Is Copyright Dead?

Graveyard ImageYou don’t have to search hard on the Web to find people (some eager, some not less so) who are proclaiming that copyright is dead or nearly dead. Just today, Fortune ran an article about how Megauload means the “twilight for copyright”, which was a phrase also used by Forbes in a more broad article back in November.

But others are more blunt about it, including this article about on Digital Journal’s site entitled, “Op-Ed: Copyright is Dead ” Time to Sign the Death Certificate“, which seeks a bailout of sorts for the creative industries hurt by piracy. Countless other writers, bloggers and commentators have taken a similar approach, claiming that copyright is either dead or dying, at least for their particular field.

While copyright still has its supporters who believe it’s not yet time to pull the plug, including articles in The Guardian, Harvard Business Review and even Forbes, it seems to be en vogue to declare copyright dead.

The debate certainly isn’t a new one, in 1993, nearly 20 years ago, Wired ran an article entitled “Is Copyright Dead on the Net?” This article was published at a time when many of the Web’s heaviest users weren’t even born and only a small group of people were on a much, much different Web.

However, all of this commentary misses the point. Copyright isn’t dead and it isn’t dying. Saying as such doesn’t make sense and is akin to saying that “Rock is dead” or “Art is dead”.

While such blanket statements get a lot of attention, which is why I made it the title of this post, they don’t provide a lot of useful commentary and, in truth, mean pretty much nothing at all.

The Two Theories of Copyright Death

When it comes to “the death of copyright” stories, there are two general angles that they take:

  1. The Technology Angle: That the technology of the Web makes copying so easy and removal so difficult, that it is impossible to enforce copyright from a practical standpoint, rendering the law moot.
  2. The Human Angle: That piracy and infringement is so widespread and so rampant that most people don’t care about copyright and won’t respect it, as such, the law can not stand.

Both of these approaches have their points. The evolution of technology has changed the nature of copyright infringement and there has been a sharp rise in the number of people who routinely infringe copyrighted works, largely because of how easy and fast it is.

But does that mean copyright is dead? It really depends on where you stand and how you define the word “dead” but, if you look at it in the simplest sense, the answer is a definitive “No.”

The Death of Copyright is Greatly Exaggerated

The problem with both of the above theories is that they treat copyright law as one thing, as if it were a giant light switch that can be flipped on or off.

But copyright law is not just one right, it’s a collection of rights, privileges and exemptions. While some elements may be seen as more important than others, there are many rights involved ranging from extremely non-controversial to extremely controversial.

This is furthered by the fact that copyright law has a long history of being very adaptive. Considering the Statute of Anne was written at a time when the only mass media was printed word, copyright law had to expand to encompass new technologies, like video, audio and photography, open up to exemptions, such as fair use/fair dealing, and deal with an increasingly democratized media long before the Web.

That history also saw many great challenges to copyright. Infringement has almost always been difficult to enforce, including illegal tape trading in just my lifetime. In fact, for many copyright holders, enforcement is actually easier and more practical today than it was before the Web. Furthermore, attitudes toward copyright have always been mixed whenever individuals have been targeted by it. For example, looking back to home taping, the music industry’s campaign against it was widely ridiculed.

The truth is, even today, most people don’t pirate content (even casually) and only a small percentage are heavy pirates (though the numbers for both increase sharply when you look at the 18-29 crowd). Best of all, the numbers are actually improving thanks to services like Spotify and Netflix that provide legitimate alternatives.

Likewise, a recent study by Creative Commons showed widespread support for attribution rights and a conservative opinion of what should be defined as a commercial use.

In short, even if we assume that fighting piracy is a completely lost cause, there are still many areas of copyright law that remain relatively non-controversial and are, generally, much more enforceable.

Copyright law may change (and may change drastically) but it won’t “die” any time soon.

Bottom Line

In the end, the reports of copyright’s death are greatly exaggerated and, more or less, just for show. Any time someone says X is dead, it’s usually just to get your attention. That true for copyright, hip hop or anything else people are wanting to proclaim as dead.

The truth is that things like copyright routinely change, but rarely die. But even if every world leader woke up tomorrow and decided that copyright was a bad idea and we should not have it, it would take years, if not decades, to unwind all of the various treaties and agreements to completely eliminate copyright.

So even if copyright’s days were truly numbered, it would still be a force for a long time to come.

So, while these are definitely tough times for copyright holders, that doesn’t mean we should be writing the obituary for copyright itself. There’s still a lot more to to write in copyright’s story.

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