8 June 2011

Copyright, consumers, control and consequences

By Professor Leon Sterling

(Published in ‘Campus & Beyond’, a weekly column written by Swinburne academics in the Borneo Post newspaper)

It is an exciting time for technology lovers. There has been a rapid evolution of smart phones and tablets which combine convenient playing of music, videos and reading texts with general purpose computing. We can communicate, be entertained, or work anywhere.

However, the media industry struggles to develop new revenue-earning models for selling music, videos and books when people are becoming used to downloading them free from the Internet. There is decreasing need for specialised bookstores or music stores and over the past decade intense battles have played out in courts about how people can access media content.

The court battles centre around copyright. Copyright emerged as a concept in the 17th century. It originated to ensure authors received revenue from their creative work rather than all revenue passing to distributors such as printers and typesetters. Protection was seen necessary in order to encourage authors, and artists more generally, to continue producing creative work.

For 300 years, copyright worked more or less successfully. However diverse technologies in the late 20th century such as photocopiers, global broadcasting, and now the Internet, have changed the game.

In Australia, the Copyright Act (1968) specifies it is infringement of copyright to make a copy, communicate such content or to authorise copying without the permission of the copyright holder. The Copyright Act has needed several revisions, most recently in 2006, which make it legal for a consumer to make a copy for personal use such as transferring music from a CD to an mp3 player. However, it is still illegal to make a copy of a CD for a friend.

In Malaysia, the current Copyright Act was put in place in 1987, and amended in 1999. In both the Malaysian and Australian laws, explicit statements make it illegal to interfere with control measures placed to try to enforce copyright. But enforcement is contentious, as the battle shifts to the role of Internet Service Providers.

For example, in the music industry the advent of mp3 technology and the Internet has made music files easier to share. Napster, started in 1999, allowed people to share mp3 music files, bypassing the established market mechanisms. The music industry launched legal action, shutting down the site in 2001.

Other services, such as Kazaa, rose in Napster’s place. It has been estimated that, in its heyday, 27 per cent of all Internet traffic was generated by users sharing music over Kazaa. Legal battles in the US and Australia led to Kazaa’s shut down in 2005, with a reported settlement with the music industry of $100 million.

Lime Wire then took up the slack. A US court case starting in May 2011 will determine what damages the Lime Wire music sharing site must pay the music industry after it was found liable for inducing copyright infringement.

There are big financial stakes involved. It has been claimed that US recorded music sales have fallen in value to $7.7 billion in 2009 from $14.5 billion in 1999. The music industry blames piracy for the decline.

But it is apparent that copyright law is at odds with current behaviour. In university lectures around copyright and sharing music, the vast majority of Swinburne students say they are happy to download songs despite knowing that it is illegal. Such student attitudes on this issue would reflect society at large, both in Australia and Malaysia.

Why the disconnect? A perception is that music is unreasonably expensive. The success of online music stores where songs are cheaper supports this perception. Another reason is ideological. Some people believe intellectual property is an outmoded concept, and creators should earn revenue in different ways.

Meanwhile, the music industry has pursued individuals and Internet Service Providers (ISPs) to discourage illegal downloading. The most high profile individual case is that of Jammie Thomas who refused to settle with the music industry. She was found guilty of illegally sharing 24 songs. There have been three trials, with fines awarded of $222,000, $1.9 million and $1.5 million.  All agree that the fines are disproportionate to the crime, and the matter is unresolved.

The music industry would like ISPs to police copyright infringements. ISPs do not agree and the battle is continuing. A high profile court case in Australia between the Australian Federation against Copyright Theft, and iiNet – one of the largest ISPs in Australia – has been appealed to the highest court in Australia. Central to the case is what constitutes authorizing copyright infringement, and if you have a service that can be used both legally and illegally, who is culpable when it is used illegally.

It is worth noting that copyright violation is not new to the Internet. Cheap copied cassettes, tapes and books have been sold in the developing world for many years. No good resolution has been reached.

In summary, we live in interesting times where copyright law needs to evolve. The principle of giving authors of creative works fair reward for the community enjoyment and benefit generated by their work and encouragement to make further creative works seems sensible. Knowing how to distribute the reward is an ongoing challenge. It is also important to support local music industries in Malaysia.  The challenge is encouraging consumers to behave correctly with appropriate censures balancing the needs of creators and distributors.

Professor Leon Sterling is dean of the Faculty of Information and Communication Technologies, Swinburne University of Technology, Melbourne, Australia.