My 2 Cents

Funny business we’re in. The more people are enabled to bypass copyright requirements, the more they tend to seek copyright protection, be it for material (compound formulas, sculptures), physical (sounds, visuals), or intellectual (writings, designs) content. It was reported that the White House was trying to copyright President Barack Obama’s campaign slogan, “Yes, we can” (slogans aren’t copyrightable). Harley-Davidson even tried to copyright the engine roar of its motorcycles.

But then there are others who are actually choosing to give up on select copyrights. Witness the English alternative rock band Radiohead and the American rock band Nine Inch Nails. In 1996, an Italian writers’ group called WuMing Foundation created the concept of “copyleft,” and, today, it offers a way to download its members’ literary works for free on the Internet.

So, the question is now: Is it time to give up on copyrights or time to really enforce them?
Throughout the centuries, technology has offered new opportunities to copyright holders and new loopholes to those who wanted to ignore them. The copyright was developed after the invention of the printing press in 1440, though the first full-fledged copyright law wasn’t enacted until 1709, when Queen Anne of England vested the author, rather than the printers, with a monopoly.

However, the first major challenge to the printing press arrived 520 years later with the popularization of the Xerox in 1960. Ironically, while book publishers were cursing Xerox for enabling consumers to pilfer their products, Xerox was losing its own copyright battle over the term “xeroxing” –– when people adopted their trademarked name as a synonym for photocopying.

After Xerox, the copyright floodgates swung open, overwhelming first the record industry –– with the commercialization of the cassette tape recorder by Phillips in 1962 –– and later, the movie industry, when Phillips introduced the home VCR in 1972.

But the worst had yet to come for copyright holders, and, inexorably, it arrived in 1990 with the creation of the Web, following the invention of the Internet.

Today, the Internet is credited with the virtual obliteration of the record industry and, despite all the measures taken and barriers erected, it is estimated that 95 percent of the music on the market is still downloaded illegally. The Internet is also slowly killing the printed newspaper business and, eventually, could replace both cinemas and printed books.

But as far as business is concerned, the Internet is currently both the kiss of death and the savior of the entertainment industry. It all depends on the point of view. Nowadays, we could even say that copyright is becoming a business philosophy: one could use it or simply do away with it.

So, exactly 300 years since the “statute of Queen Anne,” is it possible that the business world will actually encourage consumers to take its work for free, as newspapers, radio, television, bands and authors are increasingly doing?

The alternative would be to confront services such as YouTube (which shows clips from copyrighted material for free), search engines such as Google (which allow users to find all kinds of material on the Internet for free), and peer-to-peer operations (which make anarchy look like life in a monastery).

Many experts, academics and copyright lawyers are now predicting the end of copyrights. Johan Pouwelse, a professor at Delft University in Holland, argued that, “by 2010 copyright will be unenforceable.” Similarly, Paul A. David, a professor at Stanford University in California, wrote about “The End of Copyright History” in a 2004 review paper.

These and other experts base their theories on several observations, mainly that the law, with the “Fair Use Doctrine” is, in effect, encouraging the demise of copyrights. In addition, there are inconsistencies between anti-copy regulations and Internet society. The erosion of copyright fundamentals is also attributed to the changing attitude towards copyrights, especially with peer-to-peer, which is now seen as a “social behavior” that’s hard to break.

Now, what all this will mean to the international TV content distribution sector is hard to predict. In our industry, content buyers (i.e., TV outlets) are not the ultimate content users, therefore, in principle, the “fair use” doctrine and other “social” elements shouldn’t apply between these B2B entities. In effect, in our case, the copyright problem is between the TV outlets and their consumers. The way I see it, copyright protection will continue to exist between B2B operators (i.e., program sellers and TV outlets) because B2B deals tend to be indifferent to consumer technology (e.g., the fact that it can be easily downloadable doesn’t change the license fee and structure). However, in view of the definite erosion of B2Consumer (i.e., TV outlets and TV viewers) copyright protection, it would be advisable to create a better understanding between B2B operators in which B2C copyright limitations are clearly stated. In this digital era, with its increased copyright erosion, the B2C (formerly known as the “middleman”) has become particularly important for B2B protection. Without protecting this “middleman” or buffer, it will be the content owners directly suffering the consequences of copyright erosion.

Dom Serafini