The Period of Protection

The initial period of protection afforded by copyright to an author by the Statute of Anne was between 14 and 28 years. Over time, partly as a result of the influence of Continental events and philosophies emerging from the French Revolution, that period has increased dramatically, to the life of the author plus up to a further seventy five years.

To a consumer outside it, this is perceived as an unjustified level of protectionism given protection to the content industry. Should a craftsperson spend a week creating an object, that craftsperson is able to amortise the costs of production factoring in an amount for profit, only on the sale of that object. This is true whether they bring one year or 50 years of knowledge and experience to the task and whether it is an individual or a team of craftspeople doing the work. However, the equivalent worker within the content industry is able to amortise those costs over a vastly longer period.

What consumers have begun to focus on is the arbitrary nature of the length of the monopoly rights which are granted. Any period would substitute just as well as life of author plus 50 or 75 years, the only consequence being that development costs are amortised over this period. For example, if the period of protection was six years from first sale, the amortisation period would be six years. Of course, the period of protection must be long enough to reasonably allow the amortisation of those costs (a one second protection period from first publication would effectively require it to be recovered on the first sale).

However, where there is a monopoly period any longer than the shortest reasonable time over which to amortise development costs plus profit the "tail period" is pure rent/pure inflation, with consumers being required to pay more than what is, effectively, the marginal cost of production of the article. The history of book and music publishing indicates that this reasonable period is somewhere between six months and six years after first publication. Indeed, the vast majority of works the subject of copyright have a shelf life of 12 months or less. Consumers may press for legislative changes to reduce the time-price exploitation of consumers and require that monopoly owners ought to only be entitled to new payments when actually adding value after this point rather than simply resting on its laurels [73].

As consumers well know, the protection provided to the content industry has simply increased over time and there is no guarantee that that protection will not continue to increase, preventing forever the entry into the public domain of works [74]. Consumers have become increasingly restive about the absence of any legislative guarantee that anything of value will be returned to society as reimbursement for the monopoly rights they have ceded. In relation to computer software in particular, by the time that a work is released from monopoly control all value has been completely sucked from it, leaving only a dry husk of some historical, but little cultural or social utility [75].

Open Source Paradigm

Another innovation of the Internet age has been the creation of new methods of research and development. These methods seek to harness the collective input of a number of skilled individuals (often on a volunteer basis) in return for those individuals, or the wider community, taking the benefit of that research and development. An early example of this was the work of the Free Software Foundation and Richard Stallman in the 1980s. From this movement grew others such as the GNU ("GNU's not Unix"), Linux and the Open Source movements. Under these arrangements individuals take on the responsibility to co-ordinate the coding of software by independent third party programmers.

So, where a project is identified, one person can define sub-projects and farm those sub-projects out for coding by third parties, possibly by third parties who are unknown to any of the other developers on the project or, indeed unknown to the project's manager. Those third parties effectively either bid for the right to develop a particular piece of code, or simply go ahead and do it and submit the finished product, along with source code, to the project leader.

Quality control is assured by other volunteers using beta releases of the software. Some of these initiatives, in particular applications such as Linux, have received a good reputation as being stable and functional. Indeed, the Linux operating system is seen by companies such as IBM as being of sufficiently industrial strength to base significant development projects around it [76].

Further, hardware vendors are waking up to the fact that the creation of software is often much cheaper than software houses would lead their users to believe - especially if the software is of broad, generic use. The fact that a potential purchaser must acquire software in order to make any use of hardware has effectively added a substantial percentage to the cost of their hardware sales even though they see no return for that additional cost.

As a result, we see some hardware vendors engaging in their own software development projects to produce commercial standard software which is then bundled with a hardware sale, effectively reducing the total cost of the system to the end user. For example, it is possible to acquire a software package from Sun Microsystems (Star Office) which has all of the essential features of the Microsoft equivalent product except the cost. Star Office can be downloaded for free over the Internet [77]. Its producer is literally giving the software away.

Similarly, word processing products such as Word Perfect have been given away in certain versions [78]. It is possible today to acquire a computer for use in the office which includes an operating system, word processor, spread sheet application, email package, and presentation functionality for only the cost of the hardware involved.

While the examples above are drawn from the software industry, the principle underlying them all is of generic application. For example in the music industry, there are numerous sites on which individuals are making their music, or other material available to the world for a fraction of the price of what a consumer would be charged by a record company. This suggests that it is not that there have needed to be incentives for creativity in the past. Rather, what copyright appears to have been compensating for has been the cost to market. With the removal of that cost we have witnessed a creative chaos previously unknown to humanity.

Anti-Trust

There is a growing perception within the community that copyright and similar rights have been used to establish positions of monopoly exploitation, particularly by multinational monopoly cartels. For example, where companies have been in a position to either influence a technical standard to the extent that compliance with the standard requires the use of technology patented by that company or to create software which is reliant upon proprietary data standards, formats or interfaces owned by that company.

Another situation where this arises is where a company has market power in relation to a market for a particular product or kind of product which it uses to leverage itself into markets for other products, safe in the knowledge that any court action taken to redress the exercise of that power will result in a decision, let alone have that decision put into effect, far too late. This is not helped by the frequent explicit exclusion of copyright and similar rights from anti-trust legislation [79].

There is also a feeling that the rights granted by copyright are overreaching in that they provide rights in excess of the rights held by an equivalent manufacturer of physical items. For example, if a person purchases a physical item they are able to make any changes to that item that they consider necessary or appropriate and are able to subsequently re-sell that item as modified to any person that they choose.

The same, however, is not the case for items protected by copyright. Should a consumer consider that the way a director has cut a certain film is actually quite hopeless or prolix (or contains themes or scenes the consumer considers inappropriate for their community) they are not permitted to recut their own version of the film even if that recutting is for their own use - and definitely not if they intend to re-sell it [80]. The nature of the monopoly granted effectively creates restrictions on resale (through the absence of passage of title) which would be considered anti-competitive if applied to goods.

Even in the case of real property, arguably the most hallowed legal concept of western legal systems, courts have developed an extensive system of limitations on the rights of the owner of the property, through tiered concepts such as leases and licences, with, in the case of a lease, associated doctrines protecting the leaseholder [81].

The key aspect is that the factual situation determines the presence or absence of a lease, rather than the subjective intention of the property owner. With the copyright monopoly this is not the case. As the monopoly is an absolute one, tempered only by permissions given by the monopoly holder (i.e. licences), everything is at the whim of the monopoly holder [82]. There are no developed common law consumer protections, the only defenses being legislative ones.

The Internet has harnessed the creativity of a number of individuals through the creation of fan sites and chat sites. These sites, almost invariably including copyrighted material without permission, are by and large illegal and some have been subject to legal action by the holders of the respective copyright rights.

The problem faced by copyright holders here is the explosion of choice. No single choice available on the Internet would sate user demand, and, equally no choice would be commercially viable for copyright holders to pursue. Ironically, it is the lack of choice which breeds profitability for the holder of copyright. It is simply not profitable to attempt to cater for the wild profusion of submarkets and interests that proliferate in relation to any given object of copyright - especially if it is popular.

This is less of an issue in relation to software in which items of no value to a user are simply not used. However, in areas such as film or music, where the consumer's interaction with the work is more linear, the effects of this phenomenon can be pronounced.