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Critically assess the blurring of the boundaries between the expression of an idea in a material form (which is protected by copyright) and an idea itself (which is not). In your response, you will need to examine the impact of the digital environment on copyright and initiatives like open access and Creative Commons.
Discuss whether protecting original works is becoming obsolete, considering the effect of a copyright-free world on individual creators, producers and distributors. Be explicit about how you respond to and extend the examples presented in the topic’s podcast and town meeting.
‘Copyright can be defined as the ownership of the expression of ideas, not the ideas themselves’ (Bourne 2008). The issue of copyright is perhaps facing its greatest challenge. The line between the expression of ideas in a material form (which is protected by copyright) and an idea itself (which is not) is being increasingly blurred due to the increasing prevalence and penetration of digital technologies in the national (Australian) and international (global) communication environment.
With the proliferation of copyright violations as digital technologies offer file sharing capacities, the development of author favouring initiatives approximating to Open Access and Creative Commons eroding the corporate power of copyright corporations, the existence of legally protected copyright protections a creator craves, corporations pursue and government’s protect, is under serious threat.
Traditionally the free market economy has envisioned a hierarchy from producer to consumer in the development and dissemination of cultural information. Conventionally, the mode of production had envisioned a role for creator, manufacturer, distributor and consumer. This was a centralised system. Copyright pervaded and that which was protected by copyright was difficult if not impossible to illegally obtain without paying the royalties to the creator or copyright holder.
Yochai Benkler believes there has been a decentralisation of the process due to the onset of the digital revolution, particularly with Internet technologies, while technology simultaneously sustains the centralisation of cultural information. ‘I will suggest that we call the combination of these two trends – the radical decentralization of intelligence in our communications network and the centrality of information, knowledge, culture, and ideas to advanced economic activity – the networked information economy’ (Benkler 2003, p.1252).
The strength of Benkler’s argument is that it’s a fresh idea that argues somewhat from a political economy perspective, the production process. The production process has been decentralised due to digital technologies and therefore individuals who previously held no part can create their own ideas by either mimicking, disseminating, copying, plagiarising without consequence.
This networked information economy (or decentralisation of production) has led to a blurring of the lines between the expression of ideas in a material form (which is protected by copyright) and an idea itself (which is not) due to the increasing mobility and creativity individuals can utilise as a result of the onset of digital technologies. Benkler believes ‘ubiquitously available cheap processors have radically reduced the necessary capital input costs. What can be done now with a desktop computer would once have required a professional studio’ (Benkler 2003, p.1254).
According to Benkler, a primary contributor to cultural production is pre-existing information, a publicly accessible good while others include ‘human creativity and the physical capital necessary to generate, fix, and communicate transmissible units of information and culture – like a recording studio or a television network’ (Benkler 2003, p.1254). The Internet and digital technologies have to an extent decimated the dominance of the capital generators, those owners and proprietors of copyright such as the television networks and publishers, and allowed consumers to edit pre-existing copyrighted material, or create their own, to the detriment of copyright holders.
‘This leaves individual human beings closer to the economic centre of our information production system than they have been for over a century and a half’ (Benkler 2003, p.1254). The failing of Benkler’s argument is that it views digital technologies as offering endless opportunities for individual production. While this may be true, usually the product produced is usually distributed for free and those who attempt to make economic gain are wiped out by the competition that produce free and higher quality software and programs.
The impact of the digital environment has led to the proliferation of copyright violations and use of materials by consumers in their own productions and ideas without regard for the intended royalties. This has been seen no better than in the rising prevalence of file sharing software on the Internet, its popularity, dominance, and targeting by corporations for law suits. ‘The most radically new and unfamiliar element in this category is commons-based peer production of information, knowledge, and culture, whose most visible instance has been free software’ (Benkler 2003, p.1254).
