With reference to the copyright laws of at least two
countries evaluate the extent to which changes to the
law have taken place as a result of technological change

by: Sandra Vivian Wagner

TABLE OF CONTENTS

I. INTRODUCTION 1

II. ELABORATION 2

1. The Concept of Copyright  2
2. A Journey through Copyright History  3

(a) ‘1st Epoch’: 1445-1500 4
(b) ‘2nd Epoch’: 1500-1700 4
(c) ‘3rd Epoch’: 1700-1886  6

(1) First Modern Copyright Laws 6
(2) Photography  7
(3) Outcome  7

(d) ‘4th Epoch’: 1886-today  8

(1) National Uniformity 8
(2) International Uniformity  9
(3) Technological Progress  10

(i) Radio  10
(ii) Sound Recordings and Film 11
(iii) Xerography  14
(iv) Computers, Internet and Digitalisation  15

(4) Censorship 19
(5) Conclusion  20

III. CONCLUSION 20

BIBLIOGRAPHY 22
 

I. Introduction

If we had lived in the beginning of the 20th century our lives would have been different; we would have just heard the first voice on the radio and maybe we would have seen one of the first films in a cinema – black and white and silent. We would not have any idea about what the century would bring. We would not even be able to imagine that 100 years later television would be omnipresent and that CDs or MP3 files would exist and we would not even have a clue what ‘peer-to-peer file-sharing’ means.

Today, we take all these inventions for granted and most of us can no longer imagine to live without the internet as a steady source of information. Yes – we may say that we have finally reached a ‘digital era’. Nevertheless, copyright laws can be traced back to the Middle Ages and up to now they had to cope with technological progress and all kinds of inventions. Technological change was once described as the “motor for the development of the copyright law”.¹ However, it must be asked in how far this statement is true. In how far does it acknowledge the historical development of copyright law and does it neglect other influential factors? This paper will try to examine the impact of technological change and will thus ask, in how far copyright laws have developed as a direct answer to technological inventions and which other factors supported or delayed its development. It will be argued that worldwide technological change was and still is one of the most important factors influencing the development of copyright laws. However, it will also be shown that this impact has not always been the same. This paper will identify four distinguishable ‘epochs’ which reflect different impacts of technology on the development of copyright law and it will be seen that basically the following ‘epochs’ can be found in various jurisdictions:

1. from 1445-1500 technological change was the initial drive for copyright law;
2. from 1500-1700 the stabilisation of political power through censorship determined copyright law;
3. from 1700-1886 technological progress is again in the centre of copyright developments and
4. from 1886-today technological progress is still highly influential, but the aim of international uniformity and economic considerations are of equally strong influence.

However, it will also be seen that these ‘epochs’ cannot be seen as fixed, as not all countries fit nicely into this scheme.

II. Elaboration

Before starting the discussion, the concept of copyright will be outlined [1.]. Afterwards the impact of technological changes on the development of copyright law will be analysed historically concentrating on the UK and the US accompanied by quick comparative excursions into other jurisdictions [2.].

1. The Concept of Copyright

Today, copyright protects an author’s intellectual property right in a variety of works, such as literary, dramatic, musical and artistic works, as well as sound recordings, films, broadcasts, cable programmes, performances and typographical arrangements.² Copyright gives the author of a work an exclusive statutory right to authorise or to prohibit its exploitation, e.g. by reproducing, performing, showing or playing the work in public, renting or lending copies, broadcasting the work, including it in a cable programme service or making an adaptation of the work.³ These ‘economic rights’ are supplemented by ‘moral rights’, i.e. the right to be identified as the author of the work, to object to derogatory treatment of certain copyright works and to having a work falsely attributed to oneself as author, as a well as the right to privacy of certain photographs and films.⁴ Criminal and civil sanctions should ensure compliance.⁵ The existence of copyright protection can be justified by the following four arguments⁶ which are independently, as well as cumulatively supportive and are applied with different emphasis worldwide.⁷

Firstly, according to natural law, an author should have the control over his work. Secondly, copyright protects the “fruits of a man’s work, labour, skill or taste” from exploitation. ⁸ It rewards the author economically for his work. Thirdly, it stimulates creativity as it provides an economic basis for the investment required to create the work. Nobody would invest without a reasonable expectation to gain from this investment. Copyright protection provides this incentive and consequently it supports creativity.

Finally, copyright promotes the public interest as authors are encouraged to publish and to widely disseminate their works which makes them publicly available and useable. However, infringement of copyright is only possible if there actually exist means of reproduction. There is no need for protection, if reproduction of the work cannot be achieved. A programme on the radio or television would not have required legal protection if the technical means to record it – a tape or a VRC – had never been invented. Furthermore, the writer of a book does not need to be protected in the same way when the only procedure to copy his book is through hand writing as when it can quickly and easily be reproduced by a photocopying machine.

2. A Journey through Copyright History

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1 Copinger, W./Skone, J. “Copinger and Skone James on Copyright” Vol. 1 (14th ed. Sweet&Maxwell 1999), p. 1125

2 see e.g. UK Copyright, Designs and Patents Act 1988, s. 1 (1)

3 see ibid CDPA 1988, s. 16 (1)

4 see ibid CDPA 1988, s. 2 (2) and Ch. IV, ss. 77-89

5 see ibid CDPA 1988, ch. VI, ss. 96-114b

6 see Copinger/Skone (1999) op cit. no. 1, p. 29; Davies, G. “Copyright and the Public Interest” (2nd ed. London: Sweet & Maxwell 2002), paras. 2.005-2.008; Bentley, L./Sherman, B. “Intellectual Property Law” (1st ed. Oxford University Press 2001), p. 32

7 Copinger/Skone (1999) op cit. no. 1, p. 29

8 Jacobs, R./Alexander, D. “A Guidebook to Intellectual Property – Patents, Trade Mark, Copyright and Designs” (4th ed. London: Sweet & Maxwell 1993), p. 125