The future of copyright

Steven H.J. Kamminga

3137414
s.h.j.kamminga@students.uu.nl
Information Technology Law
Teacher: mw. Dr. M. van der Linden-Smith
Universiteit Utrecht
Outline

I. Introduction 3

II. Origins and nature of copyright protection 4

III. The current situation 5

IV. A possible future 9

IV.1 The digital musicstore 10

IV.2 The voluntary solution 10

IV.3 Free music 11

V. Concluding remarks 12

VI. Bibliography 13

2
 I. Introduction
I am a twenty-four year old Dutch student living in the center of the Netherlands in typical
studenthousing with two roommates and a stray mouse. I study Communication and New Media,
I believe voting is a civic duty and I don't exercise nearly as much as I would like. Also, I have
broken the law 4,458 times.
Behold here the situation of the internet-smart teenager and young adult. The rise of the
Internet has also given rise to a new form of distributing music; no longer is the buyer solely
dependent on the physical musicstore or the availability of Compact-Discs or cassette-tapes. In
this day and age, most music is 'freely' available on the World Wide Web. Perhaps freely is not
an adequate term - easily available better describes the issue. Because society decided long ago
that the creativity of artists, be it painters, musicians or filmmakers, was worth protecting and has
given them the right to control what is done with their creation: the birth of copyright protection.
Copyright law has nested itself in all law systems; from the Dutch Auteurswet (1912), the
English Copyright, Designs and Patents Act (1988) and its predecessor and first copyright law the
Statute of Queen Anne (1709) and the American Copyright Act (1976) to International initiatives
like the Berne Convention for the Protection of Literary and Artistic Works (dating back to 1886)
and the foundation of the World Intellectual Property Organisation (WIPO). The European Union
has also taken steps for the protection of copyright, most recently in its Directive on the
enforcement of intellectual property rights1. All of these bestow upon the creator of a work the
right to copy, distribute or adapt it.
For generations, this was an adequate system, since the technology needed for the copying
or adapting of works were not something for the average citizen to get their hands on. The first
cracks appeared with the release of cassette-tapes, but it was the rise of the personal computer
and the Internet that changed the entire playingfield. It enabled the average consumer to find their
favorite song or album simply by surfing the (not all that) dark corners of the web and
distributing them in the same manner - all without the consent of the original author. This new
situation invokes a question, which will be the main research question for this paper:

Is the current copyright protection a viable option for these days of web-distributed content and
the phenomenon of illegal music sharing?

1
Directive 2004/48/EC of the European Parliament and the Council, adopted on 29 April 2004.

3
To answer this question, three aspects will be dealt with in this paper: first a look at the history of
copyright, secondly an exposition of the current situation, paying attention to the downloading
phenomenon and recent lawsuits and finally possible future paths for the development of
copyright and the creators of music. This will be summarized in the concluding remarks and from
this an answer to the main research question will be extracted.

II. Origins and nature of copyright protection

Mentioned in the United States Constitution is summed up the goal of copyright protection:

"[The Congress has the power] to promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries"2

This statement, conjured up in a declaration more than 200 years ago, sums up perfectly a
few key elements of the modern day copyright law: (1) to promote progress (2) the author
is granted an exlusive right to their work, (3) for a limited time.
The Constitution of the United States is not the only document to reflect the notion that
works need to be protected to stimulate progress. Globally this has been recognised through the
work of the World Intellectual Property Organization - a body of the United Nations - in its aptly
named WIPO Treaty. It is considered one of the key international pieces of legislation concerning
copyright, using many ideas laid down in the Berne Convention of the late 19th century and
expanding it in the area of the information society for issues not covered by the latter convention.
The parties emphasize in the preamble of the WIPO treaty"the outstanding significance of
copyright protection as an incentive for literary and artistic creation."3 Regionally, this motivation
is also found in a copyright directive of the European Parliament and Council. It is stated in the
preamble of the directive that

"Copyright and related rights play an important role in this context as they protect and stimulate
the development and marketing of new products and services and the creation and exploitation of
their creative content."4

2
Section 8 of the Constitution of the United States of America, adopted on 17 Sept 1787..
3
Preamble of the WIPO Copyright Treaty, adopted on 20 December, 1996.
4
Directive 2001/29/EC, note 2 of the preamble, by the European Parliament and the Council, adopted on 22 May 2001.

