Copyright in the Age of Digital Reproduction

New technologies create the capacity to move information more quickly than ever before. Through the internet, every reader can also become a writer. Potentially, database publishing can redefine publishing. Readers may gain more access to more information, and even the power to rewrite 'works' &emdash; but at what cost to the moral rights and copyright of authors?

At the time of the interview, Dr Thomas Dreier was a distinguished copyright lawyer and a staff member of the Max Planck Institute for foreign and international Patent, Copyright and Competition Law in Munich, and a specialist in copyright law and the ethical and economic implications for copyright of new information technologies.

He is also an enthusiast. Bernard Cohen asked him what copyright means, how you get it and if it's still relevant in the Information Age.

[Note: this interview took place in 1993 for Sydney public radio station 2SER 107.5FM and a shortened version appeared in Australian Author, Autumn 1993. The broad discussion of the meaning of copyright and related philosophical issues remains relevant. For more information and to read Dr Dreier's articles and views, many in English, please see http://www.zar.uni-karlsruhe.de/492.php?ID=3.]

BC: What exactly is copyright?

TD: Copyright is the set of legal rules which protects the authors of artistic and literary works. Typically this includes novels, paintings, music, plays and more recently also computer programs and databases.

BC: So it's the mechanism for turning these non-material products into property?

TD: Right. What is protected is the Work, and the Work is the immaterial form of what constitutes for example the novel, which is then fixed in tangible form. The rights owner, the author, in order to control the dissemination of the work, and to receive a fair share of remuneration for the exploitation of the Work, can authorise as well as prohibit certain uses being made of the Work. This is an exclusive right, and to own that exclusive right may be termed property because it resembles ownership over a tangible property like a building or the book itself.

BC: Building castles out of air?

TD: You may say so. But if the ownership is of an intangible property, most of the 'use acts' are done with regard to tangible objects. You reproduce a book, broadcast a play, show a painting on TV &emdash; all these use acts are reserved for the author to authorise or license, or to prohibit a certain person from undertaking a certain act unless that person is paying the licence fee required.

BC: So the ideas themselves don't attract copyright, it's only the expression of those ideas?

TD: Yes. You can't monopolise the general way of thinking. It is not the idea of writing a certain novel which is protected. It is the exact expression. These distinctions may at times be rather painful. If you take a literary novel for example, the love story 'boy loves girl, girl loves a second boy, second boy turns away and girl goes back to first boy' that would certainly be within the realm of the unprotected idea. But once you give names to these people and this love story takes place in Sydney in 1985 And you describe a certain atmosphere — hanging around the Rocks, young bankers you come to something which is protected, and if someone else writes a similar story using the very same characters, the very same setting, he or she is infringing your copyright.

BC: In Australia, they speak of 'substantial' similarities between the works.

TD: That's the criterion. Lawyers always have had to find catchwords for standards which have to be met in order to have legal consequences. So in order to determine whether infringement takes place you speak of 'substantial' infringement. Where a copy is not a straight reproduction, it is termed an adaptation, and the question becomes how much do I have to change in order not to infringe your copyright. And there the test is substantial similarity. As long as my work is substantially similar to yours, I'm infringing your copyright. If it's not substantially similar, if I've only taken bits and pieces, then of course I'm home free and you won't get any of the proceeds.

BC: This seems to me premised on an ancient idea of expression. But there is a lot of support for the idea that expression is dead, and if not dead, at least in the later stages of delirium.

Take dance delirium, for example. So much music is made up of sampled sound, and especially samples of other music. There are hundreds of DJs remixing what once would have been 'compositions'. And films and literary works are filled with references I think of as analogous to samples. Artists and writers are freely 'appropriating' other works. It often seems to me as if what is being appropriated is not so much the individual work, the source of the quotation, as the genre or the era, or even the voice. Are lawyers thinking about cultural shifts like this?

