Discussion: 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

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Table of  Contents  

TABLE OF  CONTENTS  II

  Essay  1

  I INTRODUCTION  1

  II ELABORATION  2

1.  The Concept of Copyright  2

2.  A Journey through Copyright History  3

  (a) 1 st Epoch : 1445-1500  4

  (b) 2 nd Epoch : 1500-1700  4

  (c) 3 rd Epoch : 1700-1886  6

  (1) First Modern Copyright Laws  6

  (2) Photography  7

  (3) Outcome  7

  (d) 4 th 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

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I. Introduction

If we had lived in the beginning of the 20 th 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 im- portant 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 fol- lowing ‘epochs’ can be found in various jurisdictions:

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

p. 1125

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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 devel-

opments and

4. from 1886-today technological progress is still highly influential, but the aim of in-

ternational 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 coun- tries 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 excur- sions 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, broad- casts, 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

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

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The existence of copyright protection can be justified by the following four arguments 6 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 ex- ploitation. 8 It rewards the author economically for his work.

Thirdly, it stimulates creativity as it provides an economic basis for the investment re- quired to create the work. Nobody would invest without a reasonable expectation to gain from this investment. Copyright protection provides this incentive and consequently it sup- ports 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 repro- duction. 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 tech- nical 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

In order to assess in how far copyright laws were actually a reaction to technological pro- gress, this paper will undertake a journey through copyright history from the early begin- ning of typing and printing, passing the invention of photography, film, photocopying and sound recording to finally reach digitalisation. It will be argued that the technological in- fluence has changed with the above outlined ‘epochs’.

6 see Copinger/Skone (1999) op cit. no. 1, p. 29; Davies, G. “Copyright and the Public Interest” (2 nd ed. Lon- don: Sweet & Maxwell 2002), paras. 2.005-2.008; Bentley, L./Sherman, B. “Intellectual Property Law” (1 st 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 De- signs” (4 th ed. London: Sweet & Maxwell 1993), p. 125

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(a) ‘1 st Epoch’: 1445-1500

Before the 15 th century the European population was basically illiterate; a market for books did not exist. Literary works of this time were religious or for the royal courts of Europe and the only means of reproduction was to copy them by hand. This was done by monks and needed a massive investment of human labour and skill. Hence, plagiarism was more or less unknown. 9

However, the 16 th century was marked by two important inventions: the moveable type and the printing press.

In the years 1436-40 Johannes Gutenberg invented the moveable wooden and later metal type letters and William Craxton established the first printing press in Westminster in 1476. In 1452 the “Gutenberg Bible” was the first book published in volume. 10

These inventions made a drastic change; suddenly, it was possible to copy texts in a much faster way, allowing an ever-increasing number to be reproduced and distributed easily and comparatively cheaply. 11 Slowly a market for books started to establish and the necessity of copyright laws became prevalent in order to keep pace with these new developments.

An early reaction on these changes can be seen in the 1483 UK Copyright Statute by Rich- ard III which encouraged the printing of books and permitted their importation. This early stage of copyright development, in this paper identified as the ‘1 st epoch’, shows that technological change was originally the sole reason for the development of copyright law. Thus, technological progress can be identified as the initial drive for the establishment of copyright provisions.

(b) ‘2 nd Epoch’: 1500-1700

In the 16 th century the Stationers’ Company, which can be described as the “forefathers of modern publishers”, became the chief promoters of exclusive rights against copiers. 12 They acquired works from authors, organised their printing and sale.

9 see Bainbridge, D. “Intellectual Property Law” (4 th ed. Pitman Publishing 1999), p. 31-32; Copinger/Skone (1999) op cit. no. 1, para. 2-07 10 see Bellis, M. “A-Z Inventions” 2004; http://inventors.about.com/library/inventors/blprinting.htm (visited 5.5.04) 11 Copinger /Skone (1999) op cit. no. 1, para. 2-07 12 Cornish, W./Llewelyn, D. “Intellectual Property: Patents, copyright, Trade Marks and allied rights” (5 th ed. Sweet&Maxwell 2003), p. 345