4
It seems then, that granting the exlusive right over ones work is vital - if people are allowed to
reproduce works without the authors permission or paying a fee for it, there would be no
incentive to create; why put in all the time and effort when someone is allowed to freely copy it?
One could argue that copyright and technology are therefore closely linked5. Not until the
invention of the printing press, and the possibility of mass printing was it needed to protect
works. During the Industrial Revolution and Enlightenment of the 18th century, reading and
writing became more common practice, and the economic importance of works made the
protecting of the rights of the author even more important. The aforementioned Statute of Queen
Anne from 1709 is commonly marked as the first copyright law6. The United States signaled the
importance of copyright protection in their constitution in 1789 and in the Netherlands copyright
protection saw the light in the early years of the 19th century - a produce of the French
occupation7.
The rights most commonly granted under copyright protection are the right to distribute,
copy and adapt a work. This paper mainly concerns the first two rights, because the main issue
with downloading music illegally is making a digital copy of the 'original' and distributing it on
the Internet.
Most copyright laws include a provision stating the expiration of the rights after a certain
number of years. The Dutch Auteurswet for example states that copyrights expire 70 years after
the death of the author or, in case the author of the work is unknown, 70 years after publication of
the work8. The "limited time" in the U.S. Constitution reflects this sentiment; after a certain
number of years, all works should become part of the public domain. This provision however has
little relevance for this paper - it concerns a recent phenomenon, and not even the oldest Beatles
song comes close to this expiry date.

III. The current situation

One of the first easy ways for the average computeruser to find their favorite music came with the
emergence of the computerprogramme Napster, allowing users to share their music via the
Internet. Finding music on Napster was like searching through a catalogue. Through a collection
of lawsuits, Napster was forced to change its businessmodel and nowadays the popularity of
5
De Cock Buning, 1998, p. 39.
6
De Cock Buning, 1998, p. 40.
7
De Cock Buning, 1998, p.41.
8
Art 37 Auteurswet.

5
Napster is but a fraction of its former days9. But with Napster, the cat of sharing your music
online was out of the bag, and other initiatives sprung to life. These new initiatives were
supposed to offer faster downloading, easier searching etcetera, everything you might expect
from newer programmes copying the idea of the older one. These new programmes however also
tried to find new and innovative ways to circumvent copyright protection, as to avoid lawsuits by
the music industry. One of the latest trends in music (and movie) sharing for example, is the idea
of torrenting: a music file gets cut up into smaller pieces, and the user of a torrentprogramme
offers only fractions of the original file. The receiving user, or more appropriately the
torrentprogramme, combines all the individual pieces to form the complete music file. The issue
then becomes whether the sharing of only a fraction of a music file constitutes a copyright
infringement of the whole work.
The goal of this paper is not to debate whether these new ways of sharing music actually
fall under the definition of breach of copyright - we simply accept the fact that there is alot of
music being shared online that their authors do not get (monetary) credit for, or the rights granted
to them by the copyright laws; the right to copy, distribute or adapt. The International Federation
of the Phonographic Industry (IFPI) estimated in a comprehensive study that in 2008, 40 billion
(that's 40,000,000,000) files were illegally distributed over the Internet10. That's roughly 6 songs
per inhabitant of planet earth, and just under 24 songs per person with access to the Internet 11.
That's 2 albums of Bruce Springsteen per person. There is an ongoing debate however about the
financial damage to the industry because of the illegal downloading phenomenon. The Recording
Industry Association of America (RIAA) claims an annual economic loss of 12.5 billion US
dollars globally because of online music piracy12. Others however find these numbers to be
inaccurate, by stating that the assumption that downloading one item illegally constitutes to one
legal item going unsold is false13. Although the statement was made in a discussion specifically
concerning software piracy, the same holds true for music piracy. Still, there is no denying that a
vast majority of music is illegally downloaded from the Internet.
It is no surprise then that artists and the music industry are eager to get this problem under
control, and the most obvious way is by demanding the judicial enforcement of copyright law.
9
The current programme is located at http://www.napster.com
10
IFPI.org, 2009, at http://www.ifpi.org/content/section_resources/dmr2009.html
11
Calculated by using statistics provided by internetworldstats.com, which estimates 1,802,330,457 people have internet access.
12
RIAA.org, at http://riaa.org/faq.php
13
Tweakers.net, Hoogleraren VS: verliezen door pitarerij niet bewezen [translated: “university professors US: losses by piracy
not proven”], 18 June 2010.

