April 23 is celebrated as the World
Book and Copyright Day. It marks the commemoration of the birthday of William
Shakespeare. It is moot whether the Bard of Avon was born on this day, but nevertheless,
there is a celebration and this is associated with the books and the ideas
behind those expressions in the books. Books are expression of an idea that is
sought to be conveyed by the author. The idea needs protection since anyone
else can steal the idea. Yet ideas can arise independently to many of them. The
way they might express would be different. For instance if someone were to
express an idea through a book, somebody might convey the same idea through a
movie or they might be a musical composition seeking to project the same idea. A
story might be told to the audience, yet when asked to write down the story or
orally retell the story, each member of the audience might convey in different
style and form. Therefore, while the underlying might be the same, the way in
it is expressed would be different. Hence the protection would have to be given
to the method of expression or the expression itself rather than the underlying
idea or thoughts being conveyed through the expression. Towards this, the idea
of copyright came into existence around 300 years or so ago. Since it was about
the printing revolution at that moment, it was all about books and other
publications that were protected by copyright. With passage of time, the
protection got extended to numerous other creative works.
Copyright as mentioned applies to
works of creativity. Yet the question arises on the time period of copyright. For
instance, the Bard might have composed his plays five hundred years ago, should
his works continue to be protected or should they be open for anyone to
publish. This set off the idea of having a limit on copyright period. This again
with passage of time has got extended. The copyright term is usually the life
of the author plus certain number of years varying in different jurisdictions
from 50 to 99 years. The rationale is apparently simple. If copyrights were to
cease in a short period of time, the original publishers might not have enough
incentive to create works of art and knowledge. If the period was long, there
would be a possibility of tragedy of anti-commons. Furthermore, there is a
possibility that the author might get killed if the copyrights were to expire
on his or her death. So therefore there is an additional protection.
The principle behind copyright
protection was noble and something essential. Yet like other protections, there
exists a prospect of infinite ever greening of works of art. For instance,
Disney creations like Mickey Mouse continue to be stars or cash cows (to borrow
from BCG parlance) for their owners and hence have every incentive to keep
extending the term of copyright. Yet, while this might be true in one or two
cases (usually superhits), it deprives the prospective creative adaptations for
many others. In fact, creativity is something not a preserve of an individual
or a firm and it is the society that would unleash its creative potential. In presence
of copyright enforcement, it would be next to impossible to build works of
derivative art, something essential in creative evolution of human mankind. Thus
there is a potential for diminishing returns of copyright protection in terms
of time limit.
It would have alright for the
protection to be extended but the manner in which the industry especially music
cracked down on silliest of the alleged infringements that caused perhaps a PR
disaster. The concept of fair use was virtually jettisoned. There were enough instances
to wonder whether celebrities could be threatened in terms of their livelihood
by young kids performing them and posting them on YouTube. The point is not
that the music industry would crack down on copyright but the remedies for the
fightback by the common man were prohibitive and beyond reach. The courts would
perhaps rule against the companies but very few had the resources to take the
battle all the way to the highest court in the land. Google might have won
cases in the context of both Google Books and the recent one with Oracle but
both instances, they had virtually infinite resources to mount or contest the
legal battles. This is something not available to an ordinary man.
Piracy doesn’t evolve in a vacuum. It
has a context to the same. It is essentially wherein a large market is deprived
of the goods that someone decides to tap that market irrespective of the rules
permitting the same or not. There is a perennial rebel waiting to tap the
latent demand which would not be met by the mainstream. This pirate is what
would eventually gain traction and threaten the revenues of the mainstream in
some ways. In fact, to the mainstream, the pirate market might be uninteresting
but would not allow others to tap in the same. The concept of price
discrimination would still apply only to the top of the market or rather
skimming the same in contrast to meeting the shortfall in latent demand. In fact,
piracy has to be decriminalized. Piracy is not a crime per se. furthermore,
there is a need to expand the concept of fair use. Derivative reworkings must
be encouraged. In absence of derivatives, there would be loss in creative
evolution of humanity. The ardent advocates of copyright maximalism themselves
came out of the pirate roots or seeking refuge in derivative arts. Hollywood
was a rebel in itself. Disney would not have gained success without derivate
arts. Yet in their later years, they sought to protect revenues by erecting
barriers of entry.
Copyright as it exists in the
present form is a barrier of entry. It is barrier in fostering and nurturing creativity.
It is a barrier in breaching new markets deprived of goods on the grounds of
unaffordable prices. It is a barrier to prevent others from encroaching their
market space. The expansion of copyright into numerous activities like coding
illustrate the eagerness on the copyright holder’s part to protect themselves
while seeking to build some revenues. The latter would be true in relation to
the numerous of intellectual property trolls that have emerged on the horizon. Therefore
there is a need to reframe the copyright legislation in the digital era. Else the
copyright maximalists of the present day would soon be victims of Schumpeterian
forces of creative destruction.
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