An example of these ‘peer network’ systems Benkler speaks of includes ‘file sharing’ systems such as Limewire, BitTorent, eMule and Gnutella. ‘Based on peer-to-peer technology (Fattah 2002; Oram 2001), so-called ‘filesharing’ systems offer the possibility to exchange any sort of digital data for free and without restriction’ (Quiring 2008, p.435). Considerable losses in revenues have resulted in the film, gaming and particularly communications industries due to the illegal copying and sharing of their products. ‘According to the communications industry, it misses out on considerable revenues each year due to the illegal exchange of communications data’ (Quiring, von Walter & Atterer 2008, p.435).
Similarly there has been propagation in the amount of quality free programmes on the Internet that supplant those supplied by corporations and have no copyright protections of their own. ‘The networked information economy… opens for radically decentralized collaborative production… “peer production”… a process by which many individuals, whose actions are coordinated neither by managers nor by price signals, contribute to a joint effort that effectively produces a unit of information or culture’ (Benkler 2003, p.1254). ‘Free software has become the quintessential instance of peer production in the past few years.
Over 85 percent of emails are routed using the sendmail software that was produced and updated in this way ‘(Benkler 2003, p.1254). Over 60% of Australians use msn, yahoo, Google or other free E-mail providers as their primary E-Mail account and the development of free virus scanning software such as AVG, free communications composing and artistic programs have gradually eroded communications corporation’s copyright power and grip on the consumer market.
However here, within these filesharing and producing communities the lines between the expression of ideas in a material form and an idea itself are more deeply blurred as the providers of free programmes and those who illegally copy and distribute software, programmes and cultural files (such as communications), known as ‘warez’ have developed their own codes of production and consumption. An academic of Southern California University, D. Thomas alludes to this in his article ‘Innovation, Piracy and the Ethos of New Media’ identifies three key fundamentals in the ‘warez ethos’ (Thomas 2002, p.87).
Firstly, ‘keeping information free and open in the face of corporate control’, an act which they see as embodying ‘the spirit of the Internet’; communications or game lovers ‘right to redistribute’ goods they have purchased ‘providing they do not profit financially.’ Secondly the sense of an ‘entitlement to digital content’, as after buying a computer and internet access they see the content as already paid for’ (Thomas 2002, p.87). It can therefore be seen that the digital environment erodes copyright protection and the benefits copyright brings to its owners and distributors.
Due to the erosion of copyright protections, debate has arisen as to whether the erosion of copyright is desirable. According to Spinello, while they are evermore protected by government legislation, property rights ‘are often dismissed or disparaged in academic circles. Post-modern critics, for example, find it hard, to accept that creative works have a single author, so the assignment of a property right loses intelligibility’ (Spinello 2003, p.2).
It has therefore been argued by many academics, including Lessig that ‘innovation and creativity depend upon free, uncontrolled resources’ and more precisely, ‘according to Lessig the Internet forms an “innovation commons,” that is, a space where innovation and creative expression can flourish’ (Spinello 2003, p.3).
In an effort to protect themselves from the increasing breaches of copyright brought about by these kind of principles and digital technologies that facilitate these breaches of copyright, copyright owners have lobbied governments to extend copyright protection to lifetime plus seventy years and are attempting to override exceptions granted to institutions such as universities and parliaments along with removing the copyright ownership from creators to themselves. This has facilitated the rise of movements against this trend known as ‘Open Access’ and ‘Creative Commons’ in order to protect creators and consumers.
‘Open Access’ and ‘Creative Commons’ are two organisations that espouse opposing, yet fundamentally similar goals to deal with the blurring of the boundaries between the expression of ideas in a material form and ideas themselves. On the one hand ‘Creative Commons’ argues for the protection of creators through the benefits of minimal copyright protections known as ‘moral rights’ by issuing their own legally recognised copyright licenses.
The moral rights extend the rights of creators to the basic entitlements of ‘attribution’ and ‘integrity’ that have adopted in the developed world, including Europe and Australia (excluding USA). While ‘attribution’ is the right of the creator to have his work recognised by attribution, ‘integrity’ is the right of the creator not to have his work falsely portrayed or misused.’ ‘Creative Commons aims to promote better identification, negotiation and reutilization of content for the purposes of creativity and innovation.
