Copyright is a legal provision that
protects creators of original content from replication and sale without
permission. The copyright holder is the person or party whose ownership of a
product or content is permitted. Violation of copyright is a crime and the
copyright holder is entitled to sue for damages upon detection of an
infringement (LaFrance, 2008). The law stipulates conditions under which a
party can successfully be granted copyright which include originality among
other provisions. The importance of copyright to businesses is that it helps in
securing their profitability. However, its enforcement may be subject to a
number of challenges with range from technological developments and the
enforcement of the first sale doctrine. This article discusses copyright in
light of “Copyright Ruling Rings with Echo of Betamax” by Porter (2013) and
offers recommendations for challenges faced.
Porter (2013) discusses some of the
rulings on copyright and the implications they have on the business legal
environment. The article is a reflection on the conflict between the need to
enforce copyright in favour of copyright holders and the need to embrace
emerging market developments. One of the battles depicts Sony Betamax against
the American film producers. The product enabled users to record their
favourite programs in order to watch them at a later time (Porter, 2013). In a
decision that was bound to be against Betamax (before one of the judges changed
her opinion), the Supreme Court had been of the opinion that since it was
illegal to copy content without the copyright holder’s consent, Betamax was an
accessory to crime by facilitating it.
Another copyright ruling highlighted by
Porter (2013) pitted leading American studios against Blockbuster, Netflix and
Redbox who were reselling videotapes for profit. The Congress declined to stop
them citing the provisions of the first sale doctrine. This doctrine was also
evoked in the case of John Wiley &
Sons versus Supap Kirtsaeng. The defendant had obtained cheap books from
his friends and relatives and resold them in the USA at a profit (Porter,
2013). In determining that Supap Kirtsaeng had not violated the plaintiff’s
copyright, the court ruled that he had the right to resell the books provided that
he had legally acquired them.
The article cite the fact that these
court rulings have been instrumental in facilitating technological developments
making it possible for products such as DVDs and online services such as
Youtube to exist. Nevertheless, this article highlights the nature and
intention of copyright provisions and the challenges that are faced in
enforcing the same.
The history of development of copyright
laws can be traced to development of the printing press. The earliest form of
protection of written content was in the UK in 1469 when Tom of Speyer was
granted sole rights to print letters of Cicero and Pliny for 5 years by the
Republic of Venice. In 1518, Richard
Pynson was granted by the King of England protection for his book whereby
reprinting and importing versions of the same was disallowed for a period of
two years (De Wolf, 1925, p. 2). The governments would then grant special
rights of printing to individuals especially those who were well-placed
politically. However, the focus would gradually change towards protection of
private enterprise and protecting businesspersons from having their works
reprinted and distributed against their will. The first formal copyright law
was enacted in 1710 in England. The law dubbed 8 Anne had provisions in Chapter
19 that provided for copyright protection for authors for a period of 21 years
for books that already existed and 19 years for new books with a possible
renewal of 15 years (De Wolf, 1925, p. 7). The rights originally granted to
book authors have subsequently been expanded to cover content creators
including dramatists, music composers, artists, photographers, engravers and
others.
The main condition for being granted
copyright is originality. This implies that the person or organisation applying
for copyright must be able to show that the work is original (Stim, 2000).
However, the provision for originality is not stringent and a display of
different arrangement of material or manifestation of a different taste could
be a sufficient distinguishing factor. In the case of Sawkins v Hyperion (2004), the claimant had gone ahead to edit the
work of a composer which was yet to be copyrighted and royalty paid (Torremans,
2009, p. 15). The fact that the claimant was able to inject his skill into the
work qualified the work as original and the defendants did not have a
justifiable argument when they stated that the improvements made on the work
could have been realised through subsequent rehearsals.
The interpretation on the arrangement or
display of skills in materials has also been brought out in the case of Burrow-Giles Lithographic Co v. Sarony
in 1884 (Casenotes, 2007, p. 2). In this case, a photographer, Sarony, had
secured copyright to the photographs of Oscar Wilde. Burrow-Giles however went
ahead to sell copies of the same. The court of appeal ruled that the
photographs by Sarony were copyrightable. This was due to the fact that their
collection and arrangement bore the skill, creativity and originality in the
presentation of the same.
