The Right to be a Copycat

by padraigcolman

This article appeared in Ceylon Today on Friday December 19 2014.


Colman's Column3

Some thoughts on intellectual property rights.

Pirates are not only a problem off the coast of Somalia. BSA (The Business Software Alliance) CEO Robert Holleyman says, “Software piracy persists as a drain on the global economy, IT innovation and job creation. Governments must take steps to modernize their IP laws and expand enforcement efforts to ensure that those who pirate software face real consequences.”

The BSA 2011 Global Software Piracy Study recorded a 2% drop in its PC piracy rate in 2011, bringing the rate down to 84% from 86% in 2010. Shalini Ratwatte, Consultant to the BSA Sri Lanka Committee saw this as “a clear indicator that efforts within Sri Lanka to improve the levels of awareness and adherence to intellectual property rights are effective. We are certainly on the right path, as the country journeys towards creating a more vibrant IT industry and a strong offshoring destination for global IT companies”.

I wonder if Sri Lanka is really getting to grips with this. When I bought a new PC in Colombo a few years ago, the supplier entreated me not to tell Microsoft about him. I did take the precaution of buying authorised software myself direct from Microsoft. Whenever I take the PC in for repair, it comes back with a great deal of unauthorized and unwanted software with which the over-enthusiastic technicians have gifted me without asking.


The BSA argues that the chief reason for not using unlicensed software is avoiding security threats from malware. How does that argument work with DVDs? Sitting down to watch a movie one is assailed by a noisy prologue asserting: “You wouldn’t steal a handbag, you wouldn’t steal a TV etc”. There is an irony in this strident propaganda against pirate DVDs because the disc on which it was included was purchased in Majestic City for 230 rupees, a long way from the cost at Amazon (not to mention the rapacious postal charges and the dirty fingers of the customs people at the post office). These pirate emporia are openly advertised in reputable business magazines in Sri Lanka.


Where does one buy pukka DVDs in Sri Lanka? I would be happy to support the wholly admirable Criterion Collection but they do not ship to Sri Lanka. If I can get the complete works of Ingmar Bergman for a reasonable price – what to do? Whom am I hurting? Certainly not cheery old Ingmar! Should I feel sorry for all those starving Hollywood stars and producers? Most of the knock-off DVDs I buy in Colombo would not be bought at all if they were full price.

Philip Danks, 25, was given a two-year and nine-month jail sentence at Wolverhampton Crown Court he secretly took a video Fast and Furious at the Showcase Cinema in Walsall on the day it was released in the UK before being shown anywhere else in the world. Chris Marcich from the Motion Picture Association of America said: “Online copyright infringement represents a significant threat to the continued success of the UK’s creative industries and to the continued development of legal sources of film and TV content. It is important that those making money on the back of other people’s hard work and creativity, paying nothing back into the creative economy, are held accountable.”

The earliest recorded historical case law on copyrights comes from ancient Ireland. The Cathach is the oldest extant Irish manuscript and the earliest example of Irish writing. It is traditionally ascribed to Saint Columba as the copy of a Psalter lent to Columba by St Finnian. A dispute arose about the ownership of the copy and King Diarmait mac Cerbaill gave the judgement: “To every cow belongs her calf, therefore to every book belongs its copy.”


A copyright, as the word suggests, is the right to make a copy. The passage of a law known as the Statute of Anne in 1710 protected books. If you buy a book, you can do many things with it but you cannot make copies of it. The right to do that belongs to the author of the book and the author’s heirs and assigns.


Article I of the US Constitution gives Congress 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.” The Copyright Act of 1790 set the length of copyright at fourteen years, renewable for another fourteen, after which the work falls into the public domain. In 1831, copyright was made renewable for up to forty-two years from the time of publication; in 1909, for up to fifty-six years. In 1976, the law was rewritten to protect copyright for fifty years after the death of the author. In 1998, protection was increased to life plus seventy years, thanks to the passage of what is known as the Sonny Bono (of I Got You Babe fame) Copyright Term Extension Act.

The original Article 1 prohibition was designed as an incentive for the protected party. For a limited period, authors enjoy the profits from sales of their books, and this induces people to write. Prohibiting copying and selling someone else’s original work is a way of encouraging the writing of useful or entertaining books, just as awarding a patent is a way of encouraging the invention of useful or enjoyable things. The intended ultimate beneficiary is the public not the creator. After the term of protection expires, a work cannot be copyrighted again and becomes a public good.

In an illuminating article entitled Copywrong in the New Yorker dated October 20 2014, Louis Menand points out that the film industry, the music industry and the publishing industry, make money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and talks about protecting the dignity of the artist.


The research and writing that academics do is part of their part of their salaried job. They do not depend on sales to live. They happily write pro-bono for scholarly journals or newspapers because it raises their profile in the world that does pay them. Freelancers, relying on Grub Street for the grub on their table, are not so sanguine about others cutting and pasting their work on the internet or on editors, who themselves are on salary, thinking they are doing the author a favour by publishing his or her work without payment.

Academics oppose copyright protection because, reasonably enough, they want access to the research in their fields. Companies like Springer, Elsevier, and Wiley make gigantic profits by charging enormous fees to the libraries of the universities that supported the very work they are selling back to them.

In parliamentary debates in the nineteenth century, Thomas Babington Macaulay called copyright “a tax on readers for the purpose of giving a bounty to writers.” Creators want to sell high, and consumers want to buy low.


First established in 1886, the Berne Convention relates to literary and artistic works, which includes films. Sri Lanka is a signatory to the convention, which requires member states to provide protection for every production in the literary, scientific and artistic domain. A core principle is that each signatory would give citizens of other member states the same ownership of copyrights that it gives

its own citizens. The stated purpose of the convention is protection of authors rather than publishers and others, in addition to establishing a system of equal treatment.


Eben Moglen, Professor of Law and Legal History at Columbia University, writes in his dotCommunist Manifesto: “Society confronts the simple fact that when everyone can possess very intellectual workof beauty and utility, reaping all the human value of every increase of knowledge – at the same cost that any one person can possess them, it is no longer moral to exclude … the bourgeois system of ownership demands that knowledge and culture be rationed by the ability to pay.” He also observes “the more we give away, the richer we become.”


It is great, for we journeymen writers to have access to Wikipedia, Google, Word Press and Questia so that we can easily research the drivel we inflict on the world. A lot of this is free to us, so we need to be grateful. However, one feels somewhat differently when the fruits of one’s own labour are lifted. I was rather pleased when I discovered that something I wrote five years ago had re-appeared in the New York Times. I would have been even more pleased if they had paid me- or asked my permission- or even just told me. It came as a worse shock to me later when I saw my own immortal words in print without payment or even a mention of my name. It came as an even worse shock when I saw some more of my words in print in a Sri Lankan newspaper with someone else’s name at the top.


Commenting on press freedom, Moglen says : “When everybody owns the press, then freedom of the press belongs to everybody.” Welcome to the world of citizen journalism.


I have run this article through a plagiarism checker to ensure that I have not unwittingly  ‘borrowed’ someone else’s creative property without attribution.