Property for Free? An Analysis of Music and Copyright in the Digital Age

Date01 January 2012
Property for Free? An Analysis of Music
and Copyright in the Digital Age
In light of new challenges posed by digital advancements, this article
considers the consequence of new media on the effective operation of
intellectual property. In particular, the ongoing struggle between music
rights-holders and the spurt in digital reproductive technologies illustrates
the difficulty in balancing the protection of intellectual property rights with
the fostering of new innovation as the legal structure of copyright is
disrupted and tensions in the bargaining position between the rights-holder
and the public are augmented. In effect, the outcome of this copyright
debate will have repercussions on the public’s right to information and the
future existence and power of copyright.
This article sets out the doctrine of copyright itself, introducing the
legitimate objectives of copyright coupled with public interest and fair use
limitations. As legal discourse has expanded beyond direct primary infringe -
ment of copyright to the potential liability of third parties, secondary
infringement liability schemes will be reviewed in order to analyse the
current application of the copyright doctrine. This leads us to examine the
very existence of a copyright doctrine in the digital era. Transposition from
the “hard copy” world to the digital environment has found our traditional
perception of copyright ill-equipped to deal with the challenges posed by
digital technology. This article draws the conclusion that in order for a
copyright doctrine to survive and to be respected, it is in need of serious
reform to suit modern social and cultural forums.
Background to Copyright
Copyright is not a natural right, nor is it absolute. However, it can be
described as a complex legal doctrine, which may be incapable of ever
achieving its aim. Having no single overarching goal, copyright law builds
upon two extreme principles: firstly, fostering the creation of socially
* LLB LLM. Part of this article was submitted as my Thesis in partial fulfilment of the
requirements for the degree of LLM in International Commercial Law, University of
Limerick, 2010. I would li ke to thank my supervisor Laura Donnellan for her
continued support.
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valuable works which necessarily entails dissemination to the public and
secondly, to provide economic incentives to create by granting the creator
limited monopoly over their creative endeavours.1Copyright is thus not a
one-sided regime which creates a private property right based on the moral
notion of ownership, but instead it must take account of the balance which
is to be struck between the parties.2These goals have been articulated on
many occasions, including this succinct summary:
The limited scope of the copyright holder’s statutory monopoly, like
the limited copyright duration required by the Constitution, reflects a
balance of competing claims upon the public interest: Creative work is
to be encouraged and rewarded, but private motivation must
ultimately serve the cause of promoting broad public availability of
literature, music, and the other arts. The immediate effect of our
copyright law is to secure a fair return for an ‘author’s’ creative labour.
But the ultimate aim is, by this incentive, to stimulate artistic creativity
for the general public good.3
While the objective of copyright is thus logical, it is undoubtedly a
precarious balance, which faces the “impossibility of serving one of the
described objectives without disserving the other”.4
In the face of this dichotomy, copyright’s balance of incentives has
become increasingly difficult to achieve in the digital realm due to the
unprecedented simplicity in casual redistribution methods. Notably, copy -
right holders have never been entitled to full control over their works, and
there has always been a reserved public right to access as “copyright [only]
makes sense as an incentive if its purpose is to encourage the dissemination
of works in order to promote public access to them”.5The danger is that
the right of access for the general public may not be sufficiently protected if
copyright law is stringently and broadly enforced. Importantly, copyright
holders are not granted monopoly over exploitation or use of their works,
but instead retain the exclusive rights of distribution and reproduction.
Following this rationale, dissemination can actually be viewed as a goal of
copyright and if the fundamental copyright right is seen to be the right to
control reproduction—does copyright make sense in an environment where
we have unlimited means of instantaneous reproduction? Indeed it is a
1The object ives of copyright can fall on e ither side of t hese two extreme views, but
most often is said to fall somewhere in between.
2 Indeed copyright can be described as a form of “bargain betw een the p ublic and
copyright holders”—Jessica Litm an, ‘Revising Co pyright Law for the Information
Age’ (1996) 75 Or. L. Rev. 19, p.31
3 Twentieth Century Music Corp. v Aiken 422 U.S. 151, 156 (1975) (US SC)
4 Peter Jaszi, “Toward a theory of Copyrig ht: The Metamorpho ses of ‘Authorship ’’
(1991) 2 Duke L.J., p.464
5 Copyright grants pr operty-like rights to the right- holders in return for access to t he
protectable works—Litman, supra note 2, p.33
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