6
There were a number of cases brought before different courts concerning the illegal sharing of
files - both against the creators of filesharing programmes and its users. Most conflicts don't
make it to court, because of the fact that programmecreators and users don't posess the financial
strength for long court battles, unlike the music industry: the battle of David versus Goliath.
A recent American case concerned the file sharing programme Limewire, which was
brought before a court in New York by several record companies14. One of the issues is often that
these file sharing programmes can also be used for the legitimate sharing of files, for instance the
sharing of papers on a university. Thus, the programme designer can claim he has made a
legitimate programme, that is being used for illegal acts by its users. The Court in this case
decided otherwise however, based on a standard set by an earlier case concerning the file sharing
programme Grokster15. The Court judged in the Limewire case:

"In conclusion, the evidence shows [Limewire] has engaged in purposeful conduct that fostered
infringement, with the intent to foster such infringement. [Limewire] distributes [the program], and
(1) is aware the Limewire's users commit a substantial amount of copyright infringement; (2)
markets LimeWire to users predisposed to committing infringement; (3) ensures that LimeWire
enables infringement and assists users committing infringement; (4) relies on the fact that
LimeWire enables infringement for the success of its business; and (5) has not taken meaningful
steps to mitigate infringement. Accordingly, the Court GRANTS Plaintiffs' motion for summary
judgment on their claim of inducement of infringement against [Limewire]." 16

A similar case was brought before a Dutch Court by the Dutch anti-piracy agency Stichting
BREIN (Bescherming Rechten Entertainment Industrie Nederland). This particular case was
against the website The Pirate Bay, which offered a collection of links to torrent files - the basic
file needed for the exchange of files through a torrent programme. The Court could not, on the
basis of the facts brought before them, conclude that the website itself had made a breach of
copyright, but at least facilitated it by offering its service to the users, which in turn caused
significant financial harm to the parties represented by Stichting BREIN. The Court ordered The
Pirate Bay to make the website unavailable to Dutch Internet users17.

14
Arista Records et al v. Limewire, 2010.
15
Metro-Goldwyn-Mayer Studios v Grokster, 2005.
16
Record companies v. Limewire, 2010 at pp. 41-42.
17
Stichting BREIN v. The Pirate Bay, 22 Oktober 2009.

7
 An alternative to persecuting the facilitators of the illegal file sharing, is going after the
users of such file sharing programmes. Because of the sheer number of users, it is impossible to
persecute every single individual, but one might hope that the conviction of one might have a
discouraging effect on other users. One such case was brought before an American Court by the
Recording Industry Association of America, the equivalent of the Dutch stichting BREIN.
Although the Association had already threatened legal action against multiple individuals, until
the case of Mrs. Thomas-Rasset, all individuals had opted for a settlement. Mrs. Thomas-Rasset
however was the first person willing to take this case to court, which makes it a landmark
judgment. With hindsight however, she might have been better off with a settlement. It was found
she had violated the copyright by sharing 24 songs. The damages were priced at 80,000 US
dollars per song, forcing her to pay nearly 2 million US dollars to the RIAA18.
These cases offer no solution however to the phenomenon of music piracy. The sheer
number of ways to distribute music online and the millions of people participating in the process
make combating piracy through the Courts highly impractical. Besides this fact, cases like the
one against Mrs. Thomas-Rasset may seem disproportionate in the eyes of the average person and
may do little more than affect the reputation of the music industry. Whether such exorbitant fines
have a discouraging effect should be doubted: the amount of users sharing music makes it highly
improbable that the music industry should target you specifically.
An alternative is harsher legislation, like the "3 strikes law", sometimes named a
"graduated response". One example of such a law is the HADOPI law adopted by the French
government in 2009. The wish to protect creativity and copyright on the Internet is clearly stated
in the full name of the law: 'Loi favorisant la diffusion et la protection de la creation sur Internet'
or in English 'law promoting the distribution and protection of creative works on the internet'.
HADOPI refers to the agency that is created to enforce this online copyright law. The agency
gives three warnings (the three strikes) to users who are suspected of distributing music illegally
over the Internet. After these three warnings, the internetconnection of the user is terminated.
Whether this is an effective means for fighting piracy is debatable; a recent study shows French
piracy actually increased after the passage of the French law, showing the law has but a limited
discouraging effect19. Furthermore, the Conseil Constitutionnel, whose job it is to test new
legislation for its compliance with the French Constitution, ruled that the new law conflicted with
18
RIAA/Capitol v. Thomas-Rasset, 19 June 2009.
19
CREM & University of Rennes, March 2010.

