The Future of Global Copyrights

Every modern country has copyright laws of some sort in place. The rationale behind them all is to motivate the creation of future works and to protect the works themselves after their creation. In our globally connected world it seems natural to desire a unified system of worldwide laws in every legal field, but particularly for copyrights because articles, music, and movies are distributed instantly over the Internet on a daily basis.

The notion of a worldwide law isn’t unheard of, but in reality treaties and conventions are the only practical way to have any uniformity across borders. For example, the Berne Convention and the Buenos Aires Convention provide for equivalent copyright protection for domestic and foreign authors and artists in the European Union and South American countries respectively.

At this point one might think that we are moving in the right direction and countries are compromising appropriately. The problem only partially lies with the governments though, and surprisingly the remaining portion of blame isn’t the fault of pirates. The reason global copyrights won’t happen is because of organizations and companies like the RIAA, CRIA, and Microsoft.

As piracy of music, movies and software has increased the people whose rights have been violated have fought back in three main ways. In the United States rights holders have opted for litigation, in Canada organizations have pushed the government for special taxes, and in China companies like Microsoft have drastically lowered the prices for their software. In other words conventions sound nice on paper, but aren’t the holy grail by any stretch.

In fact, the only thing in common amongst the three plans is that they all favor continued copyright violations and therefore digital pirates. Allow me to explain: In China, Microsoft has been forced to sell its products for a fraction of their cost because they want to compete with the prices that local pirates have to offer. The message this sends is that piracy is tolerated by the government and acceptable to the largest software company in the world. Rather than attempt to legally fight for its rights or use technical solutions to combat piracy, Microsoft caved in. This has worked modestly well for Microsoft in China and so I don’t blame them, but the plan is shortsighted and will never be sustainable if every country develops the percentage of software pirates that China has. Microsoft is trying to curb the rampant piracy of its software by underselling, or at least competing with, pirates, but this only treats the symptoms and not the underlying cause of the problem.

On the other side of the globe, Canada’s response to widespread music sharing was to tax recordable media. Honest consumer or not, everyone pays and everyone gets to copy (for private use) all of their music legally. This ignores the 5% of artists not part of the CRIA as well as the people who didn’t previously illegally share music. The bottom line is that at the behest of one powerful organization Canada has accepted a bizarre relationship where certain laws under specific circumstances are legally breakable. More importantly a new generation is growing up that can legally backup their own music, but only in their own country. This unique right inhibits the future adoption of a universal copyright law.

Unlike Canada and China, the United States doesn’t encourage piracy, but it also isn’t working towards a sustainable global solution. The perception of the RIAA has shifted from being a supporter of music consumers and national facilitator, publicist, and distributor of music to being almost universally despised as greedy and unnecessary. The RIAA has been alienating most of its customers just as the need for organizations like it fades by the day. Most Americans believe that stealing music is wrong and that artists should be properly compensated, but suing every man, woman, and child for downloading music is a sign of desperation and has failed miserably to slow illegal downloads. Today, the largest retailer of music in the United States is Apple’s iTunes music store, an entirely digital service that no longer uses digital rights management. Had Apple not stepped in to provide a legal alternative to services like the original Napster and bit torrent trackers the RIAA would still be suing people and piracy would still be increasing exponentially.

This idea cannot be better stated than it already has been by Nate Anderson. In
Record labels keep blaming P2P, but it’s a hard sell Anderson, of Ars Technica, quotes copyright attorney and author of Moral Panics and the Copyright Wars, William Patry:

The problems in the Copyright Wars are not caused by technologies or by consumers acting badly, and they cannot therefore be solved by laws, and certainly not by more draconian laws. The problems—such as the decline in sales of CDs and DVDs—are the result of the copyright industries’ many and considerable failures to focus on satisfying consumers’ desires as opposed to stifling those desires out of a woefully misguided view that copyright equals control and that control equals profits.

Although I think laws can solve some of the problems, I think they need to be consistently enforced and more reasonable.

Taken together we see one country where copyrights are highly valued and companies do not hesitate to litigate (USA), another country where companies bully the government rather than the people actually responsible (Canada), and lastly a country where companies are forced to take matters into their own hands (China). The Berne Convention, and all similar conventions, have not even begun to solve this crisis. Copyright infringement continues to thrive and even if the conventions provided for penalties or coordinated litigation, piracy would continue because some countries, like China, refuse to participate in enforcement. The Internet has brought the corners of the world closer together, but deep rooted cultural differences prevent a unified global copyright solution. The success of the iTunes store conclusively proves that when companies listen to and respond to consumer’s wishes people will pay for, rather than steal, content.

We want consistency. It pains us to see our intellectual property ripped off in front of our faces, but even more so when it is done overseas and we feel powerless to stop the infringement. We have made small steps toward achieving some level of consistency, but looking at the big picture we are not heading down the right path. Enforcement is not the responsibility of large companies; it is the job of the civil and criminal legal systems to prosecute offenders. This answer is flawed as well if companies only sue offenders without recognizing why the offenses took place and how they can be avoided. Governments have failed on a global scale to take intellectual property rights seriously and the result has been different in each country based on local culture. If we ever want to see a successful global copyright scheme we first need reasonable personal fair use exemptions and then to prosecute persistent violators. Playing games with taxes on recordable media, competing with pirates, and suing in-discriminatorily has failed. Admitting this failure is a necessary first step to seeing the end of widespread copyright infringement.

About the Author

Stephen Sharon is a graduate of Touro College Jacob D. Fuchsberg Law Center in Central Islip, NY. He successfully passed both the NY and NJ bars during the Summer of 2009, and his admission to practice in NY and NJ is pending.

Stephen is the author of “Do Students Turn Over Their Rights When They Turn In Their Papers? A Case Study of Turnitin.com,” which will be published in the Touro Law Review. This article was awarded First Place, in the Nathan Burkan Memorial Competition Sponsored by ASCAP. For more information please visit his Linked In profile and visit him on Twitter.