Copywrong – why copyright needs replacing

Copyright was designed around a particular copying technology – the printing press – just over three hundred years ago, and the technological change of the digital revolution means that it no longer works. It’s going to need to be completely replaced by a new mechanism by which creators get paid from those who benefit from their creations.
Copyright started in Britain – just after the Act of Union between England and Scotland, the Copyright Act 1710 (the Statute of 8 Anne c.19). In the seventeenth century, printing had been heavily restricted through guilds that prevented poaching of books from one printer to the other. An author would contract with a printer and the guild (the Stationers’ Company in London, for example) would ensure that no other printer could produce an unauthorised edition of the book.
However, the Stationers’ Company’s legal monopoly was abolished in 1695. For fifteen years, any printer could legally print any book they wanted. Authors petitioned Parliament to redress the grievance that once their book was published, a second printer could produce an unauthorised edition without paying the author. After the Act of Union, Parliament had jurisdiction over the printers in Edinburgh as well as London and brought in the first copyright –that no book could be printed without the author’s consent for 14 years after first publication, renewable for a further 14 years provided the author was still alive at that point.
Copyright was based on the fact that printing presses were big physical objects, and that printing books was something only done by large, commercial businesses. Indeed, in 1710, copyright only restricted the reproduction of copies of a book through a printing press; a handwritten copy was not prohibited. The fact was that when a reader bought a book, some part of that price went to the author; this provided the great advantage that no particular regulation was in respect of the readers.
Until the 1970s, the same general principle worked well. Copyright was extended from just books to include sheet music, photography, other visual arts, dramatic works, sound recordings, computer software, and so on.
In all of these cases, the great strength of copyright law was that the only people with the ability to produce a significant number of copies were large commercial enterprises. Indeed, where small-scale copying was possible by ordinary consumers, it was usually either formally legal (e.g. hand-written copies from books), or the law was completely ignored and creators did not sue. For example, the playing of music in a public performance is an activity restricted by copyright law, but traditional pubs have had folk songs played on a “Joanna” (piano) for decades, until PRS started chasing them for licensing fees.
There were a small number of problematic cases, but most of those were more problematic in terms of permission than payment.  The most obvious in that respect is radio play of recorded music.  If each radio station were obliged to contract separately with every recording artist and every songwriter for permission to play their music on the radio, then very little music would be played on the radio.  Governments worldwide, including in the UK, stepped in and set up a mandatory licensing regime for music on the radio, so the radio station simply records the songs they played and sends off a cheque to the PRS and PPL and performers and songwriters collect those cheques.  The amount paid per song is on a standardised scale, rather than individual negotiations. Even then, consumers still didn’t have to concern themselves with copyright; the people who did were large concerns for whom copyright represented a major part of their business.
At this point – let’s say 1970 – there was a reasonably consensual way that copyright worked; large operations, such as publishers, printers, record companies, radio stations, concert halls, theatres, cinemas, TV stations, etc would negotiate with individual creators to buy a licence to that creator’s work; the large operations would then licence to each other as necessary.  Small businesses, consumers, and even large businesses for whom copyright was not a major part of their business did not pay any attention to the laws; if they were infringing (e.g. a restaurant playing music to their customers) then blind eyes were often turned.
Then, in the seventies, along came two innovations that started the breakdown of this consensus.  Both were about ten years old in 1970, but neither was all that common until the seventies.  The two innovations were the compact cassette and the photocopier.  Many of us remember the “Home Taping is Killing Music” campaigns of the early eighties.  That was the very first time that ordinary people were accused of copyright infringement – and even that, we were being asked to buy the album out of our commitment to music, not because it was illegal to copy it for free (the “and it’s illegal”) was tiny by comparison.
Fewer people will remember the campaigns by book and journal publishers aimed at photocopiers, as they were mostly aimed at librarians, school secretaries, teachers and academics – but they were no less intense, and much more inclined to refer to the legal angle than to the appeal to one’s love of the creators.
As early as the late seventies, both of these technical innovations were being used to repurpose creative works beyond the original creator’s intent – mix tapes and photocopier anthologies are directly analogous, both illegal, and both formed part of the culture in the eighties.
The digital era of consumer copyright infringement is much better known that this earlier period.  I don’t think I need do much more than mention the major names – Napster, DeCSS, DMCA, The Pirate Bay – in file sharing.
Over the same period, copyright holders have become much more rigid about enforcing their rights. Because they were enforcing directly against consumers, in home-taping and file-sharing cases, they came to regard the reputational damage from enforcing against small non-copyright businesses as being acceptable, which is why hairdressers’ who play radio or CDs to customers are expected to pay for PRS and PPL licences now, where they weren’t before.
This combination is a fundamental change to the whole nature of copyright enforcement. Before about 1970, copyright enforcement was primarily against businesses for whom copyright was a major part of their business – like radio stations.  Everyone else did not have to take it seriously. By, say, 2000, most ordinary people and ordinary businesses had to deal with copyright seriously; computer software licensing, copy-restrictions on CDs and DVDs, Napster being sued to stop filesharing; all of these meant that copyright mattered to consumers, really for the first time in the three centuries of copyright.
There used to be a bottleneck in the bulk production of copies – you needed large-scale equipment, which usually meant a large business that concentrated on that activity, at which point it was comparatively easy to clamp down on infringement.  Copyright infringement cases were suing rich businesses for lots of money.
The seventies innovations of music cassette and photocopier made it possible to create large numbers of copies one at a time, but only by copying from a friend.  The nineties innovation of anonymous file-sharing made it possible to create copies from anyone else who had a copy and was prepared to share it – so once one person anywhere in the world who had bought a copy decided to share to, anyone could get a copy that way without having to go to a bulk copy production business.
Now, for copyright law to be enforced, it’s no longer sufficient to enforce it against a relatively small number of wealthy businesses that regard copying as their principal business – but to enforce it against the great bulk of citizens, for whom copying is an incidental part of their lives.
Moreover, merely using digital data requires copying it, so  abiding by the law is not as simple as never making a copy; if you never made a copy, then no portable digital music player would ever work – so that’s the end to the iPod.  Without making a copy, you can’t install software; without making a copy, you can’t read a website, without making a copy, you can’t use any of the modern digital systems.
The Digital Economy Act 2010, with its clauses to kick people off the internet who share copyright files without a license, is an attempt to halt this flood, but the problem is that the bottleneck is gone – that the point of making a copy is no longer the right place at which to apply a law.
Copyright – requiring anyone who makes a copy to obtain a license to do so from the original copyright holder – is utterly impractical.  Software comes with End User Licence Agreements (EULAs) which almost everyone accepts unread – the problem there is that most of us assume that all of the EULAs are more or less the same, so consumers get very offended when they discover something unusual in the EULA.  When you buy a CD, you don’t sign a licence agreement; but there’s an implicit licence to make a backup copy and to transfer it to an iPod (other portable digital music players are available).  What this shows is that the concept of copyright – that copying is something done by big publishers – is wrong in the modern era.  We need to rip up the whole concept and start again.
I don’t have a replacement for copyright. A replacement is needed to restore the social contract that creators should be paid by those who enjoy their creations, but copyright is not it. We’ve had one good idea on this subject in 300 years – an idea so good it lasted 250 years before it started to break down. It’s time we had a new one.