The changing face of copyright

BY LUIS C. SCHMIDT, PARTNER
COPYRIGHT WORLD ISSUE # 190, MAY 2009

“NEW TECHNOLOGIES ALLOW EVERYBODY TO BE THEIR OWN COPIER, PUBLISHER OR PUBLIC COMMUNICATOR”

Copyright law is a field of law that has been designed with the purpose of connecting interests of different kinds, frequently in conflict. In the first place stands the author of the works. Copyright would not exist without a physical creator of the work-of-authorship. No less important is the publisher, who utilizes media capable of disseminating the works, to make them accessible to everybody. In a blurry in-between position stands society, the receiver of works and the ultimate beneficiary that authors and publishers seek.
The Statute of Anne, a legacy to both the “copyright “and the “author’s right” authors’ and publishers’ rights. Society would encourage authors to create and publishers to disseminate by conferring them exclusive rights to publish the works, in exchange of making culture and learning available to all. The rights to publish would necessarily return to society after the authors and their heirs, as well as the publishers, had enjoyed them for sufficient time.
The Statute of Anne took an antimonopoly orientation since censorship and monopoly had played against the rightful interests of society, in terms of how difficult it was having access to works. The Statute of Anne introduced trade-regulation and public domain worlds, was first to recognize the rights of society within creation and publication of works. Before the Statute of Anne was approved, society’s rights and interest had been vastly neglected.
By conferring royal charter and privileges to the Stationers’ Company, Mary Tudor was able to take control of the press (invented by Johan Gutenberg and brought to England by William Caxton) and impose monopoly and censorship rules to everything that was published.
Stationers’ Copyright was the first form of protection for works, but it worked for the sole benefit of the crown and the Stationers’ Company.
The Statute of Anne was a major expression of improved protection, inasmuch as it viewed society’s need for learning as the central reason to grant as fundamental principles, ensuring availability of works to the people and a better balance among traditional forces and the newly-recognized position of society. In the end, statutory control of monopoly and censorship as well as of perpetuity of rights are the first examples of success and achievement that society has gained and that have contributed to the confection of a copyright systemized law.
It is clear that society has played a crucial role in building up the framework of modem copyright law. It sometimes has helped as well to fill gaps or reduce tensions that originate from non-conciliatory differences between copyright and author’s rights systems — the systems emphasise authorship or publishing as vehicles of creativeness and learning and that are difficult to reconcile and even more to harmonise — or solving disputes between authors and publishers that result from global electronic or tangible forms of trade of copyright products.
New technologies allow everybody to be their own copier, publisher or public communicator. The foregoing has already transformed the way that entertainment and cultural business has been made for quite sometime. Traditional authors and publishers may have simply ignored this fact, and may have forgotten that users demand prompt and non-discriminatory access to works, without restrictions of any kind — including territorial restrictions — and for a reasonable fee. They are perhaps busy fighting their own battles, without noticing that society has challenged existing copyright structures, pointing out business, economic and legal reform needs.
This time it has been different from the times of the Statute of Anne, as technology has de facto empowered society and has place it in a position above authors and publishers.