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However, Catholic Queen Mary seeking effective control over the publishing press and the book trade, as well as about religious oppositions, granted the Stationers’ Company a Charter in 1556. 13 This Charter established a system of privileges and censorship to regu- late the book trade. Only exclusively registered members of the Company could print books and this became known as “Copyright”, the right to make copies. Moreover, the Stationers’ Company could control printing by imposing fines, award dam- ages and confiscate infringing copies. 14 Consequently, copyright laws were actively used to prevent the promotion of the reformed religion by strong restrictions on publishers of “seditious and heretical books”. 15

Under Anglican Queen Elizabeth I a licensing system was introduced by Decree in 1585. 16 However, also here copyright was used as a system of control, now organised under the Star Chamber and the heads of the established churches. 17 The system of censorship was finally abolished in the UK by the Cromwellian Revolution in 1640.

However, in the beginning of the 16 th century this pattern of copyright law could not only be found in the UK but all over Europe.

National authorities had recognised copyright as a highly effective means to serve their interests and thus, to control information given to their citizens and to promote a new in- dustry. 18 In Germany this ‘period of privileges’ lasted from 1501 until the creation of the German Reich in 1871. 19 In France this system of censorship was present from 1507 until the Revolution in 1789 20 and in Spain until 1847. 21

To sum up, it can be seen that in the ‘2 nd epoch’ copyright laws were no longer a direct response to technological inventions, but used as an effective weapon by national authori- ties to establish a tight system of censorship. Thus, copyright laws had become a means of political power and were formed to stabilise authorities.

13 ibid Cornish/Llewelyn (2003), p. 345; cf. Preamble of the Stationers’ Company Charter 1556 14 Bainbridge (1999) op. cit. no. 9, p. 32 15 Copinger /Skone (1999) op. cit. no. 1, para. 2-09 16 see Copinger /Skone (1999) op. cit. no. 1, para. 2-10 17 Cornish/Llewelyn (2003) op. cit. no. 12, p. 346 18 Davies (2002) op. cit. no. 6, para. 3.002 19 Davies (2002) op. cit. no. 6, para. 3-002 20 Davies (2002) op. cit. no. 6, para. 3-002 21 Gimeno, L. “Politics, Patents and Copyright in Twentieth Century Spain” in Firth, A. (ed.) Perspectives on Intellectual Property (1 st ed. Sweet & Maxwell 1997) pp. 159-182, at p. 171

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Whereas the technological progress of the ‘1 st epoch’ led to the initial necessity of copy- right law, political and religious pursuit for power determined their contents.

(c) ‘3 rd Epoch’: 1700-1886

In the ‘3 rd epoch’ copyright law was influenced by multiple factors.

(1) First Modern Copyright Laws

The 18 th century was characterised by the first modern copyrights laws being enacted all over Europe and in the US.

In the UK the Statute of Anne of 1709 revolutionised two important aspects of copyright law: it recognised the author as the owner of copyright protection and introduced the prin- ciple of limited protection for published works. 22

Similarly, first modern copyright acts were enacted in Spain in 1762, in France by Decrees of 1791 and 1793 and in Germany by the Prussian Code of 1794 although the rights were here still with the publishers and not with the authors of the work.

Also in the US a first Copyright Act was enacted in 1790 based on the 1 st Article, Section 8 of the US Constitution 1787 which widely mirrored the UK Statute of Anne, but which protected maps, charts and books alone. 23 Before this uniform approach twelve of the thir- teen States had had their own differing copyright laws.

These developments cannot only be seen as products of technological change; 24 it must rather be kept in mind that the 18 th century was also faced with the formation of powerful guilds. This means printers and publishers had organised themselves 25 and formed an eco- nomically and politically important pressure group which cannot be denied influence. Fur- thermore, especially in the US but also in Europe the desire of a uniform copyright act can additionally be assumed.

22 ss. 1, 11 Statute of Anne 1710, see Cornish/Llewelyn (2003) op. cit. no. 12, p. 345 23 US Copyright Act, 31.5.1790; see Sterling, A. “World Copyright Law” (2 nd ed. Sweet&Maxwell 2003), Sec. 1, p. 11; Davies (2002) op. cit. no. 6, pp. 77-79 24 as argued by Davies (2002) op. cit. no. 6, para. 2.001 25 see Davies (2002) op. cit. no. 6, para. 3.001