Whither (or wither) copyright? Lionel Bently

Criticisms of Copyright Ineffective Irrelevant Unwanted Unjustified Unloved

Ineffective Piracy, especially internet piracy, is making copyright enforcement impossible Information wants to be free Copyright cannot be retrofitted or patched up for the new age

Ineffective ? (2) Political, legislative, judicial, strategic responses -G8 Summit -EC Enforcement Directive -Grokster/Kazaa cases -Legitimate On-line services How Effective Does Copyright Need to Be?

Irrelevant Digital technology enables content- providers to ignore copyright and utilise contractual protection Technological Protection Measures can give content-holders more extensive protection than copyright

Irrelevant ? (2) Importance of copyright underpinning to contractual/TPMs Potential significance of the copyright trade-off in limiting operation of contract/TPMs Remaining significance of copyright in the analogue environment

Unwanted The rise of “Copyleft”, Creative Commons, the GNU General Public License (etc) Authors giving away the benefit of copyright through standard form licences to the world

Unwanted ? (2) Widespread, but copyright still important for freelance authors and those who cannot utilise other business models Based on and pre-supposes existence of copyright Without prejudice to moral rights Many authors only happy to allow non- commercial, non-derivative uses with attribution

Unjustified Copyright interferes with free speech and other freedoms Copyright has become too readily available, too long and too strong E.g. Lessig’s attempts to invalidate the Sonny Bono Act in Eldred v. Ashcroft

Unjustified ? (2) While there may be some excesses, there remain good reasons to value copyright: - to encourage and reward authorship - to facilitate free expression

Unloved The rise of groups opposed to copyright, as well as those defending the public domain and promoting rights of access to knowledge Attempts to roll back copyright and facilitate uses - orphan works (US, Gowers) - fair dealing/users’ rights (Gowers, Australia)

Unloved ?(2) Expansionists continue to seek - international treaty for broadcasting organizations - increased copyright term for sound recordings in UK and Europe (and under FTAs) Creators Groups

Conclusions Copyright owners have had a period where governments supported their interests strongly. It is useful to have countervailing voices. Copyright going through torrid period: but this has happened before (see eg Royal Commission) Current proposed expansions may falter, but copyright will remain significant.

Conclusions (2) Credibility issues are important Those interested in copyright need continually to persuade public of its legitimacy Ensure copyright treats authors fairly Ensure copyright treats public fairly Make copyright comprehensible