Copyrights and copywrongs

Copyrights are the engines of free expression that turn the wheels of progress. But what if whoever invented the wheel had patented it?

American jurists who arrived last week to train Pakistani judges in intellectual property laws linked these rights to free expression, scientific progress and better economy. The new chairman of Pakistan’s Intellectual Property Organisation, Hameedullah Jan Afridi, promised reforms. But if piracy is detrimental to progress, the US content industry should have made no progress at all. Because its history is a history of piracy.

The Hollywood film industry developed as directors and producers moved to California en masse in order to avoid controls based on Thomas Edison’s patent on filmmaking. Unlicensed or ‘independent’ filmmaking was in full swing in 1909 when the MPCC created a strong-arm subsidiary that used coercive tactics to stopped the practice. Shootings were disrupted, and machinery stolen and other sabotage activities were carried out. Independent filmmakers, including William Fox, to flee to California and pirate Edison’s inventions without the fear of law. But the patent at that time lasted only for 17 years, and had ended by the time any effective implementation of the law could be carried out.

Music recording companies initially flourished because of a flaw in the copyright law. They refused to share profits with composers because they argued that recording a song in a house and its subsequent playing did not constitute a public performance. The US Congress resolved this by enacting compulsory licensing, subsidising piracy to ensure the people had access to a wider range of music.

When cable television began in the US in 1948, most operators refused to pay anything to the broadcasters whose content they were relaying, even when they charged customers. They were not just committing piracy but making money out of it. Copyright owners took the cable companies to court, and the US Supreme Court ruled twice that the cable operators owed nothing to them. The US Congress decided eventually that it, and not the copyright owners, would decide what price cable TV owners would pay.

Sony was taken to court by after it launched its Betamax system in the US, because it allowed recording and playback and therefore could be (and was) used for violation of copyrights. Film producers went to the extent of calling it a Japanese conspiracy to destroy their market. In the 1984 Sony Corporation of America vs Universal City Studios Inc case, the US Supreme Court ruled that recording of shows, or time-shifting was fair use. After that, the video market boomed and became a major source of revenue for the very film producing companies that had opposed it.

But in more recent cases A&M Records v Napster (2001) and MGM Studios vs Grokster (2005) the US Supreme Court did not accept an analogy between the Betamax and the new peer-to-peer Internet file sharing, bringing progress in the new groundbreaking technology to a virtual end.

Decisions made by Pakistani jurists and lawmakers can have similar make-or-break effects on technology and progress.

Any estimates of how much money is lost to piracy in Pakistan is based on the assumption that people will be able or willing to pay for content or ideas legally, even if they were much more expensive. Legal reproduction of certain books, movies and innovations might not be economically viable in Pakistan but essential for progress. Because new ideas are based on older ones. “If I have seen a little further,” Isaac Newton said in a letter to his rival Robert Hooke, “it is by standing on the shoulders of giants.” Restricting the pool of ideas available to Pakistanis, in that way, will deter progress.

Copyrights may be claimed to silence or censor new perspectives. American author Alice Randall, who was outraged with racist stereotypes in novel Gone with the Wind, was prohibited from publishing a retelling of the story from a slave’s perspective, because of copyright laws.

Burdens of cost to pay for any use of copyrighted material in useful derivative works is a disincentive for artists. Most of such material is owned either by large international conglomerates and is therefore too costly, or by Pakistani media corporations who already monopolise the ideas market, or by smaller organisations or individuals who cannot be contacted because of administrative constraints or simply can’t be found. A low-budget documentary film director was asked by Fox to pay $10,000 for a 4.5 second clip of The Simpsons running on a TV in the background of stagehands playing checkers. Such exercises of power will limit the diversity of ideas essential for progress, because they are one-way. An individual in Pakistan cannot afford to sue a corporation if it violates his copyrights.

The idea that innovators should turn to the market rather than to the government for patronage is only useful if it ensures freedom and diversity. Thomas Jefferson, one of the founding fathers of America, said in a letter that he did not believe “inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs”. He argued instead that even the ownership of tangible property is “a gift of social law”.

Ideas are different from physical property because they are nonexcludable and nonrivalrous. They can be consumed simultaneously by an unlimited number of consumers without being used up. In a market economy, there might be a need to give incentives to inventors and artists in the form of a temporary monopoly, Jefferson said. But if this monopoly becomes a disincentive, it should be withdrawn.

The author is a media critic and the News Editor, The Friday Times. He can be reached at [email protected]