TD: Very much so, although one has to say that most lawyers are probably not au fait with the latest deconstructivist theories and the new reaction against Derrida's Deconstructivism. But of course these things have an influence because lawyers are confronted with certain things which are going on in real life.

Sound sampling shows how complicated the regulation of copyright is. We have to distinguish between the rights in the music and the rights in the sound record. The rights in the music are those granted to the composer because of the creation of a certain tune. A second right attaches to the sound record as such, because it's not so much a creative activity, but a commercial activity, an investment-intensive activity, which also necessitates some kind of protection: the organisational effort to put things together, to bring the money up, and to have the thing marketed.

BC: Analogous to publishing an edition of a book, for instance.

TD: In some countries publishers have their own rights, in others they haven't. For example, what we are doing here with the rights in our spoken [and recorded, broadcast, transcribed, edited and published in print and on the internet -- BC] words, which are in question, but also the rights of the broadcast, which may belong to the radio station or the person who owns the radio station. But you must distinguish between the various rights.

Take Miles Davis with his typical trumpet sound, for a prime example. You can cut out certain notes and recombine them to make any tune he never even played: popular folk tunes, the Australian national anthem…

BC: A frightening prospect!

TD: A frightening prospect it may be, but for copyright the question is, if you recompose the national anthem from Miles Davis's single notes, who should be entitled to the money?

BC: It reminds me of a radio piece by the sound artist Simon Hunt, who had recombined (the Festival of Light's) Reverend Fred Nile's words so that Nile now said, 'Jesus is an angry lesbian prostitute'. I guess if it hadn't been clear that the recombination was a work of art, not his actual words, the piece would have infringed Nile's moral rights?

TD: Or Jesus's moral rights, maybe. That's an interesting case. Consider that protection of the intellectual property doesn't last forever. For most economic rights, it comes to an end 50 years after the author's death (70 years in Germany). Moral rights may cease to exist with the death or they last as long as economic rights. The idea is once the children or the grandchildren of the author have recovered some of the money of their poor grandfather who didn't accumulate so much wealth, while he was devoting himself to such an impoverishing activity as writing. Once that has been achieved, the work falls into what is known as the public domain, meaning that anybody can take it.

BC: The other day I came across a 'zine called Mindgun which reprinted stories and articles accessed from a number of databases and reproduced them for informationally disadvantaged people such as myself [note: this was in my pre-net days]. The editorial, signed by one known only as 'flame.baby', begins 'Information wants to be free' and speaks of liberating words from the Matrix. Is copyright really the way to go with all these new technologies? Are we that far from a Utopia where information producers are rewarded without the need for more and more complex systems of checks and sanctions? Is this what which shifting copyright law onto non-print materials produces, these more and more complex systems?

TD: You have touched on two or three of the major topics in current copyright debate. Let's take the first one, information and the protected work. In traditional copyright there is no question. The information itself is free. The protection only attaches to the copyrighted work. So you may read a book. Nobody can stop you on the basis of copyright from reading the book, from appropriating the information, from thinking about the contents of the book, dreaming about the characters et cetera. This is basically clear and very simple for traditional print material.

In the electronic context things become a bit more complicated in that to get access to the information you must perform acts which are subject to copyright. In order to get the information which is stored in a database, you have to download the information and the protected work which contains information and even if you only view a certain work on your computer screen and view it without making a print-out — and certainly if you do print it out — you have made an act subject to copyright. This is even worse when it comes to the field of computer programs, where in order to figure out what the internal logic of the program is, the data flow etc, you can only do that through techniques such as disassembling which involve either reproduction or adaptation. So the question of access becomes blocked by technology. You have to go via copyright in order to get to information. That's one of the dangers which has been taken care of.