8
the Constitution, because access to the Internet could be interpreted as a right for freedom of
expression:

"In the current state of the means of communication and given the generalized development of
public online communication services and the importance of the latter for the participation in
democracy and the expression of ideas and opinions, this right [the right to freedom of expression]
implies freedom to access such services."20

If this interpretation of internet access as a human right holds, legislation like the French three-
strikes law might be impossible to enforce.
The question is then, why do people break the laws of copyright? It might be an act of
civil disobedience, similar to the situation in the Netherlands concerning the ban on smoking in
bars and cafes. Through the act of illegal music downloading, one might signal that the prices
asked for legal music are too high. It is doubtful however that the majority of music downloaders
is motivated by this. Alternatively, one might simply be unaware that they are breaking the law
by illegal downloading music. This however seems highly unlikely, except when it involves a
child. Most people know that very few things in this world are offered free, and when an album is
offered for free on the Internet while the same costs over 10 euros in a (digital) musicstore, this
should raise questions for someone applying common sense. One might even argue, through a
ulitarian approach, in which the greatest good for the greatest number of people is pursued, that
the law itself should be changed: simply because the downloading of music is such a common
practice nowadays.
We have established that enforcement of current copyright law is largely ineffective, and
secondly that music downloaders are not hindered by the fact that they are breaching copyright
law by their actions on the World Wide Web. What then can be the solution to this apparant
stalemate?

IV. a possible future

The purpose of the following paragraph is not simply looking into a crystal ball - I will discuss
three possible solutions to the aforementioned problems that already have begun to take shape in
modernday society: (1) the digital musicstore, (2) the voluntary solution, (3) free music.

20
Conseil Constitutionnel, 10 June 2009 at para 12.

9
IV.1. Digital musicstore
The model of buying CD's in a physical musicstore can't compete with the ease of getting your
music by a single mouseclick without ever leaving your house. One option then would be to
search for solutions by bringing the model of a musicstore to the World Wide Web. Apple
pioneered this area with their iTunes store21, and combined with their innovative mp3-player
iPod, this has been a huge success: in 2010, seven years after opening its digital doors, Apple has
sold billions of songs and is now the largest online retailer of music22. The iTunes store offers its
customers the possibility of not only buying complete albums, but also the option of buying
individual songs for a small amount of money and even giving them the option of a short sample.
It takes the risk out of buying a complete album based on the catchy sounds of one familiar song.
Buying music online has, according to a survey, become a viable alternative amongst American
teens to downloading their music through illegal channels23 - an indication that this approach
might be an effective means of solving our stalemate. And the benefit of this system is that it fits
into our current copyright legislation: instead of licensing the sale of their music to the physical
music store, it instead makes a contract with the digital music store. This way the artist has the
possibility of reaching more customers through an easier way of distribution.

IV.2. The voluntary solution

This option might also be called "the Radiohead solution", for it was the band Radiohead that
brought this into the spotlight of mainstream media. The band offered their album "In Rainbows"
to their fans online - and those downloading the album were allowed to decide for themselves
how much they were willing to pay for it (filling in zero was also an option24). They took
advantage of the new possibilities for distributing their content that was offered by the Internet -
no longer are they dependent on record companies for their distribution. In a way, this might be
the liberation of the artist, no longer needing to bend to the wishes of the record label, but able to
reach out directly to its fans. This also fits within the framework of our current copyright
protection: the artist chooses the way its creative work is distributed. The problem with this (what
is effectively a new) businessmodel is the fact that Radiohead was already an established name in
21
Located at http://itunes.apple.com.
22
“iTunes Store Top Music Retailer in the US”, 3 april 2008. Found at http://www.apple.com/pr/library/2008/04/03itunes.html.
23
PC Pro, “Online music stores dent teens’ p2p habit”, 16 april 2008. Found at http://www.pcpro.co.uk/news/110194/online-
music-stores-dent-teens-p2p-habit.
24
Businessinsider, “Radiohead’s New/Old Business Model: Free Music”, 30 Sept 2007. Found at
http://www.businessinsider.com/2008/9/radiohead-newo.

10
the music industry; it already had a loyal following, guaranteeing a certain of money being
generating by distributing through their own internetportal. A new band would probably lack the
skills or knowledge for promotion that the apparatus of an established record label brings to the
table.

