Copyright in the Digital Era: Criminality vs. Creativity

The idea of copyright has become one of the defining issues of the internet age. The digitization of media content has fundamentally changed how the film, music and other industries approach content security. The acceleration of copyright enforcement and the strengthening of copyright law has been driven in part by the ability to copyright ideas, processes and even living things. The idea that intellectual property is more valuable than physical wealth prompted the creators of the documentary Rip! to bestow the 21st Century with the title of: “The Century of Intellectual Property.”

Copyright began after the print revolution as a means for authors to profit from their original works. The first instance of copyright came in 1710 when the Statue of Anne was enacted. This allowed authors to exercise exclusive rights to their works for 14 years. Following this period their content would enter the public domain. Today copyright law has been strengthened, to the lifetime of the author, plus 75 years. A corporate copyright lasts 95 years. The driving force behind extending the period which it takes a piece of content to be released into the public domain is profit. Content owners cannot profit from works which they are unable to collect royalties on. Another significant factor motivating tougher copyright laws is the ease with which digital media can be shared from peer to peer. Peer to peer sharing also denies the film and music industries potential revenues. In entertainment, a small number of corporations own the rights to over 90 percent of mainstream content. These dominant media industry firms include: General Electric, BMG, News Corp, Viacom, Time Warner, and Disney. All of these firms are legally represented by either the Recording Industry of America (RIA) or the Motion Picture Associate of America (MPAA). Both the MPAA and the RIA aggressively pursue individuals and groups whom their clients feel infringe on their copyrighted material.

Parallel to the strengthening of copyright law and the aggressive litigious actions of the MPAA and RIA is the emergence of a Neo-Folk Culture in cyberspace. Lawrence Lessig has been a strong advocate for creating copyright laws which allow for individuals to exercise their creativity without fear of litigation. He feels that using media in a creative fashion is equivalent to quoting outside sources in academic writing. He argues that remixes of copyrighted work is simply, “writing for the twenty-first century.”

Lessig believes that the creative dialogue created by remix culture should be the focus of the digital copyright dialogue, not the issues associated with peer to peer piracy. (Lessig, 159)

The remixes posted online today use techniques that, until the digital revolution, where only available to the film and music industries. Lessig notes that today these capabilities have been “democratized” by the proliferation of media editing technology. Remix, Lessig says, is not a function of the methods used to create it. In other words, Remixing has been occurring for hundreds of years, only now has it been brought to the forefront of the public sphere. Lessig believes that remixing is a “democratizing act”, which encourages creativity, free speech and innovation. Lessig noted that the characteristics of digital media make it especially hard to regulate through copyright law. In digital form, anytime a work is used, it is immediately copied and copyright laws are triggered. This characteristic of digital media has ended the acceptance of most unregulated use of digital material by copyright owners. This is problematic because it is virtually impossible to gain permission to use copyrighted work, or even “quote” from it in digital productions. Books, which do not exist digitally, can be read, sold, lent, given as gifts, etc. None of these actions require approval of the copyright owner. However, publishing a book does require permission. (Lessig, 160)

For Lessig, this dilemma represents “problem number one: the law is fundamentally out of sync with the technology.” He concludes that “Copyright law needs to be updated.” Copyright law is largely a reaction to what Lessig identifies as “problem number two.” Which is that, “those who live in Southern California typically think of as problem number one: piracy…peer to peer piracy,” Lessig does not support peer to peer piracy, but he does point out that like prohibition, the legal fight against this practice is becoming costly and is largely ineffective.(Lessig, 161)

In the future a compromise between the creative use of copyrighted material and the protection of intellectual property will have to be struck. The first efforts toward this compromise have been spearheaded by Lessig and his Creative Commons license. Creative Commons allows content owners to stipulate how and when their content can be used. Creative Commons offers a glimpse into a bright possible future for copyright law in the digital age. In the environment proposed by Lessig and others, remix culture and mainstream media development will build on one another’s actions to foster creativity, create value and avoid legal trouble. This hybrid economy works in principle; however, it will take hard work and compromise to allow it to function in practice.