptions to copyright that users have hitherto enjoyed. These changes in the law seem to me to be like fingers in the dyke; they not merely fail to deal effectively with the widespread infringement that occurs, but are also perceived by users as being negative. In short, they threaten the already fragile relationship between copyright owners and users. They also send out two curious messages: firstly, that users are enemies rather than consumers to be courted, and secondly, that new technology is a threat to established business models, rather than an opportunity to build new ones. The changes in the law have also produced anomalies, such as how to define ‘commercial’ when it comes to questions of ‘fair dealing’ in UK law and EU copyright law, and the problems that arise in balancing the exceptions to copyright for non-commercial research or private study with the need to give legal protection to so-called ‘technical protection measures’, such as DRM softwares. So what is wrong with copyright these days? The law seems to be reacting negatively to technological change rather than embracing it. There is little objective evidence that intellectual property rights (IPR) law actually helps the copyright industries – witness the recent EU report on the effect of database rights after ten years (it showed that the gap Guest Editorial 243