IV.3. Free music

The first two alternatives mentioned above still demand a fee from the consumer, however little.
Even in the case of Radiohead, consumers are asked to pay for the album - even though filling in
a zero amount is an option. The idea of offering music for free is a very radical approach that
would change the nature of the music industry and the business of record companies. Because all
change is difficult, this scenario is, for the foreseeable future, one of the more unlikely ones in
Western society. Key phrase here being Western society - in some societies the circumstances
forced the industry to evolve into this new era of free music. Key samples are Brazil and China.
Music piracy in those countries was even more the norm in those countries than the Western
countries - buying music was the exception. Record companies had no other choice but to change
their businessmodel into generating revenue from sources other than the sale of albums25.
The model of free music is based on the idea that free music offers maximum exposure
and promotion: everyone gets a chance to sample your music. It is when you've hooked your fan
that you start reeling in the money. If the customer wants a unique recording of your album, that's
fine, but they'll have to pay extra money. If they want to see you perform at a concert, no
problem, but the ticket will be a slightly higher price. The role of a record company has changed
from a distributive role to a promotional one. One executive of record company EMI strikingly
phrases this idea by saying "We went from being Robbie Williams' record company to being his
marketing company."26
This system also works within the boundaries of our current copyright system: the artist
simply chooses to distribute its work for free. This would however require a major overhaul of
the music industry. Change is difficult, but radical change is radically difficult.

25
Wired, “Free: An excerpt from Chris Anderson’s Book”, 20 July 2009. Found at http://www.wired.co.uk/wired-
magazine/archive/2009/08/features/free?page=1.
26
Harvard Business School “Is iTunes the Answer to Music Piracy?”, 2 Feb 2004. Found at
http://hbswk.hbs.edu/archive/3882.html.

11
 V. Concluding remarks
In this paper I have explored the history of copyright and regarded this in the light of the recent
developments in the area of illegal music downloading. I set out with the main research question
"Is the current copyright protection a viable option for these days of web-distributed content and
the phenomenon of illegal music sharing?".
History, and common sense, indicate that the protection of rights for the author is vital - it
is an important incentive for the creation of a work. Where no rights are guaranteed, the author
runs the risk not benefitting from all the hard work and effort he put in the creation of his work.
This is exactly the state of things now, with the arrival of the Internet and a global
network. Earlier, the technology to copy and the ability to widely distribute a work were outside
the financial means of the average consumer. Recent technological developments have made it
possible for the average consumer to make a copy of the protected work and distribute it through
a global network with a potential consumerbase of millions, all without asking permission of the
original author.
There have been various lawsuits against copyright infringing companies and individuals
- those facilitating the illegal music sharing, and their users who do the actual sharing. We have
concluded however, that these lawsuits ineffective and fines may seem disproportionate. We have
therefore explored possible alternatives in the latter part of this paper.
Three alternatives were evaluated; the digital musicstore, the voluntary solution and free
music. They all demand varying amounts of money from the consumer and, some more than
others, demand a different way of thinking and an overhaul of the businessmodel of the music
industry. The beauty however, lies in the fact that all three models would be able to function in
the current system of copyright legislation. It would once more offer the author of the work to
decide how and when to distribute his music, and slowly reclaim some of the ground he has lost
to the phenomenon of illegal music sharing.
The answer therefore is an emphatic yes; our current copyright protection is still a viable
option in these days of web-distributed content and the phenomenon of illegal music sharing.

12
 VI. Bibliography
Cock Buning, M., de, Auteursrecht en informatietechnologie; over de beperkte houdbaarheid van
technologiespecifieke regelgeving, Amsterdam: Otto Cramwinckel uitgever 1998.
Conseil Constitutionell. Act furthering the diffusion and protection of creation on the Internet
(2009/580), 10 June 2009.
CREM & University of Rennes. A first assessment of the effects of the law Hadopi on the
practices of French Internet, 1 March 2010.
Minnesota District Court. Case of RIAA/Capitol v Thomas-Rasset (0:2006cv01497), 19 June
2009.
Parliament and Council of the European Union. Directive on the harmonization of certain aspects
of copyright and related rights in the information society (2001/29/EC), 22 May 2001.
Parliament and Council of the European Union. Directive on the enforcement of intellectual
property rights (2004/48/EC), 29 April 2004.
Rechtbank Amsterdma, Case of Stichting Brein v. The Pirate Bay (LJN: BK1067), 22 Oct 2009.
Supreme Court of the United States of America. Case of Metro-Goldwyn-Mayer et al v. Grokster
(04-480), 27 June 2005.
United States District Court. Case of Arista Records et al v. Lime Group (06 CV 5936) 10 May
2010.

13