8 April 2011

A world without copyright?

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

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.