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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Leader: Mourning in Manchester

Yet another attack shows we are going to have to get to used to the idea that our liberalism and our freedoms can only be preserved by a strong state.

Children are murdered and maimed by a suicide bomber as they are leaving a pop concert in Manchester. As a consequence, the government raises the terror threat to “critical”, which implies that another attack is imminent, and the army is sent out on to the streets of our cities in an attempt to reassure and encourage all good citizens to carry on as normal. The general election campaign is suspended. Islamic State gleefully denounces the murdered and wounded as “crusaders” and “polytheists”.

Meanwhile, the usual questions are asked, as they are after each new Islamist terrorist atrocity. Why do they hate us so much? Have they no conscience or pity or sense of fellow feeling? We hear, too, the same platitudes: there is more that unites us than divides us, and so on. And so we wait for the next attack on innocent civilians, the next assault on the free and open society, the next demonstration that Islamism is the world’s most malignant and dangerous ideology.

The truth of the matter is that the Manchester suicide bomber, Salman Ramadan Abedi, was born and educated in Britain. He was 22 when he chose to end his own life. He had grown up among us: indeed, like the London bombers of 7 July 2005, you could call him, however reluctantly, one of us. The son of Libyan refugees, he supported Manchester United, studied business management at Salford University and worshipped at Didsbury Mosque. Yet he hated this country and its people so viscerally that he was prepared to blow himself up in an attempt to murder and wound as many of his fellow citizens as possible.

The Manchester massacre was an act of nihilism by a wicked man. It was also sadly inevitable. “The bomb was,” writes the Mancunian cultural commentator Stuart Maconie on page 26, “as far as we can guess, an attack on the fans of a young American woman and entertainer, on the frivolousness and foolishness and fun of young girlhood, on lipstick and dressing up and dancing, on ‘boyfs’ and ‘bezzies’ and all the other freedoms that so enrage the fanatics and contradict their idiot dogmas. Hatred of women is a smouldering core of their wider, deeper loathing for us. But to single out children feels like a new low of wickedness.”

We understand the geopolitical context for the atrocity. IS is under assault and in retreat in its former strongholds of Mosul and Raqqa. Instead of urging recruits to migrate to the “caliphate”, IS has been urging its sympathisers and operatives in Europe to carry out attacks in their countries of residence. As our contributing writer and terrorism expert, Shiraz Maher, explains on page 22, these attacks are considered to be acts of revenge by the foot soldiers and fellow-travellers of the caliphate. There have been Western interventions in Muslim lands and so, in their view, all civilians in Western countries are legitimate targets for retaliatory violence.

An ever-present threat of terrorism is the new reality of our lives in Europe. If these zealots can murder children at an Ariana Grande concert in Manchester, there is no action that they would not consider unconscionable. And in this country there are many thousands – perhaps even tens of thousands – who are in thrall to Islamist ideology. “Terror makes the new future possible,” the American Don DeLillo wrote in his novel Mao II, long before the al-Qaeda attacks of 11 September 2001. The main work of terrorists “involves mid-air explosions and crumbled buildings. This is the new tragic narrative.”

Immediately after the Paris attacks in November 2015, John Gray reminded us in these pages of how “peaceful coexistence is not the default condition of modern humankind”. We are going to have to get used to the idea that our liberalism and our freedoms can only be preserved by a strong state. “The progressive narrative in which freedom is advancing throughout the world has left liberal societies unaware of their fragility,” John Gray wrote. Liberals may not like it, but a strong state is the precondition of any civilised social order. Certain cherished freedoms may have to be compromised. This is the new tragic narrative.

This article first appeared in the 25 May 2017 issue of the New Statesman, Why Islamic State targets Britain

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