Copyright and Popular Media

Liberal Villains and Technological Change

T. Cvetkovski

• Editore: Palgrave Macmillan
• Anno: 2013
• ISBN:
  9781137024602
• Argomento: Scienze sociali
• Categoria: Studi regionali

Copyright governance is in a state of flux because the boundaries between legal and illegal consumption have blurred. Trajce Cvetkovski interrogates the disorganizational effects of piracy and emerging technologies on the political economy of copyright in popular music, film and gaming industries.

Part I

Setting the Scene

1

Liberalism, Realism, Convergence, Consumption and Tensions between Technological and Legal Change

A short parable on copyright

Mark Twain believed in copyright law. An international author, prolific writer and social commentator, he was most vociferous on the issue of copyright regulation for public interest reasons, and extolled the virtues of greater protection of authors’ rights. Twain publicly expressed these imperatives well before world trade organizations politicized the need for international governance in the twentieth century.

But Mark Twain was very disappointed in how copyright was regulated in the West. He declared in 1903: ‘Only one thing is impossible for God: to find any sense in any copyright law on the planet. Whenever a copyright law is to be made or altered, then the idiots assemble’ (1935, pp. 381–382). Twain was frustrated by the disorganizational effects of piracy. As a successful author, he was acutely aware of how copyright law worked in its natural state, and the hazards for authors presented by pirates who sought to plunder the fruits of creative labour.¹

Indeed, Twain detested pirates, and also blamed the legislature for the weak response to proper copyright regulation and protection. He was fed up with those armed with new and emerging technologies copying his works for free, and worried for the future of his children (as reported in The New York Times on Christmas Eve 1908). He looked upon piracy as ‘pure robbery’. In 1906, The New York Times also published an article on how Mark Twain, prolific writer and self-appointed unsalaried copyright reform lobbyist, intended to ‘put pirates to rout’. Despite his best efforts to improve the copyright regime, favourable legislative change was beyond his control.

Twain’s views have always been shared by copyright owners – so why is this small bit of history important for an understanding of the political economy of popular media today? They are relevant because the media pirates in Twain’s world were not the pirates the reader might have in mind. They were not necessarily the opportunistic backstreet peddlers found in alleyways or, in the modern context, organized commercial pirates in large counterfeiting warehouses or rogue Internet operators (the Napsteresque copycats, the wilfully disobedient ‘Kazaariers’, the cyber-vigilantes and the rapscallion Pirate Bayers). Would they have been the morally derelict teenage downloaders, university student uploaders, holidaymakers returning with pirated goods, and the entire broad spectrum of illegal consumers (parents and children alike)?

Ironically, the pirates Twain was referring to were the publishers (publishing companies) – the legitimate artificial citizens who take things that aren’t theirs. Twain considered publishers (the prototypes of the current übercopyright owners and para-copyright dealers) with their new technologies and means of production as pirates because they profited from the authors. They profited from something that was not theirs because of the weak copyright framework. His purpose to reform copyright, therefore, was based on a distrust of publishers for they were not altruistic. They were the opportunistic beneficiaries of copyright law.

How preposterous must Twain’s interpretation of publishers as pirates sound in today’s normative and discursive world of copyright governance? Surely the real pirates are those unlicensed copiers and illegal consumers – not the entrepreneurial publishers. Are these new pirates the natural citizens who voted for the 15 members of The Pirate Party, which was comfortably elected into the German Parliament in Berlin on 20 September 2011 (as reported in The Sydney Morning Herald)? It was also reported that this party now joins the several ‘pirate parties’ in parliaments of other European Union (EU) states, which have been democratically elected to represent constituents (presumably with piratical ideologies). Indeed piracy is a slippery term, and so it must be asked, who are the real pirates? If Twain’s perspective appears odd, then the current copyright governance paradigm is nothing short of Kafkaesque.

Twain’s dilemma is even more significant today because it suggests the political economy of popular media, historically, has been an ongoing site of struggle for the ownership of popular culture, communication and information dissemination. Copyright as a form of dialectical legal realism continues to present its perpetual unresolved issues.

Whilst Twain’s hyperbole about publishers as ungodly robbers may sound absurd or at least unfair, his observation about the futility of any attempt by God to make sense of copyright law is not. It is this level of confusion in contemporary society that makes the identification of the real liberal villains that much more challenging.

Overview: setting the tone, establishing the terms and providing the scope of this book

The intention of this book is to examine developments in popular media and copyright in the light of the challenges, namely piracy and illegal consumption. The central question guiding this book asks: what will be the effect of emerging technologies on the future organization of copyright? This question is historically relevant in that, since the inception of modern copyright legislation in 1709 (and the subsequent common law recognition of media piracy as far back as 1769), the flow of illegal consumption over the past three centuries has not been stemmed. The argument raised is that media piracy is illustrative of a plurality of media consumption within a converging legal, technological, economic and ideological universe. If convergence means the union of these various sectors within capitalist society, then copyright is anything but harmonious. And this has led to a crisis in popular media consumption.