And the other one is that, given the way in which works and information are stored in databases, it sometimes becomes very difficult to distinguish between information and the protected work. For example, the whole Shakespearean oeuvre may be stored in a database. Yet, if you run a search to discover the frequency of the word 'Australia' in Shakespeare (the answer of course being zero), that gives you a piece of information. And you took it from a protected work: it took someone to store that protected work in the database. You got something valuable, the other guy put up an investment, and yet all you took was the information. In this respect, the whole field of property, to whom to attribute the property has to be rethought and has to be rebalanced.

BC: It sounds like the new technologies create quite new ways of thinking about the movement of information.

TD: Right. It radically reinstitutionalises information flows. Some people say it takes us back to the time before printing, back to the oral era when there was a constant flow of oral information which is very intangible, the same thing we have now in the electronic context &emdash; and it was that print period in between where you could say 'Okay, this is it. This is the book. It has a front cover and it has a back cover.'

And probably we will have to make quite a few adjustments of existing copyright laws in order to cope with that situation. This is one major issue which will occupy us in the future, and one might add that if one argues that information should be free, we have to talk about the information industry to create the information as such, an act which is cost-intensive and which might eventually be in need of protection. So the whole idea of free access to information will probably also have to be put into question.

The second big question, the pirate magazine, is a question of how to control and administer copyright in our technological world. The problem is that once you have a multiplicity of users, typically the home user, who make multiple out of multiple protected works belonging to a great variety of individuals, then of course each individual cannot control whoever does one of the restricted acts. While we are talking, you don't know who, a couple of blocks away, is pressing a photocopier button to copy the whole of your book. So the idea is that if you keep the exclusive right to authorise or prohibit, it's of no value to you because you can't exercise it anyway, so the idea then is to forgo this right and to content yourself with a claim to remuneration which basically means that under certain circumstances certain use acts such as photocopying, home taping may be done without asking for permission but that you have nevertheless to pay.

These payments are typically channeled through collecting societies, where we have for example [in Australia] CAL (the Copyright Agency Limited), which on behalf of authors, in their names, administers the reproduction, the photocopying rights. CAL collects all the money, deducts administration costs, which are not very much, between 15 and 20% of all the monies received, and these monies are then distributed to the individual authors who have been copied. Now this works in the context of a photocopy and similarly for blank tapes, but one must question how it works in the context of electrocopying where there is far less control. I mean, a copy machine you can spot, but given all the number of PCs which either by a modem are connected to a network or have a direct access line to networks, all this flow of information you can't easily control. If you have a print-out of a pirate magazine, then you have something tangible and probably for press security laws they have to have an impression and the name where it's come out, so you know who you have to sue, but if the same thing comes out on an electronic bulletin board, just signed XYZ, whom are you going to sue.

BC: At the moment I understand, a lot of database sorts of copyright are protected contractually.

TD: Well, yes and no. The database itself constitutes a selection, provided the selection or arrangement of material is original so the database is protected and you can assert that protection against any party whatsoever. When a database provider contracts with a user and provides for certain use acts, for a certain fee, that is then a contractual basis, but that contractual basis allows for very precise control but it only binds the two parties. If that contracting user then gives access to a third party, which the authorised user is not entitled to, the third party still cannot be sued on the basis of the contract, but only on the basis of copyright. And that's why copyright protection is so awfully important.

BC: I have this picture of an arrangement between two people, where as soon as the information passes outside of the contract, it reproduces at an exponential rate.

TD: I'm not saying that should be stopped. What I'm saying is that it should somehow be controlled, it should controlled where the multiplication infringes upon the primary marketing rights of the information provider and for the rest it should just be monitored in order to ensure that the authors and the right-owners like the publishers really get a fair share of return for their productions, because otherwise they cannot get back the investment they have put up and they will ultimately stop production and that's, of course, to the detriment of society as a whole. It's nice having access to copy material, and everybody wishes to do so for the lowest cost possible, but if you just pay too little, then ultimately there won't be any more stuff around which might be copied.

BC: Dr Thomas Dreier, thank you very much.

TD: It was a pleasure.


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