It aims to make copyright content more “active” by ensuring that content can be reutilized with a minimum of transactional effort’ (Fitzgerald & Oi 2004, p.1). Alternately, ‘Open Access’ seeks to minimize copyright in its entirety. ‘”Open Access” means access to the full text of a scientific publication on the internet, with no other limitations than possibly a requirement to register, for statistical or other purposes’ (Björk, Roos, Lauri 2008, p.1). The purpose of this initiative is to accredit creators with their copyright and offer access to materials at minimum or no cost so as not to stifle creativity due to excessive copyright protections under the law.
However one must consider the implications of the erosion of copyright as discussed above and whether protecting old works is becoming obsolete. Some scholars and economists believe that copyright is crucial to the development of society and its advancement due to the protections of copyright and their benefits owners of copyright aspire to. A particular point raised in the town meeting was the relevance of copyright if individuals can merely download audio, visual and software files from file sharing programs on the Internet for no-charge.
However a report commissioned by the Australian government in 1998 raised the interesting point that copyright is crucial to the capitalist system of innovation and development. ‘These industries form a significant and, to date, growing part of the Australian economy – in 1992-93, the net contribution of copyright based industries to the total economy was an estimated $11 billion in constant prices, or 2.9% of the total GDP’ and the report concluded ‘Copyright is the glue in the various transactions between creators and investors – the legal mechanism which ensures that the value of creative effort or investment is not undermined and devalued by others taking a free ride on that effort or investment’ (McDonald 1999, p.2).
It can be affirmed then, that a system of copyright, limited even, is desirable, if not to protect creators, then to at least achieve a balance between the rights of creators and copyright producers and distributors for revenue and moral accreditation, while allowing access to the public for consumption. ‘A system of limited intellectual property protection is justified both as an inducement for future creative activity and as a reward for the intellectual labor associated with that socially valuable activity’ (Spinello 2003, p.2).
It has been argued by many academics that the complete erosion of copyright protections may dislodge the profitability of many industries such as the gaming, communications and film, to the detriment of future production as creators see no purpose in creation without economic gain (McDonald 1999; Lee 2005). For example ‘Illegal file sharing on the internet leads to considerable financial losses for artists and copyright owners as well as producers and sellers of communications’ (Quiring, von Walter & Atterer 2008, p.434).
It can therefore be strongly stated that while at times, when applied without distinction, copyright can be an encumbrance if argued from n Open Access perspective. However one must consider copyright as the ‘glue’ that McDonald describes it as when considering the incentive effect copyright has in relation to the development and dissemination of cultural information (McDonald 1999, p.2).
In conclusion it can be seen that the blurring of the boundaries between the expression of ideas in a material form (which is protected by copyright) and an idea itself (which is not) has led to the development of what Benkler has named the ‘networked information economy’ (Benkler 2003, p.1245). The networked information economy ‘makes it possible for nonmarket and decentralized models of production to increase their presence alongside the more traditional models, causing some displacement, but increasing the diversity of ways of organizing production rather than replacing one with the other’ (Benkler 2003, p.1247).
This has led to the decentralisation of the process of cultural production files (mp3’s, film, communications, etc) and is what has ultimately led to the blurring between idea’s in material form and idea’s themselves as seen with the development of filesharing and peer-to-peer production networks against the backdrop of the digital environment.
This has gradually led to the erosion of copyright and the strengthening of legislation in reponse, in turn leading to the development of movements such as Creative Commons and Open Access. The ensuing debate over whether copyright is desirable to retain in the digital environment has led me to conclude that while copyright can act as encumbrance to creativity and learning, by removing its protection the incentive it generates for innovation and cultural production, have necessitated the need for a balance of the two.
Thomas, D. (2002) ‘Innovation, Piracy and the Ethos of New Media’, pp. 82-91 in D. Harries (ed.) The New Media Book. London: British Film Institute.
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