This investigation is primarily concerned with technology, copyright and popular media in Western nations² where liberalism underpins societies as the dominant political ideology. Of interest is the fact that modern conceptions of liberalism, copyright laws, popular media and technology have evolved concurrently, but not necessarily harmoniously. And in the past century when mass production of modern popular culture (especially various audio-visual media) became a dominant mode of advanced capitalist cultural production, both the organizational and disorganizational effects of technology on copyright law became apparent.

One fundamental tenet of liberalism that is important for understanding popular media is that liberalism is concerned with ensuring individuals are able make their own choices rather than having them imposed on them by society, the state or corporate citizens. Specifically, liberalism places emphasis on personal autonomy and individualism (a natural state of being). It follows that a laissez-faire approach to the manner in which popular media products are consumed by individuals should be encouraged in liberal societies. Indeed, the initial substantive conceptions of copyright under common law also encapsulated a somewhat laissez-faire, non-interventionist or residual institutional approach because copyright as a private, personal and natural legal right was originally designed to restrain use only if matter had never been published. Writing about the circumstances prior to 1842 in Britain, Slater (1939, p. 206) states, ‘[i]f the author once gave it to the world, he had no remedy against the one who chose to pirate it’.

It is fair to observe that liberalism, common law copyright and laissez-faire economics are natural states. Conversely, it will be argued in terms of popular media governance – institutions and associations involved in business and corporate activity – that the role of government and the enactment of statutes for the regulation of copyright and corporations are seen as unnatural since they purport to change, control or otherwise limit the behaviour of individuals.

What lies at the heart of the issue is that liberalism encourages freedom of expression and freedom from interference. Liberals traditionally resist absolutism and challenge centralized control. Consumption of popular culture is regarded as a personal or individualistic experience, irrespective of the fact the bulk of popular culture has been mass-produced by a dominant handful of corporate media players over the past century. That is, while popular media might be described as the consumption of intrinsically personal pleasures, these pleasures traditionally and historically have been technologically determined and legally controlled, both cumulatively and conjunctively, by large corporations (state or privately owned).

Cultural consolidation by corporations is a feature of the status quo in advanced capitalist societies. It is argued that unquestioned and unchallenged control of popular media appears to be ideologically at cross purposes with notions of personal liberty and the pursuit of freedom of expression. The tension that arises is the result of centralized or dominant control of popular media by unnatural or artificial citizens.

Focus is on the two established major popular entertainment media industries, film and popular music (‘pop’). To a lesser extent the computer games industry will also be considered because it falls under this broader digital audio-visual entertainment media rubric. These industries are culturally relevant for three interconnected reasons. The first is multinational corporations control these dominant modes of cultural production, and the subsequent copyrights attached to the products (hence the term ‘copyright industries’ to describe these industries). Second, new technologies, namely the Internet and file-sharing software, are inextricably linked to the manner in which these products are currently being consumed. The third reason for limiting the scope of these popular media is that the bulk of media piracy (and the alleged subsequent loss in revenue) is sustained by these copyright industries. In relation to these three reasons, the literature supports the general presumption that as the major players control the bulk of commercially available entertainment media, then it stands to reason that most of the financial harm is being experienced by these comptrollers of popular culture in the West.

Given the above contextual setting, the central argument is that technology has significantly influenced the organization of popular media in their commodified forms. This book expands on this basic proposition by presenting a comprehensive analysis of the interaction between the politico-economic and legal issues and the underlying political ideological environment in which popular media are consumed. It argues that problems between advancement and copyright law in liberal democratic capitalist societies have always existed because emerging technologies are a double-edged sword. And when conditions become unpredictable or unstable (as in the current phase involving omnipotent digital products as opposed to analogue or mechanical devices), a fragile tension in the relationship between innovation and consumption is formed. Indeed, digitalization has in recent years effectively threatened any positive relationship corporate media enjoyed with technological advancement. It is suggested this will continue to undermine any successful maintenance of copyright that dominant players have enjoyed for exclusive and perpetual revenue generation.

What flows from this assertion is the need to examine the practical, or rather, real effects of the manner in which major popular media copyright controllers are organizing their products. This broad focus is important as the doctrinal evidence supports the contention that recent universally accessible digital technologies have raised questions about future legal preservation and protection of copyright in an era of highly advanced digital piracy and universal consumption.

