Online piracy has become such a topical subject in the digital era that everybody seems to have an opinion about copyright laws. Blogs and online fora are rife with suggestions that copyright has become obsolete or is at best ill-suited to deal with the internet.
Copyright laws are complex and can be confusing. Copyright myths persist among commentators, including Herald tech blogger Juha Saarinen.
Comments in his most recent blog included:
- The internet "doesn't sit well with copyright" as its mode of operation (copying content from a website over to your machine) would seem to make copyright impossible;
- Members of the public in the EU cannot take pictures of buildings without permission form the rights holder, including the Eiffel Tower at night; and
- Lawyers and politicians are ignoring technology and common sense.
Copyright is a property right which exists automatically on creation of certain works (movies, songs, photographs etc.). It gives copyright owners the exclusive right to do certain things with their work, including making and selling copies of their work or authorising others to do so.
In most cases, copyright is infringed by the copying of a work without the copyright owner's consent.
That does not mean however that any copying of a copyright work amounts to infringement.
For example, copying content from a website over to your machine when viewing that content is perfectly legal. It is a technical requirement to temporarily copy that content on your machine to view it. In fact, it is expressly allowed by the New Zealand Copyright Act 1994 (see sections 43A and 175A about "transient reproduction").
Taking photographs of buildings in Europe, including the Eiffel Tower (even if the plans for the building are protected by copyright) is also perfectly legal. Although taking a photograph does amount to making a copy, as mentioned, it does not automatically follow that that copying breaches copyright.
Lawyers and politicians seem to have more common sense on this issue than they are given credit for. Both in France and New Zealand, the lawyers and politicians who drafted copyright laws ensured it would remain legal to take photographs of public buildings and other works displayed in public.
In New Zealand, this right is expressly protected by section 73 of the Copyright Act 1994. The French are more generous. Their Intellectual Property Code provides that once a work is published, the copyright owner cannot stop anyone from making copies for their private and personal use (see article L 122-5 of the French Intellectual Property Code).
Unsurprisingly, the millions of people who take photographs of the Eiffel Tower at night every year are not copyright infringers.
Mr Saarinen gives the example of Rightscorp in the United States to illustrate how the legal system can be perverted by lawyers. Setting up a company to make a business of chasing potential infringers is a particularly American phenomenon (look up "copyright trolls" or "patent trolls" online). It is remarkable that even in the United States this is not proving profitable. Copyright trolls are certainly not common in Europe. Any New Zealand lawyer will tell you they wouldn't have a chance of surviving here.
Copyright laws are far from perfect. As Justice Windeyer said in Australia in a similar context, law and medicine march together, but law is "in the rear and limping a little". Law will always lag technology a little - if it was in front it would be telling us what technology is and can become - obviously that would be a foolish suggestion.
Copyright laws will probably never really catch up with the internet. How could they when technology evolves at a far greater pace than any legislator could ever draft, debate and vote sensible bills into law? They are however still necessary and relevant, albeit a work in progress.
In the meantime, educating the public, copyright owners and stakeholders in general is paramount.
This article first appeared on NZ Herald online