A world without copyright?

In the first of a series of Friday Questions, David Allen Green asks whether we really do need a law

Copyright is a curious legal creature.

It provides for a property right in certain (though not all) created works. And being a property right, this means there are two broad effects.

First, it means the copyright can be bought, sold, and licensed on commercial terms: and so often the copyright in a valuable work is not owned by the creator.

Second, it means the owner of the copyright can largely determine what can be done with the work by others: any unauthorised act is an infringement and thereby unlawful. There are strict limits to what one can do with a work owned by another without permission. Works covered by copyright can range from oil paintings to computer programs.

There is currently a complex and heated debate on whether copyright should be reformed. However, it is useful sometimes to stand back from such a commotion and ask some simple, basic questions.

In respect of copyright, the most fundamental question is whether it is needed at all.

Could we just get rid of this statutory property right with no problem?

If copyright is needed, what is the need which it satisfies? Can the need be clearly identified and articulated? Or is there really no "need" - it is instead just the basis of an artificial commercial model?

Is it an essential precondition for creative endeavour? Or is it the means by which creative individuals can have the just rewards of their work, even if they would have created it anyway?

Is it actually true that copyright is required for sophisticated or project-based creativity - such as films, drama productions, or musical works - that may simply not be possible without formal investment? Would such creations just cease to exist in a world without copyright?

If there must be copyright, then there are various follow-on questions. Who should own it? The original creators of a work? Or anybody who holds the copyright, even if there is real connection with the original creators? How long should it last? What constitutes infringement? What exceptions and defences should there be? And so on.

But these are perhaps second-order questions. The first question, the one on which any interested person should have a view, is could there be a world without copyright?

 

[This topic has also been covered today by Emily Goodhand @copyrightgirl on her blog.]

 

David Allen Green is legal correspondent of the New Statesman and a practicing media lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Nobody's bargaining chips: How EU citizens are fighting back against Theresa May

Immigration could spike after Brexit, the Home Affairs select committee warned. 

In early July, EU citizens living in Scotland received some post from the First Minister, Nicola Sturgeon. The letters stated: “The immediate status of EU nationals living in Scotland has not changed and you retain all the same rights to live and to work here. I believe those rights for the longer term should be guaranteed immediately.”

The letters were appreciated. One Polish woman living on a remote Scottish island posted on social media: “Scottish Government got me all emotional yesterday.”

In reality, though, Sturgeon does not have the power to let EU citizens stay. That rests with the UK Government. The new prime minister, Theresa May, stood out during the Tory leadership contest for her refusal to guarantee the rights of EU citizens. Instead, she told Robert Peston: “As part of the [Brexit] negotiation we will need to look at this question of people who are here in the UK from the EU.”

As Home secretary in an EU member state, May took a hard line on immigration.  As PM in Brexit Britain, she has more powers than ever. 

In theory, this kind of posturing could work. A steely May can use the spectre of mass deportations to force a hostile Spain and France to guarantee the rights of British expat retirees. Perhaps she can also batter in the now-locked door to the single market. 

But the attempt to use EU citizens as bargaining chips may backfire. The Home Affairs select committee warned that continued policy vagueness could lead to a surge in immigration – the last thing May wants. EU citizens, after all, are aware of how British immigration policy works and understand that it's easier to turn someone back at the border than deport them when they've set up roots.

The report noted: “Past experience has shown that previous attempts to tighten immigration rules have led to a spike in immigration prior to the rules coming into force.”

It recommended that if the Government wants to avoid a surge in applications, it must choose an effective cut-off date for the old rules, whether that is 23 June, the date Article 50 is triggered, or the date the UK finally leaves the EU.

Meanwhile, EU citizens, many of whom have spent decades in the UK, are pursuing tactics of their own. UK immigration forms are busy with chatter of UK-based EU citizens urging one another to "get your DCPR" - document certifying permanent residence - and other paperwork to protect their status. More than 1,000 have joined a Facebook group to discuss the impact of the referendum, with hot topics including dual nationality and petitions for a faster naturalisation process. British citizens with foreign spouses are trying to make the most of the "Surinder Singh" loophole, which allows foreign spouses to bypass usual immigration procedures if their British partner is based in another EU country. 

Jakub, a classical musician originally from Poland, is already thinking of how he can stay in the UK, where there are job opportunities for musicians. 

But he worries that although he has spent half a decade in the UK, a brief spell two years ago back in Poland may jeopardise his situation.“I feel a new fear,” he said. “I am not sure what will happen next.”