Copyright protection mechanisms and supervision processes are highly integrated. They focus on sophisticated (and aggressive) management of intellectual property for repeated exploitation for decades after acquisition. Yet consumption (legal, quasi-legal or illegal) is a relatively simple process. The film, pop and computer game industries provide excellent case studies for such centralized protectionist behaviour in an era where basic free or low-cost access to products is easily provided. Recent doctrinal developments and empirical data concerning these media industries suggest overall maintenance of copyright has become generally disjointed, ad hoc and relatively inconsistent. In short, there is no cogent evidence to suggest that modern copyright protection can successfully prevail over innovative change.

An objective analysis of the actual success of copyright supervision and subsequent protection remains underdeveloped in the literature. Furthermore, substantive literature on the combined disorganizational effects of innovation for illegitimate and legitimate consumption is virtually non-existent. Significant recent developments in the case law are identified as the literature is not conclusive in terms of explaining recent developments. In particular, the interaction between copyright, product protection and consumer behaviour has not been comprehensively developed. Existing research is focused on stemming and controlling illegitimate consumption, namely piracy. The literature does not adequately explain the reasons for the decline in success rates for the prevention of further copyright disorganization. This book remedies this deficiency by proposing that several legal and technological factors in liberal democratic society are affecting the political economy of popular media industries and their respective capacity to control illegal consumption.

It is suggested that some of these factors are beyond the control of specific industry and regulatory regimes because: (a) not all challenges are illegal, and (b) consumers do not necessarily deem unapproved consumption as deviant behaviour. In particular, Internet service providers (ISPs) by virtue of their business or undertaking are hollowing out or diluting any potency that copyright laws technically possess. This is occurring through a range of concurrent convergence developments, including legislative incompatibility between technology laws and copyright laws (the neighbouring laws and digital rights debate), and current digital products legitimately available to law-abiding individual citizens (consumers freely accessing the Internet and enabling software). The recent Hollywood film industry case against iiNet provides clear and unequivocal evidence for these propositions.³

For the first time in legal and innovation history, independently evolving products, namely file management, replication devices, social networking and related protocols via the Internet, and related computer hardware have concurrently affected traditional modes of media access and consumption. En masse illegal peer-to-peer (P2P) consumption can hardly be construed as deviant or antisocial behaviour in any strict criminal or even quasi-criminal context simply by virtue of the number of media consumers online engaging in such behaviour. And it would be an infinitely futile task to profile a typical illegal downloader given the broad-spectrum antecedents of illegal consumers. It is argued, given the decentralized and somewhat atomistic process of file-sharing, that these recent modes of media consumption are consistent with classic liberal behaviour.

Despite the generally negative publicity and adverse inferences cast on replicating devices, some of these effects are positive or enabling. The first significant observation is that many of these technologies are perfectly legal and have developed free from any popular media influence imposed by the major players. Innovation has universally enabled consumers to explore media products freely and without corporate influence. Recent technologies have affected the status quo. It will be asserted that when corporations restrict access to cultural products they are acting as cultural gatekeepers. They are effectively censoring, or rather dictating and limiting, what an individual may wish to watch or listen to. Similarly, where the deletion of a back catalogue occurs due to a lack of commercial viability, or one film is promoted over another for commercial reasons, then these actions might be construed as fundamental restrictions on an individual’s right to choose from a wide range of media. This crisis of liberty leads to a quest for self-sufficiency through self-determination via enabling technologies. The Internet is the most ideal forum for news, information and links to various sources of legal and illegal access to popular media. It appears quite rational for individuals to source products beyond the cultural gate if limitations are perpetually placed on them as consumers. In other words, consumers might feel compelled to defend their natural right to choose freely in the face of a corporate ruling elite that refuses to make products available for economic or other reasons. Any subsequent duplicitous behaviour appears to prima facie co-exist with legitimate use. I argue that the rationale for purported illegal consumption extends beyond the obvious legal or illegal dichotomy.

The dilemma is that when an individual explores cultural products that are outside traditional modes of supply access or consumption, she or he is deemed to have committed a technical breach of statutory copyright law by infringing the rights of the copyright owner (as no permission was sought). In advanced capitalist states where copyright laws are particularly complex, those...

Indice dei contenuti

• Cover
• Title
• Copyright
• Contents
• List of Tables and Figures
• Author’s Note
• Acknowledgements
• Abbreviations
• Cases
• Legislation (Statutes, Regulations, Codes, Ratified Treaties, Instruments and other formal International Obligations)
• Part I Setting the Scene
• Part II Problems with Neighbours – Unprecedented Challenge to Corporate Control
• Part III Prospects for Copyright Policy and Consumption in Popular Media
• Notes
• References
• Index