The copyright provisions are not
absolute. There are exceptions that are acceptable that can warrant
infringement of copyright to be allowed. For instance, in matters of public
interest, copyright can be restricted if it is found to deny the public access
to the materials concerned (Torremans, 2009). The application of this
limitation however raises many questions with many being uncomfortable with the
absence of a formal definition of what constitutes public interest. Limitation
can be related to power relationships, national mentalities, and political
circumstances (Torremans, 2009). Strong overriding public interest can include
factors such as freedom of information while national mentalities could be
related to questions such as the interlude between protection of copyright and
facilitating growth of industries.
Porter (2013) discusses the implication
that the Supreme Court ruling had on the field of technology. He notes that a
negative ruling would have meant that all technologies that allow the copying
of content would have been outlawed by virtue of being facilitators of a crime.
This decision can therefore be linked to the prevailing national mentality
which can be presumed to be the implication that a contrary ruling would have
on future technological developments. Another inference can be made in the
decision on John Wiley & Sons versus
Supap Kirtsaeng where the defendant was allowed to resell Thai books within
the USA market (Porter, 2013). This can be interpreted as a decision that pits
the interests of the local consumer against the rights of the foreign
investors. In consideration of the national interest, the rights of the local
consumer are likely to be an overriding factor. This is besides the explicit
provisions of the first sale doctrine which has been alluded to by Porter
(2013) when he describes the several rulings in relation to copyright laws.
In the Betamax case, the underlying
provision is the acknowledgement of the fact that it is illegal to replicate or
distribute content without the consent of the copyright holder (Porter, 2013).
This provision remains the position in law. However, as is observed in Porter’s
article, there are many limitations that could come into effect hence limiting
the rights of the copyright holder. One such limitation is the doctrine of
first sale. The doctrine of first sale doctrine was first developed in the case
of Bobbs–Merrill Co. v. Straus in
1908 when the courts held that: even though the original seller has an
exclusive right for sale and distribution of products, this right does not
extend to the imposition of price limitations on secondary sales (Newman, 2010,
p. 851). In this case, Bobbs–Merrill Co sold copyrighted material to the
defendant. The retail price of the book was stated to be $1 and there was an
explicit provision that all retailers must uphold this price. The defendant
subsequently bought a large amount of books and resold them at 89cents. On
being sued, the courts held that the defendant had purchased and assumed
ownership of the books and could therefore not be restricted on the price to
sell them at. This reasoning is reiterated in Porter’s article (2013) in John Wiley & Sons v. Supap Kirtsaeng
where the defendant obtained books for resale in the USA.
Porter (2013) outlines the impact of the
decisions made in enforcing restrictions to copyright as good for the customer
and bad for the organisations. The customers are able to have greater access to
products at affordable prices. The organisations on the other hand are faced
with the need to embrace different pricing strategies if they are to avoid
losing demand to resellers. This view reiterates the position taken by Long
(2006) who cites developments in the digital era as real and warranting
important changes to be made to copyright provisions. For instance, the threat
of resale is highest in the digital era where individuals can have access to a
vast market at the click of a button (Rotstein, Evitt and Williams, 2010). The
emergence of electronic products also makes it difficult for organisations
whose products are only in print to survive in the market.
McGrail and McGrail (2010) on the other
hand view digitisation as an opportunity for organisations. Instead of selling
physical products over whose resale they cannot control, organisations can
utilise the growing preference for electronic products to excel in the same. As
Porter (2013) holds, it is possible for electronic products to be designed in a
manner that restricts their usage according to region or even usage where the
usability can be reduced over time. This could help in countering resale. This
idea can also be extend to include codes in the products that restrict the
number of times it can be shared by different computers.
In regards to limitations related to
physical products, Porter (2013) proposes that foreign companies avoid
segmentation based on price and instead focus on maintaining low prices in the
foreign markets. Profitability can thence be maintained by controlling costs
such as through the use of cheaper printing materials.
Porter (2013) highlights the challenges
that are faced in enforcing copyright. These challenges have been highlighted
as limitations related to national mentality, public interest matters,
political interest and the application of the first sale doctrine. However, the
fundamental provisions remain the same: protection of copyright. Even though
the digital revolution makes it easy for resellers to access wide markets, it
also provides organisations with the option of overcoming this challenge.
Converting content into digital products can make it easy for restrictive codes
to be attached to products hence be able to limit the number of users and
region where such products can be usable. These are dynamics in the copyright
laws that the organisation needs to appreciate in order to be competitive over
the long term.
For more theory and case studies on: http://expertresearchers.blogspot.com/
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