The copyright 'copyfight' is on

The 'copyfight' is on but who will land the final blow?

There will be no winners if we do not sort out copyright, argues columnist Bill Thompson. But let us not forget moral rights.

Amidst all the "will they?, won't they?" excitement over whether European patent law should be updated, and whether the version currently on offer will allow US-style software patents, it would be easy to forget that another, bigger, battle continues around the world.

It is the "copyfight" - the continuing dispute over what sort of legal protection creative people or the companies that employ them should have over the ways in which their works are used.

It is the fight which has given us the European Union Copyright Directive and the US Digital Millennium Copyright Act, both of which provide for severe legal penalties against anyone who breaks the codes that protect DVDs, iTunes Music Store downloads and e-books etc.

On the other side it has given us the original Napster, peer to peer networks, BitTorrent and the DVD-reading program deCSS.

Digital manifesto

This week the Institute for Public Policy Research, the UK think tank, held a meeting on copyright as part of its digital manifesto project, and I went along to listen.

It was a fascinating discussion, not so much for what was said but because it revealed the depth of misunderstanding and lack of common ground between the different groups.

It also exposed a fundamental philosophical difference that I do not think can ever be resolved.

In legal terms, the basic argument is between those who see creative works as just another type of property, with what are increasingly presented as inalienable property rights, and those who see copyright as a deal struck with creative people by the state, one which is intended to benefit both sides.

Remix culture is everywhere. All we can do is accept it, adapt to it and find ways to work and make a living within it

Copyright history supports the second view, but since the mid-1970's there has been increasing legal support for the first.

We saw this clearly when a lawyer in the audience expressed his concern about proposed changes to copyright law that would allow blind people to break copy protection and use screen readers on books.

He called it "expropriation" - a term used to describe the process of taking people's stuff away from them - and demanded some compensation for rights holders if it were allowed.

'No sense'

Yet to Cory Doctorow, there on behalf of the Electronic Frontier Foundation, this view makes no sense.

If copyright is a deal between the state and the creator then it does not create the same sort of property rights that you get when you buy a car or even a book.

For him changing the rules is just changing the rules - if the term of copyright is extended then rights holders get more, if accessibility exemptions are offered then they get less, but neither attracts compensation or infringes any property rights.

A third view was put forward by David Ferguson from the Creators' Rights Alliance.

He is a composer whose income depends on copyright, and he does not want to see it threatened by changes to the current regime which would either give the people who commission him more control over the work he produces or give the general public more freedom to use his work without paying.

Great changes

Who decides what happens when someone writes an original piece of journalism?

Although I sympathise with him, since I rely on copyright too, I do not think he can stand in the way of the great changes that new technology makes possible.

The geeks and hackers will not allow it.

They have already dragged the music industry into the download era, and I am confident that they will soon see off digital rights management and locked-in music files.

Back in the 1980's lots of computer software was distributed on "locked" disks that could not easily be copied.

But "easily" is only a challenge, not a real protection, and the protections were easily bypassed and eventually abandoned.

It will be the same with Fairplay - Apple's Digital Rights Management - and the other tools that currently limit what we can do with the music files we purchase.

Fifty years ago it would have been impossible to remix a song or recut a movie without access to a professional studio.

Now anyone can do it on their iBook, and remix culture is everywhere.

All we can do is accept it, adapt to it and find ways to work and make a living within it.

However the question of reusing work does uncover a fundamental divide in this debate, one which I think may be irreconcilable.

It concerns moral rights - the rights I have as a creator to control how my work is used and exploited.

Moral rights are not about money but about integrity, and they pose great problems for those who want to liberalise copyright because they open questions of judgment, taste and even politics.

Put simply, if the law is changed to allow for remixing of work without my explicit permission, perhaps by introducing a compulsory license, then I cannot stop people I do not like or approve of using it.

Creative people

This is not about getting paid - I would not want an article I had written to be used by a neo-Nazi group in their newsletter, however much I was offered.

Unfortunately most of the copyfighters take the US view of copyright as entirely about economics, and neither understand nor are interested in moral rights.

Lawrence Lessig, the lawyer who is leading the movement to revise US copyright, dismisses it as "a French idea" that has no real usefulness.

He is wrong, I believe, but I can see no way to provide moral rights in a form useful to creative people within the rebalanced approach to the economic aspects of copyright that Lessig, Cory Doctorow and others are proposing.

In the end we might end up doing what democracies do so very often - letting the views of those who can influence the majority of our legislators dominate and disregarding the interests of minorities with less power or fewer funds for lobbying.

Unfortunately we are likely to find writers, artists and composers among those minorities.

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Bill Thompson is a regular commentator on the BBC World Service programme Go Digital.